Opinion
No. 2264 C.D. 2012
06-24-2013
Karen L. Goodman, 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 PRESIDENT JUDGE PELLEGRINI
Karen L. Goodman (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because her termination from the Altoona Center for Nursing Care (Employer), was due to willful misconduct. Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent 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.
Willful misconduct has been defined 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.
Claimant was employed as a staffing coordinator for Employer beginning on December 17, 2006. After receiving progressive discipline due to work performance issues, including a three-day suspension in April, 2012, Claimant was terminated on June 6, 2012. She filed a claim for unemployment compensation benefits, which the Unemployment Compensation Service Center granted, finding that Claimant was discharged for unsatisfactory work performance, but was eligible for benefits because she had worked to the best of her ability. Employer appealed.
Before the Referee, Karen Wilkinson (Wilkinson), Employer's director of nursing, testified that Claimant failed to call employees to cover the schedule and would schedule employees but not inform them of the same, as was necessary to do. She also failed to properly keep the master schedule updated so that employees could be aware of their scheduled shifts. Because of Claimant's failure to perform her job duties properly, Wilkinson testified that Claimant had a history of progressive discipline, which included a three-day suspension in April, 2012, after she failed to contact an employee to inform the employee of a scheduled shift. She further testified that Claimant was told that her work had to improve or she would be terminated, but after the suspension, the problems continued, including inconsistencies with the schedule, failing to update the schedule with changes, and failing to call employees to cover shifts as necessary, among other issues. Wilkinson pointed out that Claimant "had an extremely negative attitude through all of this, and when Claimant was approached about the continued problems the day before she was terminated, her response was 'I don't care, the only way you're going to get rid of me is [to] fire me.'" (Hearing Transcript dated July 23, 2012, at 3.) She further testified that she considered those discrepancies with the schedule willful misconduct and not mere mistakes because of her negative attitude and comments that she did not care about the errors. Wilkinson also said that Claimant's work did improve at one point and the errors were not occurring anymore, but "then it got bad again." Id. at 4. She further testified that Claimant was terminated for the failure to improve her work performance and her "attitude toward the workplace." Id. at 2.
On cross-examination, Wilkinson said she knew Claimant sought medical treatment on May 31, 2012, and when Claimant came back to work on June 5, she was told she could resign or she would be fired. Wilkinson testified that it was at that point that Claimant made the statement that she did not care about the issues, and Claimant took the night to think the ultimatum over. She said that on the following day, Employer gave Claimant "the option to stay and train [someone else] or to be discharged and she chose the latter." Id. at 5.
Claimant testified that she handled scheduling for nurses and nursing aides for Employer. She said that when she was suspended in April, 2012, she was told to do staffing sheets before she left for the suspension or she would be fired. She said that on May 31, 2012, she left work to seek treatment for chest pains and an elevated heart beat and blood pressure. She was released to go back to work on June 4, without limitations, and when she returned, Claimant said she was told that she did not want to be there because the job was detrimental to her health, but she responded that she wanted to work anyway. Claimant further testified that she did not remember saying she did not care about the issues with her work, nor did she say that the only way she would leave was if she was fired. She said that when she returned to work, she was told that Employer wanted her to resign and that if she would train her replacement for two weeks, Employer would not fight her attempts to receive unemployment compensation. She also testified that she was not given any reason for her termination.
Based upon the testimony and evidence presented, including documents relating to Claimant's progressive discipline from November 30, 2011, and April 17, 2012, the Referee found that Claimant had received progressive discipline from Employer through April 17, 2012, because she failed or refused to contact employees who were scheduled for work and to properly keep the master schedule updated so employees knew when they were scheduled to work. He found that she was suspended for three days because of the disciplinary issues, and when she was suspended, Employer warned her that if her performance did not improve, she would be terminated. He further found that Claimant continued to perform her job unsatisfactorily, which led to Claimant meeting with Employer on June 5, 2012, and her only response was she "didn't care." (Referee's Decision and Order dated July 27, 2012, at 2.) Finally, the Referee found that Employer gave Claimant the opportunity to resign or be discharged; the following day, she informed Employer that she wished to be discharged, and Employer obliged. Based on these findings, the Referee determined that Claimant's failure to perform her job satisfactorily rose to the level of willful misconduct because she continued to refuse or fail to keep the schedule updated, even after meeting with Employer about the issues, and said that she did not care that such issues were occurring with the schedule. He further found Wilkinson credible and Claimant not credible, especially with regard to her testimony that she was not aware of the reasons for her termination, considering that her initial claim indicated otherwise. Based on those findings, the Referee reversed the Service Center's determination and denied benefits.
The Corrective Action Form dated April 17, 2012, indicated a three-day suspension and noted that the consequences of failing to improve her work would be termination. It further indicated that Claimant received "coaching" on June 28, 2011, for "downsizing staff and notification to staff" and on November 22, 2011, for editing time clock punches, as well as "coaching," for calling off on March 8, 2012, and a verbal warning on March 12, 2012. (Record Item No. 3, at 13.)
Claimant appealed to the Board, which affirmed the Referee's decision on the basis that Claimant was terminated after a period of unsatisfactory work performance and expressing her apathy toward the situation, therefore rising to the level of willful misconduct. This appeal followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or findings of fact were not supported by substantial evidence. Myers, 533 Pa. at 376, 625 A.2d at 624. Whether the actions of an employee constitute willful misconduct is a question of law. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001). --------
On appeal, Claimant contends that her poor work performance alone was not enough to warrant discharging her for willful misconduct. Specifically, Claimant contends that Employer failed to present evidence that Claimant intentionally disregarded Employer's interests or her obligations and duties and that Claimant was never disciplined after her three-day suspension.
We note at the outset that mere incompetence, inexperience, or inability to do one's job does not constitute willful misconduct. Rung v. Unemployment Compensation Board of Review, 689 A.2d 999, 1001 (Pa. Cmwlth.), appeal denied, 550 Pa. 674, 703 A.2d 468 (1997). However, a refusal to try to improve performance may constitute willful misconduct, and where an employee has demonstrated the ability to perform her job properly but allows her work to deteriorate through carelessness or negligence, her conduct rises to the level of willful misconduct by means of disregarding her duties and the employer's interests. Shearer v. Unemployment Compensation Board of Review, 527 A.2d 615, 617-18 (Pa. Cmwlth. 1987); see also McCrea v. Unemployment Compensation Board of Review, 487 A.2d 69, 71 (Pa. Cmwlth. 1985). Moreover, where an employer makes a reasonable request, the employee has an obligation to attempt to carry out that request. Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 119, 723 A.2d 156, 159 (1998).
As Wilkinson testified, Claimant performed her job duties successfully in the past, which leads to the conclusion that this case does not involve an inability of Claimant to perform her job. After the initial disciplinary action against Claimant in November, 2011, Claimant's unsatisfactory work continued, and when confronted with these deficiencies, she stated that she "didn't care" that her work was suffering and that there were still problems with the schedule for which she was responsible. While Claimant now argues that she told Employer she did not want to resign and wanted to keep working for Employer, the Referee and Board determined that Claimant's testimony was not credible, and because the Board is the ultimate arbiter of credibility, we will not disturb this finding on appeal.
Accordingly, because Claimant expressed no desire to improve her work and exhibited behavior below the standard which Employer had a right to expect of an employee, her behavior amounted to willful misconduct, and the order of the Board is therefore affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 24th day of June, 2013, the Order of the Unemployment Compensation Board of Review, dated December 7, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). However, "an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature." Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (internal citation omitted).