Nevins v. Unemployment Comp. Bd. of Review

MEMORANDUM OPINION BY JUDGE LEADBETTER

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER

Petitioner, Diane M. Nevins, petitions for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of the unemployment compensation referee denying Petitioner unemployment compensation benefits on the basis that she was discharged from her employment for willful misconduct and, therefore, was ineligible to receive benefits. We affirm.

Petitioner was employed as a dietary aid by Lackawanna Acquisition LLC, doing business as Lackawanna Health and Rehabilitation Center (Employer), since 1996. On August 31, 2012, Employer suspended Petitioner for engaging in a verbal confrontation with a co-worker. Employer terminated Petitioner on September 5, 2012, for violating its policy prohibiting the use of verbal threats, abusive language and violence in the workplace.

Petitioner applied for unemployment compensation benefits. The Unemployment Compensation Service Center determined that Petitioner was ineligible to receive benefits under Section 402(e) of the Unemployment Compensation Law because her conduct constituted willful misconduct. Petitioner appealed the denial of benefits and a referee held a hearing at which Rachel Soden, Employer's director of human resources, and Petitioner testified. Soden submitted into the record several statements prepared by employees recounting the altercation and Employer's disciplinary policy regarding threatening behavior. Soden stated that the disciplinary policy was part of the collective bargaining agreement. Petitioner acknowledged receiving the disciplinary policy. Petitioner testified that while preparing for lunch service on August 31, she ran out of silverware. Petitioner attempted to take silverware from a co-worker in order to complete her lunch preparations. Petitioner and the co-worker then engaged in a verbal confrontation. Petitioner testified that both she and her co-worker called each other names. Petitioner admitted that she told her co-worker that "if you don't shut the f**k up, I'm going to knock you the f**k out." Certified Record, Item 6; Notes of Testimony at 7. Petitioner also testified that it was her co-worker who started the confrontation and that the co-worker had previously threatened her.

The referee determined that Petitioner's actions constituted willful misconduct because her threatening statement to her co-worker did not comply with standards of behavior expected by Employer and her actions were so inimical to Employer's best interest that her discharge from employment was a natural result. Petitioner appealed to the Board, which adopted and incorporated the referee's findings and conclusions, in affirming the referee's denial of benefits. The Board concluded that Petitioner had failed to offer competent and credible testimony to support her assertions that the co-worker instigated the verbal confrontation and had previously threatened her. The Board also determined that Petitioner had not established good cause for behavior leading to her discharge. This appeal followed.

Petitioner argues that her actions did not amount to willful misconduct because she was continually harassed by her co-worker in the months prior to the altercation and Employer had continually failed to provide adequate supplies. Petitioner also claims that Soden failed to bring employee statements to the hearing which would have supported her claim that the co-worker instigated the altercation.

Relevant here, willful misconduct is defined to include a deliberate violation of the employer's work rules. Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001). In an unemployment compensation case, the Board makes all credibility determinations and is the ultimate factfinder. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1269 (Pa. Cmwlth. 2003). This Court must examine the evidence in the light most favorable to Employer as the party who prevailed before the Board and we must give Employer the benefit of all inferences that can be logically and reasonably drawn from the testimony. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). When an employee is discharged for violating a work rule, the employer must prove the existence of the work rule, the reasonableness of the rule, the employee's awareness of the rule, and the fact of its violation. Id. at 607. The burden then shifts to the employee to prove that she had good cause for violating the rule. Id. An employee establishes good cause by showing that her conduct was justified or reasonable under the circumstances. Id.

It is well settled that threats of harm toward a co-worker may disqualify an employee from receiving benefits. Andrews v. Unemployment Comp. Bd. of Review, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993). Petitioner clearly acted in a threatening manner when she told her co-worker to shut up or she would knock her out. She asserts that she had good cause to act in this manner because of her working conditions and because of the co-worker's continuous harassment in the months leading up to the confrontation. The Board found that Petitioner's testimony regarding prior harassment was not credible and we cannot disturb that finding. McCarthy. Consequently, Petitioner failed to establish good cause for her actions and denial of benefits was appropriate.

For the foregoing reasons, we affirm.

/s/_________

BONNIE BRIGANCE LEADBETTER
,

Judge ORDER

AND NOW, this 1st day of October, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.

/s/_________

BONNIE BRIGANCE LEADBETTER
,

Judge