Opinion
No. 2266 C.D. 2011
06-15-2012
Easy Living Country Estates, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Easy Living Country Estates (Employer) challenges the Order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's determination that Jessica L. Magyor (Claimant) was eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Employer as a full-time nurses' aide from October 28, 2010, until June 13, 2011, at a rate of pay of ten dollars per hour. Employer is a care provider to clients who have suffered strokes and are unable to communicate through their voice box. One particular client had a laminated alphabet board which enabled her to spell words and communicate with individuals. This client was well oriented and also used a "thumbs up" or "thumbs down" to communicate, had a call bell, and a notebook.
On June 13, 2011, Susan Weinstein (Ms. Weinstein), an employee for Employer, asked the client how her day went and received a "thumbs down" which indicated the client wanted to "talk."
The client informed Ms. Weinstein through the communication board that Claimant did not pull her up in her chair at 5:00 in the morning and at 7:15 in the morning. The client also accused Claimant of removing her "call bell" so she could not ring for assistance.
Claimant was discharged on June 15, 2011, for mistreatment of Employer's client.
A hearing was held August 9, 2011.
Ms. Weinstein testified on behalf of Employer. On June 13, 2011, the client indicated to her that "something was wrong" and that the client wanted to talk to her privately. The client spelled out the word "notebook" on her communication board. When she retrieved the notebook "a note fell out of it." Ms. Weinstein testified:
When I opened the notebook I looked at the note, and I said...is this what you want me to see? And she put her thumbs up. And I read it out loud to her, and I said, did this really happen, is this really true? And she put her thumbs up, meaning positive, and then she took her communication board and she spelled out y-e-s. And I said...we will do something about this. And she put her thumbs up, but when she did that she started to cry, and she was crying. And I told her not to worry...we'd talk about it, we would do it and take, you know action for
this note. And I said, but I don't know who wrote the note. And the administrator Connie Lilliock said, well it was probably her sister-in-law, but I'll find out. I said, please find out who wrote the note. And then Connie did the investigation which she can, you know, testify to herself. And that was the sole reason Jessica [Claimant] was terminated, for absolute willful misconduct for taking call bells away from a resident who could not speak and whose only communication was able to do a thumbs up, thumbs down side -- sign, use a communications board, press a call bell or press a TV remote. The resident is alert and oriented. The resident is very bright.Notes of Testimony (N.T.), August 9, 2011, at 6-7; Reproduced Record (R.R) at 7a-8a.
Connie Lilliock (Ms. Lilliock), the Personal Care Administrator for Employer, also testified on behalf of Employer. Ms. Lilliock investigated the incident and contacted the client's brother and sister-in-law who visited the client frequently. The client's sister-in-law often translated notes into the notebook and "verified that she did translate that particular note and left it with [the client]." N.T. at 7; R.R. at 8a.
Claimant testified that Ms. Lilliock called her and informed her that she was terminated "for not pulling a resident up in a chair. Of course I argued about that, because that was false. No such incident ever occurred to me." N.T. at 9; R.R. at 10a.
The Board affirmed the Referee's determination that Claimant was not ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e):
6. The employer sat down with the client and through the above means of communicated [sic] understood that the call bell had been removed from the client by claimant.Board's Decision and Order, November 4, 2011, Findings of Fact 6-9 and Discussion at 2; R.R. at 21a.
7. The client also complained claimant did not pull her up in her chair.
8. The claimant did not mention the call bell at the Referee hearing and denied any chair incident.
9. The employer discharged claimant over this complaint.
DISCUSSION:
....
Based on the record before the Board, the Board is unfortunately constrained to grant benefits in this proceeding. The Board understands the seriousness of the employer [sic] assertion against the claimant and agrees that removing a call bell from such a client would rise to the level of willful misconduct. Unfortunately, the Board is constrained as a matter of law in concluding that the employer only presented hearsay evidence which cannot rebut the presumption of entitlement. Claimant did not rebut this presumption at the hearing and thus cannot be determined to be ineligible under Section 402(e) of the law.
Employer raises two issues on appeal. Employer contends (1) that the Board erred when it disregarded competent evidence and (2) that the Referee exceeded his role as an impartial fact finder and impermissibly assisted Claimant in the presentation of her case.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Initially, Employer argues that the Board erred when it disregarded competent evidence.
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Here, Employer asserts that Claimant was terminated for willful misconduct "for taking call bells away from a resident who could not speak." N.T. at 6; R.R. at 7a. Employer was not present when the incidents allegedly took place or when the note was transcribed by the client's sister-in-law. Claimant argues that the handwritten note is hearsay and Employer offered no first-hand testimony to corroborate its contents.
Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c). A "statement" is defined in the Pennsylvania Rules of Evidence as "(1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion." Pa.R.E. 801(a).
In the present case, the handwritten note was hearsay. An unobjected to hearsay statement will be given its probative effect and may support a finding of fact if corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976). Ms. Weinstein related the content of the handwritten note and how the matter was brought to her attention. Employer did not present the client or the sister-in-law to testify regarding the incident or the note. So, the Board had to assume the truth of any out of court statements made by others.
Here, Claimant denied the truthfulness of the allegations contained in the note. Employer's testimony and evidence failed to meet the standard necessary to support a disqualification of entitlement to benefits for willful misconduct.
Employer also contends that the Referee exceeded his role as an impartial fact finder and impermissibly assisted Claimant in the presentation of her case. This Court disagrees.
An unrepresented claimant is entitled to assistance from the fact finder to develop their case. Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258 (Pa. Cmwlth. 1982). "Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." 34 Pa. Code §101.21. However, the referee is not required to become, and should not assume the role of, a claimant's advocate. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73 (Pa. Cmwlth. 1985).
In the present case, both Employer and Claimant were afforded the opportunity to be heard throughout the proceeding. At the hearing, the Referee posed questions to Claimant to merely clarify her testimony: "So I want to make sure that I understand. Your testimony is that you denied doing any of these things contained within Employer's #1?" Claimant answered, "Yes." N.T. at 10; R.R. at 11a.
On several occasions, the Referee prompted Employer to question Claimant about the events that led to her termination in an effort to adequately develop the record. However, Employer failed to specifically ask Claimant whether she removed the client's "call bell."
Also, the record simply does not bear out that the Referee became an advocate of Claimant.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 15th day of June, 2012, the Order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge