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Jeffrey R. Weingard v. Unemployment Compensation Board of Review

August 10, 2011

JEFFREY R. WEINGARD, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: April 21, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY JUDGE LEAVITT

Jeffrey R. Weingard (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for benefits under authority of Section 402(e) of the Unemployment Compensation Law (Law).*fn1 In doing so, the Board reversed the Referee's determination that Claimant did not commit willful misconduct by asking subordinate employees to loan him money. Discerning no error, we affirm the Board.

Claimant was employed as a distribution specialist by the American Red Cross (Employer) from December 4, 2006, through June 2, 2010, earning $21.99 per hour. Claimant was fired after Employer learned that he attempted to borrow money from his supervisor and five subordinates. Claimant filed a claim for benefits, and the UC Service Center denied his application, concluding that Claimant had disregarded the standards of behavior that an employer has the right to expect of its employees.

Claimant appealed, and the Referee held a hearing. Rozena Kirby, Employer's regional human resources manager, testified that Claimant was terminated for attempting to borrow money from his co-workers. Specifically, Claimant first asked his supervisor for a $1,000 loan and then made the same request of five co-workers that he supervised.

Kirby stated that Claimant violated Employer's code of conduct, which states that an employee shall not "[o]perate or act in any manner that is contrary to the best interests of [Employer]." Certified Record (C.R.), Item 7, Employer's Exhibit 1, at 5. Kirby testified that Claimant received a handbook containing this directive when he was hired, and she produced Claimant's December 4, 2006, written acknowledgement of his receipt of the handbook. Employer viewed it as coercion to ask co-workers or subordinates for a loan, which was contrary to the best interests of Employer. Employer's disciplinary policy further provided that an employee was subject to immediate dismissal for "threatening, intimidating, or coercing another staff member." C.R., Item 7, Employer's Exhibit 3, at 6. Because Claimant's conduct was coercive, he was subject to immediate dismissal.

Steve Sharkey, Claimant's supervisor, then testified that Claimant asked to borrow $1,000 to buy a motorcycle. Sharkey turned down the request, and that was the extent of the conversation. Later, Sharkey received a complaint from one of the employees supervised by Claimant that he asked her for a loan.

When she refused, Claimant noted that she was working a lot of overtime and asked what she did with the money. She reported to Sharkey that the conversation made her uncomfortable. Sharkey reported this to Gladys Farnum.

Farnum, a distribution manager, testified next for Employer. Farnum explained that on May 13, 2010, Sharkey informed her of Claimant's attempts to borrow money from his co-workers. Based on this information, Farnum investigated and learned that Claimant had asked five subordinates for a loan. Farnum also interviewed Claimant. When Farnum informed Claimant it was inappropriate to ask subordinate employees for a loan, he replied that he had a friendly relationship with the employees and did not think it would create "an issue" to ask. C.R., Item 7, Notes of Testimony (N.T.), at 8.

Claimant, who appeared pro se, then testified. He explained that one of his co-workers, who was having financial difficulties, decided to sell a motorcycle that Claimant wanted to buy. Claimant's poor credit made it impossible to get a bank loan, so he asked Sharkey for a loan. Claimant testified that when he asked the five other employees for a loan, he did not threaten them in any way or think the request would make them uncomfortable because they were all on friendly terms. The week after it happened, Claimant apologized to everyone. He stated that the investigation went on for three weeks, and he was surprised when he was terminated.

The Referee found that Employer had the burden of establishing a rule violation and failed to meet it. The Referee observed that Employer's policy did not address loans to or from subordinates or state that requesting such loans would be grounds for immediate termination. The Referee was not persuaded that Claimant's conduct amounted to coercion. The Referee reasoned that had Employer really believed Claimant's conduct was egregious, it would have fired him immediately, not three weeks later. The Referee reversed the decision of the UC Service Center and awarded Claimant benefits.

Employer appealed to the Board. The Board found that Employer established the existence of a policy prohibiting Claimant from acting in a manner contrary to Employer's best interests. It also found that Claimant violated this policy by asking his supervisor and subordinates to borrow money. Claimant's belief that his co-workers were his friends did not establish good cause for violating the policy. The Board also found that Claimant's attempt to borrow money from his subordinates fell below the reasonable standards of behavior that an employer ...


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