Opinion
No. 1462 C.D. 2012
05-03-2013
Johnnett L. Tody, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Johnnett L. Tody (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which affirmed the determination of the Unemployment Compensation Referee (Referee) that Claimant was ineligible for Unemployment Compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). The Board concluded that Claimant did not establish proper cause for nonappearance at an initial hearing before the Referee and that evidence presented by Prospect Park Health & Rehabilitation (Employer) supported the Referee's conclusion that Claimant's actions constituted willful misconduct. On appeal, Claimant argues that the Board erred in concluding that proper cause did not exist for her nonappearance and, therefore, the Board erred by not considering her testimony on the merits.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits when discharged for "willful misconduct").
Claimant worked for Employer full-time as a certified nursing assistant from February 2009 to January 11, 2012, when she was discharged for refusing a work assignment. (Referee Decision, Findings of Fact (FOF) ¶¶ 1, 3, 7.) Claimant filed a claim for UC benefits, which the Erie UC Service Center denied pursuant to Section 402(e) of the Law. Claimant appealed, a Notice of Hearing was issued, and a hearing was scheduled for March 8, 2012. Employer appeared and presented evidence at the hearing; however, Claimant failed to appear at the hearing. (Board Order at 1.) Based on Employer's evidence, the Referee made the following findings of fact:
2. On the evening of January 11, the claimant was instructed to feed a resident.
3. The claimant refused those instructions.
4. The claimant was instructed that, if the claimant did not perform that assigned task, that the claimant could go home.
5. The claimant then departed the workplace.
6. The employer considered the claimant's refusal to perform that assignment as an act of "insubordination," which can be cause for immediate termination.
7. Because of the claimant's actions, of January 11, the employer terminated the claimant's employment.(FOF ¶¶ 2-7.) The Referee issued a decision and order concluding that Claimant was ineligible for benefits because her actions, refusing a reasonable work assignment, constituted willful misconduct under Section 402(e) of the Law. (Referee Decision at 2.)
Claimant filed an appeal with the Board and requested a remand hearing, asserting that a "public transportation delay" caused her nonappearance at the Referee's hearing. (Claimant's Petition for Appeal attachment.) The Board granted Claimant's request for a remand hearing, at which both Employer and Claimant testified. Claimant testified regarding both the cause of her nonappearance at the initial hearing and her actions that led to her discharge. (Hr'g Tr. at 1-14, May 25, 2012.) However, at the remand hearing, Claimant testified that difficulties with childcare caused her nonappearance. Noting that Claimant's reasons for her nonappearance conflicted, the Board determined that proper cause did not exist for Claimant's nonappearance and, thus, it would not consider her testimony on the merits. (Board Order.) Concluding that the Referee's decision was proper under the Law, the Board adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's decision. (Board Order.) Claimant now petitions this Court for review.
This Court's scope of review is limited to a determination of "whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant first asserts that the Board erred in concluding that proper cause did not exist for her nonappearance at the initial hearing and, therefore, she was denied an opportunity to be heard on the merits. Pursuant to the regulation at 34 Pa. Code § 101.24(c), after a request for reopening a hearing the Board may consider testimony and evidence presented on the merits at a remand hearing where the Board determines that there was proper cause for the nonappearance. Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 44-45 (Pa. Cmwlth. 2012).
"A request for reopening the hearing . . . shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is allowed, the case will be remanded and a new hearing scheduled, with written notice thereof to each of the parties." 34 Pa. Code § 101.24(c).
On March 26, 2012, the Board received Claimant's Petition for Appeal, which explained that, "due to public transportation delay, I was late for the hearing." (Claimant's Petition for Appeal attachment.) However, at the remand hearing Claimant testified, "my cousin promised me that she was going to help me with [my kids] . . . [b]ut when I reached her home, she wasn't there. When I called her, she said she was somewhere else. So that's what got me delayed." (Hr'g Tr. at 5, May 25, 2012.) When questioned as to the reason for the inconsistency in her testimony Claimant explained, "Well, that's my mistake again, like I said . . . I don't know." (Hr'g Tr. at 7-8, May 25, 2012.) Claimant further testified that "it was a terrible mistake . . . that I didn't . . . call the office and let them know ahead of time that I'm having a problem and I'm running late." (Hr'g Tr. at 7, May 25, 2012.)
The Board determined that Claimant's reasons for her nonappearance were inconsistent and, therefore, rejected her testimony as not credible. The Board emphasized that Claimant admitted that she did not contact the Referee. Witness credibility is solely within the Board's province, and credibility determinations cannot be disturbed on appeal. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). Because the Board did not credit Claimant's testimony, Claimant did not establish that proper cause existed for her nonappearance under 34 Pa. Code § 101.24(c) and the Board did not err in not considering her testimony on the merits.
Claimant also argues, based on her own testimony, that the Board erred in finding her ineligible for UC benefits based on its conclusion that her actions constituted willful misconduct. However, having determined that the Board did not err in excluding Claimant's testimony, our scope of review is limited to determining whether the evidence presented by Employer at the March 8, 2012 hearing constitutes substantial evidence to support the Board's conclusion that Claimant's actions constituted willful misconduct.
"Substantial evidence is defined as 'such relevant evidence which a reasonable mind would accept as adequate to support a conclusion.'" Western and Southern Life Insurance Co., 913 A.2d at 334 n.2 (quoting Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). --------
Section 402(e) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which [her] unemployment is due to [her] discharge or temporary suspension from work for willful misconduct connected with [her] work." 43 P.S. § 802(e). While the Law does not define "willful misconduct," this Court has defined it as:
(1) [A] wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). The employer bears the initial burden of proving that the claimant's actions constitute willful misconduct. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). The issue of whether an employee's actions constitute willful misconduct is a question of law and, therefore, reviewable by this Court. Id. at 1209. This Court has consistently held that an employee's refusal, without good cause, to perform a reasonable work request may constitute willful misconduct. Kretsch v. Unemployment Compensation Board of Review, 476 A.2d 1004, 1006 (Pa. Cmwlth. 1984) (holding that the single act of refusing to shovel snow was willful misconduct when a scientist-employee was on notice that such responsibilities may be expected of employees). An assignment is reasonable when it is "of such a nature that in the context of a claimant's primary job his employer could reasonably expect him to complete it." Id. (citation omitted).
Employer's witness testified that, on the evening of January 11, 2012, a supervisor noticed that a resident had not yet received dinner. (Hr'g Tr. at 3, March 8, 2012.) According to Employer's witness, the supervisor asked Claimant to feed the resident, but she refused because she was not assigned to that particular resident. (Hr'g Tr. at 3, March 8, 2012.) The witness further testified, "[W]e do have certain resident assignments, but . . . all employees are responsible for every resident." (Hr'g Tr. at 3, March 8, 2012.) According to Employer's policy, refusing to feed a resident is considered neglect, which is "terminable upon the first offense." (Hr'g Tr. at 3, March 8, 2012.) Employer's credited testimony constitutes evidence that a reasonable mind would accept to support the findings of fact that Claimant refused to feed a resident after being asked to do so. Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Further, notwithstanding Claimant's failure to appear at the first hearing to provide testimony, Claimant's own statement provided to a UC representative during an oral interview, which indicates that she was asked to feed a resident and refused, is consistent with Employer's witness's testimony. (Claimant Record of Oral Interview, January 25, 2012.)
Claimant was employed as a certified nursing assistant at a health and rehabilitation facility. (FOF ¶ 1.) In the context of Claimant's primary job as a certified nursing assistant, a request to feed a resident is certainly "of such a nature that . . . [her] employer could reasonably expect [her] to complete it." Kretsch, 476 A.2d at 1006. Accordingly, we conclude that Employer's request to feed a resident was reasonable under the circumstances and that Claimant's refusal to do so constituted willful misconduct.
Once an employer establishes that a request was reasonable, the burden shifts to the claimant to show that there was good cause to refuse the request. American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 601 A.2d 480, 482 (Pa. Cmwlth. 1991). However, because Claimant forfeited her opportunity to provide testimony on this issue by not appearing at the initial hearing, she cannot meet her burden to show good cause.
Accordingly, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 3, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge