Opinion
No. 19 C.D. 2013
06-19-2013
Duryea L. Hand, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Duryea L. Hand (Claimant) contests the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was employed full-time with Tenet Health Systems as a Central Service Technician earning $17.78 per hour plus an evening differential. The claimant began employment on March 13, 2006 and was last employed on July 12, 2012.
2. The employer maintains rules and policies which all employees must adhere to, specifically: the following are examples of improper or inappropriate conduct or
behaviors in or away from the workplace that causes [sic] disruption on the job, or reflects unfavorably on the facility that may result in immediate corrective action, up to and including termination of employment: sleeping or giving the appearance of sleeping.Referee's Decision, October 10, 2012, (Decision), Findings of Fact Nos. 1-7 at 1.
3. The claimant was aware or should have been aware of the employer's policies.
4. On July 12, 2012, the claimant was in the break room with the lights off and had his head down on the table.
5. On July 12, 2012, a co-worker of the claimant walked into the break room and turned the lights on and observed the claimant with his head on the table. At that point, the claimant sat up from the table.
6. The co-worker advised the employer of what she had observed.
7. On July 16, 2012, the employer discharged the claimant for sleeping on duty in violation of the employer's conduct and work rules.
The referee determined:
In the present case, the employer testified that the claimant was discharged for sleeping while on duty in violation of the employer's policies. The facts are undisputed that the employer maintains such a policy, and that the claimant was aware or should have been aware of the employer's policies.
A witness for the employer testified that she came into the break room and turned on the lights. The witness observed the claimant with his head down on the table and he did not immediately move. After a minute or two, the claimant sat up in the chair. The Referee finds that the employer provided credible witness testimony to establish that the claimant was asleep. Therefore, the
employer has met its burden of proof and showed that the claimant violated the employer policy regarding sleeping on duty, or giving the appearance of sleeping on duty.Decision at 2.
. . . Here, the claimant testified he was not sleeping on duty. The claimant testified that he was not sitting at the table and he did not have his head down. The claimant contended that he was standing by the door when the co-worker entered the break room. The claimant stated that the co-worker did not turn on the lights, but that the claimant turned the lights on.
The Referee does not credit the testimony of the claimant since the Referee is being asked to accept that the claimant walked into a dark room and sat there for a few minutes until deciding to walk back to the light switch to turn the lights on at the precise moment when the employer witness came in. The Referee does not find the testimony of the claimant credible, therefore, the Referee finds that the employer has met its burden of proof, and benefits are denied.
The Board affirmed:
Even though the claimant was on break while sleeping, the Board credits the employer's testimony that employees are considered to be 'on duty' even when on break. The employer has thus met its burden to show that the claimant violated a known work policy. Therefore, the Board adopts and incorporates the Referee's findings and conclusions. . . .Board Opinion, December 21, 2012, at 1.
Claimant contends that the Board erred when it determined he committed willful misconduct and the Board's finding that Claimant was discharged for sleeping on duty was unsupported by substantial evidence.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Claimant argues that he did not commit willful misconduct for sleeping while on duty because he was on a break and therefore not on duty. For the same reason he argues that the Board's finding that he was discharged for sleeping on duty was unsupported by substantial evidence. For support, he cites to other work rules of Tenet Health Systems (Employer) which state that an employee violates the rule if he engages in certain conduct in the "workplace" or "during the work day."
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Here, Employer established through the introduction of its Human Resources Policies and Procedures, Employee Conduct and Work Rules that it had a work rule prohibiting "[s]leeping or giving the appearance of sleeping on duty." Human Resources Policies and Procedures, Employee Conduct and Work Rules Rule No. 19 at 1. Employer also introduced an Employee Acknowledgment Form signed by Claimant to establish that he was aware or should have been aware of the rule. Bertha Faulk (Faulk), SPD Lead Technician for Employer, testified that she observed Claimant with his head down on a table in the break room with the lights off. When Faulk first turned on the lights, Claimant "did not move. Then he moved and he raised his hands in the yawning position. . ." Notes of Testimony, October 9, 2012, (N.T.) at 11-12.
The Board found this evidence and testimony credible. In unemployment compensation proceedings, the Board is the ultimate factfinding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
With respect to whether an employee was considered to be "on duty" while he or she was on break, the referee asked Shannon Sarracino (Sarracino), Human Resources Generalist for Employer, "Are they considered on duty during their breaks?" N.T. at 19. Sarracino responded, "Yes. It's defined as while at work." N.T. at 19. Sarracino reiterated that there was no sleeping on break. N.T. at 20. The Board explicitly found this testimony credible. Sarracino's testimony supports the Board's finding that Claimant was discharged for sleeping on duty in violation of Employer's rule. Once again, this Court may not disturb the Board's credibility determinations when those determinations are supported by substantial evidence.
Employer established that it had a work rule, of which Claimant was aware, and which Claimant violated. Claimant failed to provide good cause for his transgression. The Board did not err when it determined that Claimant was ineligible for benefits under Section 402(e) of the Law.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 19th day of June, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge