Opinion
No. 1147 C.D. 2011
03-07-2012
Ditty Cawley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Ditty Cawley (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because her actions amounted to willful misconduct. Finding no error in the Board's decision, 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 pertinent part:
An employe shall be ineligible for compensation for any week -
(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.
Claimant was employed part-time as a house manager aide with the Allegheny Valley School (Employer) from November 22, 2004 until November 23, 2010. Employer has a policy which states that an employee found sleeping while on duty shall be discharged from employment and that such infractions will be reviewed based on evidence of pre-meditation. On November 18, 2010, Claimant was found sleeping while on duty and her employment was immediately suspended pending investigation. Employer then terminated Claimant's employment on November 23, 2010.
Claimant filed an unemployment compensation claim alleging she did not violate Employer's policy and was not sleeping while on duty. The Department of Labor and Industry's Office of Unemployment Compensation Benefits found Claimant eligible for benefits under Section 402(e) of the Law because Employer did not sustain its burden of proof that Claimant was, in fact, sleeping on the job. Employer appealed this determination.
Before the Referee, Tara Gittleman (Ms. Gittleman), Employer's human resources manager, testified that Claimant worked the 10:00 p.m. to 6:00 a.m. shift at the time of the incident. At some point between 4:00 and 5:00 a.m. on November 18, 2010, Rose Spence (Ms. Spence), Claimant's supervisor, found her sleeping while on duty. Ms. Gittleman testified that Employer has a policy prohibiting sleeping while on duty, which states, "[a]ny employee sleeping while on duty may be subject to immediate dismissal. Each instance is reviewed on an individual basis, relative to the safety and welfare of residents, or evidence of premeditation." (Hearing Transcript (H.T.) at 8). Ms. Gittleman explained the term premeditation, stating that "if somebody is found with a blanket on, or shoes off, or they're in a bed, that's considered premeditation." (H.T. at 8). Ms. Gittleman testified that Claimant signed an acknowledgement form indicating that she read the employee manual containing this policy and that someone reviewed the manual with her. Ms. Gittleman admitted on cross-examination that there have been instances where an employee has been observed sleeping while on duty but her employment was not terminated. Ms. Gittleman explained that if an investigation revealed the act was not premeditated, such as if an employee simply fell asleep at her desk, then she could be given a five-day suspension and written warning rather than her employment being terminated.
Darlene Fulton (Ms. Fulton), Employer's program administrator, testified that at approximately 5:00 a.m. on November 18, 2010, Ms. Spence called and told her that she had found Claimant sleeping while on duty. Ms. Fulton instructed Ms. Spence to inform Claimant she was suspended pending investigation. Later that day, Ms. Fulton informed Claimant that Employer was conducting an investigation into the allegation, at which time Claimant denied the allegations. As part of the investigation, Employer had Claimant make a written statement as to what happened and obtained oral and written statements from other employees involved in the situation, including Ms. Spence and Djene Sillah (Ms. Sillah). In their statements, Ms. Spence and Ms. Sillah both indicated that they personally observed Claimant lying down on a couch with her shoes off, a pillow or cushion under her head, and a blanket covering her. Ms. Fulton testified that Claimant was discharged for a rules violation as a result of the investigation.
Ms. Spence, Employer's house manager, testified that she arrived at the house Claimant was working in at approximately 4:20 a.m. on the night in question in order to conduct a fire drill. Ms. Spence opened the door without using a key, thus setting off the intruder alarm. After entering the house and disabling the alarm, Ms. Spence observed Claimant lying down on a sofa in the music room with the lights off. Ms. Spence testified that Claimant's shoes were off, she had a cushion under her head, and she was covered with a blanket. Ms. Spence called Claimant's name several times and turned the light on, but she did not respond. Ms. Spence then had Ms. Sillah come over to serve as a witness and again called Claimant's name, with no response. After the fourth time Ms. Spence called her name, Claimant finally woke up, said "oh my god, oh my god," rubbed her face, and went back to work. Ms. Spence notified Ms. Fulton of the incident and later informed Claimant she was suspended pending an investigation.
Ms. Sillah, another house manager aide for Employer, testified that on the morning in question both she and Ms. Spence observed Claimant lying on a couch in the music room with a blanket covering her. Ms. Spence called Ms. Sillah over to the door of the music room, saying she had to be her witness. Ms. Spence then turned on the light and called Claimant's name three or four times before she woke up, rubbed her eyes, said "oh my god" and went back to work. On cross-examination, Ms. Sillah denied the allegation that she, in fact, was the one who was caught sleeping while on duty.
Claimant testified that at 4:06 a.m. on the day in question she went into the music room, turned the radio up, and sat down on the sofa. According to Claimant, she sat with one foot up on the sofa listening to music for about four or five minutes before Ms. Spence came to the door and called her name. Claimant testified that she immediately stood up and said "yes," but Ms. Spence did not say anything in return. Claimant stated she was concerned for Ms. Sillah because Ms. Sillah had been sleeping in the living room prior to Ms. Spence's arrival. Claimant alleged that Ms. Sillah then called her into one of the resident's rooms and began yelling, stating that Ms. Spence caught her sleeping on the sofa and she thought she might be fired. Claimant then witnessed Ms. Sillah hugging Ms. Spence, stating she's a good worker and begging Ms. Spence not to fire her. According to Claimant, Ms. Spence did not inform her before she left for the day that she was suspended or that she had caught her sleeping; she simply sent Claimant home early, made her turn in her keys and told her to call Ms. Fulton.
The Referee found Employer's witnesses to be credible and found Claimant ineligible for benefits under Section 402(e). The Referee found that both Ms. Spence and Ms. Sillah witnessed Claimant sleeping on a sofa during her shift and that Claimant did not wake up immediately despite the intruder alarm going off and her name being called several times. The Referee determined that Claimant sleeping while on duty amounted to willful misconduct because she deliberately violated Employer's work rule, her conduct was inimical to the Employer because she jeopardized the safety of the residents, and her conduct exhibited a disregard of the standards of behavior an employer has the right to expect of an employee. Claimant appealed to the Board, which affirmed, and this appeal followed.
The Court's scope of review in this matter is limited to determining whether there was a constitutional violation or error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
On appeal, Claimant argues that the Board's finding of willful misconduct is not supported by substantial evidence. However, the crux of this argument relies upon Claimant's own testimony and version of the events, which the Board did not find to be credible. This Court has repeatedly stated that the Board is the ultimate finder of fact in unemployment compensation proceedings, empowered to resolve all conflicts in the evidence and determine the credibility of witnesses. Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264, 1268 n.3 (Pa. Cmwlth. 2009), appeal denied, 606 Pa. 674, 996 A.2d 493 (2010); Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841 (Pa. Cmwlth. 2005). Despite Claimant's arguments, the testimony of Employer's witnesses is not contradictory, inadequate, equivocal, or ambiguous. To the contrary, the testimony of Ms. Fulton, Ms. Spence and Ms. Sillah is consistent - all three witnesses testified that Claimant was found sleeping on a sofa, with a cushion under her head and a blanket covering her - and there is nothing in the record to even remotely support Claimant's argument that the credibility determinations should be overturned.
Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a finding of fact." Seton Co. v. Unemployment Compensation Board of Review, 663 A.2d 296, 299 n.3 (Pa. Cmwlth. 1995). --------
It is well-settled that in willful misconduct cases involving violation of a work rule, the employer bears the burden of proving the existence of a reasonable work rule and the fact that the claimant violated the rule. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999); Brunson v. Unemployment Compensation Board of Review, 570 A.2d 1096, 1098 (Pa. Cmwlth. 1990). This Court has specifically stated that "sleeping on the job is prima facie an act of willful misconduct, for it falls within either 'wanton and wilful disregard of the employer's interest,' or 'disregard of standards of behavior which an employer can rightfully expect.'" Ragland v. Unemployment Compensation Board of Review, 428 A.2d 1019, 1020 (Pa. Cmwlth. 1981) (citing Unemployment Compensation Board of Review v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976)). Once the work rule and its violation have been established, the burden then shifts to the claimant to prove she had good cause for her actions, meaning that her actions were justified or reasonable under the circumstances. Guthrie, 738 A.2d at 522 (citing Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976)).
Claimant does not dispute the existence of a work rule prohibiting sleeping while on duty. The Board credited the testimony of Employer's witnesses, all three of whom testified that Claimant was observed sleeping on a sofa in the music room during her shift. Ms. Spence and Ms. Sillah credibly testified that Claimant was lying on the sofa with the lights out, her shoes off, a cushion or pillow under her head, and a blanket covering her. Ms. Spence testified that she turned on the lights and called Claimant's name four times before she woke up, and Ms. Sillah corroborated this testimony. This amounts to more than substantial evidence to support the Board's conclusion that Claimant violated Employer's policy against sleeping while on duty. The burden then shifted to Claimant who failed to establish good cause for her actions.
Claimant also argues that she was denied a full and fair hearing because the Referee demonstrated bias and limited her ability to put on relevant evidence and cross examine witnesses. However, we find no truth to these allegations. The Referee continued the initial hearing in this case to allow Claimant to obtain counsel, even though Claimant had plenty of time to do so prior to the hearing and should have been aware of her right to representation as it was fully explained in the hearing notice she received. There is no evidence of bias in the transcript and Claimant was given the opportunity to testify, fully cross-examined all four of Employer's witnesses, and entered evidence into the record.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 7th day of March, 2012, the order of the Unemployment Compensation Board of Review, dated May 27, 2011, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
While the term "willful misconduct" is not specifically defined in the Law, the Supreme Court of Pennsylvania has provided the following definition:
(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 Compensation Board of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003) (citing Navickas v. Unemployment Compensation Review Board, 567 Pa. 298, 787 A.2d 284, 288 (2001)). To show willful misconduct, an employer must present evidence that the employee's conduct was intentional and deliberate, not just that the employee committed a negligent act. Grieb, 573 Pa. at 600, 827 A.2d at 426. The court must consider all the facts and circumstances when making this determination, including the employee's proffered reasons for noncompliance.