          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jesse Benson,                             :
                          Petitioner      :
                                          :
                   v.                     :   No. 352 C.D. 2015
                                          :   SUBMITTED: August 28, 2015
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :



BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                              FILED: January 13, 2016


             Claimant, Jesse Benson, petitions pro se for review of an order of the
Unemployment Compensation Board of Review (Board) that affirmed the decision
of a referee denying him unemployment compensation benefits, concluding that his
actions constituted willful misconduct under Section 402(e) of the Unemployment
Compensation Law (Law).1          We consider whether a call center company
established an employee’s willful misconduct where he failed to end a call with the
required script for one of its clients and failed to answer questions from a client’s


   1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
customer regarding his location. We conclude that Claimant’s actions constituted
willful misconduct and, therefore, affirm.
             From September 2013 to August 2014, Claimant worked for $8.00 per
hour as a part-time communicator for Employer Infocision, a call center company
with multiple clients.        Claimant was aware of Employer’s policy for
communicators, which provided: “employees must adhere to the script, must make
second requests in accordance with the client’s script, and must accurately record
all pledges, volunteers or sales.” Board’s December 31, 2014 Decision, Finding of
Fact (F.F.) No. 2. Further, Employer could immediately discharge an employee for
extreme rudeness, refusal to follow call procedures after multiple warnings or
multiple hang-ups on donors. Id., No. 3.
             On August 19, 2014, Employer received a complaint that Claimant
had been rude to a customer during a call. After reviewing a recording of the call,
Employer learned that Claimant had ignored questions from a customer of one of
its clients and had ended the call contrary to Employer’s script for that client. Id.,
Nos. 8 and 9. Specifically, when the customer asked Claimant in which state he
was located, Claimant replied “thank you” and ended the call.           Id., No. 10.
Employer’s script for that particular client required Claimant to end the call as
follows: “Thank you for calling LaSalle Plumbing, Heating and Air Conditioning.
Have a wonderful day.” Id., No. 11. Pending an investigation of the incident,
Employer suspended Claimant on August 19. On August 25, Employer discharged
Claimant on the ground that the customer call at issue was in violation of its
policy, inter alia, requiring him to adhere to a script. Id., No. 13.
             Employer terminated Claimant pursuant to its progressive discipline
policy, which provided:       “a verbal warning, written warning, one (1) day



                                           2
suspension, final warning/three (3) day suspension, and termination.” Id., No. 5.
Claimant had already progressed through the process and received a final warning
and three-day suspension in May 2014. Id., No. 6. In the final warning preceding
the three-day suspension, Employer had also reminded Claimant that he had to
adhere to the script. Id., No. 7.
              Claimant applied for benefits and the Department of Labor and
Industry determined that he was eligible. Certified Record (C.R.), Item No. 6,
September 22, 2014 Notice of Determination. Employer appealed and the referee
held a hearing where Claimant and three witnesses for Employer appeared and
testified.   The referee reversed the Department’s determination.                 The Board
affirmed, determining that Employer established willful misconduct via Claimant’s
failure to adhere to Employer’s policy requiring him to follow the client’s script
and to answer a customer’s questions. In addition, the Board concluded that
Claimant failed to establish good cause for his conduct, resolving the conflicts in
testimony, in relevant part, in favor of Employer’s witnesses. Claimant’s petition
for review followed.2
              Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n which his unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work . . . .” The term “willful misconduct” has been defined to include:
1) the wanton and willful disregard of the employer’s interests; 2) the deliberate
violation of rules; and 3) the disregard of standards of behavior which an employer


    2
      Whether a claimant’s actions constitute willful misconduct is a question of law over which
we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162
(Pa. Cmwlth. 2012).



                                               3
can rightfully expect of its employee. Glatfelter Barber Shop v. Unemployment
Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008). The employer bears
the initial burden of proving that a claimant engaged in willful misconduct and, if
the willful misconduct charge is based upon a violation of a work rule, the
employer must prove the existence of the rule, its reasonableness, and that the
employee was aware of the rule. Brown v. Unemployment Comp. Bd. of Review,
49 A.3d 933, 937 (Pa. Cmwlth. 2012). Once an employer satisfies its prima facie
case, the burden shifts to the claimant to demonstrate that the rule was
unreasonable or that he had good cause for his conduct. Id. The claimant has good
cause if his action “is justifiable or reasonable under the circumstances.”
Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. 1976).
              On appeal, Claimant argues that the Board’s determination of willful
misconduct cannot stand where Employer first maintained that it fired him for
rudeness but later asserted that it fired him for failure to adhere to the script. He
contends that there is no indication that his conduct during the call was rude or
outlandish.     In addition, he challenges Employer’s overall credibility.
Accordingly, he requests that we reverse the Board’s determination and restore his
benefits.
              Contrary to Claimant’s argument, Employer’s initial characterization
of his conduct as rude does not vitiate the basis for the termination that it arrived at
after its investigation: failure to follow Employer’s policy, which was also the
basis of the Board’s decision. Call center supervisor Erik Bachinger testified that
the problem with Claimant’s handling of the call was with its closing, specifically,
the fact that he ignored the customer’s question and hung up on her without
reciting the remainder of the script (“Thank you for calling LaSalle Plumbing,



                                           4
Heating and Air Conditioning. Have a wonderful day.”). C.R., Item No. 10,
November 5, 2014, Notes of Testimony (N.T.) at 10-11. In other words, where
Employer required Claimant to recite the aforementioned scripted closing,
Claimant closed with “Thank you.” Id., N.T. at 10.
               As a result of its investigation, Employer suspended Claimant for
willfully failing to perform his job as trained, exhibiting poor internalization,
violating the client file policy agreement and failing to answer questions from a
client’s customer.      C.R., Item No. 7, August 19, 2014 Employee Counseling
Notice. In its subsequent discharge letter, Employer stated that it was terminating
Claimant’s employment “for willful failure to follow company rules or
procedures.” Id., August 25, 2014 Termination Letter. Enumerating Claimant’s
history of warnings and suspensions,3 Employer specifically referenced the
incident in question:
               During a client monitoring, it was observed that you did
               not handle a Live Answer call appropriately for LaSalle
               Plumbing. There were excessively long pauses on your
               part during the call which took away from the customer
               experience, and caused the caller to become frustrated
               with you. You also did not answer the caller’s questions
               which also contributed to her frustrations with you.
Id.

      3
        Claimant’s history involving violations for call center procedures include: July 2014
verbal warning - performance improvement plan; May 2014 final warning/three-day suspension -
client complaint, violation of client file policy agreement; March 2014 one-day suspension -
violation of client file policy agreement; December 2013 written warning - violation of client file
policy agreement and rudeness; December 2013 verbal warning - violation of client file policy
agreement and low quality; and October 2013 final warning/three-day suspension - conduct.
C.R., Item No. 7; August 25, 2014 Termination Letter. To the extent that a witness for Employer
testified that violations involving its attendance policy are on a different track than the ones
involving call center procedures, we have not included the former in this recitation. C.R., Item
No. 10, November 5, 2014, N.T. at 8.



                                                5
              Here, the Board’s findings reflect that Claimant violated Employer’s
policy concerning adherence to the “script” after multiple warnings and a final
suspension. These findings are not challenged on appeal, nor has Claimant made
any showing that he had good cause for not adhering to the “script.”4
              For all the above reasons, we affirm the order of the Board.




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge




    4
       Although the Board resolved the conflicts in testimony in favor of Employer, we note
Claimant’s explanation for how he managed the call at issue and why he avoided relating his
location to the customer: “First, there are some 7-13 live answer scripts. 2nd, the script . . .
directed me to say ‘I’m the receptionist,’ which automatically assumes that I’m in CA. Then for
me to say, I’m in West. PA - says I’m a lier [sic].” C.R., Item No. 3, Employer’s August 17,
2014 Communicator Incident Conference Sheet.



                                               6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jesse Benson,                         :
                      Petitioner      :
                                      :
                 v.                   :     No. 352 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


            AND NOW, this 13th day of January, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Judge
