Opinion
No. 788 C.D. 2011
03-19-2012
Tracie Igoe, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Tracie Igoe (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of a Referee and determined Claimant to be ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. We affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant applied for unemployment compensation benefits after being discharged from her employment as a registered nurse for the Department of Corrections (Employer) at the State Correctional Institution at Forest (SCI-Forest). The Altoona UC Service Center (Service Center) determined that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a hearing was held before a Referee. Following the hearing, the Referee issued a decision, in which he affirmed the Service Center's determination and found Claimant to be ineligible for unemployment compensation benefits. (C.R., Item No. 12.)
Claimant appealed the Referee's decision to the Board, which remanded the case to a Referee to act as Hearing Officer for the Board. (C.R., Item No. 19.) The Board ordered the remand hearing based on its conclusion that the Referee had erred in excluding the Employer's progressive discipline policy from the record. (Id.) The purpose of the remand hearing was to give Employer the opportunity to provide the progressive discipline policy, allow Claimant to cross-examine one of Employer's witnesses regarding this document, and permit the parties to present other testimony and evidence regarding the policy. (Id.)
Following the remand hearing, the Board affirmed the Referee's decision and denied Claimant unemployment compensation benefits. (C.R., Item No. 26.) In doing so, the Board issued its own findings of fact and conclusions of law. (Id.) The Board made the following findings:
1. The claimant was last employed . . . by [Employer] from January 2, 2005, at a final rate of $26.00 per hour and her last day of work was March 8, 2010.
2. The claimant worked at SCI-Forest.
3. The employer has a code of ethics and departmental policies and procedures of which the claimant was or should have been aware.
4. The employer's code of ethics states that an employee shall submit anything necessary or request work[-] related reports in a timely manner.
5. The employer follows progressive discipline; however, the progressive discipline policy is not mandatory.
6. The employer has an infirmary attached to its medical department, and in the event[] an inmate is unable to go back [to] his or her cell block, the employer has a twenty-three-hour admission when it monitors the inmate to see if there are any changes in the medical condition of the inmate.
7. Prior to December 22, 2009, the physician's assistant at SCI-Forest provided treatment to Inmate Green for a chronic medical condition of high blood pressure and hypertension.
8. On December 22, 2009, Green complained of being fatigued and tired.
9. The physician assistant examined Green and determined that he was dehydrated and not stable enough to return to his block. Green was sent to the infirmary for a twenty-three-hour observation at 9:50 a.m.
10. At the time . . . Green was sent back to the infirmary, he had no life threatening problems. Green was treated with some IV fluids.
11. During a twenty-three-hour observation, the physician assistant provides the infirmary nurse with orders on how to treat the inmate.
12. Infirmary nurses take care of the inmates. The infirmary nurse provides the inmate with his or her medication, IVs, assessments, and general care.
13. On December 22, 2009, the claimant was the infirmary nurse responsible for carrying out the physician assistant's order.
14. Between 1:00 p.m. and 1:30 p.m., the physician assistant went to see Green.
15. The claimant did not contact the physician assistant.
16. When the physician assistant saw Green, he was having severe abdominal pain and shortness of breath. Green also had oxygen on and was still in his same clothing from the morning.
17. Green had diarrhea on his shirt.
18. The physician assistant should have been notified of Green's change in condition prior to 1:00 or 1:30 p.m.
19. Because of Green's condition, the physician assistant contacted 911 and Green was sent to the hospital.
20. Gary P[r]inkey, a register nurse[,] relieved the claimant at approximately 1:30 p.m.
21. When a nurse evaluates an inmate during the day, the nurse is to document the inmate's progress on progress notes. One of the requirements of the progress note is to document the date, time, and [nursing abbreviation].
22. When P[r]inkey took over for the claimant, he noticed that the claimant started an admission note in the patient's chart, but did not finish her shift assessment of Green. Rather, the claimant's shift assessment of Green stopped in mid-sentence.
23. The claimant's progress note did not have the date, time, and nursing abbreviation.
24. On some occasions, registered nurses will document the patient's information on scrap paper and enter it at the end of the day or the following day.
25. In the event that a nurse would document a patient's information on a different date, he or she is supposed to mark the entry as a "late entry."
26. The employer's healthcare administrator conducted an investigation of the claimant's conduct on December 22, 2009.
27. On December 28, 2009, the healthcare administrator noticed that the claimant added the date and nursing abbreviation to the progress note. The claimant dated the progress note for December 22, 2009.(Id.)
28. The claimant admitted that she finished the progress note six days later. The claimant did so because she was on vacation for six days after December 22, 2009.
29. The claimant admitted that she should have written "late entry."
30. The claimant's reason for charting the progress note six days later was because she was allegedly too busy on December 22, 2009.
31. The claimant was also required to perform an initial assessment on Green, but did not perform an initial assessment.
32. The claimant admitted that she did not perform an initial assessment.
33. A fact-finding meeting was held on January 11, 2010.
34. The healthcare administrator forwarded his findings to the employer's deputy, who then forwarded the findings to the superintendent.
35. A pre-disciplinary conference was held. At that time, the claimant was asked questions by a panel.
36. The panel substantiated the charges.
37. The information was sent to the superintendent and was then forwarded to the central office.
38. The claimant was terminated for, among other things, failing to provide sufficient care to inmate Green and for incomplete charting.
Based on the above-listed findings, the Board concluded that Claimant engaged in willful misconduct and failed to credibly establish good cause for her actions. The Board reasoned that Claimant was terminated for failing to provide sufficient care to Green and for incomplete charting, among other things. The Board credited Employer's testimony that Claimant did not perform an initial assessment on Green over Claimant's testimony that she did, but lost the paperwork containing Green's vitals. Furthermore, the Board found that Claimant had partially documented Green's chart six days after the incident took place and did not mark the progress note as a "late entry." The Board found that Claimant's actions violated Employer's policies and were in disregard of the standards of behavior that an employer has right to expect from an employee. Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant essentially argues that (1) the Board's findings of fact are not supported by substantial evidence, (2) the Board erred in concluding that Claimant's actions constituted willful misconduct, and (3) Employer failed to establish that it appropriately applied its progressive disciplinary policy to Claimant.
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, Claimant challenges findings of fact numbers 15, 32, and 38, arguing that substantial evidence of record does not exist to support those findings. 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 only 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). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony 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 (Pa. Cmwlth. 1994). In other words, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
In an unemployment case, 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). 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).
As to finding of fact number 15, Claimant argues that substantial evidence does not exist to support the Board's finding that "[C]laimant did not contact the physician['s] assistant" about Green's changed condition. Claimant argues that Employer's testimony supporting this finding was contradicted by other independent evidence. A review of the record reveals that Rhonda Sherbine, a physician's assistant working for Employer, testified at the first hearing conducted by the Referee. She testified that, in the morning of December 22, 2009, she ordered the 23-hour observation for Green, who at the time had no complaints of any life-threatening problem. (C.R. Item No. 11, at 23.) Ms. Sherbine testified that she did not see Green again until sometime between 1:00 p.m. and 1:30 p.m., after Nurses Gary Prinkey and Bonnie Bell had notified her that Green's condition had changed significantly. (Id. at 24.) Finally, Ms. Sherbine testified that Claimant had not contacted her concerning Green's condition between the two times Ms. Sherbine saw Green, and that Ms. Sherbine should have, in fact, been contacted. (Id.) Nurse Prinkey, on the contrary, testified that he was not the person who had contacted Ms. Sherbine about Green's changed condition and that Claimant said she was going to report the change of Green's status. (Id. at 36-37.) Nevertheless, he stated that Nurse Bell also knew of Green's change in status and that he did not know whether it was Nurse Bell or Claimant who actually notified Ms. Sherbine of it. (Id. at 37.) Claimant testified that she did inform Ms. Sherbine of Green's change in condition as Claimant left the infirmary and that, at the time, she had speculated that Nurse Bell was with Ms. Sherbine. (Id. at 103-04.) As the fact-finder, the Board was entitled to credit the testimony of Ms. Sherbine that she did not receive a call from Claimant over the contrary testimony of Claimant, which is what the Board did. Moreover, we note that Nurse Prinkey testified that he did not know if Claimant called the physician's assistant. Our review of the record, therefore, demonstrates that Ms. Sherbine's testimony constitutes substantial evidence to support the Board's finding that "[C]laimant did not contact the physician's assistant" about Green's changed condition.
In arguing that the Board erred in finding that "[C]laimant did not notify her physician's assistant of the patient's change in condition," Claimant refers to finding of fact number 14 in her brief. In light of this argument, this Court recognizes that Claimant is actually challenging the Board's finding of fact number 15.
As to finding of fact number 32, Claimant argues that substantial evidence does not exist to support the Board's finding that Claimant failed to perform an initial assessment on Green. Donald Skunda, Employer's Healthcare Facility Manager, also testified at the first hearing held before the Referee. He stated that Claimant was required to complete and document a visual assessment on Green and that Claimant admitted to him that she failed to do so. (Id. at 52, 57.) Claimant testified that she performed an initial assessment of Green when he came into the infirmary, but she ultimately failed to record the information regarding Green's vitals because she no longer had the scrap piece of paper on which she originally recorded them. (Id. at 96, 114.) The Board credited Mr. Skunda's testimony and was unconvinced by Claimant's testimony. (C.R., Item No. 26.) As stated earlier, in an unemployment case, the Board as the ultimate fact finder is entitled to make its own determinations as to witness credibility and evidentiary weight, and it is empowered to resolve conflicts in the evidence. Peak, 509 Pa. at 272, 501 A.2d 1386; DeRiggi, 856 A.2d at 255. Thus, based on Mr. Skunda's credited testimony and the lack of documentation of an initial assessment, there is substantial evidence of record to support the Board's finding.
Claimant also disputes finding of fact number 38, arguing that substantial evidence does not exist to support the Board's findings that Claimant was terminated for both failing to provide sufficient care to Green and incomplete charting, among other things. Claimant contends that no evidence was produced regarding the reasons for why Claimant was discharged. Claimant argues that the Board relied on speculation in concluding that Claimant was discharged for willful misconduct, as no witnesses who had the power to make the ultimate decision regarding Claimant's discharge testified, and the witnesses that did testify had nothing to do with deciding the basis of Claimant's discharge. Furthermore, Claimant argues that Employer produced no evidence showing that any recommendation had been made for the level of discipline to be applied to Claimant after the pre-disciplinary conference.
Despite the fact that no one who made the ultimate decision to fire Claimant testified at either hearing, there is no dispute that Claimant was in fact fired. Furthermore, there is direct evidence of record regarding the charges that Employer brought against Claimant as well as the incident that led to Claimant's employment termination. In a memorandum dated February 22, 2010, Claimant was notified that she had been charged with certain violations of Employer's Code of Ethics. (C.R., Item No. 11, Exhibit E-4.) Claimant was first charged with violating section B.1, which provides:
Each employe in the correctional system is expected to subscribe to the principle that something positive can be done for each inmate. This principle is to be applied without exception.(C.R., Item No. 11, Exhibit E-2). Claimant was also charged with violating section B.22, which provides:
This involves an intelligent, humane and impartial treatment of inmates. Profanity directed to inmates, or vengeful, brutal, or discriminatory treatment of inmates will not be tolerated. Corporal punishment shall not be utilized under any circumstances.
An employe shall submit any necessary and/or requested work[-]related reports in a timely manner and in accordance with existing regulations. Reports submitted by employes shall be truthful and no employe shall knowingly enter or cause to be entered any inaccurate, false, or improper information or data, or misrepresent the facts in any Department record or report.(Id.)
In addition to the violations of the Employer's Code of Ethics, Employer also charged Claimant with violating multiple sections of the Healthcare Administrator Procedure Manual for Inpatient Unit Medical Procedures (Manual) kept by Employer. (C.R., Item No. 11, Exhibit E-4.) Employer first charged Claimant with violating section 13.1.1(10)(3) of the Manual for failing to mark her late entry as "Late Entry" and for failing to include the military time and date of the entry in addition to the time and date of the occurrence within the text of the late entry. (C.R., Item No. 11, Exhibit E-17.) Employer next charged Claimant with failing to "document the reason for placement, date, military time, and problem on the" progress note, "perform an initial nursing assessment and document on the" progress note, "take vital signs upon admission and thereafter as necessary," "orient the inmate to the patient room including the proper usage of the nurse call bell system," and "document per SOAP format on the [progress note] at a minimum of once per shift or more often if necessary" as required by Section 13.2.1(7)(E)(5) of the Manual. (C.R., Item No. 11, Exhibit E-16.) Employer also charged Claimant with several violations of Section 13.2.1(7)(C) of the Manual, which requires nurses to "[i]ssue infirmary linen and clothing to inmates," "initiate an Inpatient Area Nursing Care Plan," "document using the SOAP(IER) format on the [progress note] at a minimum of once per shift or more," and "record vital signs on admission . . . at a minimum [of] once per shift, unless otherwise ordered, includ[ing] temperature, blood pressure, pulse and respirations, as applicable." (Id.) Finally, Employer charged Claimant with violating Section 13.2.1(7)(F)(3) for failing to document "on the [progress note] . . . at a minimum of once per week, for a housing status inmate." (Id.)
During the first hearing before the Referee, Deb Carter, a Human Resource Analyst II for Employer, testified that Mr. Skunda conducted an investigation concerning Claimant's conduct on December 22, 2009, which resulted in the above-listed charges. (C.R., Item No. 11., at 10-11.) Mr. Skunda testified at the hearing that he determined that Claimant had violated sections of Employer's Code of Ethics and Manual. For instance, Mr. Skunda found that Claimant initially failed to mark the date, time, and nursing abbreviation on Green's progress notes; attempted to complete Green's charting six days late; omitted the phrase "late entry" on the chart; did not perform an initial assessment; did not document in the required format; and neglected to treat Green, among other things. (Id. at 59, 56, 46-48.)
Ms. Carter testified that Mr. Skunda summarized his findings and forwarded them to the superintendent, who determined that a pre-disciplinary conference was appropriate. (Id. at 11.) Ms. Carter testified that a panel substantiated the charges against Claimant at this pre-disciplinary conference and that the panel ultimately sent the information that it gathered to the "central office to determine the discipline that should accompany the charges." (Id. at 14.) Ms. Carter also testified that the central office recommended the discipline to be carried out against Claimant. (Id.) Ultimately, Ms. Carter testified that Employer discharged Claimant for "violations of the Code of Ethics, and also violations of the medical department's policies and procedures." (Id. at 10.) Employer's testimony and other evidence, therefore, support the Board's finding that Claimant was discharged for failing to provide adequate care for Green and insufficient charting, among other things.
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 "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). --------
(a) wanton or willful disregard of employer's interests,Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). The burden is on an employer to prove that a discharged employee was guilty of willful misconduct. Gillins v. Unemployment Comp. Bd. of Review, 534 Pa. 590, 597, 633 A.2d 1150, 1154 (1993). 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 v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). All pertinent circumstances are considered in determining whether an employee's actions constituted willful misconduct. Rebel v. Unemployment Comp. Bd. of Review, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998). A single incident of misconduct may support the denial of benefits. Jones v. Unemployment Comp. Bd. of Review, 373 A.2d 791, 972 (Pa. Cmwlth. 1977).
(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 argues that, at best, the evidence offered by Employer shows negligence and not an intentional and deliberate act by Claimant. We disagree. Here, as noted above, the Board found that Employer had a Code of Ethics and departmental policies and procedures of which Claimant was or should have been aware. (C.R., Item No. 26.) Furthermore, the record establishes that Claimant violated these policies by failing to perform an initial assessment on Green, provide sufficient care to Green, and complete Green's charting, as also discussed above. As a result of Claimant's actions, the Board determined that Claimant violated Employer's policies and was in "disregard of the standards of behavior that an employe[r] has [the] right to expect from an employee." (Id.) Based on Walsh, the Board properly concluded that Claimant's actions constituted willful misconduct.
In this instance, Claimant fails to provide any argument regarding whether she had good cause for her actions. In fact, Claimant admitted in her testimony at the first hearing that she wrote a partial entry on Green on December 22, 2009, and she did not finish her charting until she returned from vacation on December 29, 2009. (C.R., Item. No. 11, at 114.) Moreover, Claimant admitted that at that time, she did not write "late entry" and that she should have done so. (Id. at 101-02.) Claimant explained that the reason she did not complete the charting for Green as required was because she "forgot. [She] didn't realize [she] didn't finish the charting." (Id. at 101.) Because Claimant offers no evidence suggesting that she had good cause for violating Employer's work rule, the Board did not err in concluding that Claimant engaged in willful misconduct.
We next consider whether Employer failed to appropriately apply its progressive disciplinary policy to Claimant. Claimant argues that Employer failed to present evidence demonstrating why it skipped steps in its progressive disciplinary policy and went directly to a higher level of discipline in terminating Claimant. Although Employer's policy gives Employer discretion to depart from the typical application of the policy, Claimant contends that it does not relieve Employer of providing the reason for doing so and that Employer failed to provide one in this instance. Claimant takes the position that because the only witnesses that actually testified played no role in making the decision to terminate Claimant, Employer cannot meet its burden to prove that it appropriately applied the progressive disciplinary policy in this case.
As evidenced in the record, Employer's progressive disciplinary policy provides that:
It is recommended when dealing with attendance or performance related issues, progressive discipline is used. However, in those instances where the actions of an employee are in violation of a work rule or are serious enough to warrant more severe action, appropriate discipline should be administered on a case-by-case basis.(C.R., Item No. 22, Exhibit CL-4.) Claimant cites this Court's decisions in Looney v. Unemployment Comp. Bd. of Review, 529 A.2d 612 (Pa. Cmwlth. 1997), and Frigm v. Unemployment Comp. Bd. of Review, 642 A.2d 629 (Pa. Cmwlth. 1994), for the rule that "an employee's conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee." Frigm, 642 A.2d at 634; see also Looney, 529 A.2d at 614. In Looney, this Court held that the claimant was entitled to benefits because the employer failed to follow its progressive disciplinary policy, which did not include language giving the employer discretion to depart from the policy's requirements under any circumstances. Looney, 529 A.2d at 613-14. In contrast, this Court in Frigm noted that although the employer in that case "ha[d] a progressive disciplinary system for minor employee misconduct," the employer's policy "also provide[d] that a serious offense may warrant immediate discharge." Frigm, 642 A.2d at 634. Holding that the employer had established that the employee's conduct constituted a serious offense, this Court found that the employer had appropriately followed its progressive disciplinary policy in discharging the employee. Id.
This case is analogous to Frigm. As established above, Employer had a progressive disciplinary policy stating that in "instances where the actions of an employee are in violation of a work rule or are serious enough to warrant more severe action, appropriate discipline should be administered on a case-by-case basis." (C.R., Item No. 22, Exhibit CL-4.) Because Employer has established that Claimant violated several work rules, we also conclude that Employer was entitled to exercise its discretion in foregoing the progressive nature of its disciplinary policy and terminating Claimant as a result of her actions on December 22, 2009. Thus, we hold that Employer appropriately applied its progressive disciplinary policy to Claimant.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 19th day of March, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge