Opinion
No. 1770 C.D. 2011
03-22-2012
Lizabette Susan Markley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Lizabette S. Markley, petitions pro se for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of the referee. The referee denied benefits pursuant to Section 402(e) of the Unemployment Compensation Law, which provides that a claimant is ineligible to receive benefits if she is discharged from employment due to willful misconduct, and determined that Markley had received a non-fault overpayment in the amount of $546.00. Markley challenges the sufficiency of the evidence to support the Board's finding that she was discharged for sleeping on the job. Our review discloses ample evidence for this finding and, therefore, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant does not challenge the overpayment. --------
According to the referee's findings, which the Board adopted, on January 17, 2011, Markley was terminated from her employment as a substitute teacher in the North Penn School District based on her classroom behavior on November 29, 2010. On that day, Markley, assisted by two aides, was assigned to teach a high school special education "Life Skills Class." When the Special Education Chairperson, Ms. Shoppe, visited the classroom to observe Markley's work, she observed Markley apparently sleeping, i.e., eyes closed, no bodily movement. Markley "sat up" when Ms. Shoppe approached and spoke. Subsequently, when Markley met with the Human Resource Coordinator and Assistant Principal, she denied she was asleep and explained that she "had a tick (sic) in her eye and may have closed her eyes because of this for a brief period of time." Referee's Decision at 2, Finding of Fact No. 12. A few weeks after this meeting, Markley received a letter discharging her for sleeping on the job and failing to perform her tasks and follow directions in the classroom. After hearing testimony from witnesses on behalf of employer and from Markley, the referee found that she had been sleeping in the classroom during class time. In making these findings, the referee credited the testimony by employer's witnesses over that of Markley. Based on these findings, the referee concluded that Markley, in sleeping on the job, disregarded the standards of behavior that an employer can rightfully expect and acted in wanton disregard of employer's interests. Therefore, Markley was disqualified from receiving benefits pursuant to Section 402(e). The Board affirmed and this appeal followed.
A claimant will be ineligible under Section 402(e) if the employer demonstrates that "unemployment is due to [claimant's] discharge or temporary suspension from work for willful misconduct connected with work." Sleeping on the job, in the absence of proof that employer permits or tolerates such conduct, constitutes willful misconduct. See L. Washington & Assocs., Inc. v. Unemployment Comp. Bd. of Review, 662 A.2d 1148, 1149 (Pa. Cmwlth. 1995). See also Biggs v. Unemployment Comp. Bd. of Review, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982).
On appeal, Markley challenges the finding that she was sleeping on the job by suggesting that a medical condition caused her to appear to be sleeping and asserting that employer could not meet its burden of proof absent expert medical testimony that would rule out a medical cause. Markley misunderstands the burden of proof. After employer produced, as it did, sufficient credible evidence that Markley was asleep on the job, the burden fell to her to establish that a medical condition caused her to fall asleep, or to appear to have done so, in order to rebut that the incident constituted willful misconduct. See Biggs. See also Royster v. Unemployment Comp. Bd. of Review, 34 A.3d 324, 327 (Pa. Cmwlth. 2011). Markley produced no such evidence. Furthermore, Markley's testimony that she only appeared to be sleeping because she had a tic in her eye was not considered credible or persuasive by the Board. On appeal, we will not revisit the Board's assessment of the credibility and weight of the evidence, see Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999), and thus, Markley's argument that a tic was actually the reason she closed her eyes is of no avail.
The Board's findings are adequately supported by the evidence and its conclusions of law are without error. Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 22nd day of March, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge