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Alston v. Unemployment Compensation Board of Review

February 19, 2009

DEBORAH ALSTON, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Pellegrini

Submitted: December 10, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Deborah Alston (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee finding her ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law*fn2 because her actions towards her supervisor and co-workers were without good cause and constituted willful misconduct.

The following facts are not in dispute. From August 10, 1998, to February 22, 2007, the Pennsylvania Liquor Control Board (Employer) employed Claimant as a full-time liquor clerk. In December 2005, Claimant received a warning for conduct unbecoming of a commonwealth employee due to her use of profane language in the presence of customers. She was advised that any additional misconduct could result in her termination. In May 2006, Claimant received a second warning for conduct unbecoming a commonwealth employee because she directed loud, rude and argumentative remarks at a customer. Again, she was advised that she would be terminated from her employment for any further misconduct.

On December 3, 2006, Claimant and another co-worker engaged in an argument in front of customers at which time Claimant's supervisor directed that she and the co-worker stop. Claimant continued to argue with her co-worker despite the supervisor's directions. On December 23, 2006, Claimant argued with a customer because the customer had placed the money that he was using to make a purchase on the counter instead of placing it in Claimant's hand. When returning the customer's change, Claimant laid the money on the counter instead of placing it in the customer's hand. Claimant's supervisor directed her to place the change in the customer's hand, which she refused to do. Claimant's supervisor then placed the change in the customer's hand and apologized for the inconvenience. Finally, on December 24, 2006, Claimant used the "N" word during a conversation with another employee. [Note: All employees involved were apparently African-American.] After Employer investigated the events described above, Employer discharged Claimant citing conduct unbecoming a commonwealth employee.

Claimant filed for unemployment compensation benefits, but those benefits were denied because the Unemployment Compensation Service Center found her discharge was for willful misconduct without good cause for her actions. Claimant filed an appeal, and a hearing was conducted before a Referee.

I.

Before the hearing, Claimant attempted to obtain subpoenas for two assistant store managers to Roxanne Chambers (Chambers), Claimant's supervisor and the store's general manager. In her letter requesting the subpoenas, Claimant stated: "This request is needed as both Ms. Chambers' assistants witnessed first hand how Ms. Chambers prevented me from doing my work and also chose to single me out to write me up for things everybody else did as well." However, Claimant's request for the subpoenas was denied.

At the hearing, Employer called Sharon Cooper-Powell (Cooper-Powell), its assistant regional manager, and William Harter (Harter), the district manager, both of whom testified generally regarding the termination process. Cooper-Powell testified that Claimant was terminated on February 22, 2007, for conduct unbecoming a commonwealth employee that occurred on the following dates: December 3, 2006, December 23, 2006, and December 24, 2006, and that she had been disciplined in the past for similar infractions and warned that if she committed a similar infraction, she would be terminated pursuant to the disciplinary process. Harter testified that Chambers made him aware of Claimant's unbecoming conduct, and that he delivered the termination papers to Claimant during her shift at the store. In addition to the testimony described above, several documents were submitted as exhibits, including two letters from Employer detailing prior acts of conduct unbecoming a commonwealth employee dated December 21, 2005, and May 10, 2006.

As to the conduct that led up to the termination, Chambers testified that she observed Claimant's conduct on December 3, 2006, and December 23, 2006. As to the December 3, 2006 incident, she testified that when she came out of the restroom, she heard of lot of yelling and screaming and went to the front of the store where Claimant and another employee, Terry McMillan (McMillan), were arguing back and forth. Chambers testified that she asked what was going on and that McMillan told Claimant that it was her job to be in the front waiting on customers. Claimant responded that she could not tell her what to do because she was not her boss. Chambers testified that she told them that they had to be quiet or they would be written up for insubordination, but that Claimant had more to say while McMillan was quiet. Chambers testified that after this incident, she called Harter to inform him of the situation.

As to the December 23, 2006 incident, Chambers testified that she noticed Claimant at the counter arguing with a customer. Chambers testified that Claimant told her the customer did not put the money in her hand because he was paying for a purchase, and that when she told Claimant to take the money off of the counter and to put it in the drawer, Claimant seemed to have a problem with that direction. Chambers further testified that when it was time to give the customer back his change, Claimant laid the change on the counter instead of putting it in his hand, which prompted her to ask Claimant to pick it up and she refused. Chambers testified that she picked up the change, put it in the customer's hand, and apologized for the inconvenience. In addition, Chambers testified that this customer seemed irritated and, from the look on his face, did not understand why she would not pick up the money from the counter. Chambers added that Claimant said, "[S]he's not going to let customers treat her any kind of way. She wanted to be respected by customers." (April 6, 2007 Hearing Transcript at 12.) Chambers also testified that Claimant made these remarks in a loud voice because she was upset and felt customers should respect her.

As to the December 24, 2006 incident, Chambers testified that it was brought to her attention by another manager and two other clerks that Claimant was being argumentative and made a racial comment, but that she did not actually hear the comment being made.

In her testimony, Claimant stated that Chambers did not tell the truth in her testimony regarding the December 3, 2006 incident. Claimant explained that she and McMillan were arguing at the register, while Chambers was in the office. Claimant testified that she walked to the office first to explain that she was not there to be arguing with McMillan, to which Chambers told both of them to stop arguing. Claimant testified that at the time she was speaking to a customer and McMillan thought she was talking about her, she explained to McMillan and the customer that ...


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