Opinion
No. 1071 C.D. 2012
11-29-2012
Yolanda H. Conner, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Yolanda H. Conner (Claimant) petitions for review of the May 21, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to deny Claimant unemployment compensation benefits. The UCBR determined that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law) because she was discharged from work for willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked as a full-time custodian for Everett Area School District (Employer) from February 2008 through January 23, 2012. (Findings of Fact, No. 1.) As a custodian, Claimant was either apprised of a need for maintenance or, if she observed an area that required maintenance, was expected to create a work order for the maintenance staff. (Findings of Fact, No. 11.) Claimant's job duties did not require her to operate any woodshop equipment. (Findings of Fact, No. 10.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law in their entirety. Thus, any citations to the findings of fact may be found in the referee's March 13, 2012, decision.
Claimant was aware that wood had been stacked on pallets by a subcontractor who was hired to dismantle a barn on Employer's property. (Findings of Fact, No. 9.) Claimant and a co-worker ripped three pieces of three-foot-long barn wood and used an electric saw and router from Employer's woodshop to cut the wood into smaller pieces. (Findings of Fact, Nos. 12-13.) Claimant then assisted the co-worker in completing a craft project of making a picture frame. (Findings of Fact, No. 5.) Claimant and the co-worker also used four wood screws from Employer's woodshop to fasten the frame together. (Findings of Fact, No. 6.)
When asked by her supervisors about the incident, Claimant initially admitted to helping the co-worker retrieve the barn wood from the pallet. (Findings of Fact, No. 3.) Claimant also stated that she and her co-worker had worked on the craft project only after completing all of their assigned work. (Findings of Fact, No. 4.) Claimant later recanted her statement that she helped the co-worker retrieve the barn wood from the pallet. (Findings of Fact, No. 7.) Before this incident, Claimant and her co-worker had complained to their supervisor that they were unable to complete their assigned duties on most days due to Employer's decision to reduce the number of custodians at the school. (Findings of Fact, No. 8.)
Employer suspended, and later discharged, Claimant for using the material of a subcontractor, using district property without proper training or permission, using district material for personal use, and misusing work time. (Findings of Fact, No. 2.)
Claimant filed a claim for unemployment benefits, which was granted by the local service center. Employer appealed to the referee, who held a hearing on March 6, 2012. The referee ultimately reversed the service center's decision, concluding that although Claimant's use of the wood screws was de minimis, her "decision to operate [the] power equipment during work hours [for] personal endeavors by a co[-]worker" was willful misconduct. (Referee's Decision/Order at 3.) Claimant timely appealed to the UCBR, which affirmed. Claimant now petitions for review of that decision.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant asserts that the UCBR's willful misconduct determination is unsupported by substantial evidence. We disagree.
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). The employer bears the burden of proving that the discharged employee committed willful misconduct. Id.
Here, the UCBR determined that Claimant disregarded the standards of behavior that Employer had the right to expect of its employees. Specifically, the UCBR found that Claimant's unauthorized use of Employer's power saw and router to complete a personal project was inimical to Employer's best interests. See Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (noting that "'it is contrary to reasonable standards of behavior for an employee to use company property for personal activities without authorization, even absent a rule prohibiting such conduct'") (citation omitted). Claimant's conduct was particularly egregious because of the inherent danger involved in operating the power saw, which the Claimant recognized. As the referee explained:
The competent and credible testimony of the claimant reflects that she was well aware that the rip saw had a safety issue that precluded one person from operating it without another person in close proximity to press the kill switch should a mishap occur which is out of reach of the operator.(Referee's Decision/Order at 2; see N.T., 3/6/12, at 23.) Thus, the UCBR properly concluded that Claimant committed willful misconduct under the Law.
Claimant also argues that the record does not support the UCBR's finding that she and her co-worker completed the craft project during work hours. The UCBR based its finding on the following testimony of Employer's witness:
When asked when they were working on . . . the project with the wood[,] . . . [Claimant] stated that she worked on it at night when her work was finished and during their breaks. When asked to clarify that[,] [Claimant] was asked still during your work time and the response was yes.(N.T., 3/6/12, at 10; see id. at 7.) We conclude that this testimony, which was credited by the UCBR, was sufficient to support the UCBR's finding. See Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 n.8 (Pa. Cmwlth. 2011) ("[A]dmissions of a party are admissible as competent evidence in proceedings before the [UCBR], and may be relied upon by the [UCBR], as a recognized exception to the hearsay rule.").
Accordingly, because we conclude that the UCBR's willful misconduct determination is supported by substantial evidence, we affirm.
In her brief, Claimant also argues that Employer failed to establish the existence of a work rule prohibiting her from using Employer's woodshop equipment. We need not address this claim, however, because the UCBR did not base its willful misconduct determination on a work rule violation. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 29th day of November, 2012, we hereby affirm the May 21, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge