Opinion
No. 2227 C.D. 2010
07-12-2011
Dawn M. Farmer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Dawn M. Farmer (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant applied for unemployment compensation benefits after being discharged from her employment as a part-time general assistant at Fairless Hills Health Center (Employer). The Allentown Unemployment Compensation Service Center (Service Center) issued a determination, finding Claimant ineligible for unemployment compensation benefits under Section 402(e) of the Law. Claimant appealed the Service Center's determination, and an evidentiary hearing was held before the Referee.
Employer presented the testimony of Dr. Michael Gaffin (Owner) and Dawn Gambino (massage therapist) in support of its position. The owner testified that he maintained a written policy prohibiting employees from talking between curtains or between co-workers in the therapy room. (Certified Record (C.R.), Item No. 8.) He required any personal or interoffice conversations to be held in a private place. (Id.) The owner testified that this rule did not pertain to only those times when patients were present in the therapy room because patients could be nearby and overhear an employee's conversation. (Id.) The owner further testified that he specifically told Claimant not to discuss her concerns about the change in hours in front of patients or other employees because he did not want a disruption to result. (Id.) The owner testified that after he learned that Claimant disobeyed his instructions and initiated a discussion about her dissatisfaction with the change in hours, he terminated Claimant. (Id.) The massage therapist testified that she was present when Claimant initiated a conversation in the therapy room about her dissatisfaction regarding the change in hours. (Id.)
Claimant testified to the circumstances surrounding her separation from employment. Claimant testified that she had a conversation in the therapy room with co-workers regarding the change in hours when patients were not present. (Id.) Claimant testified that she believed the policy to avoid personal and interoffice conversations in the therapy room pertained only to those times when patients were actually present. (Id.) Claimant further testified that Employer's verbal instructions pertained only to discussions with one particular co-worker and that Claimant was not the individual who initiated the discussions with that co-worker. (Id.)
Following the hearing, the Referee issued a decision, which affirmed the Service Center's determination denying unemployment compensation benefits pursuant to Section 402(e) of the Law. The Referee made the following relevant findings:
1. Claimant last worked for Fairless Hills Health Center, as a general assistant at the office, part-time, approximately twenty hours per week, with the last day of work on 03/04/2010.
2. Claimant was or should have been aware that the employer's rules prohibited employees from talking between curtains or between co-workers in the therapy room.
3. Employer's rules further state that if a discussion must take place it should be done quietly and any personal or interoffice conversations should be avoided, these conversations should take place in a private place.
4. On or about 03/04/2010, the owner of the business spoke to Claimant because Claimant was upset about a cut in her hours.
5. Employer had hired an additional employee, after speaking to his staff, so all of the staff's hours were being cut.
6. During the course of that conversation with Claimant, the owner instructed Claimant not to speak to the other employees regarding this issue.
7. The owner told Claimant that if she had any problems or further concerns, she should speak to him directly.
8. When Claimant reported for work, she engaged in a conversation in front of several of her co-workers, where she expressed her dissatisfaction regarding her hours.(C.R., Item 9.)
9. When Employer discovered Claimant had specifically disobeyed his instructions, he terminated Claimant.
The Referee resolved any conflicts in the testimony, in relevant part, in favor of Employer. (Id.) The Referee concluded that Claimant's actions were a deliberate disregard of Employer's rules and instructions, specifically to her. (Id.) Consequently, Claimant's conduct rose to the level of willful misconduct. The Referee also found that Claimant did not establish good cause for her actions, and, therefore, she was ineligible to receive unemployment benefits under Section 402(e) of the Law.
Claimant appealed the Referee's order to the Board, which affirmed the Referee's decision. In its order, the Board adopted and incorporated the Referee's findings of fact and conclusions of law. Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant essentially argues that: (1) the Board's findings of fact, adopted from the Referee's findings of fact, are not supported by substantial evidence; (2) the Board erred in concluding that Claimant's conduct rose to the level of willful misconduct under Section 402(e) of the Law; and (3) Claimant should not be disqualified from receiving unemployment compensation because Employer did not consistently enforce or fairly apply Employer's rules.
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. 2 Pa. C.S. § 704. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d 1159, 1161 (Pa. Cmwlth. 1992).
Claimant waived this third argument regarding alleged disparate treatment because she did not raise this issue at the Referee's hearing or on appeal to the Board. Dollar Bank v. Swartz, 540 Pa. 369, 374-75, 657 A.2d 1242, 1245 (1995) (holding legal facts and issues not raised or preserved below may not be addressed for first time on appeal to Commonwealth Court); Dehus v. Unemployment Comp. Bd. of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988) (holding issues not raised during the hearing below are waived).
First, we will address whether the Board's findings of fact are supported by substantial evidence. 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).
Claimant asserts that the Board's findings that she violated Employer's written rule or policy and Employer's verbal instructions are not supported by substantial evidence. Claimant argues that Employer's policy prohibiting personal or interoffice conversations in the therapy room pertained only to conversations in the presence of patients and Employer's verbal instructions prohibiting Claimant from discussing the reduction of hours pertained only to discussions with one particular co-worker. In an unemployment case, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). The Board is the also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Here, the Board resolved any conflicts in testimony in favor of Employer. (C.R., Item 13.) The testimony of the owner, as summarized above, supports the Board's finding that Employer had a policy that specifically prohibited employees from engaging in personal or interoffice conversations in the therapy room, even when patients were not present, because patients may be nearby and may overhear a conversation. (Id., Items 8 & 13.) The testimony of the owner also supports the Board's finding that Employer specifically instructed Claimant not to speak to any of her co-workers regarding the issue of hours. (C.R., Item 13.) The Board concluded that despite Employer's policy and instructions, Claimant engaged in a conversation with her co-workers where she expressed dissatisfaction with her hours. (Id.) When viewed in a light most favorable to Employer, our review of the record in this case demonstrates that there is substantial evidence to support the Board's findings.
Second, we address Claimant's contention that the Board erred in concluding that her conduct rose to the level of willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
(a) wanton or willful disregard of employer's interests, (b) deliberate violation of the employer's rules, (c) disregard of standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties and obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003).
Claimant argues that her actions did not rise to the level of willful misconduct because, contrary to the Board's findings, she did not violate Employer's written rule or policy or Employer's verbal instructions. Willful misconduct includes an employee's deliberate violation of an employer's rule and an employee's disregard of the standard of behavior expected by an employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Comp. Bd. of Review, 309 A.2d 165, 168 (Pa. Cmwlth. 1973). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. If, however, the claimant can show good cause for the violation, then there should be no finding of willful misconduct. Id. An employee who ignores clear and simple instructions from her employer without establishing good cause engages in willful misconduct. Hartman v. Unemployment Comp. Bd. of Review, 455 A.2d 756, 757 (Pa. Cmwlth 1983). A single incident of misconduct may support a denial of benefits. Jones v. Unemployment Comp. Bd. of Review, 373 A.2d 791, 792 (Pa. Cmwlth. 1977).
First, we must determine whether Employer sustained its burden and established a prima facie case of willful misconduct as result of a violation of Employer's rule or policy. In doing so, Employer must initially establish the existence of a policy or rule. Here, Employer maintained a written policy specifically prohibiting employees from engaging in personal or interoffice conversations in the therapy room. (C.R., Items 3 & 13). Employer's rule further stated that if a discussion must take place, it should be done quietly and any personal or interoffice conversations should be avoided, these conversations should take place in a private place. (Id.) Based on this evidence, Employer sustained its burden of establishing that it maintains a policy that prohibits employees from engaging in personal or interoffice conversations in the therapy room.
The second requirement of Employer's prima facie case is to show that Claimant was or should have been aware of the policy. As discussed in the testimony above, Claimant admitted she was aware of Employer's policy not to have personal or interoffice conversations in the therapy room. (Id., Item 8.) Claimant argues that this policy pertained only to those times when patients were present in the therapy room. The Board, however, credited Employer's testimony that the presence of patients in the therapy room was not required because patients could also be located nearby and, thus, may overhear an employee's conversation. (Id.) The Board concluded that Claimant was or should have been aware that Employer's rules prohibited employees from talking between curtains or between co-workers in the therapy room. (Id., Item 13.) Employer, therefore, met its burden of establishing that Claimant was or should have been aware of Employer's policy.
Additionally, Employer must establish the third requirement of its prima facie case by showing that Claimant violated Employer's policy. Employer's witness testified that Claimant initiated a personal or interoffice conversation with co-workers in the therapy room. (Id., Item 8.) The Board credited this testimony and concluded that Claimant engaged in a conversation at work in front of several of her co-workers, where she expressed dissatisfaction regarding her hours. (Id., Item 13.) Employer, therefore, satisfied its burden of proving Claimant violated the policy.
We address, next, whether the Board erred when it concluded Claimant violated Employer's verbal instructions. Claimant argues that Employer failed to establish that she violated Employer's verbal instructions because Employer only instructed Claimant not to discuss her concerns with one specific employee. Claimant contends she was not the employee who raised the issue of hours with the specified individual. 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 from the testimony. Taylor, 474 Pa. at 355, 378 A.2d at 831. Our review of the record supports the Board's conclusion that Employer sustained its burden to establish a prima facie case of willful misconduct based on Claimant's disregard of Employer's instructions not to discuss with her co-workers the reduction in hours.
The owner testified that he specifically told Claimant that she was prohibited from discussing her concerns about the change in hours in front of patients and other employees. (C.R., Item 8.) Employer, therefore, gave a clear and simple instruction not to discuss this topic while at work. Employer's witness, a massage therapist, testified that Claimant raised the topic upon arriving at work in front of other co-workers in the therapy room. (Id.) The Board found this testimony to be credible. Having found the testimony to be credible, the Board did not err in concluding that Employer met its burden of proving Claimant's actions rose to the level of willful misconduct.
Even if the Board had found that the rule or policy prohibiting employees from engaging in personal or interoffice conversations in the therapy room applied only when patients were not present in the therapy room, Claimant's disregard of Employer's clear instructions not to discuss the reduction in hours with her co-workers would be sufficient on its own to meet Employer's burden to prove willful misconduct.
Because Employer established a prima facie case for willful misconduct, the burden shifted to Claimant to establish good cause for her actions of initiating a conversation in the therapy room with co-workers and expressing dissatisfaction regarding her hours in violation of Employer's policy and verbal instructions. While the employer bears the burden of proving that a claimant's behavior constitutes willful misconduct, it is the claimant who bears the burden of proving good cause for her actions. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 438-39 (Pa. Cmwlth. 2000). To prove good cause, the claimant must demonstrate that her actions were justifiable and reasonable under the circumstances. Id. at 439. Non-compliance of an employer's rule may be justified by lack of knowledge of the rule. Williams v. Unemployment Comp. Bd. of Review, 380 A.2d 932, 935 (Pa. Cmwlth. 1977). Noncompliance may also be justified by the vagueness of a rule. Unemployment Comp. Bd. of Review v. Bacon, 361 A.2d 505, 507-08 (Pa. Cmwlth. 1976).
Claimant argues that she had good cause for violating Employer's written policy because the rule was ambiguous as to whether it applied only to those times when patients were not present in the therapy room. Also, Claimant contends that she had good cause for violating Employer's verbal instructions because she lacked knowledge that she was prohibited from speaking to all co-workers, as compared to one specific co-worker, about the change in hours. The Board may either accept of reject a witness's testimony, whether or not it is corroborated by other evidence of record. Peak, 509 Pa. at 275, 501 A.2d at 1388. Here, the Board found Claimant's testimony to be not credible and concluded that Claimant failed to establish good cause for deliberately violating Employer's policy and verbal instructions directed specifically to Claimant. (C.R., Item 13.) Based on the facts here and in view of the relevant case law, we find Claimant failed to justify her actions of discussing her dissatisfaction with the change of hours with her co-workers in the therapy room. Employer established that it both maintained a policy and provided specific verbal instructions to Claimant in order to avoid a disruption in patient care and with other co-workers. (Id., Item 8.) For the reasons stated above, Claimant's actions were a deliberate disregard of Employer's policy and verbal instructions. The Board, therefore, properly concluded Claimant failed to establish good cause for her actions because discussing her concerns with co-workers was not justified or reasonable in light of Employer's policy or verbal instructions.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 12th day of July, 2011, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge