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Halloran v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

June 4, 2018

James Halloran, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

          Argued: May 7, 2018

          BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          MICHAEL H. WOJCIK, JUDGE

         James Halloran (Claimant) petitions for review of the June 7, 2017 order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision and held that Claimant is ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).[1] We affirm.

         Claimant was employed as a bus driver for the Beaver County Transit Authority (Employer) from August 24, 2015, until November 7, 2016. At the relevant time, Claimant was assigned to drive "route 3, " which runs along Pennsylvania Route 65 (Route 65) from Beaver County into the City of Pittsburgh. The Pennsylvania Department of Transportation (PennDOT) closed Route 65 for construction, and, beginning on May 23, 2016, Employer directed route 3 drivers to follow a detour inbound to Pittsburgh. On October 24, 2016, and October 25, 2016, after a passenger advised Claimant that Route 65 was reopened, Claimant stopped following the inbound detour. Employer did not officially lift the detour until October 26, 2016.

         Employer maintains a progressive discipline policy that requires a verbal warning, a written warning, a one-day suspension, and a two-day suspension prior to discharging an employee. Claimant had previously received a verbal warning and a written warning, as well as a one-day and two-day suspension. On November 7, 2016, Employer terminated Claimant's employment, citing an altercation that occurred on October 21, 2016, and his failure to follow the detour on October 24-25, 2016.[2]

         The local job center determined that Claimant was not ineligible for benefits under Section 402(e) of the Law because, although Employer discharged Claimant for violating a work rule, it did not present sufficient information to show that Claimant was aware of or should have been aware of the work rule. Employer appealed, and the matter was assigned to a referee. At a January 26, 2017 hearing, Employer participated with counsel and Claimant proceeded pro se.

         Beth Bennett, Employer's operations manager, testified that her responsibilities include supervising dispatch and all daily operations, including discipline and discharge. Notes of Testimony (N.T.) at 3. Bennett stated that Claimant was given a notice of termination on November 7, 2016, which stated that Claimant was discharged based on his failure to follow the posted detour on October 24, 2016, and October 25, 2016, and his involvement in an altercation with the dispatcher on October 21, 2016, which created a hostile work environment.

         Bennett stated that she was sitting in dispatch on October 25th when Claimant came to the window and mentioned to dispatcher Joseph Honie that Route 65 was now open. Bennett testified that she, Honie, and another employee were discussing the need to get clarification. N.T. at 3.

         Bennett said she learned of Claimant's failure to follow the posted detour when calls came in asking why drivers were taking different routes. She followed up on the calls by replaying GPS data and learned that, for two consecutive days, Claimant did not follow the detour but instead took Route 65 into Pittsburgh. She noted that the other drivers assigned to route 3 had followed the detour. Bennett testified that she conducted an investigative meeting on October 31, 2016, which was attended by Claimant, a union representative, and another employee. She said that Claimant acknowledged that he did not take the detour, explaining that passengers had told him Route 65 was open and that the dispatcher gave him permission to return to his regular route. More specifically, Claimant stated that he called dispatch, said he had learned that Route 65 was open, and the dispatcher responded, "That's what I hear." N.T. at 5.

         Bennett testified that the detour for Claimant's route was still in effect and posted on October 24th and 25th. She explained that drivers are supposed to take the routes that are posted on dedicated boards at the entrance to Employer's facility. She said that the drivers rely on the boards as a communication tool that notifies them of detours due to construction and road closures. Bennett stated that, during orientation, she specifically points out to trainees the importance of reviewing the board "every single day when they come in." N.T. at 5. She said that if drivers have questions or concerns, they go to dispatch for clarification. Id. Bennett noted that the public also is notified of detours, through posted notices, information on Employer's website, and tweets. N.T. at 6. She explained that, before lifting a detour, Employer has to make up new notices, take down the old ones, and post the new information for the public. Id. She added that Employer is required to report detours and routes to the state for calculation of "revenue miles." Id.

         Bennett also testified that Employer's progressive discipline policy and rules of conduct are included in the bus operator handbook that Claimant received, and she reviewed Claimant's disciplinary record. She then related details about a verbal altercation between Claimant and a coworker on October 21, 2016, and stated that Claimant would have been discharged solely as a result of that incident.[3] N.T. at 10-13.

         In response to questions by Claimant, Bennett testified as follows:

C Did you talk to Joe (inaudible), and did he say that I…
EW2 I did.
C … radioed him before I left Rochester asking if 65 was open?
EW2 That is correct. You said, I hear 65 is open. And Joe said, that is what I hear. You did not ask permission, and Joe did not give you permission.
C I would assume …
R Do you have any other ...

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