Opinion
No. 903 C.D. 2013
12-27-2013
Genesis House, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Genesis House, Inc. (Employer) petitions for review of the April 29, 2013, order of the Unemployment Compensation Board of Review (UCBR) affirming a referee's decision to grant Edy P. Pierre (Claimant) unemployment compensation (UC) benefits. We affirm.
Claimant worked for Employer as a therapist from August 24, 2009, until November 9, 2012. Claimant was responsible for fulfilling the requirements of a transitional drug abuse treatment (TDAT) contract between Employer and the Federal Bureau of Prisons (FBOP). Claimant submitted statements of work (SOW) to the FBOP to show that Employer had performed its duties within the TDAT contract. FBOP reviews Employer's SOWs annually. (UCBR's Findings of Fact, Nos. 1-4.)
See 28 C.F.R. §550.53.
A FBOP review on September 1, 2010, revealed deficiencies that included treatment plans not being individualized. In response, Employer provided Claimant with additional training. (Id., Nos. 5-6.)
A FBOP review on August 25, 2011, revealed repeat deficiencies. In response, Employer issued a write-up to Claimant, which Claimant refused to sign. Employer again provided Claimant with additional training. Claimant requested assistance in performing his job duties, and Employer allowed another employee to assist Claimant. However, Claimant never got the opportunity to work with the new employee. (Id., Nos. 7-9, 14, and 15.)
A FBOP review on August 26, 2012, revealed repeat deficiencies that included treatment plans not being individualized and deficient monthly progress reports. Employer discharged Claimant due to its belief that Claimant was responsible for repeated annual deficiencies in the SOW completed as part of its contract with FBOP. (Id., Nos. 12, 20.)
Claimant applied for UC benefits with the local service center, which denied his application under section 402(e) of the Unemployment Compensation Law (Law) because Employer had demonstrated Claimant's willful misconduct through his non-compliances with his job duties.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant appealed to a referee, who held a hearing on January 24, 2013. On February 7, 2013, the referee reversed the decision of the local service center and granted Claimant UC benefits because Employer did not prove willful misconduct.
Employer appealed to the UCBR, which affirmed the referee's decision on April 29, 2013. Employer petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
First, Employer asserts that Findings of Fact 3, 4, 9, 10, 15, 17, 18, and 19 are not supported by substantial evidence. We disagree.
Employer maintains that Findings of Fact 9, 17, and 19 are not supported by substantial evidence in its petition for review, (Pet. for Rev., ¶7a, 7d, and 7f), but does not discuss these findings in its brief. Therefore, this argument is waived. See Pa. R.A.P. 2119; Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) ("Arguments not properly developed in a brief will be deemed waived by this Court.").
Employer argues that Findings of Fact 3 and 4 are not supported by substantial evidence. Claimant admits in his brief that Findings of Fact 3 and 4 misconstrue applicable terms under the contract for the TDAT program. (Claimant's Br. at 6.) However, this error has no relevance to the issue of whether Claimant committed willful misconduct. See Sargent v. Unemployment Compensation Board of Review, 630 A.2d 534, 536 (Pa. Cmwlth. 1993) (demonstrating that an unsupported finding of fact, which is not necessary to support the UCBR's determination, will not prevent this court from affirming).
Finding of Fact 3 states: "[Claimant] was responsible for submitting a statement of work to the FBOP to show that [Employer] had performed its duties within the TDAT contract." (UCBR's Findings of Fact, No. 3.) Finding of Fact 4 states: "Under the TDAT contract, the FBOP reviews the employer's statements of work annually." (UCBR's Findings of Fact, No. 4.)
Employer argues that Findings of Fact 10, 15, and 18 are not supported by substantial evidence. Finding of Fact 10 states: "On July 24, 2012, [Claimant] received a write-up for having one-month overdue psychosocial reports." (UCBR's Findings of Fact, No. 10.) The termination report introduced into evidence states: "The employee received another disciplinary action report on 7/26/12 for not following the SOW[.] [S]pecifically[,] the SOW oversight specialist reported that she has not received the psychosocial [reports] that were due in the month of June as of 7/24/12 . . . ." (See Term. Rep., Ex. B, at 2.) This portion of the termination report supports Finding of Fact 10.
Although the finding confuses the dates in the Termination Report, this error was harmless.
Finding of Fact 15 states: "After several months, this employee received clearance to work with federal clients and [Claimant] received permission to train the employee; however, [Claimant] did not have the opportunity to train or work with this employee because the employee was on probation and had not completed the paperwork from her prior duties." (UCBR's Findings of Fact, No. 15.) Claimant testified:
EL: And isn't it true that didn't happen because you refused to work with Ms. McFarland?(N.T. at 31.) Claimant's testimony supports Finding of Fact 15.
C: No, ma'am. That was not true. Ms. Bridges told us that Ms. McFarland was on probation, because one of the stipulations she imposed was that Ms. McFarland was to get her paperwork caught up before she move[d] over, and she also had to get her numbers [to] come up. Until that happened, she could not work with the federal clients, so I never had the opportunity to neither train nor work with Ms. McFarland.
Finding of Fact 18 states: "[Claimant] submitted his appointment calendar to the FBOP each week, as required under the statement of work, and he accurately recorded his scheduled client appointment times; however, discrepancies arose when clients did not arrive on time." (UCBR's Findings of Fact, No. 18.) Claimant testified that "I need to record when I see the client. And the time I put on the assessment that I see the client, that's what's sent to the federal government," (N.T. at 29), and "[t]hese were the things I brought to Heather's attention to do something about Capitol Pavilion, so we'd know when those client[s] come in so I can see them on time . . . . I can only see the client once Capitol Pavilion scheduled the client on my schedule, and that's when I see the client," (N.T. at 27). This testimony supports Finding of Fact 18.
In this testimony, the Heather that Claimant refers to is Heather Bridges, Claimant's supervisor. Capitol Pavilion is a community reentry center from which Employer receives clients.
Employer next argues that the UCBR committed an error of law by concluding that Employer failed to prove that Claimant was discharged for willful misconduct. We disagree.
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interest; (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). "A work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result." Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). "[I]ncompetence, inexperience, or inability which may well justify discharge will not constitute willful misconduct . . . ." Geslao v. Unemployment Compensation Board of Review, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). However, "where poor work quality of product is the result of unwillingness to work to the best of one's ability, a disqualification will occur." Id. at 1098.
The employer bears the burden of proving that the discharged employee committed willful misconduct. Oliver, 5 A.3d at 438. Here, Employer asserts that Claimant knowingly missed multiple deadlines and actively withheld information from his supervisor. The UCBR specifically found Claimant's testimony credible that he worked to the best of his ability. UCBR's Op. at 3; see Norman Ashton Klinger & Associates, P.C. v. Unemployment Compensation Board of Review, 561 A.2d 841, 843 (Pa. Cmwlth. 1989) ("[A] finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct."). We see no reason to contradict the UCBR's finding because nothing in the record indicates that Claimant deliberately failed to perform his duties or intentionally withheld information from his supervisor.
On the contrary, Employer admitted that, in response to training, Claimant's work performance improved. (N.T. at 9.) Claimant rarely missed work and worked to the best of his abilities while at work. (Id. at 16, 25.)
Finally, Employer argues that the UCBR capriciously disregarded evidence that (1) Employer provided Claimant with two interns to assist him and (2) Claimant used his work time to advertise and promote a book he had written. We disagree.
Where "the burdened party is the only party to present evidence and does not prevail" before the UCBR, we must consider whether the UCBR capriciously disregarded competent evidence. Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 n.5 (Pa. Cmwlth. 1998).
Although Employer relies on the "capricious disregard" standard, it does so improperly because both parties presented evidence addressing the issue of Claimant's willful misconduct. Employer and Claimant presented conflicting testimony regarding the interns. (Compare N.T. at 14 with N.T. at 31.) Claimant testified that he did not promote his book while he was at work, while Employer did not present testimony on the matter. (N.T. at 33.)
In essence, Employer reargues, under the guise of the "capricious disregard" standard, that Claimant committed willful misconduct. (See Employer's Br. at 9.) Employer would prefer that we interpret the evidence differently than the UCBR did, which we cannot do because the UCBR is the ultimate factfinder.
Even accepting, arguendo, Employer's assertions, Employer still did not prove that Claimant committed willful misconduct in light of the UCBR's finding that Claimant worked to the best of his abilities. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of December, 2013, we hereby affirm the April 29, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge