Opinion
No. 56 C.D. 2013
08-16-2013
Chester Community Charter School, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Chester Community Charter School (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision awarding Claimant unemployment compensation benefits. For the reasons set forth below, we vacate and remand for further proceedings.
Claimant filed for unemployment compensation benefits subsequent to her discharge from employment with Employer. The Philadelphia UC Service Center (Service Center) determined that Claimant was eligible for unemployment compensation benefits. (Certified Record (C.R.), Item No. 4.) Employer appealed the Service Center's determination, arguing that Claimant was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct, and a Referee conducted a hearing. Following the hearing, the Referee issued a decision in which she affirmed the Service Center's determination and found Claimant eligible for unemployment compensation benefits. (C.R., Item No. 9.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
At the hearing before the Referee, Employer presented the testimony of Donald Odom, Principal, and Susan Wadkins, Director of Human Resources. Claimant testified on her own behalf.
Ms. Wadkins testified that Employer terminated Claimant's employment as a school teacher based on a violation of Employer's Code of Conduct, specifically provision numbers 37 and 40. (C.R., Item No. 8 at 6.) Ms. Wadkins testified that provision 40 provides that employees shall not make "inappropriate remarks and comments to other employees and/or students, including but not limited to gender, racial, sexual, religious, et cetera connotations." (Id. at 6 & "Employer's Ex. 1.") Ms. Wadkins testified that provision 37 provides that "physical or verbal abuse of a student or employee" is not permitted. (Id.) Ms. Wadkins also testified that Claimant acknowledged acceptance of Employer's Code of Conduct on August 30, 2011, by signing an acknowledgment form. (Id. at 7.) Ms. Wadkins testified that she became aware of Claimant's conduct via Mr. Odom on May 31, 2012. (Id. at 9.)
Mr. Odom testified primarily about the events leading up to Claimant's termination of employment. Specifically, Mr. Odom testified that a parent of a student in Claimant's class contacted him on May 31 to report that Claimant called the students derogatory names. (Id.) Mr. Odom testified that he reported the claims to Human Resources immediately, because Claimant had a history of making derogatory comments to her class. (Id. at 10 & "Employer's Ex. 3.") Mr. Odom testified that he then met with Claimant and Ms. Corbin, a human resources assistant, to discuss the allegations. (Id. at 11.) Mr. Odom testified that Claimant did not deny making the comment about the student, but rather she defended herself by stating that the student had an attitude. (Id.) Mr. Odom testified that he then interviewed eleven other students from Claimant's class separately, and all the students gave relatively the same story, which he believed was truthful. (Id. at 12, 17.) Mr. Odom testified that the students told him that Claimant made comments that the students were "idiotic," "losers," "fools," "big fat babies," and "ignorant." (Id. at 11-12.) Mr. Odom testified that two students reported that Claimant called them "dummies," "jackasses," and "bitches." (Id. at 13.) Mr. Odom testified that he reported this information to Human Resources, and Employer terminated Claimant's employment on June 1, 2012. (Id. at 14.) Mr. Odom testified that at the termination meeting, Claimant denied all the allegations but admitted that the students may have heard her mumble comments under her breath. (Id. at 14.) Mr. Odom also testified that Claimant had issues with making comments towards students in the past, but despite Employer's offer to help Claimant work through it, Claimant failed to use proper follow up procedures, which included contacting parents and submitting behavior referrals to deal with student behavior. (Id. at 16.)
In response, Claimant testified that she did not make any derogatory comments to the students. (Id. at 17.) Claimant admitted that when students frustrated her she did occasionally mumble comments under her breath such as "idiot" or "moron," but never mumbled "jackass" or "bitches." (Id. at 18.) Claimant testified that she did not say these things directly to the students. (Id.) Claimant testified that the prior incident where she was accused of making derogatory comments to a student was unfair and that she was provoked in a manner that justified her actions. (Id. at 18-19.)
Following the hearing, the Referee issued a decision, which affirmed the Service Center's determination finding Claimant eligible. (C.R., Item No. 9.) In so doing, the Referee issued the following findings of fact:
1. The claimant was employed as a full-time teacher [at] Chester Community Charter School earning $40,400 per year. The claimant began employment August 31, 2009, and was last employed on June 1, 2012.
2. The employer has a code of conduct, which provides, in part, physical or verbal abuse of a student or inappropriate remarks and comments to employees and/or students is an infraction subject to disciplinary action up to and including termination of employment.
3. The claimant was aware of the employer's code of conduct.
4. On January 27, 2012, the employer gave the claimant a disciplinary memorandum regarding the claimant's classroom management and over emotional response.
5. On May 31, 2012, the principal received a phone call from a parent, whose child reported the claimant called her students "losers," "ignorant," and "idiots." The parent also reported the child said the claimant told her class to "shut up."
6. The principal and a member of human resources met with the claimant on May 31, 2012, at which
time the claimant was informed of the complaint made by the parent.(C.R., Item No. 9.)
7. The claimant responded to the complaint by informing the employer the child had an attitude, and was told she could not participate in a lab activity, after which the child went home and told her mother.
8. After meeting with the claimant, the principal interviewed the student at issue, as well as 11 other students from the claimant's classroom, who reported the claimant made statements such as the students were ignorant or idiots, they were disrespectful, the claimant called them morons, big fat babies, and other negative statements.
9. The employer completed its investigation, and found the students were being truthful in their report, and discharged the claimant for violation of the code of conduct.
The Referee concluded that although Employer's testimony was credible that Mr. Odom interviewed twelve students and believed the students' accounts were sincere, this evidence constituted hearsay. (Id.) The Referee reasoned that because the evidence was hearsay and uncorroborated, Employer failed to establish through first-hand knowledge that Claimant engaged in the behavior that led to her discharge. (Id.) Essentially, the Referee found that Employer did not meet its burden of proof under Section 402(e). (Id.) On appeal, the Board affirmed the Referee's decision and adopted the Referee's findings of fact and conclusions of law. (C.R., Item No. 13.)
On appeal, Employer essentially argues that the Board erred in concluding that it failed to prove that Claimant's actions rose to the level of misconduct when the Board failed to give the appropriate weight to Employer's evidence. Specifically, Employer argues that the Board erred as a matter of law in failing to consider the hearsay testimony offered by Employer that Claimant called her students derogatory names. Employer argues that the Board erred in affirming the Referee's erroneous application of the legal residuum rule, which disregarded Employer's corroborated evidence of willful misconduct.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
We first address Employer's argument that the Board erred as a matter of law by failing to consider the hearsay evidence submitted by Employer. Employer argues that Mr. Odom's testimony recounting how twelve students he interviewed told him that Claimant called them a variety of derogatory names including "idiotic," "losers," "fools," "big fat babies," and "ignorant," supports a finding that Claimant violated Employer's Code of Conduct. (Id. at 6.) Mr. Odom testified that he believed the students' accounts were truthful because of the consistency in their stories. (Id. at 18.) In her decision, the Referee found Employer credible that it interviewed twelve students and that Employer believed the students' reports were sincere. (C.R., Item No. 9.) Claimant vehemently denies these allegations, however, admitting that she may have mumbled "idiot" or "moron" under her breath, but did not direct the comments towards any student in particular. (C.R., Item No. 8 at 18.)
Both Employer and the Board do not dispute that the students' statements are hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa. R. Evid. 801(c). The students' statements are out of court statements made to their principal, Mr. Odom. Employer did not present any student testimony at the hearing. Employer offered the statements into evidence to prove the truth of the matter asserted—i.e., that the students heard Claimant make derogatory comments to them. We agree that the students' statements are hearsay, and Claimant did not object to the statements' admission at the hearing. The Referee considered the statements uncorroborated hearsay and thus did not consider them. Employer contends that the Board erred by not giving weight to the hearsay statements under the legal residuum rule, because Claimant did not object to the statements at the hearing and there is corroborating evidence of record to support the hearsay testimony.
In unemployment compensation cases, pursuant to the rule under Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), "[h]earsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand." Walker, 367 A.2d at 370. Under Socash v. Unemployment Compensation Board of Review, 451 A.2d 1051 (Pa. Cmwlth. 1982), to corroborate hearsay testimony a party must provide competent evidence to establish "facts adding weight or confirming the hearsay." Socash, 451 A.2d at 1053. Thus, hearsay evidence that is admitted into the record without objection can support a Board finding, but only if it is corroborated by competent evidence in the record.
Here, Employer argues that Claimant's testimony corroborates the out-of-court statements made by the student. We agree with Employer. At the hearing before the Referee, Claimant admitted to making derogatory comments to her students. (C.R., Item No. 8 at 18.) We note the following exchange between Claimant and the Referee:
R: Would you have mumbled any of these things [losers, told them to shut up, ignorant, idiotic] under your breath?(Id.) Claimant's testimony confirms the hearsay testimony given by Mr. Odom that the students heard her call them derogatory names. Claimant admits that she mumbled under her breath "[y]ou're acting like idiots" to the students in her classroom. Claimant's testimony corroborates the hearsay testimony given by Mr. Odom, because it confirms Claimant's conduct towards her students. We also note that Mr. Odom offers first-hand testimony that, when he confronted Claimant with the allegations, Claimant did not deny that she made the derogatory comments. (Id. at 11.) Claimant simply responded that the child had an attitude. (Id.) This first-hand testimony appears to corroborate the hearsay evidence of the students' accounts, because although Claimant offered an explanation for her actions, Claimant did not deny making comments. The Board appears to argue that Claimant's testimony does not corroborate Employer's hearsay testimony because Claimant did not direct her comments specifically towards her students, but rather she mumbled under her breath. We disagree. Claimant's testimony that she mumbled "you are acting like a bunch of idiots" is enough to corroborate the students' out-of-court statements that Claimant made derogatory remarks to them.
C: Perhaps, maybe moron. You're acting like idiots. . .
R: I'm sorry. So you may have mumbled morons and what? Would you . . .
C: Like, sometimes if I would get frustrated, like, oh, you're just acting like a bunch of idiots, which I call myself an idiot all the time in front of the kids. That's just a word I use.
The Board, therefore, could have considered the hearsay testimony under Walker in making necessary factual findings. We, therefore, will vacate the Board's order and remand to give the Board the opportunity to do so and issue a new decision.
Because we are remanding this matter to the Board for consideration of the hearsay testimony and for the issuance of a new decision, we need not address further Employer's argument that the Board failed to give proper weight to its evidence. On remand, the Board will consider and re-weigh the evidence before it, including the hearsay testimony, and issue new findings of fact and conclusions of law. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 16th day of August, 2013, the order of the Unemployment Compensation Board of Review is hereby VACATED and the matter is REMANDED to the Unemployment Compensation Board of Review for the issuance of a new decision in accordance with the attached Opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge