Opinion
No. 1046 C.D. 2014
01-06-2015
Tanya Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Tanya Johnson (Claimant), appearing pro se, challenges the order of the Unemployment Compensation Board of Review (Board) that 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 found by the Board, are as follows:
1. The claimant was last employed as a public area attendant by Hersha Hospitality Management from September 10, 2012, at a final rate of $9.81 per hour and her last day of work was November 12, 2013.Board Opinion, May 14, 2014, (Opinion), Findings of Fact Nos. 1-8 at 1.
2. The employer had a policy, of which the claimant was aware, that prohibited displaying offensive materials.
3. In mid-October of 2013, the claimant showed a sexually explicit picture to a coworker.
4. In November of 2013, the employer received information that the claimant showed a sexually explicit picture to a coworker.
5. The employer initiated an investigation of the claimant's conduct.
6. The claimant admitted showing the picture to the coworker.
7. On November 12, 2013, the employer suspended the claimant, pending its investigation.
8. The employer discharged the claimant for showing the picture to a coworker.
The Board determined:
Here, the Board resolves the conflicts in testimony in favor of the employer and finds the employer credible. The employer credibly testified that the claimant was aware of the employer's policy because she was given a copy of the policy upon hire. As such, the Board concludes that the claimant's conduct was a violation of the employer's policy and a disregard of standards of behavior an employer has the right to expect of its employees. During the hearing, the claimant testified that she had a comfortable relationship with her coworker and had shared personal things in the past; however, this is insufficient to show good cause for her conduct. Therefore, the Board concludes that the claimant's conduct was willful misconduct under the Law.Opinion at 2.
Claimant contends that the Board erred when it concluded that she committed willful misconduct.
This Court's review in an unemployment 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). --------
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, 501 A.2d 1383 (Pa. 1985).
Claimant argues that she was not given employment separation forms, no witnesses were present at the time of her termination, she did not sign any documents which gave the reason for her termination, and she never received the employee code of conduct which Hersha Hospitality Management (Employer) claimed she was aware of and violated.
Whether Claimant received an employment separation form, had witnesses present when she was terminated, or did not sign documents which gave the reason for her termination has no bearing on the central issue before this Court: Did the Board err when it determined that Claimant was ineligible for benefits because she committed willful misconduct.
With respect to whether she received the code of conduct, Jeff Cafferty (Cafferty), assistant general manager for Employer, testified that Employer had a policy that prohibited inappropriate behavior in the workplace and that this policy included the display of offensive materials. Notes of Testimony, February 26, 2014, (N.T.) at 7-8. Cafferty further testified that Claimant was provided with a copy of the policy upon her hire. N.T. at 8.
Claimant testified that she was unaware of the policy and never received it. N.T. at 9.
The Board found Cafferty credible. In unemployment compensation proceedings, the Board is the ultimate fact-finding 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, 378 A.2d 829 (Pa. 1977).
Here, Employer established that it had a rule that prohibited the display of offensive material in the workplace. It is undisputed that Claimant violated the rule. Claimant does not argue that she had good cause for her actions other than that this was her only violation of Employer's policy. However, this Court has held that a de minimis argument is meritless in cases which involve a deliberate violation of an employer's rules. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884 (Pa. Cmwlth. 1998).
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge