Opinion
No. 2488 C.D. 2011
08-09-2012
Shekeema Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, Shekeema Johnson, proceeding pro se, petitions for review of the decision of the Unemployment Compensation Board of Review denying benefits under Section 3 of the Unemployment Compensation Law (the Law) determining that she brought about her own unemployment by forging and falsifying employer's documents to obtain a controlled substance. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 752. Section 3 provides in relevant part:
The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
Petitioner was last employed by Primary Health Network, Inc. (Employer) from April 2008, through June 2, 2011, as a medical assistant earning $10.25 per hour. On May 31, 2011, Petitioner presented a prescription for Roxicodone, a Schedule 2 controlled substance, to a pharmacy. Petitioner had stolen a blank prescription sheet and forged the prescription. Prior to receiving the Roxicodone, Petitioner was arrested and charged with forgery, acquiring a controlled substance by misrepresentation and possession of a controlled substance by misrepresentation. On June 2, 2011, after receiving information from the police regarding Petitioner's arrest, Employer suspended her pending an investigation. Petitioner was discharged on June 9, 2011, following completion of the investigation.
Petitioner applied for unemployment benefits, which the Unemployment Compensation Service Center (UC Center) denied, determining that Employer had shown that her behavior was inconsistent with the acceptable standards of behavior and affected her ability to perform her job and she did not have good cause for her actions. Petitioner appealed the determination. A hearing was held before a referee at which Robert Draskovic, Employer's safety and security officer, and James Long, vice president of human resources, testified on behalf of Employer. Draskovic testified about his investigation and the report he provided to Employer detailing the results of the investigation. Long testified that Petitioner was discharged for possession of drugs pursuant to Employer's policy. He also testified that Drug Enforcement Administration (DEA) regulations required Employer to take action when it became aware of any type of drug diversion and that Claimant's actions put the entire Primary Care Network at risk. Petitioner testified on her own behalf. Petitioner admitted that she stole the prescription sheet and forged the prescription. She testified that she never received the drugs because the police arrived before the prescription was filled. She also admitted that she had previously bought pills on the street. Petitioner testified that she had never been in trouble with the law before and that she had completed a drug program since her discharge.
The referee denied benefits under Section 3 of the Law concluding that Petitioner had brought about her own unemployment by forging and falsifying Employer's documents to obtain a controlled substance. The referee found that Petitioner admitted to forging the prescription. Referee's Finding of Fact No. 7. The referee found that Petitioner did not receive the prescription drugs prior to her arrest. Id. at No. 8. The referee also found that Employer, as a health care provider, was required by law to take action concerning her forgery and attempt to obtain a narcotic prescription because she worked in a medical office and had access to prescriptions. Id. at No. 10. The Board affirmed the referee adopting and incorporating the referee's finding and conclusions. This appeal followed.
Petitioner argues that the Board erred because although she was discharged for possession of a controlled substance and forgery, she was not convicted of these crimes. She asserts that on December 7, 2011, two weeks after the Board issued its decision, she pled guilty to one count of disorderly conduct, and the charges of forgery and acquisition/possession of a controlled substance were withdrawn. These asserted facts and the supporting documents, which Petitioner appended to her brief, were not part of the record certified to this Court and, consequently, we cannot consider them. See Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010) (stating that when reviewing matters in its appellate capacity, this Court is bound by the facts certified in the record on appeal).
Further, regardless of Petitioner's alleged plea and the withdrawal of the possession and forgery charges, her appeal must fail. Section 3 of the Law renders a claimant ineligible for benefits for non-work-related misconduct. Frazier v. Unemployment Comp. Bd. of Review, 833 A.2d 1181, 1184 (Pa. Cmwlth. 2003) [citing Burger v. Unemployment Comp. Bd. of Review, 569 Pa. 139, 144, 801 A.2d 487, 491 (2002)]. Under Section 3, the employer must show that 1) the claimant's conduct was contrary to acceptable standards of behavior and 2) the claimant's unacceptable conduct directly affects or reflects upon the claimant's ability to perform her assigned duties. Frazier, at 1184-85.
A review of the record reveals that Employer met its burden of demonstrating that the Petitioner's conduct was both contrary to acceptable standards of behavior and directly affected or reflected upon performance of her duties. Petitioner repeatedly admitted that she stole the prescription sheet from Employer's office and forged the prescription. Notes of Testimony at 11-13. Additionally, Long testified that DEA regulations required that Employer take action when it became aware of Petitioner's attempted diversion of prescription drugs and that such behavior put Employer's entire business at risk. Id. at 9-10. Theft from an employer, forgery and attempted diversion of prescription drugs are clearly contrary to acceptable standards of behavior. Further, Petitioner's actions made it impossible for her to continue in her duties as a medical assistant as she would still have had access to blank prescription sheets.
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of August, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge