Opinion
No. 1844 C.D. 2014
05-08-2015
Tracy A. Kennedy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Tracy A. Kennedy (Claimant) petitions for review of the August 20, 2014 order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits. The Board concluded that Claimant was discharged from her employment with Holdings Acquisition Company/ Rivers Casino (Employer) for violating Employer's policy regarding the securing and maintaining of slot machine keys and that this violation amounted to willful misconduct under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to discharge for willful misconduct connected to his or her work. 43 P.S. § 802(e).
Claimant applied to the Department of Labor and Industry for unemployment benefits following her discharge from employment with Employer and the Department of Labor and Industry issued an April 14, 2014 determination denying her benefits. (Record Item (R. Item) 4, Notice of Determination.) Claimant appealed and a hearing was held before the Referee on June 4, 2014, at which both Claimant and Richard Fitzsimmons, Employer's Director of Slot Operations, testified. (R. Item 8, Referee Hearing Transcript.) Following the hearing, the Referee issued a June 6, 2014 decision and order denying Claimant unemployment benefits. (R. Item 9, Referee Decision and Order.) Claimant appealed to the Board and the Board issued an August 20, 2014 decision and order denying Claimant unemployment benefits. (R. Item 13, Board Decision and Order.) In its decision, the Board, inter alia, made the following findings of fact:
1. [Claimant] was last employed as a slot attendant by [Employer], from July 15, 2009, at a final rate of $9.13 per hour, and her last day of work was March 20, 2014.
2. [Claimant] suffers from anxiety, depression, CFS, and fibromyalgia.
3. [Claimant] did not request a medical accommodation from [Employer].
4. [Employer's] policy, of which [Claimant] was aware, required employees to maintain control of their keys at all times and to return keys in the Traka system (a secured cabinet where [Employer's] keys are stored). Taking keys off the property or placing keys in garment bags was subject to discipline up to and including suspension or termination.
5. The employer is regulated by the Gaming Commission; failure to secure keys can subject the employer to warnings and/or fines.
6. On February 25, 2014, [Employer] issued a final written warning for leaving [Employer's] property with the keys and for failing to secure her keys in the Traka system.(Id., Findings of Fact (F.F.) ¶¶1-10.) Claimant appealed the Board's decision and order to this Court for review.
7. [Employer] warned [Claimant] that future infractions were subject to discipline, up to and including termination of employment.
8. In addition to securing her keys, at the end of her shift, [Claimant] was also required to return her wallet, radio and iPod.
9. On March 18, 2014, [Claimant] returned her wallet, radio and iPod to [Employer] but failed to secure her keys in the Traka system and instead placed her keys in a locker, inside her bag.
10. [Employer] discharged [Claimant] for failing to secure her keys in its Traka system.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed and whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.5 (Pa. Cmwlth. 2010). --------
Before this Court, Claimant argues that Employer failed to demonstrate that she committed willful misconduct because Employer did not offer evidence to show that her actions were intentional or deliberate. Whether a claimant's conduct rises to the level of willful misconduct is a question of law that is subject to plenary review by this Court. Orend v. Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth. 2003). The term willful misconduct is not defined within Section 402(e) of the Law, but has been interpreted by the courts to include: 1) wanton or willful disregard of the employer's interests; 2) deliberate violation of the employer's rules or directives; 3) disregard of the standards of behavior which an employer can rightfully expect from an employee; and 4) negligence demonstrating an intentional disregard of the employer's interest or the employee's duties and obligations. Scott v. Unemployment Compensation Bd. of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012).
The employer bears the burden of proving that the claimant was discharged for willful misconduct. Id.; Greer v. Unemployment Compensation Board of Review, 4 A.3d 733, 736 (Pa. Cmwlth. 2010). When the alleged willful misconduct involves the violation of a work rule, the employer must prove: the existence of the rule, the reasonableness of the rule, and the fact of the claimant's violation. Lewis v. Unemployment Compensation Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012); Brady v. Unemployment Compensation Bd. of Review, 539 A.2d 936, 938 (Pa. Cmwlth. 1988). Examining the difference between intentional acts amounting to willful misconduct and good faith mistakes on the part of employees, our Supreme Court stated:
We have explained that "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." Furthermore, this Court has acknowledged that a determination of whether an action constitutes willful misconduct requires a consideration of "all of the circumstances, including the reasons for the employee's noncompliance with the employer's directives."Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003) (internal citations omitted). In the instant matter, Claimant does not dispute the existence or reasonableness of the rule; rather, Claimant contends that Employer failed to show that her actions were more than merely negligent or an honest mistake.
In support of its contention that Claimant's conduct amounted to willful misconduct, Employer presented evidence that Claimant had been reprimanded on February 25, 2014 and issued a final written warning for failure to properly secure her slot key. Employer also offered documentation of Claimant's multiple key control acknowledgements, and her acknowledgement of receiving the final written warning. (R. Item 3, Employer Separation Information.) On March 18, 2014, Claimant again failed to secure her slot key. Claimant offered testimony concerning her medical issues, but the Board did not find credible Claimant's testimony that these issues led her to forget to secure her key and Claimant did not offer other evidence to support her testimony. (R. Item 13, Board Decision and Order, Discussion at 3.) Instead, the Board concluded that the recent final warning Claimant had received, and the multi-step check-out system utilized by Employer at the end of shifts, which included securing three other specific items, demonstrated that Claimant's actions were more than merely negligent and did amount to willful misconduct. In addition, the Board's finding that an employee's failure to secure slot keys can subject Employer to discipline from the Gaming Commission underscores the central importance of Claimant's duty to maintain and secure her keys as a part of her employment and her responsibility to protect Employer's interests.
The Board's discussion reflects that it examined all of the circumstances surrounding Claimant's violation of the work rule and, based on the record as a whole, made findings of fact supported by substantial evidence and concluded that Claimant's conduct was deliberate and amounted to willful misconduct. Accordingly, we affirm.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of May, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge