Opinion
No. 2076 C.D. 2011 No. 2077 C.D. 2011
07-06-2012
Beaumont Retirement Home, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Beaumont Retirement Home (Employer) petitions for review of the October 4, 2011, orders of the Unemployment Compensation Board of Review (Board) reversing the decisions of a referee and granting benefits based on its determination that Diane Bender (Claimant) is not ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
Claimant filed two separate claims for benefits for the Waiting Week Ending May 14, 2011, and for the Compensable Week Ending May 21, 2011 upon the termination of her employment as a certified nursing assistant (CNA) for Employer. The local service center determined that Claimant violated an Employer work rule, of which she was aware or should have been aware, without good cause. (Certified Record (C.R.) Item No. 5.) The service center determined that Claimant was ineligible for benefits for either week under section 402(e) of the Law. (Id.)
Claimant appealed and a hearing was conducted before a referee on July 14, 2011. Claimant testified in support of her claims for benefits. Mary Wells, Employer's director of human resources, Paul McCleary, Employer's director of nursing, and Linda Lemish, Employer's vice president of health services testified in opposition to Claimant's petitions. On July 17, 2011, the referee issued decisions with only three findings of fact and concluded that Claimant was ineligible for benefits due to insubordination. (C.R. Item Nos. 11, 13.) Accordingly, the referee affirmed the service center's determinations and Claimant appealed to the Board.
On October 4, 2001, the Board issued decisions disposing of Claimant's appeals. (C.R. Item No. 15.) The Board addressed facts not referenced by the referee, and issued additional relevant findings consistent with those of the referee, summarized as follows. Claimant was employed as a CNA by Employer from February 1, 2004, to May 20, 2011. (Findings of Fact No. 1.) On May 7, 2011, Claimant was assigned a group of residents that included a resident who was crying and wanted to get dressed. (Findings of Fact Nos. 2, 3.) Claimant was told by her supervisor on three occasions to provide care to the resident. (Findings of Fact No. 4.) Claimant told her supervisor that she wanted to switch with another CNA because she encountered a problem with the resident the previous night. (Findings of Fact No. 5.) Claimant was trained that if she had a problem with a resident she needed to remove herself and have another co-worker handle the matter. (Findings of Fact No. 10.) The resident told Claimant the night before to leave her the "hell alone". (Findings of Fact No. 6.) Claimant's supervisor ignored Claimant's request to switch with another CNA. (Findings of Fact No. 7.) Claimant overheard her supervisor tell another CNA not to switch with Claimant. (Findings of Fact No. 8.) Claimant did not ask another CNA to switch with her. (Findings of Fact No. 9.) Claimant provided care to the resident after the company's president told Claimant that if she did not provide care she should go home. (Findings of Fact No. 10.) The Board found that Claimant was discharged for patient neglect. (Findings of Fact No. 11.)
Based on the foregoing, the Board concluded:
In this case, the claimant admitted that she initially refused to provide care to the resident. The claimant, however, asked to be "switched" with another CNA because of an incident with the resident the night before. The resident informed the claimant to leave her "the hell alone."(C.R. Item No. 15.) Accordingly, the Board reversed the referee's decision and granted Claimant's petitions for benefits.
Here, the claimant offered uncontradicted testimony that her supervisor ignored her request to "switch" with another CNA, and furthermore, that she heard her supervisor tell the CNA not to switch with her. Because the claimant had a prior incident with the resident the night before, and because the claimant asked to be "switched" for a legitimate reason, the Board cannot conclude that the claimant intentionally neglected the patient when she initially refused to take care of the resident. As such, the claimant is not ineligible for benefits pursuant to Section 402(e) of the Law.
In this appeal, Employer claims that the Board erred in granting Claimant benefits because her violation of Employer's work policy regarding resident care without good cause constitutes disqualifying willful misconduct under section 402(e) of the Law. We disagree.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
Under section 402(e), an employee is ineligible for unemployment compensation benefits when she has been discharged from work for willful misconduct connected with her work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id.
Although the term willful misconduct is not defined by statute, it has been described as: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior that an employer can rightfully expect from its employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Guthrie, 738 A.2d at 521 (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)).
An employer seeking to prove willful misconduct based on a violation of a work policy must establish the existence of a reasonable work policy and its violation by the employee. Guthrie, 738 A.2d at 522. If the employer proves the existence of the policy, the reasonableness of the policy, and the fact of its violation, the burden of proof shifts to the employee to prove that she had good cause for her actions. Id. The employee establishes good cause where her actions are justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976); Guthrie. Whether a claimant has good cause to violate a work policy is a question of law subject to our review and should be viewed in light of all the attendant circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
In this case, the Board found as fact that Claimant was trained by Employer that if she had a problem with a resident, she needed to remove herself and have another co-worker handle the matter; the resident that Claimant purportedly neglected told Claimant the prior night to leave her the "hell alone"; Claimant's supervisor ignored Claimant's request to switch residents with another CNA; and Claimant did not ask another CNA to switch with her because she overheard her supervisor tell the other CNA not to switch residents with Claimant. (C.R. Item No. 15.) These findings are supported by Claimant's testimony at the referee's hearing. (C.R. Item No. 10; N.T. 7/14/11 at 9, 11-14.)
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). Thus, issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831. This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn therefrom. Id.
"N.T. 7/14/11" refers to the transcript of the referee's hearing. --------
When viewed in a light most favorable to Claimant, there is ample substantial evidence supporting the Board's determination that Claimant had good cause to violate Employer's work rule regarding resident care. In fact, Claimant's testimony shows that she communicated to her supervisor that she wanted to obtain care for the resident from another CNA in accordance with her training, and that her attempt in this regard was both ignored and frustrated by her supervisor. In sum, in this case, the Board was free to weigh the evidence and to credit Claimant's testimony that her actions were justifiable under the circumstances thereby precluding a finding of willful misconduct under section 402(e) of the Law.
Contrary to Employer's assertion, the evidence in this case does not show that the resident was neglected for three hours on the morning at issue. Paul McCleary, Employer's director of nursing, testified that residents generally begin eating breakfast in the dining hall between 8:00 a.m. and 9:15 a.m. and that they are supervised at that time. (N.T. 7/14/11 at 8.) He stated that the residents are then taken from the dining hall to the receptionist's desk in the lobby where they can sit for 15 to 45 minutes depending on the situation. (Id. at 8-9.) Claimant testified that she was feeding another resident at 9:55 a.m. when her supervisor told Claimant that the resident was at the receptionist's desk and was upset because she wanted to get dressed. (Id. at 11.) At that time, Claimant told her supervisor about the incident the night before, told him that she wanted to switch residents, and the supervisor walked away. (Id.) Claimant ultimately provided care to the resident at 10:20 a.m. when Employer's president told Claimant to do so or to go home. (Id.) Thus, the record supports the Board's determination that Claimant acted in conformance with Employer's training. Indeed, the record reflects that the actions of Claimant's supervisor contributed to, and exacerbated, the situation that Employer purports to be Claimant's disqualifying willful misconduct.
Moreover, the cases cited by Employer in support of reversal of the Board's order are inapposite. None of those cases involved a claimant acting in conformity with an employer's training coupled with the contribution of her supervisor to the conduct constituting willful misconduct. See Arbster v. Unemployment Compensation Board of Review, 690 A.2d 805, 809-10 (Pa. Cmwlth.), appeal denied, 549 Pa. 718, 701 A.2d 579 (1997) (holding that the claimant's violation of employer's rule prohibiting unauthorized access of computer medical records was not reasonable or justified where she had alternate means of obtaining the information that would comply with the policy); Cassatt v. Unemployment Compensation Board of Review, 642 A.2d 657, 659-60 (Pa. Cmwlth. 1994), appeal denied, 540 Pa. 604, 655 A.2d 992 (1995) (holding that the claimant's deliberate violation of the employer's medical procedures when responding to a patient's accident was not excused by the claimant's assertions that the failure was immaterial to her job as the nurse on duty or that the violation was de minimis); Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461, 463-64 (Pa. Cmwlth.), appeal denied, 538 Pa. 660, 648 A.2d 791 (1994) (holding that the claimant's deliberate violation of the employer's policy regarding the backing up of its trucks was not attributable to inadvertence or mistake); Metropolitan Edison Company v. Unemployment Compensation Board of Review, 606 A.2d 955, 959 (Pa. Cmwlth. 1992) (holding that the claimant's continued refusal to shave his beard to become respirator qualified following initial qualification constituted willful misconduct).
Accordingly, the Board's orders are affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 6th day of July, 2012, the October 4, 2011, orders of the Unemployment Compensation Board of Review are affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge