Opinion
No. 2171 C.D. 2012
09-13-2013
Debra McGinnis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Debra McGinnis (Claimant) petitions for review of the October 12, 2012 order of the Unemployment Compensation Board of Review (Board), denying her request for reconsideration of the Board's August 30, 2012 order, which affirmed a referee's determination that Claimant is ineligible for benefits due to willful misconduct. We affirm.
The filing of a request for reconsideration before the Board does not operate to extend the thirty-day period for appeal from the Board's original order. Muehleisen v. State Civil Service Commission, 443 A.2d 867 (Pa. Cmwlth. 1982). On November 26, 2012, Claimant filed a petition for review with this Court, seeking leave to appeal the Board's August 30, 2012 determination nunc pro tunc. By order dated December 4, 2012, this Court denied Claimant's petition insofar as it sought nunc pro tunc review of the Board's August 30, 2012 decision on the merits. Recognizing that Claimant's appeal was timely with respect to the Board's denial of reconsideration, we limited the issue on appeal to whether the Board abused its discretion in denying Claimant's request for reconsideration. See Keith v. Department of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988) (concluding that where a petitioner did not file a timely appeal from an administrative agency's final order on the merits, but filed a timely appeal from the administrative agency's subsequent order denying reconsideration, this Court could only review the order denying reconsideration).
Claimant was employed by North Philadelphia Health System, Inc. (Employer) as a part-time Special Weekend Registered Nurse from April 24, 2004, until April 9, 2012. (Reproduced Record (R.R.) at 12a, 27a-28a.) Claimant typically worked sixteen-hour shifts, from 7:30 a.m. until 11:30 p.m., on both Saturdays and Sundays. (R.R. at 27a-28a, 33a-34a.)
On Saturday, March 31, 2012, Claimant was on duty at the hospital working a sixteen-hour shift. (R.R. at 17a-18a, 20a, 41a.) At approximately 10:30 p.m., Claimant told another nurse, Pamela Black (Black), that she was not feeling well and was going to take a break. (R.R. at 21a.) During the course of her shift, Claimant did not take any medication, seek medical attention, or tell her nursing supervisor that she was feeling ill. (R.R. at 34a-35a, 38a, 43a.)
While Claimant was on a break, nursing supervisor Michelle Johnson (Johnson) called the unit looking for Claimant to do a patient assessment. (R.R. at 18a.) Black told Johnson that Claimant was on a break and that she would send Claimant to the unit for the patient assessment when she returned. Id. When Claimant did not report for the patient assessment, Johnson came to the unit to speak with Black. Id. Black informed Johnson that she did not know where Claimant was, but stated that Claimant was not feeling well and might not return to finish her shift. Id. Claimant did not tell Black or Johnson that she would be leaving the unit area or that she would not return to complete her shift. (R.R. at 17a-18a.) Claimant did not clock out from her shift on March 31, 2012, but Johnson and Black did not see Claimant until she clocked in at 7:00 a.m. for her morning shift on Sunday, April 1, 2012. (R.R. at 18a, 20a-21a.)
On April 2, 2012, Johnson referred the issue to the clinical director, Nancy Haslam (Haslam). (R.R. at 29a.) In her written statement to Haslam, Johnson said that Claimant did not clock out from her shift on March 31, 2012, did not tell the nursing supervisor that she was leaving the unit area, and did not inform any of the nurses that she would not return for the remainder of her shift. (R.R. at 18a, 29a, 31a.) Haslam investigated the matter and asked Claimant to provide a written statement. (R.R. at 29a-30a.)
In a written statement dated April 4, 2012, Claimant stated that she was not feeling well, went to the bathroom in the doctor's lounge, and then lay down and fell asleep. (R.R. at 19a.) On April 9, 2012, Haslam asked Claimant to clarify why she did not return to the unit to clock out from her shift. (R.R. at 19a, 30a.) Claimant answered that she had fallen asleep in the doctor's lounge and did not clock out because her shift was already over when she woke up. Id. Haslam recorded Claimant's responses on Claimant's written statement. (R.R. at 19a, 29a.)
Employer maintains a nursing staff policy which provides that a staff nurse working a twelve-hour shift is entitled to two fifteen-minute breaks and one forty-five-minute break. (R.R. at 11a.) Under the policy, a nurse is allowed to take a break at his or her discretion, but sleeping on the hospital premises is not permitted during a break. Id. Claimant was given the nursing staff policy and rules on April 24, 2004, and was made aware of these policies during orientation when she began her employment. (R.R. 14a, 28a.) On April 9, 2012, Employer discharged Claimant for leaving the unit without permission, for falling asleep on the premises while on duty, and for failing to clock out at the end of her shift. (R.R. at 17a, 32a-33a, 46a.)
Claimant filed an application for unemployment benefits. (R.R. at 1a.) On May 22, 2012, the local service center determined that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). Claimant appealed the determination, and a hearing was conducted before a referee on June 20, 2012. (R.R. at 23a.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
At the hearing, Claimant testified that she suffered from diarrhea during her shift on March 31, 2012. (R.R. at 33a.) Claimant stated that, for the most part, she could perform her job duties, but had to take regular bathroom breaks due to her illness. (R.R. at 34a.) Claimant testified that at approximately 10:30 p.m., Black suggested that she take a break because she had not used one during her shift. (R.R. at 35a.) Claimant admitted that she left the unit to use the bathroom in the doctor's lounge, even though there was a bathroom located on the unit floor. Id. She stated that she remained in the bathroom and did not fall asleep until 11:45 p.m., at which point her shift had already concluded. Id. Claimant testified that she did not clock out when her shift was over at 11:30 p.m. or anytime thereafter and stated that she did not do so because she did not want to collect additional pay for time she did not work. (R.R. at 42a.)
At the hearing, Haslam testified that Claimant was aware of the nursing staff policy and knew that a nurse was prohibited from sleeping on the hospital's premises while on break. (R.R. at 28a.) Haslam also testified that Claimant did not tell the nurses that she was leaving for the remainder of her shift, did not properly report to the other nurses in the unit that she would not return to complete her shift, and that neither Johnson nor Black knew where Claimant was during her break. (R.R. at 29a, 32a.) Haslam testified that on April 9, 2012, Claimant verbally admitted that she did not clock out because she fell asleep in the doctor's lounge and that her shift had ended when she woke up. (R.R. at 30a.) Haslam explained that if Claimant was really sick, she should have notified a supervisor and could have received treatment at either the employee health clinic or the emergency room. (R.R. at 32a, 43a.) Additionally, Employer introduced into evidence Johnson's and Claimant's written statements. (R.R. at 26a.)
In a decision dated June 21, 2012, the referee affirmed the local service center's determination that Claimant is ineligible for unemployment benefits. The referee found that Employer's nursing staff policy states that sleeping on hospital premises is not permitted during breaks; Claimant was aware, or should have been aware, of Employer's policy; Claimant notified Black that she was not feeling well and was taking a break; Claimant fell asleep in the doctor's lounge and did not return to work until the next morning; Claimant was not available for work and failed to clock out at the end of her shift on March 31, 2012; and Employer discharged Claimant for sleeping while on duty and/or break, for failing to return from break, and for failing to clock out at the end of her shift. (F.F. Nos. 3-6, 8-9, 11, 13-14, 18.)
Based upon these findings, the referee concluded that Claimant's conduct indicated a disregard of the standards of behavior that an employer has the right to expect of an employee. The referee further concluded, through necessary implication, that Claimant's conduct violated Employer's break policy. In determining that Claimant's conduct amounted to willful misconduct, the referee accepted Haslam's testimony as credible and rejected as not credible Claimant's testimony regarding the severity of her illness. Id.
Claimant then appealed to the Board, which, by order dated August 30, 2012, affirmed the referee's decision. The Board adopted and incorporated the referee's findings and conclusions of law, specifically discredited Claimant's testimony "in all regards," and stated as follows:
Claimant left work at 10:30 p.m. for a fifteen (15) minute break and then failed to return to work for the remaining forty-five (45) minutes of her shift without clocking out or notifying her supervisor that she was ill. Regardless of whether she fell asleep on break or not, this alone rises to the level of willful misconduct pursuant to section 402(e) of the Law. Employer has met its burden of proof in this matter . . . .(Board's decision at 1.)
On September 10, 2012, Claimant filed a request for reconsideration, arguing that her conduct did not rise to the level of willful misconduct. Specifically, Claimant asserted that her conduct was not wanton, willful, or intentional, and she complained that the findings of fact failed to reflect that she was working a sixteen-hour shift, "inadvertently fell asleep while on her break," and used up the balance of her break time to complete her shift. (R.R. at 52a-53a.) Claimant argued that Employer's interests were not harmed by her actions. She also asserted that her testimony at the hearing may have appeared unconvincing and not credible because she was "nervous" and "upset." (R.R. at 53a.) The Board denied Claimant's request for reconsideration by order dated October 12, 2012. (R.R. at 54a.)
The sole issue before this Court is whether the Board's denial of reconsideration reflects an abuse of discretion. The Board may grant a request for reconsideration only where there is "good cause" to do so. 34 Pa. Code §101.111(b). In determining whether "good cause" exists, the Board is limited to considering whether the party requesting reconsideration has presented new evidence or changed circumstances or whether it failed to consider relevant law. Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). Because the decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court's review of that decision is limited to determining whether the Board abused its discretion. Georgia Pacific Corporation v. Unemployment Compensation Board of Review, 630 A.2d 948, 952 (Pa. Cmwlth. 1993).
In her brief, Claimant does not directly address whether the Board abused its discretion in denying reconsideration of its August 30, 2012 decision on the merits. Rather, Claimant asserts that the Board's decision that she is ineligible for benefits was erroneous based on the evidence of record. Essentially, Claimant is challenging the merits of the Board's August 30, 2012 decision based on her view of the evidence. However, the Board's decision on the merits is not before this Court because Claimant did not appeal that order within the time allowed. In addition, it is well-settled that the Board may not grant reconsideration merely to visit credibility issues. Ensle, 740 A.2d at 779-80. There is nothing in Claimant's request for reconsideration to suggest that Claimant presented new evidence or changed circumstances or argued that the Board failed to consider relevant law to establish the good cause necessary to support reconsideration. Ensle, 740 A.2d at 779. Thus, we conclude that the Board did not abuse its discretion in denying her request for reconsideration.
Moreover, even if Claimant had timely appealed the Board's August 30, 2012 order, she would not prevail. In unemployment cases, the Board is the ultimate finder of fact, empowered to determine all matters of witness credibility and evidentiary weight. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). The Board's findings of fact are conclusive on appeal where they are supported by substantial evidence. Id. Here, the testimony credited by the Board supports its findings that Claimant left work before finishing her shift and without approval from a supervisor. (R.R. at 18a, 31a-32a.) We have repeatedly held that leaving work early without permission and without good cause constitutes willful misconduct. Jackamonis v. Unemployment Compensation Board of Review, 408 A.2d 581, 582 (Pa. Cmwlth. 1979); Barnett v. Unemployment Compensation Board of Review, 372 A.2d 48, 49-50 (Pa. Cmwlth. 1977). Because the Board rejected Claimant's testimony in its entirety, she failed to demonstrate good cause for her conduct and, therefore, the Board properly concluded that Claimant was ineligible for benefits under section 402(e) of the Law. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 13th day of September, 2013, the October 12, 2012 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge