Opinion
No. 1377 C.D. 2011
04-05-2012
Tyrone E. Foster, 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
Tyrone E. Foster (Claimant) petitions for review from an order of the Unemployment Compensation Board of Review (Board) reversing the decision of the Referee and finding him ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) for violating Temple University Hospital's (Employer) Close Observation Policy (policy). Because Claimant was guilty of willful misconduct, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant 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 by Employer for over 13 years as a Trauma Patient Care Assistant (PCA) in Employer's emergency department. As a suicide precaution, Employer's policy required staff members assigned to patients designated for "one-to-one" supervision to "be within arm's length of patient at all times, including when [patient] is in the bathroom." (March 1, 2011 Hearing Transcript, Exhibit 2) (emphasis in original). On October 30, 2010, Claimant was working in Employer's emergency department and was assigned to one-to-one supervision of a patient. Claimant and his backup, Robert Lawrence (PCA Lawrence), waited outside the door of the patient's room while a physician consulted with the patient. Upon exiting the patient's room, the physician gave Claimant paperwork to copy and told Claimant to get the patient a sandwich. Claimant then left the patient's area in order to comply with the physician's orders without specifically requesting that PCA Lawrence monitor the patient. Even though he knew that Claimant had been ordered by the physician to get the patient a sandwich, PCA Lawrence apparently did not supervise the patient but instead notified the charge nurse that Claimant had abandoned his patient. Employer suspended Claimant on October 31, 2010, as a result of this incident and after an investigation discharged Claimant on November 23, 2010.
Claimant filed for unemployment compensation benefits with the UC Service Center which found that Claimant was eligible for benefits because he denied violating Employer's policy and Employer failed to provide documentation to substantiate willful misconduct. Employer appealed, and a hearing was held before a Referee. Sally Dillon (Dillon), Claimant's supervisor, testified that she conducted an investigation after receiving a report that Claimant had abandoned a one-to-one patient for whom he was responsible. She testified that Claimant admitted that he left the patient because he was given a direct order by the attending physician for that patient. Dillon explained the proper procedure in these situations, stating:
We have a procedure in place that patients on a one-to-one cannot be left unattended so if the staff member needs to obtain a sandwich, copy paperwork, there are alternatives available for them. They can call the charge nurse and the charge nurse will delegate another staff member to sit on the one-to-one. They can ask a co-worker to cover them while they go and get the sandwich or copy the paperwork.(March 1, 2011 Hearing Transcript at 6). Dillon further testified that Claimant should have been familiar with this policy. To corroborate that testimony, Employer introduced into evidence a copy of Claimant's "Close Observation (1:1) Suicide Precautions Competency" evaluation, which PCAs are required to complete yearly.
Kimberlee Bowen (Bowen), the charge nurse on the date of the incident, testified that Claimant did not contact her on that day to indicate that he needed to leave his patient. After PCA Lawrence informed her that Claimant had left his patient, she found Claimant having a telephone conversation in a different section of the emergency room. Bowen testified that when she asked Claimant who was watching his one-to-one patient, Claimant replied "I don't know." (March 1, 2011 Hearing Transcript at 8-9). She further testified that Claimant did not state that he had left the patient because he was complying with the physician's orders.
Christopher Gazdick (Gazdick), the director of Employer's emergency department, testified that he was present at Claimant's termination meeting and grievance hearing, and Claimant did not state at either proceeding that PCA Lawrence had taken over supervision of his one-to-one patient. Gazdick testified that during the termination proceeding, Claimant again responded "I don't know" when asked who was watching the patient in his absence. Gazdick also testified that PCA Lawrence gave a written statement indicating that he was not "handed off" care by Claimant.
Claimant testified that he and PCA Lawrence were at the patient's door while the physician treated the patient, and that per the physician's request, he left to get the patient a sandwich and make copies of paperwork. He testified that PCA Lawrence was in the patient's room when he returned and the patient had not been abandoned at any point. Claimant attributed PCA Lawrence's report to the charge nurse that Claimant had abandoned the patient to PCA Lawrence's "personal vendetta" against him. He further testified that he told Dillon during the investigation that he did not leave the patient unattended.
Finding that Claimant's failure to obtain an affirmative agreement from his co-worker to watch the patient did not rise to the level of willful misconduct, the Referee affirmed the UC Service Center's determination and held that Claimant was not disqualified from receiving benefits under Section 402(e) of the Law. Employer appealed to the Board, which found that Employer's witnesses credibly testified that Claimant was aware of Employer's policy and knew that he was required to ask the charge nurse or another co-worker to supervise the one-to-one patient before leaving. The Board did not find credible Claimant's testimony that he believed another PCA was monitoring the patient in his absence. The Board based this finding on Employer's credible testimony that Claimant never gave that explanation to the charge nurse after the incident or to other Employer representatives during his pre-termination hearing but, instead, consistently stated that he did not know who was supervising the patient after he left. Finding that Claimant's behavior amounted to willful misconduct under Section 402(e) of the Law, the Board reversed the Referee's decision and denied benefits. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated, or necessary findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).
On appeal, Claimant contends that the Board erred in finding that he deliberately refused to comply with Employer's policy. He argues that he was simply following the direct orders of the treating physician, and given the fact that Claimant's co-worker was present when Claimant was given these orders, it was reasonable to presume that the co-worker would monitor the patient in Claimant's absence. Claimant contends that Employer failed to meet its burden of proving a deliberate or intentional violation of the rule, and, at most, Claimant's actions merely constituted negligence.
The record indicates that Employer required a staff member engaged in "one-to-one" supervision of a patient to specifically request that another staff member assume responsibility for the patient and obtain an affirmative response before leaving the patient. The testimony presented by Employer established that Claimant failed to take those steps prior to leaving his patient. Specifically, Bowen's testimony that Claimant responded "I don't know" when asked who was watching his patient, and Gazdick's testimony that "Claimant was asked directly...at the grievance proceedings if he had directly handed off care to another provider within the emergency department and he stated no, I didn't hand off," demonstrate that Claimant violated Employer's policy. The Board accepted that testimony and rejected Claimant's testimony that he believed PCA Lawrence was monitoring the patient in his absence. Because the Board is the ultimate fact finder and determiner of credibility in unemployment compensation cases and may accept or reject the testimony of any witness in whole or in part, McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003), we will not disturb its finding that Claimant violated Employer's policy when he intentionally left his one-to-one patient without affirmatively ensuring that the patient was being supervised by a co-worker.
Alternatively, Claimant argues that if he did violate the policy, his actions were justifiable and reasonable in light of the circumstances and, therefore, did not constitute willful misconduct. Claimant contends that the treating physician had the ultimate authority over the patient, and failure to follow his orders would have also been construed as a violation of Employer's policies. However, the treating physician's orders did not excuse Claimant from ensuring that his co-worker would supervise the patient in his absence or from seeking permission from the charge nurse before complying with the physician's orders.
"Where an employee has been discharged based upon willful misconduct in violating employer's work rule, the burden is on the employer to establish both the existence of a reasonable work rule and its violation... Once the employer proves the existence of a rule, its reasonableness, and the fact of its violation, the burden of proof shifts to the claimant to prove that he had good cause for his action." Rung v. Unemployment Compensation Board of Review, 689 A.2d 999, 1001 (Pa. Cmwlth. 1997). --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 5th day of April, 2012, the order of the Unemployment Compensation Board of Review, dated May 24, 2011, at No. B-11-09-E-0126, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
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. Sheets, Inc. v. Unemployment Compensation Board of Review, 578 A.2d 621 (Pa. Cmwlth. 1990).