Opinion
No. 1472 C.D. 2011
02-01-2012
Rosetta D. White, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
This case was assigned to the opinion writer prior to January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Rosetta D. White (Claimant) petitions this Court for review of the June 3, 2011 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of the Referee and denying benefits. There are two issues before the Court: (1) whether inadmissible evidence is permitted at a hearing when the Claimant fails to appear, and (2) whether Elwyn (Employer) met its burden of proving that Claimant committed willful misconduct. For the reasons that follow, we affirm the order of the UCBR.
Claimant was last employed on October 11, 2010 as a classroom instructor for Employer, a human services organization serving disabled and disadvantaged individuals. Employer terminated Claimant's employment for allowing a client to eat off of the floor. Claimant subsequently applied for Unemployment Compensation (UC) benefits. On January 14, 2011, the Scranton UC Service Center mailed a notice of determination finding Claimant eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Employer appealed and, on March 7, 2011, a hearing was held by a Referee at which Claimant failed to appear. On March 14, 2011, the Referee mailed her decision reversing the determination of the UC Service Center. Claimant appealed to the UCBR. The UCBR affirmed the decision of the Referee. Claimant appealed to this Court.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant first argues that inadmissible hearsay was the sole basis of the UCBR's decision. Specifically, Claimant contends that Employer's only witness, Kay Anderson, its adult day program manager, did not witness Claimant's conduct. Therefore her testimony is inadmissible hearsay and cannot support the UCBR's decision. We disagree.
Claimant specifically refers to the Referee's decision. However, because the UCBR is the ultimate fact finder in UC cases, we refer to the UCBR. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). --------
At the hearing before the Referee, Ms. Anderson testified that she was told by a supervisor that Claimant let a client eat off of the floor on two occasions, and that there were two witnesses. Ms. Anderson further testified that when she asked Claimant about it, "she admitted to it." Reproduced Record (R.R.) at 16. "[Claimant] said that he was eating off the floor. . . . But I asked why didn't you stop him? . . . And she really didn't answer. She surely didn't have a whole lot to say." Id.
"Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the [UCBR]." Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). "Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of the [UCBR], [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand." Id. In the instant case, since Claimant did not appear at the hearing, the hearsay evidence was admitted without objection. Further, since Ms. Anderson testified regarding an admission by Claimant, it was a statement against interest, and thus competent evidence to support the hearsay testimony. GNB, Inc. v. Workers' Comp. Appeal Bd. (Korman), 810 A.2d 732 (Pa. Cmwlth. 2002). Accordingly, the UCBR's decision is supported by substantial evidence.
Claimant next argues that Employer failed to meet its burden of proving that she committed willful misconduct. Specifically, Claimant contends that because Employer failed to produce evidence of a rule or policy claimed to be violated, its violation by the Claimant, and proof that Claimant's conduct was knowing and willful, the Employer has not met its burden of proof. We disagree.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 748 n.4 (Pa. Cmwlth. 2000) (citation omitted). Here, the UCBR did not find that Claimant had violated a work rule, but rather found that "[C]laimant's actions [were] certainly beneath the standards of behavior an employer has a right to expect of an employee." R.R. at 29.
Once the employer makes out a prima facie case of willful misconduct, the burden shifts to the claimant to prove that [her] actions did not constitute willful misconduct under the facts or that [she] had good cause for [her] behavior. Good cause is established where the action of the employees [sic] is justified or reasonable under the circumstances.Jordon v. Unemployment Comp. Bd. of Review, 684 A.2d 1096, 1099 (Pa. Cmwlth. 1996) (citation and quotation marks omitted).
Here, Claimant's admission that the client ate off the floor clearly makes out a prima facie case of acting beneath the standards of behavior an employer has the right to expect of an employee. As Claimant did not appear at the hearing, she failed to prove how said actions were justified or reasonable under the circumstances. Further, when given the opportunity to explain her actions to her manager, Claimant chose not to. Thus, Employer has met its burden of proving that Claimant had committed willful misconduct.
For all of the above reasons, the order of the UCBR is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 1st day of February, 2012, the June 3, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge