Opinion
No. 1629 C.D. 2012
04-18-2013
Quarryville Presbyterian Retirement Community, 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 BROBSON
Petitioner Quarryville Presbyterian Retirement Community (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which reversed the decision of the Unemployment Compensation Referee (Referee). The Board determined Claimant to be eligible for benefits. We now reverse.
Claimant applied for unemployment compensation benefits after being discharged from her employment as a licensed practical nurse (LPN) for Employer. The Lancaster UC Service Center (Service Center) determined Claimant ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. (Reproduced Record (R.R.) at 12.) Claimant appealed the Service Center's determination, and a Referee conducted a hearing.
Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Following the hearing, the Referee issued a decision affirming the Service Center's determination, thereby finding Claimant ineligible for unemployment compensation benefits under Section 402(e) of the Law. (R.R. at 30-33.) The Referee reasoned that "Claimant falsified her initial application for employment and also falsified her application for UC benefits as to the reason for her separation[,]" and that such behavior constituted willful misconduct because it fell "below the standards expected by an employer of its employees." (R.R. at 31.)
Claimant appealed the Referee's decision to the Board, which reversed the decision, thereby granting Claimant unemployment compensation benefits. (R.R. at 49-52.) The Board made the following findings of fact:
1. The Quarryville Presbyterian Retirement Community employed the claimant from January 12, 2009, through March 13, 2012, finally as a full-time licensed practical nurse . . . .
2. Before working for the employer, the claimant was discharged from Maple Farm Nursing Center for giving prescription medication intended for a resident to a coworker for personal use.
3. When the claimant applied for [employment with] the employer, she indicated that she left her previous job because it was "too far away."
4. On March 6, 2012, the employer received a newspaper article describing the circumstances surrounding the claimant's separation from Maple Farm.(R.R. at 49-50.)
5. The employer's policy considers misrepresentation or omission of facts on its application to be cause for discharge.
6. On March 13, 2012, the employer discharged the claimant for falsifying her job application, but not because of the content of the newspaper article.
The Board concluded that:
The employer discharged the claimant solely for falsifying her employment application. The employer's administrator of health care services explicitly stated that the claimant was not discharged for the content of the newspaper article, which described the circumstances surrounding the claimant's separation from Maple Farm. From this, the Board infers that the actual content of the claimant's falsification was immaterial to her ability to perform her job. This inference is buttressed by the employer's lack of testimony indicating that it would not have hired the claimant had she been truthful on her application. Because a knowing misrepresentation must be material to one's job to be disqualifying and the claimant's misrepresentation was not material to her job, unemployment compensation may not be denied.(Id.)
On appeal to this Court, Employer argues that the Board erred as a matter of law when it concluded that the falsified information on Claimant's job application was immaterial to Claimant's job. Employer also argues that the Board, therefore, further erred as a matter of law when it concluded that Claimant's conduct did not amount to willful misconduct.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
First, we will address Employer's argument that the Board erred when it concluded that the falsified information on Claimant's job application was immaterial to her job. "[W]here an employee [is] fired for supplying false information on an employment application, the burden [is] on the employer to show that the false information concerned 'matters material to the employment sought for the errant answer to be disqualifying for unemployment benefits.'" Albater v. Unemployment Comp. Bd. of Review, 423 A.2d 9, 10 (Pa. Cmwlth. 1980), (quoting Unemployment Comp. Bd. of Review v. Dixon, 365 A.2d 668, 669 (Pa. Cmwlth. 1975)). The circumstances surrounding each case must be evaluated in order to determine whether the "information concealed from the employer is material to the employment." Albater, 423 A.2d at 11. "In some cases, materiality will be obvious once the employer establishes the nature of the employment and the type of information concealed." Id.
In Barnett v. Unemployment Compensation Board of Review, 408 A.2d 195 (Pa. Cmwlth. 1979), the claimant's unemployment benefits were denied because of his conscious concealment of theft offenses when he was being considered for a promotion to a supervisory position. Upon the employer's discovery of the deception, the claimant was fired. Barnett, 408 A.2d at 196. In finding that the employer satisfied the burden of proving the materiality to the employment, we stated "[a]n employee's trustworthiness is essential to his employment in a job which necessarily requires supervision of other employees and valuable equipment and goods." Id. at 197.
Similarly, in Albater, the employer discovered that the claimant, a janitor working on various floors of employer's twenty-five-story office building, had falsified his employment application by misstating that he had no criminal record, when he in fact had at least three prior convictions. Albater, 423 A.2d at 10. After being given the option of either being fired or resigning for falsifying his employment application, the claimant chose to resign. Id. We stated that even though the claimant's job did not entail "supervision of other employees or valuable goods," or complete access to nonpublic areas of the building, "[t]rustworthiness is an essential characteristic . . . and undoubtedly the employer's initial evaluation of the [claimant's] trustworthiness would have been influenced by knowledge of . . . prior convictions." Id. at 11. The claimant, therefore, was denied benefits. Id.
In the matter now before the Court, Employer argues that the falsified information was material and that the Board drew improper inferences. Employer contends that Claimant's job is a position of trust, and Claimant's failure to disclose that she was terminated from her prior employment due to misappropriation of narcotic medication is inconsistent with that trust, such that the falsification is material. Claimant counters that the falsification of the employment application was not material to Claimant's employment as an LPN, because, if it were, Employer would have discharged Claimant for the content of the newspaper article describing the reason for Claimant's separation from Maple Farm.
Evaluating the circumstances surrounding this case, we must conclude that the information Claimant concealed in falsifying her reason for leaving her previous employer was directly material to the nature of her job as an LPN at Quarryville Presbyterian Retirement Community. To be sure, Claimant worked as an LPN for Quarryville Presbyterian Retirement Community and also worked as an LPN for her previous employer, Maple Farm Nursing Center. She was fired from her former position for giving patient medication to a co-worker, which necessarily brings into question her trustworthiness as an LPN. Moreover, it seems axiomatic that trustworthiness is an essential characteristic of any LPN position. Thus, this case is similar to Barnett in that trustworthiness was essential to her employment. Here, Claimant intentionally withheld information that even she had reason to believe could have caused Employer to question her suitability for the subject position. This is not a situation where the falsified information can really be characterized as irrelevant to her ability to perform as an LPN, such as being fired for excessive absenteeism or tardiness. The examination of the record as a whole, therefore, demonstrates that Claimant's falsification on her job application was indeed material to her job as an LPN.
We agree with Employer that the Board placed too much emphasis on one statement from Employer regarding its stated reason for the termination of Claimant's employment. Specifically, Employer stated that it terminated the employment due to the falsification of the employment application, not because of the newspaper article. It does not follow that Claimant's admitted earlier misappropriation of narcotic medication was not material to her job with Employer, simply because Employer stated that its reason for termination was Claimant's falsification of the employment application. It stands to reason that an employer may find it preferable (and more defensible) to terminate an employee's employment based upon a clear violation of a work rule or policy, rather than to terminate the employee's employment based upon alleged conduct that occurred during previous employment. By requiring a candidate for employment to disclose the reason for a prior discharge, an employer has the opportunity, before an employee is hired, to make inquiries to determine whether the circumstances of the discharge are such that the candidate should not be hired.
We disagree with the Board that the absence of a job description in the record and information regarding whether Claimant had access to narcotics while working for Employer somehow precludes a determination that trustworthiness is essential to the position of an LPN. The very nature of an LPN position requires trustworthiness.
Having established materiality, we next address Employer's contention that the Board erred in concluding that Employer did not prove willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981) --------
(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.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). Once an employer has met its burden to prove willful misconduct, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993) (citing Mulqueen v. Unemployment Comp. Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)).
An employer seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies must prove the existence of the rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. Here, Employer terminated Claimant's employment for violation of Employer's policy that "considers misrepresentation of omission of facts on its application to be cause for discharge." (Board's opinion, finding of fact (F.F.) no. 5.) Also, the record indicates that Claimant was aware of the policy. (R.R. at 19-20.) Furthermore, Claimant falsified her employment application by indicating that she left her prior employer because it was "too far away." (Board's Opinion, F.F. no. 3.) In actuality, Claimant was discharged from her previous employment for giving prescription drug medication that was intended for a resident to a co-worker without authorization. This deliberate, untruthful statement was discovered by Employer and when Employer confronted Claimant, her justifying response was that she "needed a job." (C.R., Item No. 8 at 12.) Just as the facts before this Court in Barnett and Albater were sufficient to establish the materiality of employees' false information to the employers resulting in a finding of willful misconduct, the particularly stronger, present facts before us today, establish Claimant's material falsification on her application constitutes willful misconduct.
Once an employer has met this burden of establishing willful misconduct, however, we must determine whether the claimant established good cause. McKeesport Hosp., 625 A.2d at 114. To prove "good cause," a claimant must demonstrate that her actions were justifiable and reasonable under the circumstances. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). Here, Claimant's need to be employed is not good cause for purposefully falsifying material information on an employment application. Thus, Claimant's violation of Employer's policy constituted willful misconduct.
Accordingly, we reverse the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of April, 2013, the order of the Unemployment Compensation Board of Review is hereby REVERSED.
/s/_________
P. KEVIN BROBSON, Judge