Opinion
No. 1610 C.D. 2011
03-30-2012
Dwight D. Mathews, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Dwight Mathews (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) finding him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because his termination from employment with Ivy Hill Rehabilitation and Nursing Center (Employer) was due to willful misconduct. Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent part:
An employe shall be ineligible for compensation for any week -
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Willful misconduct has been defined as:
(a) wanton or willful disregard for an employer's interests; (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 was employed as a full-time housekeeper with Employer beginning August 14, 2006. After a series of warnings regarding insubordination, Claimant was discharged on February 26, 2011, for failure to report to another floor of the Center when he was directed to do so. Claimant filed a claim for unemployment compensation benefits which the Unemployment Compensation Service Center denied, finding that Claimant was discharged for willful misconduct. Claimant appealed.
Before the Referee, William Cook (Cook), Employer's food service director, testified that on February 26, 2011, a nurse approached him and said that one of the floors of the Center did not have a housekeeper on duty because those assigned to the floor had called out of work. Cook said he then approached Claimant and another housekeeper and instructed them to report to that floor, and Claimant replied that he was not going to go because he never goes to that floor. Cook then told Claimant that he could either go to the other floor or go home, and Claimant responded that he was going to tell his supervisor that he was going home.
Hershel Schwartz (Schwartz), Claimant's direct supervisor, testified that Claimant did leave a voice message for him on the day in question, stating that he wanted to leave because he was not feeling well. Schwartz said it was his understanding that Crystal Jackson (Jackson), the nursing supervisor on duty on February 26, 2011, did not say Claimant could go home, as Claimant asserted. He also stated that Donna Shelow, a nursing manager who was on duty at the time, provided that Claimant "smirkingly" told staff members he was going to tell his supervisor he was sick and go home. (April 29, 2011 Hearing Transcript at 7; see also Original Record, Item 1, Ex. 18.)
A memorandum written by Jackson on February 28, 2011, indicates that Claimant told her he was going home because he was sick, and when she asked whether he had talked to his supervisor, Claimant said he "let Hershel know." (Original Record, Item 1, Ex. 18.) Jackson said she told Claimant it was "OK to go" because Claimant's supervisor allegedly knew. Id.
Susan Stoduto (Stoduto), Employer's human resources director, testified that on February 26, 2011, Claimant was asked to work on a different floor because housekeepers assigned to that floor had called off. Claimant replied that it was "bull," and that he was not going to report to the other floor. (April 29, 2011 Hearing Transcript at 7.) Stoduto was made aware of the situation when she came to work on Monday, and Claimant's employment was subsequently terminated.
Claimant testified that when he reported for work on the morning of February 26, 2011, he asked the third shift supervisor whether anyone had called off, and she said no one had. He said that Cook later approached him and told him that he was to report downstairs to clean, and Claimant said it was "bull." (April 29, 2011 Hearing Transcript at 10.) He further testified that he was not feeling well that day but worked for four or five hours anyway, then "called [his] supervisor, let him know and then ... saw the supervisor of that shift." Id., at 10. Claimant also acknowledged that he was supposed to follow Cook's instruction, but believed he should not have been required to go to another floor because he never has to do so, and based on seniority, the other housekeeper on duty should have been required to go that day. When asked by the Referee whether he would have gone home on February 26, 2011, had Cook not asked him to report to another floor, Claimant said he would have, "because I wasn't feeling good that day. ... [M]y dad, he was diabetic and I already had stuff going on of my own." Id., at 12.
Finding Claimant's testimony was not credible, the Referee affirmed the denial of benefits because Claimant's failure to follow Employer's directive constituted willful misconduct, and Claimant did not demonstrate good cause for his actions because even if Claimant was sick, it was unreasonable for him not to inform his supervisor. Claimant appealed to the Board, which found that Claimant understood he was supposed to follow Cook's instructions and refused to do so. Correcting the Referee's finding, the Board also found that after Claimant decided he was going home, he left a message for his supervisor indicating that he was leaving because he was sick. Finally, the Board determined that it was not unreasonable for Claimant to be required to work on another floor despite Claimant's testimony that it was not common for him to do so. Like the Referee, the Board also found Claimant's testimony that he was sick not credible. Based on those findings, the Board found that Claimant was discharged for insubordination and affirmed the Referee's denial of benefits. This appeal followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or findings of fact were not supported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993). When the Board makes its own findings, matters of credibility and evidentiary weight are within its sole province. BK Foods v. Unemployment Compensation Board of Review, 547 A.2d 873 (Pa. Cmwlth. 1988). Whether the actions of an employee constitute willful misconduct is a question of law. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001). --------
On appeal, Claimant contends that the Board erred in determining that he committed willful misconduct because he had good cause not to follow the instruction to clean on another floor since he was sick and reported his illness to Jackson, another supervisor on the floor, who gave him permission to go home. However, that contention is based on Claimant's version of events and on his testimony, which the Board found not credible. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 672 (Pa. Cmwlth. 2010) ("That [a witness] may have given a different version of the events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings.") Because the Board is the ultimate factfinder and determiner of credibility in unemployment cases, McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003), we will not disturb its credibility determinations on appeal. Moreover, the Board appropriately determined that it was not unreasonable for Employer to require Claimant to work on a different floor, and the mere fact that it was uncommon for him to do so did not establish good cause for his refusal. There is substantial evidence in the record to indicate that Claimant was required to adhere to Cook's direction, and failure to do so constituted willful misconduct.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of March, 2012, the order of the Unemployment Compensation Board of Review, at No. B-519900, dated July 14, 2011, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). However, "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." Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (internal citation omitted).