Opinion
No. 1094 C.D. 2013
01-14-2014
Shirley Carter, Petitioner v. Unemployment Compensation Board of Review Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Shirley Carter (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because Claimant violated the Department of Public Welfare's child care regulation at 55 Pa. Code §3270.113 and Brightside Academy's (Employer) policy by allowing a child in her care to become unaccounted for and failing to alert management that she did not know of the child's whereabouts. For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
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(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
That regulation, relating to supervision of children in child day care centers, provides, in relevant part:
(a) Children on the facility premises and on facility excursions off the premises shall be supervised by a staff person at all times. Outdoor play space used by the facility is considered part of the facility premises.
(1) Each staff person shall be assigned the responsibility for supervision of specific children. The staff person shall know the names and whereabouts of the children in his assigned group. The staff person shall be physically present with the children in his group on the facility premises and on facility excursions off the facility premises.
Claimant was employed as an Educational Director with Employer, a pre-school, from May 26, 2010, through November 14, 2012. In addition to following the Pennsylvania Code regulations with regard to the supervision of children, Employer maintains a policy requiring its employees to immediately alert the management staff or any adult who can pass on the information to management in the event that a child is missing. It is undisputed that Claimant was aware of and understood these policies. On November 13, 2012, one of the children Claimant was supervising became unaccounted for and Claimant did not inform anyone that the child was missing. As a result of this incident, Employer suspended Claimant pending an investigation and ultimately terminated Claimant's employment on November 20, 2012.
Claimant filed for benefits with the UC Service Center which denied benefits and Claimant then appealed. Before the Referee, Claimant testified that she assumed supervision of nine children at approximately 3:25 p.m. on November 13, 2012. She testified that she took the children to the bathroom at some time after 3:30 p.m. and, while in the bathroom, two children started fighting and crawling underneath the stalls. Claimant stated that she attempted to get the children under control because she was concerned for their safety. She explained that when she finally restored order and lined the children up several minutes later, she realized that one child was missing. Claimant testified that when she exited the bathroom, there were no other adults in the hallway and that she did not have a walkie-talkie or a cell phone on which she could have called another staff member to report the missing child. She stated that she then walked the children back to their classroom, which took between three and six minutes. Claimant testified that when she returned to the classroom, she looked into the adjacent classroom and saw the missing student. She explained that when Judy Beckles (Beckles), Employer's Director, asked her if she was missing a child, she responded that the child was in the adjacent classroom and there was no further discussion on the matter.
Beckles testified that while she was assisting at a book fair in Employer's staff lounge, her assistant brought her the child who had been found by the bathroom. Beckles stated that another staff member signed the child into the classroom adjacent to Claimant's, and after she confirmed that the child was supposed to be under Claimant's supervision, she observed Claimant in her classroom from the hallway. She explained that at that point, "I said well, leave [the child] here. I want to see how long it's going to take for [Claimant] to realize that he's missing because at that point in time, she had not told the Assistant Director who was managing the floor ... She had not told anybody that she was missing a child." (February 8, 2013 Hearing Transcript at 18). Beckles testified that the child remained in the adjacent classroom until he was picked up at 6:00 p.m. She stated that when she approached Claimant and asked if she realized she was missing a child, Claimant expressed concern that no one had returned the child to her, but had nothing more to say about the incident. Specifically, Beckles testified:
I said to her do you realize that...you were missing a child ... So she said ... well why didn't [anybody bring] him back to me. That was her concern ... And ... I said well, why should we bring him back to you so that he can go missing again. I figured he should stay in a classroom where he's going to be safe and not come back to you because you don't even realize that he was missing. And she had nothing to say on that matter.(February 8, 2013 Hearing Transcript at 19-20) (emphasis added). Beckles subsequently emphasized that "[Claimant] was not aware that [the child] was missing." (Id. at 25).
Among others, the Referee made the following factual findings:
7. The claimant was aware that one of the children was missing.(Referee's February 11, 2013 Decision at 2, Findings of Fact Nos. 7-10). Crediting Employer's testimony, the Referee concluded that Claimant's actions violated 55 Pa. Code §3270.113 and Employer's policy requiring any incident of a missing child to be immediately reported. The Referee's decision further provides:
8. The claimant took the remaining children back to her classroom.
9. The claimant observed an adjacent classroom and saw that the missing child was in the adjacent classroom.
10. The claimant did not[,] at any time, alert supervisors or management that she was unaware of the child's whereabouts.
Here, the claimant testified that she was aware that one of her children was unaccounted for. The claimant made the determination to take the remaining children to her classroom, at which time she saw that the missing child was in an adjacent classroom. The claimant did not advise the employer that she was missing a child.(Referee's February 11, 2013 Decision at 3) (emphasis added). Based on those findings, the Referee concluded that Claimant committed willful misconduct and affirmed the denial of benefits. Claimant then appealed to the Board, which adopted the Referee's findings and conclusions and affirmed. This appeal by Claimant followed in which she argues that her actions did not rise to the level of willful misconduct because she had good cause for violating Employer's policies.
The Referee does not credit the testimony of the claimant. It was incumbent upon the claimant to immediately notify management staff that she was unaware of the whereabouts of one of her children. The claimant testified that it only took her between three minutes and six minutes to take her remaining children back to their classroom. The Referee finds that in the event that a child is missing, every minute is necessary to deal with a child who is unaccounted for.
Our review of the Board's decision 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. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
Although the Law does not define the term "willful misconduct," the courts have defined it as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the 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.
We agree with the Referee and Board's ultimate conclusion that Claimant did not have good cause for violating Employer's policies and, thus, committed willful misconduct. However, we must first note the inconsistencies between the Referee's credibility determinations and findings of fact. Claimant testified that she knew the child was missing, but during the course of returning the remaining children to their classroom, she saw the missing child in the adjacent classroom and, therefore, did not alert the management staff as required by Employer's policy. A fair reading of Beckles' testimony is that Claimant was never aware that the child was missing. The Referee's decision states that he "does not credit the testimony of the claimant," but Findings of Fact Nos. 7-10 suggest otherwise, making it unclear whether the Referee did, in fact, believe that Claimant was aware the child was missing, yet saw him a few minutes later and decided that it was unnecessary to report the child as missing.
Despite these inconsistencies, we nonetheless affirm the Board because, whether she was aware or not that the child was missing, Claimant's actions upon returning to her classroom were not reasonable. If Claimant was, in fact, unaware that the child was missing until Beckles confronted her later that evening, as Employer contends, this clearly would have constituted a violation of Employer's policy for which Claimant did not have good cause, because it would have been Claimant's duty to count the children upon exiting the bathroom and re-entering the classroom. Conversely, if Claimant was aware of the missing child, as she contends, and did not report him as missing because she saw him in the adjacent classroom, those actions could also not be considered justifiable or reasonable under the circumstances. Claimant was never formally relieved of her duty to supervise that child, and upon seeing the child in the adjacent classroom, she still should have made an effort to report the incident and confirm that the child had been properly signed into the other classroom and that the other teacher was aware of his presence. However, it is undisputed that she did not take any action whatsoever. Because her actions were not justifiable or reasonable under the circumstances, Claimant did not demonstrate good cause for violating Employer's policy.
In Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432 (Pa. Cmwlth. 2010), which involved a similar "100% supervision policy," the claimant, a preschool teacher, was responsible for supervising six children and left one of the children behind while taking them from a playroom to an outdoor area. The claimant testified that she stumbled while leading the children outside and admitted to losing track of one child for a period of four minutes. Although the claimant testified that her actions were an honest mistake, we affirmed the Board's denial of benefits, holding that the violation of Employer's rule was not justified because the claimant should have counted the number of children immediately after regaining her balance but failed to do so. --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 14th day of January, 2014, the order of the Unemployment Compensation Board of Review, dated April 25, 2013, at No. B-551079, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances. Id. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id.