Opinion
No. 1732 C.D. 2011
07-24-2012
Rebecca A. Galilei, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Rebecca A. Galilei (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of the Unemployment Compensation Referee (Referee) and denied Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was employed by UPMC Presbyterian (Employer) as a full-time surgical technician from February 2009 until March 10, 2011, her last date of work. (Reproduced Record (R.R.) at 1a.) On March 10, 2011, Claimant was suspended and subsequently discharged from employment for giving the appearance of sleeping on the job. (Id. at 57a.) Claimant filed for unemployment compensation benefits. (Id. at 1a.) On April 15, 2011, the UC Service Center issued a Notice of Determination (Determination), finding Claimant eligible for benefits under Section 402(e) of the Law. (Id.) Employer appealed the Determination. (Id. at 5a.)
On May 25, 2011, a hearing was conducted in front of the Referee. (Id. at 13a.) At the hearing, three witnesses testified on Employer's behalf. (Id.) Employer's first witness worked for Employer as a Human Resource Consultant. (Id. at 18a.) She testified that Employer has a corrective action and discharge policy which provides, in part, that sleeping on the job or giving the appearance of sleeping on the job will result in termination. (Id. at 20a.) A copy of the policy was admitted into evidence. (Id.) She further testified that Claimant would have been made aware of this policy at orientation or, additionally, could have gained access to the information through UPMC's internet. (Id.)
Employer's second witness worked for Employer as a Surgical Technician. (Id. at 21a.) She testified that she witnessed Claimant sleeping in the nursing lounge on March 9, 2011. (Id.) According to the witness, she walked into the nursing lounge and found Claimant lying down on a couch. (Id. at 21a-22a.) Claimant looked like she was not feeling well. (Id. at 21a.) The witness immediately walked over to Claimant and asked her if she was okay. (Id. at 21a-22a.) Claimant's eyes were closed. (Id. at 22a.) After the witness repeated the question, Claimant opened her eyes and said she was fine. (Id. at 21a.) When asked how long the witness observed Claimant lying down with her eyes closed, the witness responded, "Seconds. I mean, not long at all." (Id. at 22a.) After the incident and upon request, the witness e-mailed Employer a statement regarding what she witnessed. (Id. at 23a.) Employer introduced the e-mail into evidence. (Id.) The e-mail provides, in part, "I found Becca laying (sic) down and asleep on the sofa." (Id. at 44a.)
Employer's third witness worked for Employer as an Operating Room Director. (Id. at 24a.) She testified that on March 9, 2011, Claimant was scheduled to work from 6:45 a.m. until 3:15 p.m. (Id.) Claimant, however, did not report into work until 7:00 a.m. (Id.) She further testified that Claimant failed to attend a mandatory department meeting that began at 7:00 a.m. that morning. (Id.) She stated that the multiple doors that lead to the meeting room were left unlocked because staff members sometimes arrive late. (Id. at 25a.) Claimant, therefore, should have been present at the meeting even if she was running late. (Id. at 24a-25a.)
Claimant, on the other hand, testified that by the time she arrived at the meeting, the doors were locked. (Id. at 26a.) Unable to attend the meeting, she proceeded to the hospital where she checked her assignment and gathered supplies, then headed to the nursing lounge to drink a cup of coffee. (Id.) Claimant maintained that she did not fall asleep nor did she appear to be sleeping. (Id.) She also testified that, pursuant to Employer's policy, an employee who misses a department meeting gets docked an hour's pay. (Id.) She, therefore, was not "on the clock" at the time she supposedly appeared to be sleeping. (Id.) Employer's third witness, however, denied being aware of any such policy. (Id. at 32a.)
On cross-examination of Claimant, Employer introduced into evidence an e-mail that Claimant had sent Employer subsequent to the incident. (Id. at 28a.) The e-mail provides, in part, "My PCP abruptly discontinued a medication that I was taking and a withdraw symptom is extreme lethargy." (Id. at 47a.) Claimant admitted that she did not inform Employer that she may be lethargic, because she was unaware of the possible side effects of discontinuing her medication. (Id. at 28a.)
Although not indicated in the record, we assume PCP stands for Primary Care Physician.
The Referee reversed the determination of the UC Service Center and denied Claimant benefits under Section 402(e) of the Law. (Id. at 1a.) The Referee made the following relevant findings of fact:
1. The claimant was last employed by UPMC as a full-time surgical technician from February 2009 until her last day worked of March 10, 2011, at a final rate of pay of $16.79 an hour.
2. The claimant was aware that giving the appearance of sleeping on the job could result in her immediate discharge.
3. The claimant was scheduled to work from 6:45 am until 3:15 pm on March 9, 2011.
4. The claimant was required to attend a mandatory staff meeting at 7:00 am on March 9, 2011.
5. The claimant arrived at work at about 7:00 am or a minute or so after.
6. The claimant did not go to the meeting.
7. The claimant did some work in preparation for surgery and then went to the lounge at around 7:20 am.
8. The claimant laid her head down and closed her eyes.(Id.)
9. Another surgical technician entered the lounge at about 7:40 am and saw the claimant lying down with her eyes closed.
10. The other technician asked the claimant twice if the claimant was okay before the claimant replied.
11. The claimant was suspended and then discharged for giving the appearance of sleeping on the job.
The Referee found credible the testimony of Employer's witness that the meeting room door was not locked. (Id.) Likewise, he found the testimony that Employer did not have a policy of docking employees an hour for missing a department meeting credible. (Id.) He also found credible the testimony of Employer's second witness that she asked Claimant twice if she was okay before Claimant responded. (Id.) Consistently, he found several aspects of Claimant's testimony to be not credible. (Id.) The Referee concluded that Claimant's actions of appearing to sleep on the job amounted to willful misconduct. (Id.)
Claimant appealed to the Board. (Id. at 5a.) The Board affirmed the decision of the Referee and adopted his findings of fact and conclusions of law. (Id.) Claimant then petitioned this Court for review. (Id. at 7a.)
On appeal, Claimant essentially raises two issues for our consideration: (1) whether the Board erred in concluding that Claimant engaged in willful misconduct, and (2) whether the Board's finding that Claimant appeared to be asleep on the job is supported by substantial evidence.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.
First, we will address Claimant's argument that the Board's finding that Claimant appeared to be asleep on the job is not supported by substantial evidence. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
In Claimant's brief, she first challenges whether the Board made an error of law in concluding that Claimant's actions amounted to willful misconduct. We address the issue of substantial evidence first, however, because substantial evidence is required to make findings of fact, which are necessary to support legal conclusions.
In this case, Employer's witness testified that Claimant appeared to be sleeping when she was lying on a couch with her eyes closed. (R.R. at 21a-22a.) This testimony is corroborated by the e-mail the witness sent Employer subsequent to witnessing this incident. (Id. at 44a.) The witness further testified that she asked Claimant twice if she was okay before Claimant opened her eyes and responded. (Id. at 21a.) The Board, adopting the Referee's findings, found the witness' testimony credible. (Id. at 5a.) In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). Questions of credibility are not subject to re-evaluation on judicial review. Id. at 276-277, 501 A.2d at 1388. The Board's finding that Claimant appeared to be sleeping is, therefore, supported by substantial evidence.
In her brief, Claimant also argues that substantial evidence does not support the Board's finding because: (1) the e-mail sent from Employer's witness describing the incident is inconsistent with her testimony, because, at the hearing, the witness only testified that she observed Claimant with her eyes closed for a few seconds, and (2) Claimant offered testimony to rebut the evidence provided by Employer. First, regarding Claimant's contention that Employer offered inconsistent evidence, we note that the witness also testified that she saw Claimant asleep on the couch, which is precisely what she stated in her e-mail. Thus, the testimony regarding the time-frame of the incident does not contradict the e-mail, but rather expands upon it. Additionally, regarding both arguments and as mentioned above, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak, 509 Pa. at 272, 501 A.2d at 1386. The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Here, the Board resolved any conflicts in the evidence in favor of Employer. The fact that Claimant may view the evidence differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
Next, we will address Claimant's argument that the Board erred in concluding that Claimant engaged in willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(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 Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies must prove the existence of the rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. Moreover, the employer must establish that the employee's actions were intentional or deliberate. Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). The employee's actions must be considered in light of all the circumstances. Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001).
At the hearing, Employer introduced evidence to establish that it had a policy that provided that employees could be discharged immediately if they gave the appearance of sleeping on the job and that Claimant should have been aware of this policy. (R.R. at 20a.) Accordingly, the Board found that Claimant was aware of the potential consequence of appearing to fall asleep on the job and that she was discharged for engaging in that behavior. (Id. at 5a.) Claimant does not dispute the existence of this policy. Rather, she essentially argues that because she presented uncontroverted evidence that her PCP abruptly removed her from prescribed medication, causing lethargy, she did not willfully violate Employer's policy. In support of her argument, Claimant cites Philadelphia Parking Authority v. Unemployment Compensation Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010). In Philadelphia Parking Authority, this Court held that a claimant who suffered from sleep apnea did not intentionally or deliberately violate her employer's policy when she fell asleep on the job. Id. at 969. In reaching this determination, we viewed the employee's actions in light of all the circumstances and based our conclusion on the following relevant findings of fact: the claimant suffered from sleep apnea; her job involved sitting in a room for hours with nothing to do; when she noticed that she was becoming drowsy on the job, she informed her employer of the problem and asked for additional work to keep her active and alert; and, despite the claimant's request, her employer did not provide her with sufficient additional work to remedy the situation. Id. at 967, 969.
We note that the Board is not required to accept uncontroverted testimony as true. Edelman v. Com. Unemployment Comp. Bd. of Review, 310 A.2d 707, 708 (Pa. Cmwlth. 1973). --------
The case presently before us differs from Philadelphia Parking Authority in several respects. Here, Claimant testified that she did not inform Employer that she may become lethargic because she was unaware of the possible side effects of discontinuing her medication. (R.R. at 28a.) While we recognize that Claimant could not have informed Employer of something of which she was unaware, by missing her mandatory staff meeting and lying down on the couch in the nursing lounge instead, Claimant put herself in an inactive situation where one could foreseeably become drowsy. Also, unlike the situation in Philadelphia Parking Authority, Employer had provided Claimant with something to do, namely, attend a staff meeting, but Claimant intentionally chose to sit on the couch in the nursing lounge instead, where she appeared to be sleeping. Thus, Claimant acted willfully when she violated Employer's policies.
Because Employer established a prima facie case for violating the policy, it must now be determined whether Claimant established good cause for her actions. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 438 (Pa. Cmwlth. 2000). While the employer bears the burden of proving that a Claimant's behavior constitutes willful misconduct, it is the claimant who bears the burden of proving good cause for her actions. Id. at 438-39. To prove good cause, the claimant must demonstrate that her actions were justifiable and reasonable under the circumstances. Id.
Claimant essentially argues that, at the time she supposedly appeared to be asleep, she reasonably believed that she was no longer "on the clock" pursuant to Employer's policy. The Board, however, adopting the Referee's findings and conclusions, found Claimant's testimony not credible and found the contradictory testimony of Employer's witness credible. (R.R. at 5a.) As stated above, the Board is entitled to make determinations as to witness credibility. Peak, 509 Pa. at 272, 501 A.2d at 1386. Because the Board found Claimant's testimony not credible, Claimant failed to establish good cause for her actions.
Accordingly, we affirm.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 24th day of July, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge