Williams v. Unemployment Compensation Board of Review

926 A.2d 568, 2007 Pa. Commw. LEXIS 308

Opinions

OPINION BY

Senior Judge McCLOSKEY.

Crystal Williams (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), affirming the decision of a Referee and denying Claimant benefits on the grounds of willful misconduct, pursuant to Section 402(e) of the Unemployment Compensation Law (Law).¹ We affirm.

University of Pittsburgh Medical Center (Employer) hired Claimant to work as a billing/registration clerk in 1994. She worked for Employer until February 15, 2006, at which time she was terminated for violating Employer’s harassment policy.

At the hearing before the Referee, Tracy Rechter, a human resources consultant for Employer, testified regarding Employer’s written harassment policy. Ms. Re-chter explained that the policy defined harassment as “verbal or physical conduct that demeans or shows hostility or hatred towards an individual because of his or her race, color, religion, sex, sexual orientation, national origin, age or disability or that of his or her relatives, friend or associates.” (Original record, Referee hearing at 15). The policy further provided that “harassing conduct includes but is not limited to the following[:] nicknames, slurs, labels, negative stereotyping or threatening, intimidating or hostile acts that relate to race, color, religion, sex, sexual orientation, national origin, age or disability.” (Origi nal record, Referee hearing at 15). A violation of the policy provides for a penalty up to and including immediate discharge. (Original record, Referee hearing at 15).

Ms. Rechter explained that Employer’s policies are posted on the company’s infon-et to which Claimant has access. The employees were also given copies of the harassment policy. Additionally, the policy was also part of Employer’s diversity training program, which Claimant attended.

Ms. Rechter explained that an employee had made a written complaint that Claimant had used the term “zebra” to describe biracial children. Following an investigation of the complaint and an interview with the Claimant, wherein Claimant admitted to using the term, Claimant was fired.

Dana Klein, a co-worker, testified on behalf of Employer. She stated that she filed a complaint against Claimant regarding racial remarks made by Claimant.

Ms. Klein, who is white, testified that Claimant, who is black, informed Ms. Klein not to drink out of her cup as Claimant did not want to turn white. Claimant also stated, when discussing a black professional football player, that she was glad he was not with a white woman. Also, when family members of a co-worker arrived at work, Claimant asked the family members if.they had brought the “zebra baby” with them. (Original record, Referee hearing at 21).

Ms. Klein explained that she has two biracial children. Ms. Klein claimed that Claimant was aware of this prior to making the statements about “zebras.” Ms. Klein also claimed that when she gave birth to her biracial daughter, Claimant informed her that her daughter would be confused about what color she was.

Ms. Klein stated that on February 13, 2006, Claimant returned to work following a dentist appointment. In discussing a child she saw during the appointment, she stated that she was “cute for a Zebra.” (Original record, Referee hearing at 21). Ms. Klein stated that she was hurt and offended by the comment and that she considered it to be a racial slur.

Ms. Klein stated on one occasion, when Claimant made a comment about “a zebra,” Ms. Klein responded by saying “I think you forget that I’m white when you say such things.” (Original record, Referee hearing at 22). However, the comments continued.

Chekesha Fincher, a co-worker, also testified on behalf of Employer. She claimed to be present when family members of another co-worker arrived at work and Claimant noted that they did not bring the “little zebra baby” with them. Ms. Finch-er stated that she was offended and insulted by the remark as she had friends with biracial children.

Next to testify was Claimant. She stated that on February 13, 2006, she made the comment “I would have been in hours ago but my dentist’s daughter, cute as she can be, bad little zebra, was having a fit and a tantrum which got her behind,” (Original record, Referee hearing at 38). She stated that she used the term “zebra” to refer to children half black and half white, but that she did not consider it to be a derogatory or hurtful term.²

The Referee determined that Claimant’s used of the word “zebra” was a violation of Employer’s harassment policy. As such, it was determined that Claimant’s actions constituted willful misconduct. Claimant then appealed to the Board. The Board found Employer’s witnesses to be credible. The Board further found that Claimant’s use of the word “zebra” constituted a nickname or label relating to race, which violated Employer’s harassment policy. It was determined that Claimant did not establish good cause for this violation. As such, the decision of the Referee was affirmed.³

Claimant now appeals to this Court.⁴ Claimant alleges that she did not know the term “zebra” was offensive, that the term “zebra” is not a racial slur and that she did not deliberately violate Employer’s policy.

Willful misconduct is defined as follows:

(1) an act of wanton or willful disregard of the employer’s interest;

(2) a deliberate violation of the employer’s rules;

(3) a disregard of standards of behavior which the employer has a right to expect of an employee; and

(4) negligence indicating an intentional disregard of the employer’s interest or the employee’s duties and obligations to the employer.

Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (1996), petition for allowance of appeal denied, 547 Pa. 757, 692 A.2d 567 (1997).

In the instant case, Employer’s allegation of willful misconduct stems from the alleged violation of a work rule. To meet its burden of proof in establishing willful misconduct in the violation of a work rule, an employer must establish the existence of the rule, its reasonableness, and that the employee was aware of its existence. Bishop Carroll High School v. Unemployment Compensation Board of Review, 125 Pa.Cmwlth. 302, 557 A.2d 1141 (1989), petition for allowance of appeal denied, 525 Pa. 604, 575 A.2d 569 (1990). Employer must also establish that the employee actually violated the rule or policy in question. Arbster v. Unemployment Compensation Board of Review, 690 A.2d 805 (Pa.Cmwlth.), petition for allowance of appeal denied, 549 Pa. 718, 701 A.2d 579 (1997). Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993).

In the present case, Employer presented evidence establishing that it had a harassment policy that prohibited the use of racial nicknames, slurs or labels and that Claimant was aware of the policy. Claimant did not deny that she was aware of the policy and admitted that she called biracial children “zebras” in front of her co-workers. As such, Employer met its burden of establishing that Claimant violated a known work rule.

Claimant argues that she had good cause for violating the rule in that the term “zebra” is not offensive and, even if it is offensive, she did not intend it to be offensive. The Board rejected Claimant’s argument that she did not know the term “zebra” was offensive. We accept the Board’s determination as to Claimant’s credibility in claiming that she did not know that the term was offensive.⁵

We further note that Claimant admitted that it was her intent to use the term “zebra” to describe biracial children. This was an intentional violation of Employer’s harassment policy as the policy prohibited the use of racial nicknames, slurs or labels. As Claimant intended to use the term' “zebra” as either a racial nickname, slur or label, it is irrelevant whether or not she also intended it be offensive.⁶

Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 8th day of June, 2007, the order of the Unemployment Compensation Board of Review is affirmed.

Footnotes

1

. Act of December 5, 1936, Second Ex.Sess., P.L. (1937), 2897, as amended, 43 P.S. § 802(e).

2

. Claimant also introduced the testimony of some of her fellow co-workers who stated that they were not offended by the use of the term "zebra.”

3

. The Board further found that Claimant’s use of the word "zebra” was a violation of the standard of behavior an employer has a right to expect from an employee.

4

. Our scope of review is limited to determining whether the Claimant's constitutional rights were violated, whether an error of law was committed, or whether substantial evidence supports the findings of fact. Steinberg Vision Associates v. Unemployment Compensation Board of Review, 154 Pa.Cmwlth. 486, 624 A.2d 237 (1993). Whether a Claimant’s conduct constitutes willful misconduct is a question of law subject to our review. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa.Cmwlth.2000).

5

. “[Tjhe Board is the ultimate fact finder and is empowered to make credibility determinations.” Hempfling v. Unemployment Compensation Board of Review, 850 A.2d 773, 777 (Pa.Cmwlth.2004).

6

. Claimant also argues that Employer fired her for using a racial slur and, as such, the Board could not find that she committed willful misconduct due to the use of a racial nickname or label. We disagree. Claimant was fired for using the term “zebra” in violation of Employer’s harassment policy. (Original Record, letter of termination at 3). Under the policy, harassment includes the use of nicknames, labels, slurs, negative stereotyping or threatening, intimidating or hostile acts that relate to race.