Opinion
No. 559 C.D. 2012
11-28-2012
Karen Glinsky, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Karen Glinsky (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. In doing so, the Board affirmed the Referee's determination that Claimant's willful misconduct rendered her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends that calling her supervisor "unprofessional" in front of Employer's client was not disqualifying willful misconduct. We disagree and will affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked for several years as a therapist for Scranton Counseling Center (Employer), which treats individuals with psychiatric issues. On August 26, 2011, Employer discharged Claimant for insubordination. Claimant applied for unemployment benefits, and the UC Service Center granted her application. Employer appealed, and a hearing was conducted by a Referee.
At the hearing, Hope Kleinbauer, Employer's Human Relations Director, confirmed that Claimant was terminated for unprofessional conduct on July 28, 2011. Donna Passeri, a registered nurse for Employer, testified that on that day she participated in a counseling session with one of Employer's clients, referred to as "M" by the parties. Claimant and Dr. Ali Nourian, a psychiatrist employed by Employer, were also present. M reported that she was hearing voices, experiencing high levels of anxiety, and was concerned for her children's welfare. Specifically, M was concerned that her children often misbehaved after visiting their father (Father), who would lie in bed with their daughter before bedtime. Claimant expressed concern about possible child abuse by Father; Dr. Nourian and Passeri believed there was insufficient evidence to report suspected abuse to Children and Youth Services (CYS). As an alternative to making such an allegation, Dr. Nourian suggested scheduling intervention sessions with the family. Passeri and M agreed with Dr. Nourian's suggestion, however Claimant did not and she repeatedly verbalized her disagreement during the session.
Following the session, Passeri and Dr. Nourian wrote a letter to Employer's management documenting what happened at the meeting, including Claimant's behavior. Passeri and Dr. Nourian believed that, given M's mental state on July 28, asking her to report possible child abuse without sufficient supporting evidence could endanger her health and safety.
Dr. Nourian testified for Employer. His testimony corroborated Passeri's account of the July 28 incident. Dr. Nourian stated that, as the treating physician and clinical director, he has the final decision whether a report should be filed with CYS. Dr. Nourian emphasized that it was Claimant who suggested that Father might be abusing M's children. Dr. Nourian was unwilling to make a report of child abuse without more evidence.
During M's counseling session, Claimant persistently disagreed with Dr. Nourian's decision not to make an abuse report. Dr. Nourian testified that "[Claimant] kept on [saying], I disagree with you, I don't agree with you, in front of the client. After this [went] on for almost a half an hour, I said Karen, I don't think we are communicating." Certified Record, Item No. 9 (C.R. ___), Notes of Testimony (N.T. ___), October 31, 2011, at 22. Dr. Nourian reported that Claimant called him "unprofessional . . . after the client left." Id. Dr. Nourian testified that M thanked the medical team after the session for supporting her and not pressuring her to go to CYS.
Employer next presented the testimony of Kristen Simpson, Service Director for Employer's Partial Hospitalization Program. Simpson investigated the July 28 incident after Claimant approached her with concerns about M's situation and Dr. Nourian's response. On August 15, 2011, Simpson and her supervisor, Sal Santoli, met with Claimant to clarify discrepancies between Claimant's version of the events of July 28 and that of the medical team. Claimant admitted to Simpson that she was upset that day and verbalized her disagreement with Dr. Nourian during the session with M. Claimant also admitted to Simpson that she called Dr. Nourian unprofessional in front of M.
Simpson explained further that, as a mandatory reporting facility, Employer is required to train its employees on the proper procedure for reporting suspected child abuse to CYS. An employee must first consult with a supervisor. If the supervisor agrees that a report of abuse should be made, the supervisor must be present when the employee files the report. Simpson testified that she reminded Claimant of Employer's reporting policy during the August 15 meeting, and further instructed Claimant not to file a complaint with CYS regarding M's children.
Simpson stated that when the meeting with Claimant resumed the next day, she was shocked to learn that Claimant had filed a report of possible abuse with CYS without a supervisor present. Simpson recommended that Employer terminate Claimant because of her violation of Employer's reporting policy and because of her insubordinate act of calling Dr. Nourian "unprofessional" in front of a client.
Claimant testified on her own behalf. She reported that Dr. Nourian became very agitated at M's counseling session when Claimant suggested the possibility that M's children may have been abused. The two argued over the ramifications of an abuse report for M's children, culminating in Dr. Nourian telling Claimant he no longer wanted to hear from her on the matter and would remove himself from M's case. Claimant stated, "that's [when] we stood up with [M] and we started to walk out and I said, well I do want to state that . . . I think that is very unprofessional of you and we walked out of the meeting." C.R., Item No. 12, N.T., November 22, 2011, at 30. Claimant testified that M became anxious as tensions mounted during the meeting.
Claimant testified that she approached Simpson about what occurred in the session, which led to her August 15 meeting with Simpson and Santoli. Claimant testified that Santoli instructed her to file a report with CYS regarding Father's potential abuse of M's children. Claimant stated that she was unaware that a supervisor needed to be present when she contacted CYS. Claimant explained that she disagreed with Dr. Nourian in M's presence in order to ease M's anxiety. Claimant testified that she was terminated for calling CYS without a supervisor present.
John McAdarra, a union representative for Claimant, also offered limited testimony. He testified that Claimant would have been entitled to have a union representative present at the August 15 meeting with Simpson and Santoli. The union did not send a representative because, prior to August 15, Santoli informed McAdarra that the meeting was not related to disciplinary actions.
The Referee found, as fact, that Claimant was terminated for insubordination, i.e., calling Dr. Nourian "unprofessional" during the counseling session with M. C.R., Item No. 13, Referee's Decision/Order, Finding of Fact Nos. 6, 14 (F.F. ___). The Referee further found that Claimant offered no testimony to justify calling Dr. Nourian unprofessional. The Referee held that Claimant disregarded the standards of behavior an employer can expect of an employee, making her ineligible for benefits under Section 402(e) of the Law. The Board affirmed based upon the Referee's findings and conclusions, adding that Claimant did not have good cause for her actions. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the finding that she called Dr. Nourian "unprofessional" in front of Employer's client is not supported by substantial evidence. Claimant also contends that the Board erred by ignoring her proffered reasons for calling Dr. Nourian "unprofessional." Finally, Claimant argues that this matter should be remanded for a new hearing based on newly discovered evidence.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). We review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). --------
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008). Once employer meets its burden, the burden shifts to the claimant to prove that she had good cause for her actions. Id.
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Claimant first argues that the Board erred in finding that she called Dr. Nourian unprofessional during M's counseling session. Claimant argues that Dr. Nourian's testimony established that Claimant's allegation was not made in M's presence. The Board counters that Claimant's own testimony supports the Board's finding. We agree.
Claimant testified that during the meeting with M, she expressed her disagreement with Dr. Nourian's handling of the case and stated: "I think that is very unprofessional of you." C.R. Item No. 12, N.T., November 22, 2011, at 30. Further, Simpson testified that during her August 15 meeting with Claimant, Claimant admitted to calling Dr. Nourian unprofessional in front of M. That Dr. Nourian had a different recollection than Claimant does not matter; the Board chose to rely on Claimant's own testimony and statement to Simpson, made shortly after the incident in question. Based upon the foregoing, we hold that there was substantial evidence to support the Board's factual finding on this issue.
We next consider whether calling Dr. Nourian "unprofessional" in front of M exhibited a disregard of the standards of behavior that Employer had a right to expect of Claimant. This Court has held that an employee's questioning of an employer's veracity and authority to make decisions is in derogation of expected standards of behavior. Sargent v. Unemployment Compensation Board of Review, 630 A.2d 534, 538-39 (Pa. Cmwlth. 1993). In Sargent, the employee was terminated after he questioned his employer's truthfulness as to why he was laying off employees. The Board held, and this Court affirmed, that by questioning the employer's authority to make certain decisions, the employee committed disqualifying misconduct.
Here, it is undisputed that Dr. Nourian, the clinical director in charge of M's case, had the ultimate authority over whether to report possible abuse to CYS. Claimant admitted to challenging Dr. Nourian's authority by openly disagreeing with and questioning his decision not to relay M's concerns to CYS. Just as the employee in Sargent questioned his employer's authority to make certain decisions which the employer had the right to make, Claimant questioned Dr. Nourian's authority and then called him "unprofessional." Claimant could have said nothing and spoken with Dr. Nourian privately or reported her concerns to Employer's administration. By openly criticizing Dr. Nourian during M's counseling session, Claimant disregarded the standards of behavior that Employer could expect of her.
In her second assignment of error, Claimant contends that the Board erred in holding that she did not have good cause for her actions because it ignored her explanation for calling Dr. Nourian "unprofessional." Claimant maintains that she challenged Dr. Nourian to ease M's anxiety during the tense counseling session. Although Claimant did offer such testimony, it was harmless error for the Board not to expressly consider it. In any case, Claimant's testimony supports an opposite inference: that it was her persistent disagreement with Dr. Nourian that caused tensions to mount.
Finally, as an alternative form of relief, Claimant requests a new hearing to present additional evidence that Dr. Nourian was not in fact her supervisor, therefore she could not have committed "insubordination." This Court is bound by the facts certified in the record on appeal; evidence not submitted to the Referee will not be considered. Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990). Claimant offers no explanation as to why she could not have presented this evidence at the Referee's hearing. Therefore, we reject Claimant's request for a new hearing.
For all of the foregoing reasons, we affirm the Board's adjudication that Claimant was ineligible for benefits.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 28th day of November, 2012, the order of the Unemployment Compensation Board of Review dated February 15, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge