Opinion
No. 1839 C.D. 2012
10-16-2013
Patricia C. Phillips, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This matter was reassigned to the author on May 14, 2013.
Patricia C. Phillips (Claimant) petitions for review of the September 4, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). For the reasons that follow, we vacate and remand.
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 her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.
Claimant began her employment as a full-time registered nurse with UPMC (Employer) in May 1977. Claimant was suspended from work on February 28, 2012, and she was discharged on March 9, 2012. The local service center determined that Claimant was not ineligible for benefits under section 402(e) of the Law, and Employer appealed. A referee held a hearing on June 22, 2012.
Lesley Classen, Employer's human resources consultant, testified that Employer has a progressive disciplinary policy under which discipline begins with a verbal, written, three-day, or final written warning, depending on the egregiousness of the employee's conduct, and ends in discharge. Classen said she recommended that Claimant be discharged for failing to label specimens that were sent from the operating room to the pathology department on February 28, 2012. She explained that Claimant had already received a final written warning, and the next step in the disciplinary process was discharge. Classen did not provide any information concerning the conduct for which Claimant had previously been disciplined, but added that she would have recommended Claimant's discharge in any event due to the carelessness of Claimant's acts. (Notes of Testimony (N.T.) at 6.)
Wendi Ridgeway-Price testified that she manages the daily operations in the operating room. She explained that Claimant worked as a circulating nurse in the operating room and, as such, was responsible for collecting specimens from the sterile field and making sure that they were properly labeled and handled as they were sent to the pathology department. (N.T. at 8-9.)
Ridgeway-Price testified that Employer has a policy governing the handling of specimens in the operating room that specifically addresses the responsibilities of the circulating nurse. She said that as part of that procedure, the circulating nurse verifies that specimens are identified and labeled properly before they are sent to the pathology department. She also stated that the process of closing out a surgical case includes a debriefing, during which each member of the surgical team confirms what was done before the surgeon leaves the operating room.
Employer introduced its policy governing the care of specimens (Policy #F.1) which sets forth the specific responsibilities of the circulating nurse (RN Circulator) as follows:
1. Confirms presence and title of the specimen with the scrub and/or surgeon.
2. Affixes a label to the outside of the container. The label must contain the following information:
a. Patient's name and MRN or FIN.
b. Date
c. Surgeon's name.
d. Specimen title and laterality when applicable.
e. Initials of the Circulator.
3. Assures the proper disposition of the specimen.
4. Completes the Pathology Specimen Segment in the Perioperative Record.
5. Completes the Pathology Requisition (in Corner - SHY).
Ridgeway-Price testified that she received notice from the pathology department that it had received specimen containers that were not labeled, and she spoke with Claimant and investigated whether Claimant had followed Employer's procedure. Ridgeway-Price explained that all patients come into the operating room with pre-printed labels containing their identification information, which takes up almost all of the space for information on the label, and that blank labels are used to identify specimens when the description of the specimen does not fit on the pre-printed label. She stated that in this instance, there were labels on the specimens, but they only contained information provided by the surgeon and did not include the patient's identification information. Ridgeway-Price also noted that Claimant later made a computer entry documenting that the specimens had, in fact, been labeled properly. (N.T. at 9-15.)
Claimant testified that she took a short-term disability leave from September 2011 to January 17, 2012, and she requested two weeks orientation, including the handling of specimens, when she returned to work. Claimant stated that she was given orientation, but her request to review the handling of specimens was not honored. With respect to the February 28, 2012 incident, Claimant testified that she completed labels for a specimen of breast tissue with the information provided by the surgeon ("stitch superior, stitch inferior, stitch lateral"), read it back to the surgeon and to the scrub nurse, and placed those labels on the specimen container. She then printed out the requisition form that had the patient's name, date of birth, and social security number and called a nursing assistant to take the specimen. Claimant testified that while they were still in the operating room closing the case, the pathology department reported an error with the specimen labeling; although the requisition form had been sent with the specimen, the container itself did not have the patient's identification information. Claimant said that at that point she noticed the two labels with the patient's information that she had forgotten to place on the container and took them down to pathology. Claimant stated that her actions were not deliberate but were a mistake, that she did her job to the best of her ability, and that she had focused on writing down the information given by the surgeon and forgot to attach the identification labels to the specimens. Claimant also stated that the specimens at issue had to be sent to pathology right away and were not in the operating room during the post-briefing and that when she completed the documentation she believed that the specimens had been properly labeled. Claimant further explained that she had already corrected the mistake by the time she made the post-operative computer entries. (N.T. at 15-20.)
The referee issued the following relevant findings of fact:
2. The claimant was aware that the employer's procedure was for the claimant to put a label identifying the patient name, birthday and social security number or medical record number on each specimen taken.(Referee's decision at 1.) The referee concluded that Claimant was ineligible for benefits under section 402(e), reasoning as follows:
3. The claimant was aware that the employer's procedure was for the claimant to look at each specimen as she sent it off to the laboratory to see that it was labeled with the patient name, date of birth and social security number or medical record number.
4. The claimant was aware that the employer's procedure was for the claimant to mark a computer field at the time that she verified that the specimen was labeled properly.
5. On February 28, 2012, the claimant violated each of those three procedures.
The claimant failed to label the specimen at the time that the container was given to her. The claimant then failed to look at the specimen as she was turning it over to the person taking it to the laboratory. The claimant violated two procedures at that time because she should have confirmed that the label was affixed to the container and should have noted [in] the computer that she had checked the container. The claimant's explanation was that this was a simple mistake of oversight. It was not. It was the result of the
claimant failing to comply with three separate steps of procedures. Consequently, benefits cannot be approved.(Referee's decision at 2) (emphasis added). The Board affirmed the referee's decision and adopted the referee's findings of fact and conclusion of law. The Board stated that, "[b]ecause [Claimant's] actions resulted in three policy violations at different steps designed to catch mistakes, the Board concludes that Claimant was so indifferent to [Employer's] policies as to constitute willful misconduct." (Board's decision and order) (emphasis added). Claimant now appeals to this Court.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially we note that while the Law does not define the term "willful misconduct," Pennsylvania courts have held that the term includes "an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of an employee, or negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer." Frumento v Unemployment Compensation Board of Review, 466 Pa. 81, 83-84, 351 A.2d 631, 632 (1976) (quoting Moyer Unemployment Case, 110 A.2d 753, 754 (Pa. Super. 1955)); Lytle v. Unemployment Compensation Board of Review, 387 A.2d 962 (Pa. Cmwlth. 1978).
Where, as here, an employer seeks to establish willful misconduct based on the claimant's deliberate violation of a work rule, the employer bears the burden to show that the claimant was aware of the work rule and violated the rule. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985). The employer must also establish that the claimant's actions were intentional or deliberate. Id. If the employer meets its burden, the burden then shifts to the claimant to demonstrate good cause for her conduct. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008). The claimant's actions must be considered in light of all of the circumstances, including the reasons for her noncompliance with the employer's directives. Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001); Doyle v. Unemployment Compensation Board of Review, 58 A.3d 1288, 1291 (Pa. Cmwlth. 2013); Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth 2010).
Our Supreme Court emphasized that point in Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993):
[W]e reject [Employer's] contention that, in this case, [Employer] need only prove the existence of the rule and the violation of the rule in order for a discharge to result in ineligibility of benefits. [Employer's] argument extends from cases where the issue was whether the intentional or deliberate violation of an employer's direct order or policy constitutes willful misconduct. In those cases, there was no question that an intentional or deliberate violation of an employer rule regarding work related conduct had occurred. In this case, however, whether there was an intentional or deliberate violation of an employer rule regarding work related conduct is at issue.
Claimant contends that the referee's analysis reflects an older line of cases that set a higher standard of care for health care workers and characterized even inadvertent or negligent behavior as willful misconduct. Claimant notes that such analysis was explicitly criticized by our Supreme Court in Navickas, stating that "we specifically reject the . . . adoption of an ad hoc 'higher standard of care' for health care workers, which apparently would permit any act of negligence or inadvertence on the part of a health care worker, standing alone, to be deemed willful misconduct." 567 Pa. at 307-308, 787 A.2d at 290. Because we conclude that remand is necessary, we need not address this argument.
Our courts have recognized that a single instance of misconduct is not necessarily such as to bring an employee within the purview of section 402(e). Navickas, 567 Pa. at 306-07, 787 A.2d at 289-90; Frumento, 466 Pa. at 88, 351 A.2d at 635; Goodson v. Unemployment Compensation Board of Review, 424 A.2d 1019 (Pa. Cmwlth. 1981). Further, our courts have held that negligence may be of such a degree or recurrence as to manifest the requisite wrongful intent or intentional and substantial disregard of the employer's interest or the employee's duties as to constitute willful misconduct. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 827 A.2d 422 (2003); Navickas, 567 Pa. at 306, 787 A.2d at 289-90. See also Schappe v. Unemployment Compensation Board of Review, 392 A.2d 353 (Pa. Cmwlth. 1978) (noting that each case must be decided on its own facts, irrespective of the number of incidents involved, and holding that even though the employee truck driver was involved in only two accidents, they occurred within such a short interval of time and were so demonstrative of the employee's lack of care for his employer's equipment that they amounted to willful misconduct). Thus, the determination of willful misconduct is not based on any one factor but is made "in light of all the circumstances." Navickas; Doyle.
In this case, Claimant challenges the Board's finding that she violated three separate steps of Employer's procedures. (Finding of Fact No. 5.) Specifically, Claimant argues that the record does not demonstrate that she violated Employer's procedure with respect to completing a computer report. (Finding of Fact No. 4.) Claimant also argues that the Board erred in concluding that her actions rose to the level of willful misconduct because there is no finding that she deliberately violated Employer's procedures or that she acted with indifference to her duties. Claimant asserts that evidence of her failure to follow procedures of which she was aware falls short of demonstrating a deliberate violation of Employer's policies or a wanton and willful disregard of Employer's interests or her duties and obligations. Claimant also notes that Pennsylvania case law recognizes a distinction between deliberate and unintentional violations of an employer's work rules, classifying the former as willful misconduct and the latter as mere negligence that does not disqualify a claimant from receiving benefits under section 402(e). See Grieb, 573 Pa. 594, 827 A.2d 422 (an employee's inadvertent violation of employer's work rule does not constitute willful misconduct warranting a denial of benefits under section 402(e)); Philadelphia Parking Authority, 1 A.3d at 968 (Pa. Cmwlth 2010).
The Board acknowledges on appeal that the record does not support its finding that Claimant committed three violations of Employer's policy. More specifically, the Board concedes in its brief that Claimant did not violate Employer's computer verification procedure. (Board's brief at 5.) However, the Board argues that its concession merely renders Finding of Fact No. 4 irrelevant and that Finding of Fact No. 5 remains otherwise supported by substantial evidence with respect to Claimant's violation of two other steps of Employer's specimen-handling procedure. The Board further maintains that a finding that Claimant violated Employer's computer verification procedure is unnecessary to support the Board's ultimate determination. Quoting Simmons v. Unemployment Compensation Board of Review, 565 A.2d 829, 833 (Pa. Cmwlth. 1989) ("[c]onscious indifference to a duty owed to one's employer is also a basis for a finding of willful misconduct"), the Board now contends that Claimant's actions constituted two violations of Employer's policy and thus reflected conscious indifference to Employer's policies, i.e., willful misconduct.
"A party's statement in its brief is treated as a judicial admission, which, although not evidence, has the effect of withdrawing a particular fact from issue." Ciamaichelo v. Independence Blue Cross, 928 A.2d 407, 413 (Pa. Cmwlth. 2007) (citing Leonard Packel and Anne Bowen Poulin, Pennsylvania Evidence §127 (2nd ed. 1999)). See also Bartholomew v. State Ethics Commission, 795 A.2d 1073, 1078 (Pa. Cmwlth. 2002) (statements in a party's brief are treated as judicial admissions, which are formal concessions having the effect of removing a fact from issue). --------
Were we to accept this contention, we would conclude that Employer met its burden of proof, thereby shifting the burden to Claimant to demonstrate good cause for her actions. We might also conclude that the Board's decision reflects an implicit rejection of Claimant's testimony. However, it is apparent from the language in both administrative decisions that Claimant's testimony was summarily rejected because she committed three violations of Employer's policy. Indeed, contrary to the Board's argument on appeal, the record reveals that the Board's ultimate conclusion of willful misconduct was based entirely upon the finding that Claimant committed three separate violations of Employer's policy. As noted above, a determination of willful misconduct cannot be made based solely on the number of incidents at issue, but upon consideration of all of the circumstances.
In unemployment compensation proceedings, the Board is the ultimate fact-finding body, empowered to resolve all conflicts in the evidence and to make all determination of witness credibility and evidentiary weight. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328, 329 (Pa. Cmwlth. 1975). However, because the Board concedes that one of its critical findings of fact is not supported by the record, and recognizing that the Board must consider Claimant's testimony in light of its concession on appeal, we conclude that remand is appropriate in order for the Board to reconsider its decision "in light of all the circumstances," Navickas, Doyle, and issue a new decision.
Accordingly, we vacate the Board's order and remand this matter to the Board for a new decision consistent with the foregoing opinion.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 16th day of October, 2013, the order of the Unemployment Compensation Board of Review (Board), dated September 4, 2012, is vacated, and the matter is remanded to the Board for a new decision consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge
(Exhibit #3.)
Id. at 601, 633 A.2d at 1156 (emphasis in original) (quotations and citation omitted). Although Gillins involved employee conduct that was not work related, the court made clear that the same principle applied:
We need not address [Employer's] claim that [the claimant] failed to show that he had good cause for the violation of employer's rule or that the work rule is unreasonable. Again, this analysis is only an issue when an employer shows that the off-the-job conduct was a deliberate violation of an employer's rule, thus constituting willful misconduct.Id. at 601 n.3, 633 A.2d at 1156 n.3 (emphasis in original).