Opinion
No. 1259 C.D. 2011
01-27-2012
Rodica Pop, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
This case was assigned to the opinion writer prior to January 7, 2012, when Judge Pellegrini became President Judge.
Rodica Pop (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because her termination from employment with Whitehall Manor (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 on November 18, 2005. After a series of warnings regarding her job performance, Claimant was discharged on October 24, 2010, for allegedly failing to respond to a call. Claimant filed a claim for unemployment compensation benefits which the Unemployment Compensation Service Center denied, finding that she was discharged for willful misconduct. Claimant appealed this determination.
Before the Referee, Nimita Kapoor-Atiyeh (Atiyeh), Employer's co-administrator and president, testified that Claimant initially worked in the dietary department, but when that "didn't work out for her by job performance," (Hearing Transcript at 14), she was transferred to housekeeping. Atiyeh testified that Claimant received a number of reprimands for failure to satisfactorily perform her duties, including five employee warning notices in September and October 2010 alone. Atiyeh testified that on October 24, 2010, she arrived at the building at 2:45 p.m., and employees immediately took her to the dining area of the secured Alzheimer's unit where she saw fecal matter from a resident on the floor. Because Claimant was scheduled to work in that unit, Atiyeh paged her. Other employees told Atiyeh that Claimant had already left, and she verified within five minutes of arriving in the unit that Claimant had in fact clocked out even though her work hours were 7:00 a.m. until 3:00 p.m. Claimant had been called to clean the mess before she left, but had not cleaned it properly. At approximately 3:04 p.m., Atiyeh returned to the dining area and witnessed a personal aide putting what she believed to be the fecal matter in a plastic bag. Atiyeh also stated that Claimant did not clean up the fecal matter properly and did not put a caution sign up or remove the bowel movement. Employees attempted to call Claimant back to finish the cleaning, but she had already left. Because Claimant failed to properly respond to this incident, her employment was terminated.
Claimant testified that on October 24, 2010, she received a page at approximately 2:45 p.m. directing her to go to the Alzheimer's unit. Claimant said she reported to the Alzheimer's unit and asked the employees at the front desk of the unit if they knew what the problem was. They stated that they did not know, so Claimant went to the dining room and found approximately 45 residents there, but no employees. Claimant testified that she was eventually approached by an employee who told her about the fecal matter and showed her its location, and Claimant proceeded to clean the mess and then put up a yellow "caution" sign. According to Claimant, she was finished within five minutes, clocked out around 2:55 p.m. and left the building around 3:00 p.m. On October 26, 2010, Claimant met with Atiyeh and her co-administrator. At the meeting, an employee who was working in the Alzheimer's unit on the day of the incident stated that Claimant did not clean the mess. Claimant was shown a picture of a mess taken by the employee and was then fired. Claimant acknowledged that the October 24, 2010, incident was not the first for which she was reprimanded. She had not previously filed any grievances for any of the employee warning notices before her termination, but she stated that she was unaware that Employer had such a grievance policy in place.
The Referee determined that Claimant's testimony was not credible because she could not verify at what time she started cleaning the mess. He noted again that Atiyeh arrived at 2:45 and witnessed other employees cleaning the mess at 3:04 p.m. Based on this credibility determination, the Referee affirmed the determination of the Unemployment Compensation Service Center and denied benefits because Claimant's failure to clean the mess constituted willful misconduct and she did not demonstrate good cause for her actions. Claimant appealed to the Board, which adopted the Referee's decision and affirmed the 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).
On appeal, Claimant contends that the Board erred in determining that her actions amounted to willful misconduct. Specifically, Claimant argues that there was not substantial evidence to support a finding that she failed to properly respond to an incident in the Alzheimer's unit on October 24, 2010, because Employer did not have first-hand knowledge of what Claimant did or did not do. However, Atiyeh had firsthand knowledge of the incident, as she testified that she was in the dining room at 2:45 p.m., she saw that the mess on the floor had not been cleaned up, was told that Claimant had already clocked out, and she quickly verified this by checking the time clock. Atiyeh also testified that she witnessed other employees cleaning the mess at 3:04 p.m. This constitutes more than substantial evidence to support the Board's finding that Claimant failed to properly clean the mess in the Alzheimer's unit on October 24, 2010.
Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a finding of fact." Seton Co. v. Unemployment Compensation Board of Review, 663 A.2d 296, 299 n.3 (Pa. Cmwlth. 1995). "Circumstantial evidence, if substantial, is sufficient to support a finding of willful misconduct." Ruiz v. Unemployment Compensation Board of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005) (citing Heffelfinger v. Unemployment Compensation Board of Review, 431 A.2d 380, 383 (Pa. Cmwlth. 1981)).
Claimant also contends that Atiyeh's testimony should be discredited because she was a hostile witness and, therefore, the Referee's determination that Atiyeh's testimony was credible was improper. "Matters of credibility and evidentiary weight are within the province of the Board." BK Foods v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (citing McGuill v. Unemployment Compensation Board of Review, 523 A.2d 1194, 1196 (Pa. Cmwlth. 1987)). Here, the Board, in adopting the Referee's opinion, chose to believe Employer's witness over Claimant and we will not disturb that determination on appeal. --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, Judge ORDER
AND NOW, this 27th day of January, 2012, the order of the Unemployment Compensation Board of Review, dated May 10, 2011, is affirmed.
/s/_________
DAN PELLEGRINI, Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 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).