Opinion
No. 36 C.D. 2011
07-25-2011
Wilma L. Curtis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Wilma L. Curtis (Claimant) petitions for review of the December 13, 2010 order of the Unemployment Compensation Board of Review (UCBR) reversing the Referee's determination, thereby denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). The issue before this Court is whether the UCBR erred by finding that Claimant was discharged for willful misconduct. For the reasons that follow, we affirm the order of the UCBR.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was employed full-time by the Lutheran Home for the Aged at The Village At Luther Square (Employer) as a full-time registered nurse assessment coordinator (RNAC) from October 20, 2008 through June 4, 2010. Employer terminated her employment effective June 15, 2010 for failing to meet work performance standards. Claimant's job duties included, among other things, collecting information from nurses, aides, social workers and therapists for each 24-hour period of care provided for Employer's residents and putting the information in Employer's care tracker system on a minimum data set (MDS), from which the residents' care plans would be initiated. When claimant inputs the data, it is transmitted to the Commonwealth of Pennsylvania and results in payment to Employer.
The evidence in this case is largely uncontested. Claimant performed her work satisfactorily until February of 2010. According to Employer's Director of Human Resources, Genevieve Putnam, in February of 2010, Claimant's work performance began to suffer. According to Claimant, the prescription Xanax she had been taking when she began working for Employer had been increased by her doctor early in 2010. It is uncontested that Claimant had difficulty concentrating and became withdrawn from the nursing staff. Without authority, Claimant changed a certain policy and procedure which led to a drop in its case mixing index reimbursements. She was not communicating effectively with nurses and nursing assistants about properly inputting certain information, which resulted in discrepancies in her MDS assessments.
Ms. Putnam and Employer's Nursing Home Administrator, Alex Petrungaro, counseled Claimant in undocumented sessions between February and April 2010. Claimant admitted she made mistakes, but was not aware of how many. She indicated that she had some family issues. Claimant realized that she had been overmedicated after she had been involved in a car accident on April 14, 2010, and ceased taking Xanax when she worked. On April 28, 2010, Claimant was placed under a performance improvement plan under which her office was moved to a location where she would have easier access to the residents, she was provided assistance, and she was to meet with the Director of Nursing, Colleen Mayo, on a weekly basis to track her progress. Ms. Putnam personally reviewed her MDS assessments. Despite this assistance, Claimant had difficulty meeting even her initial performance improvement goals. It became evident after a Utilization Management Review (UMR) audit on June 3, 2010 that Claimant was still creating numerous errors. As a result of her filing incorrect and late documents with the Commonwealth, Employer lost an estimated $250,000.00 in income. Claimant stated that the delays in her reporting were due to failures by a social worker and activities coordinator to timely provide their information for the reports. Claimant admitted, however, that it was her responsibility to see that she had all of the necessary information in order to timely submit the reports.
On June 4, 2010, she was placed on unpaid suspension, and Employer removed her from her RNAC position. Pending approval by Mr. Petrungaro, Claimant was offered a charge nurse position at the same pay. As Ms. Mayo was escorting her from the facility, Claimant said, "I might just take the job just to torture you." Notes of Testimony, August 19, 2010 (N.T.) at 16. By letter dated June 7, 2010, Ms. Putnam notified Claimant that she was removed from her RNAC position based upon her poor work performance. Employer's Chief Executive Officer, Mark Gusek, and Ms. Putnam met with Claimant on June 10, 2010. Claimant told Mr. Gusek and Ms. Putnam that she had been having problems with Ms. Mayo; specifically, that Ms. Mayo was trying to get rid of her. She did not previously report any such problems to Mr. Gusek or Ms. Putnam. Moreover, based upon her claims that the social worker failed to provide timely information to her, Mr. Gusek reviewed Claimant's email communications and determined that Claimant failed to respond to the social worker's emails for a two-month period of time. Claimant's explanation was that she was angry with the social worker.
At the June 10, 2010 meeting, Claimant agreed to a paid suspension pending an investigation, and to provide copies of notes supporting her position no later than June 16, 2010. However, on June 15, 2010, she notified Mr. Gusek that she would not be providing the notes she agreed to send. By letter dated June 16, 2010, Claimant's employment was terminated effective June 15, 2010, Employer having determined that her comment threatening Ms. Mayo resulted in her no longer being a viable candidate for the charge nurse position.
Claimant filed for unemployment compensation (UC) benefits. The UC Service Center deemed Claimant eligible for benefits pursuant to Section 402(e) of the Law. Employer filed a timely appeal. A hearing was held before a Referee on August 19, 2010, at which Claimant and three witnesses for Employer testified. On August 26, 2010, the Referee affirmed the UC Service Center's determination. Employer appealed to the UCBR, which reversed the Referee's decision. Claimant appealed to this Court.
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. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
On December 7, 2010, Employer filed a notice of intervention.
Claimant argues on appeal that the UCBR improperly denied her benefits because the facts of record establish that she did not commit willful misconduct. We disagree. Under Section 402(e) of the Law, an employee is not eligible for benefits if "his unemployment is due to his discharge . . . for willful misconduct connected with his work . . . ."
Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from his employee; or (4) negligence which manifests
culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064, 1069 n.7 (Pa. Cmwlth. 2009). "Whether a claimant's conduct constituted willful misconduct is a question of law subject to this Court's review. Further, the employer bears the burden of establishing that the claimant was discharged for willful misconduct on the job." Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009) (citation omitted). "Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove that his actions were justified or reasonable under the circumstances." Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006).
We acknowledge that mere incompetence, inexperience, or inability to do a job, or even carelessness do not necessarily constitute willful misconduct. Rung v. Unemployment Comp. Bd. of Review, 689 A.2d 999 (Pa. Cmwlth. 1997). However, this Court has held that there is sufficient evidence to support a finding by the UCBR that a claimant is ineligible for benefits under circumstances in which he initially demonstrated the skills and abilities to perform the job properly, but his attitude deteriorated and his work slipped drastically, thereby resulting in serious mistakes with respect to his employer's business. Shearer v. Unemployment Comp. Bd. of Review, 527 A.2d 615 (Pa. Cmwlth. 1987). In Kosmalski v. Unemployment Compensation Board of Review, this Court specifically stated:
Despite the employer's pointing out numerous errors and needed corrections, claimant's quality of work never returned to its previous satisfactory level. Accordingly, this failure to work at her full proven potential must be construed as conduct showing intentional and substantial disregard of the employer's interest or of the employee's duties and obligations, [i]. e., willful misconduct.397 A.2d 875, 876 (Pa. Cmwlth. 1979).
In this case, Claimant admits that she "is not arguing there was no basis for her dismissal . . . ." Claimant's Br. at 11. What Claimant is asking this Court to do is reassess the credibility of the witnesses relative to whether she was working to her full proven potential, or whether she simply disregarded her duties and obligations. "In unemployment compensation proceedings, the [UCBR] is the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence and to determine the credibility of witnesses." Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008).
The UCBR deemed credible the testimony of Employer's witnesses that, after properly doing her job for employer without difficulty for over a year, Claimant began to experience significant problems for which she was being assisted by Employer. Despite Employer's efforts, however, Claimant failed to improve. Ultimately, she was discharged due to her unsatisfactory work performance, namely, late reporting submissions that resulted in the loss of significant funding for Employer which were the result, at least in part, of her failure to respond to the social worker's emails. In addition, her comment to Ms. Mayo about the charge nurse position was clearly antagonistic, and therefore, against Employer's interests. Finally, after Employer converted her unpaid suspension to a paid suspension in order to give her a chance to supply Employer with documents to support her reasons for her difficulties, Claimant refused to supply the documents. The UCBR did not find that Claimant credibly established good cause for her actions. Based on the above, we hold that the finding of willful misconduct is supported by substantial evidence.
"Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Pittsburgh, Dep't of Pub. Safety v. Unemployment Comp. Bd. of Review, 927 A.2d 675, 676 n.1 (Pa. Cmwlth. 2007) (quotation marks omitted). Where, as here, substantial evidence supports the UCBR's findings, credibility determinations made by the UCBR are not subject to review by this Court. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994).
Because there was substantial evidence to support the UCBR's finding that Claimant engaged in willful misconduct, the UCBR's decision is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 25th day of July, 2011, the December 13, 2010 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge