Opinion
No. 1758 C.D. 2010
07-28-2011
Darlene J. Barnes, 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 Darlene J. Barnes (Claimant) petitions for review of a decision and order of the Unemployment Compensation Board of Review (Board). The Board reversed the decision of the Referee and determined Claimant to be ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) and under Section 4001(d)(2) of the Emergency Unemployment Act of 2008 (EUC Act of 2008) based on willful misconduct. For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Title IV of the Supplemental Appropriation Act of 2008, Public Law 110-252, 122 Stat. 2323, Section 4001, 26 U.S.C. § 3304. EUC benefits are federally funded and were created by Congress pursuant to the EUC Act of 2008. McKenna v. Unemployment Comp. Bd. of Review, 981 A.2d 415, 417 (Pa. Cmwlth. 2009). The EUC benefits programs are administered by the states. Id. In Pennsylvania, unemployed claimants who are not eligible for regular UC benefits from Pennsylvania, another state, the federal government, or Canada may be eligible for EUC benefits. Id. Eligibility requirements for receipt of regular UC benefits are also applicable to EUC benefits, along with additional requirements imposed by the EUC Act of 2008. Id. Section 4001(d)(2) of the EUC Act of 2008 provides that the terms and condition of the State law which apply to claims for regular compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof.
Claimant applied for unemployment compensation benefits after being discharged from her employment as a residential service worker with Bell Socialization Services, Inc. (Employer). The Indiana, Pennsylvania Unemployment Compensation Service Center (Service Center) issued a determination, finding Claimant eligible for unemployment compensation benefits under Section 402(e) of the Law and 4001(d)(2) of the EUC Act of 2008. Employer appealed this determination, and a Referee conducted evidentiary hearings.
Employer is an Intervenor in this matter.
Employer presented the testimony of Britta Schwab (Human Resources Coordinator) and Beth Kochenour (Director of Mental Retardation (MR) Services) in support of its position. The Human Resources Coordinator testified that Claimant (1) reported that she had not been convicted of a criminal offense on her employment application (2) gave Employer approval to run a Criminal Record Check (3) initialed a checklist indicating that she read and completed the form containing the list of Prohibitive Offenses, and (4) signed an Acknowledgement document attesting that she had never been convicted of any of the Prohibitive Offenses. (Certified Record, Item 8.) The Human Resources Coordinator also testified that she advised Claimant to speak with her if she had any questions or was involved in a listed offense. (Id.) Claimant did not discuss any concerns with the Human Resources Coordinator. (Id.) Further, the "hire letter" provided to Claimant stated that the job offer was contingent upon a satisfactory background check. (Id.) The Human Resources Coordinator testified that Claimant's Criminal Records Check revealed that Claimant had pled guilty to the criminal offense of forgery, an offense which is included on the Prohibitive Offenses list. (Id.) Furthermore, the Director of MR Services testified that she provided Claimant with a termination notice and explained to Claimant that she was being discharged because her criminal history included a prohibited offense. (Id.) The Director of MR Services also testified that Claimant's only comment was that the incident occurred so long ago that she had forgotten. (Id.)
Additional offenses, not included on the Prohibitive Offenses list, were also listed on Claimant's Criminal Record Check. (C.R., Item 3.)
Claimant testified to the circumstances surrounding her separation from employment. Claimant initially testified that she did not report her criminal history because she believed that employers typically only searched back seven years into the criminal history. (Id.) When specifically questioned regarding the forgery conviction, Claimant stated that it happened so long ago that she had forgotten about the conviction. (Id.) Claimant then provided contradictory testimony that she believed she was seventeen, not eighteen, when she was convicted, and, therefore, she believed her record was "wiped away." (Id.) Claimant then returned to her prior testimony that she did not disclose her criminal record because she did not think the criminal record check would search back that many years. (Id.)
Following the hearings, the Referee awarded benefits, concluding that Employer did not meet its burden to prove willful misconduct. (C.R., Item 9.) Further, the Referee determined that the Supreme Court's holding in Nixon v. Department of Public Welfare, 576 Pa. 385, 839 A.2d 277 (2003), precluded Employer from terminating Claimant on the basis of any alleged falsification of her prior criminal record. (Id.) Employer appealed to the Board.
The facts, found by the Board, are as follows:
1. Claimant last worked for Bell Shelter as a personal service worker in a full-time position at a final hourly rate of $9 from December 1, 2009 until December 29, 2009, which was her last day of work.
2. Employer provides mental health services to mentally challenged individuals.
3. Employer provides skilled care for the aforementioned individuals and Employer's operations are governed by the appropriate rules and regulations of the Pennsylvania Department of Public Welfare.
4. In pertinent part, at the time of hire, Claimant's Application for Employment asked the following question: "Have you ever been convicted of any criminal offense?*" the asterisks further indicates that "you will not be denied employment solely because of a conviction record, unless the offense is related to the job for which you have applied."
5. On her job application, Claimant indicated, "No" in response to the aforementioned question.
6. Employer also requires that individuals in this capacity complete a Pennsylvania State Police Request for Criminal Record Check, wherein the employee grants the employer the opportunity to request a Criminal Record Check; this procedure is done for all similarly situated employees.
7. At the time of hire, the employer provides the employee a list of Prohibitive Offenses (under Act 169/Act 13) to enable the individual to credibly and truthfully complete the form attesting that they had never been convicted of any of the Prohibited Offenses.
8. With respect to the above document, Claimant indicated by her initials that she read and understood the aforementioned fact.(C.R., Item 13, emphasis added.)
9. On December 1, 2009, Employer submitted to Claimant an offer of employment, which was contingent upon the satisfactory results of background checks, including, but not limited to, criminal, child abuse, Department of Motor Vehicles, and reference checks.
10. At no time during any of the aforementioned events did Claimant express any concerns or advise Employer regarding any questions she may have had regarding a prior criminal history.
11. Additionally, on December 1, 2009, Claimant signed off on an Acknowledgment document that she had read the Prohibitive Offenses list contained in Act 169 of 1996 as amended by Act 13 of 1997, the Pennsylvania Department of Aging.
12. Claimant, in signing off on the above document, acknowledged in pertinent part: "That I attest I do NOT have a conviction of any of the Prohibitive Offenses on the Act 169/ACT 13 list."
13. As a result of the Criminal Record Check, it was confirmed that Claimant had been arrested, charged and plead guilty under the Pennsylvania Criminal Code of CC4101 relating to forgery, which was a Felony 2 for which, having plead guilty, she was sentenced to 4 to 18 months in County Prison, plus costs. Other offenses were also sent forth within the Criminal Record Check.
14. Claimant stated that she did not disclose her prior criminal conviction because the incident occurred in either 1982 or 1983, and she felt that it was too remote in time to be relevant to her current application for employment.
15. Claimant was discharged for falsification of her employment application.
The Board reversed the Referee, holding that Claimant was ineligible for benefits under Section 402(e) of the Law and Section 4001(d)(2) of the EUC Act of 2008. The Board, having found that Claimant admitted that she did not disclose her conviction for forgery, explained that falsification of an employment application rises to the level of willful misconduct if the omission is material to the employment sought. (C.R., Item 13.) The Board concluded that a conviction for forgery is relevant to Claimant's job duties of providing care to vulnerable individuals. (Id.) Further, the Board found that Claimant should have understood that the questions in the employment application and the acknowledgment that she signed referred to convictions at any point in time. (Id.) The Board, therefore, concluded that Claimant did not have good cause for concealing her criminal record. (Id.) Claimant then petitioned this Court for review of the Board's order, and Employer intervened in this matter.
On appeal, Claimant presents two main arguments. First, Claimant argues that the Board erred in concluding that her conduct rose to the level of willful misconduct because the Board did not find that Claimant deliberately falsified her employment application or deliberately concealed her criminal history of forgery. Alternatively, Claimant argues that the Board erred in concluding that her conduct rose to the level of willful misconduct because Claimant's past criminal conviction was not material to her job duties.
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. Section 704 of the Administrative Agency Law, 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 (Pa. Cmwlth. 1992).
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The term "willful misconduct" is not defined by statute. The courts have defined "willful misconduct" as follows:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for 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 or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). A false statement or omission on an employment application is willful misconduct if the misrepresentation is knowing and material to the employee's qualifications for the job at issue. Sill-Hopkins v. Unemployment Comp. Bd. of Review, 563 A.2d 1288, 1290 (Cmwlth. 1989). While the employer bears the burden of proving that a claimant's behavior constitutes willful misconduct, the claimant may be eligible for unemployment compensation benefits if she can prove good cause for her actions. Walsh, 943 A.2d at 369.
Claimant argues that her actions did not rise to the level of willful misconduct because the Board failed to make a necessary finding that she knowingly or deliberately falsified her employment application. We disagree. Although the Board did not use the words "knowingly" or "deliberately" in its findings, there is no requirement that the Board use certain "magic words" in its findings. Moreover, finding of fact number 14, particularly when considered in the context of testimony of record, is sufficient to establish that Claimant's failure to disclose the conviction was done knowingly. Claimant specifically testified that she believed the criminal record check only searched back seven years. (C.R., Item 8.) Claimant stated: "I guess subconsciously I was thinking seven years so I know I haven't had any convictions in seven years." (Id.) She later testified: "I just didn't thing [sic] they'd go back several years." (Id.) This testimony clearly suggests that Claimant knew of her past criminal history but did not believe the criminal record search would discover it. Claimant further testified that she thought the conviction occurred when she was seventeen and that "it wouldn't even be on my record anymore. I just thought that . . . it was done and wiped away." (Id.) The Board, in finding of fact number 14, found that Claimant did not disclose her prior criminal conviction because she felt it was too remote in time to be relevant to her current application for employment. This finding is sufficient to establish that Claimant "knowingly" or "deliberately" falsified her employment application. The Board, therefore, did not err to the extent that it determined Claimant's actions to be knowing or deliberate.
To the extent that Claimant's argument may be interpreted to include a sub-argument challenging the Board's findings relating to the deliberateness of Claimant's actions, we note that the findings are supported by substantial evidence in the record. 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.)
Claimant suggests that the Board erred when it determined her actions were deliberate because the Referee found Claimant's testimony credible. In an unemployment case, the Board, not the referee, 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 also is 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 appears to have rejected the testimony of Claimant that she forgot or believed that she no longer had a criminal record as not credible. (C.R., Items 8 & 13.) Claimant's testimony, admitting that she never disclosed her conviction for forgery to Employer because she felt that it was too remote in time to be relevant was accepted by the Board. (C.R., Item 13.) This testimony supports the Board's finding of fact number 14 (which is sufficient to establish that Claimant's actions were knowing or deliberate). 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.
We address, next, Claimant's contention that the Board erred in concluding that her past criminal conviction was material to Claimant's job duties. As stated earlier, the misrepresentation must be not only deliberate but also material to the employee's qualifications for the job at issue in order to disqualify a claimant from receiving unemployment compensation benefits. Sill-Hopkins, 563 A.2d at 1290. The Board concluded that a conviction for forgery is relevant to Claimant's job duties of providing care to vulnerable individuals. (C.R., Item 13.) Claimant's job duties of caring for vulnerable individuals would include completing medical forms and records, tasks which require honesty and trustworthiness on behalf of the employee. Here, the felony for forgery was material to Claimant's job duties of providing care to and handling and completing medical forms and records for vulnerable individuals.
Claimant relies on Unemployment Compensation Board of Review v. Dixon, 365 A.2d 668 (Pa. Cmwlth. 1976), for the proposition that the Board failed to consider remoteness of the conviction and subsequent rehabilitation when determining the materiality of a criminal conviction. Claimant overstates the holding in Dixon, and Dixon is distinguishable from the case at bar. In Dixon, the employer did not contest the claimant's eligibility for benefits and failed to appear at two hearings before the Referee. Dixon, 365 A.2d at 668. Because the employer failed to provide any information as to the nature of the conviction or when it occurred, there was nothing in the record to support a determination of materiality to the claimant's duties as an assistant machine operator. Id. at 668-69. Without such evidence, the employer failed to establish its burden of proof that the employee was "guilty of willful misconduct by falsely misstating a matter material to his employment." Id. at 669. The case at hand differs from Dixon, because here there is substantial evidence of record to support the Board's finding that Claimant had been convicted of the specific crime of forgery. The Board was able then to consider whether such a conviction was relevant to Claimant's job duties of providing care to vulnerable individuals. Ultimately, the Board concluded that the forgery conviction was material.
In relying on Dixon, Claimant ignores Barnett v. Unemployment Compensation Board of Review, 408 A.2d 195 (Pa. Cmwlth. 1979), and Albater v. Unemployment Compensation Board of Review, 423 A.2d 9 (Pa. Cmwlth. 1980), subsequent cases which establish that information concealed from an employer is material if the job is one which requires trustworthiness from the employee. In Barnett, the employee's trustworthiness was essential to his job which required supervision of other employees and valuable equipment and goods. Barnett, 408 A.2d at 197. In Albater, trustworthiness was an essential characteristic of a janitor in a 25-story office building with possible access to private offices. Albater, 423 A.2d at 11. In this case, a residential service worker is required to provide care to vulnerable individuals, a job which necessarily requires trustworthiness on the part of the employee. A forgery conviction, especially when considered in light of Claimant's deliberate and recent dishonesty when she failed to disclose the conviction, suggests lack of trustworthiness.
In addition, Employer's facility is a "covered facility" subject to the criminal records check provisions under the Older Adults Protective Services Act ("OAPSA"), which prohibits the hiring and employment of persons with convictions for certain criminal offenses. The list of Prohibitive Offenses under the "OAPSA" specifically includes forgery, which further supports the Board's determination that failure to disclose a forgery conviction is material to Claimant's job duties., Because the "OAPSA" establishes the materiality of a conviction for forgery, we are not compelled to consider the remoteness of the conviction or other extraneous factors for purpose of determining eligibility for unemployment compensation benefits, particularly given the lack of any time limitations in the "OAPSA." For the reasons discussed above, we agree with the Board's determination that Employer established its burden of proving willful misconduct.
Act of November 6, 1987, P.L. 381, as amended, added by the Act of December 18, 1996, P.L. 1125, as amended, 35 P.S. §§ 10225.101 to .5102.
See Section 503(a)(2) of the "OAPSA," 35 P.S. § 10225.503(a)(2).
Claimant also relies on Nixon to suggest that despite the statutory provisions of the "OAPSA," the Board violated her constitutional rights by not considering the remoteness of the conviction or subsequent rehabilitation. Claimant's reliance on Nixon is misplaced, as Nixon does not require consideration of those factors and is not a case involving eligibility for unemployment compensation benefits. Rather, Nixon involved several plaintiffs who sought declaratory relief in the Commonwealth Court's original jurisdiction, arguing that portions of the OAPSA were unconstitutional. This Court agreed and enjoined the Department of Welfare, Department of Aging, and Department of Health from applying the restrictions contained in the criminal records chapter of OAPSA as to the individual plaintiffs. Our Supreme Court affirmed, although for different reasons. Regardless, the Supreme Court's opinion struck down amendments to the "OAPSA" as unconstitutional only as applied to the employees in that case who had established work histories in the health care field. Notably, Nixon did not strike down the statute in any and all situations.
Because Employer satisfied its burden of proof as to willful misconduct, the burden shifted to Claimant to prove that she had good cause for her behavior. To prove "good cause" a claimant must demonstrate that the actions were justifiable and reasonable under the circumstances. Walsh, 943 A.2d at 369. Claimant argues that she believed that she no longer had a criminal record for a forgery conviction that occurred twenty-seven years earlier. The Board determined that this was not good cause because she should have understood that those questions referred to a conviction at any point in time. (C.R., Item 13.) We agree. Claimant was aware of her criminal conviction history, but she independently decided it was no longer relevant due to the passage of time.
Given the record before us, we cannot conclude that the Board erred when it determined that Claimant's conduct rose to the level of willful misconduct, and she is, therefore, ineligible for unemployment compensation benefits under Section 402(e) of the Law and Section 4001(d)(2) of the EUC Act of 2008.
Accordingly, we affirm the decision of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 28th day of July, 2011, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge