Opinion
No. 1332 C.D. 2011
04-17-2012
Susan Ranck, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Susan Ranck (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the determination of an Unemployment Compensation Referee (Referee) finding Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e), because Claimant engaged in willful misconduct connected with her work. Claimant asserts that the Board erred in finding her ineligible because: (1) Claimant did not commit willful misconduct under Section 402(e) of the Law; (2) Conestoga View (Employer) waived any arguments that she was ineligible for benefits under Section 3 of the Law; and (3) even if not waived, Claimant is not ineligible under Section 3 of the Law.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Employer has filed a brief herein as Intervenor.
Claimant became separated from her position as a full-time clerical unit clerk for Employer on July 8, 2010, after a routine audit conducted on July 6, 2010, revealed that Claimant's name appeared on the Office of Inspector General's (OIG) List of Excluded Individuals and Entities (LEIE) for whom employment with any facility accepting Medicare and Medicaid, such as Employer, was prohibited. (Employer Separation Information, R. Item 2.) Claimant applied for UC benefits, (Claim Record, R. Item 1), which the UC Service Center (Department) granted after determining that Claimant had not committed willful misconduct pursuant to Section 402(e) of the Law, (Notice of Determination, R. Item 6). Employer appealed, and the Referee conducted an evidentiary hearing at which Claimant and Employer's Director of Human Resources appeared and testified. (Employer's Petition for Appeal, R. Item 7; Referee Hr'g Tr., October 25, 2010, at 1-41, R. Item 10.) The Referee issued a Decision/Order on October 28, 2010 reversing the Department's determination and finding Claimant ineligible for benefits under Section 402(e) of the Law. The Referee reasoned that, despite Claimant's compliance with Employer's background check requirements and notwithstanding the fact that a nursing license was not required for the unit clerk position, "[g]iven the importance of licensing in the health care professions, [C]laimant must have known that the loss of her nursing license would have affected her employment in any health care institution." (Referee's Decision/Order at 2-3.) Thereafter, Claimant filed an appeal with the Board.
Citing 42 C.F.R. §§ 1001.1-1001.3005 for the proposition that the applicable federal regulation theoretically permits exceptions for hiring individuals on the LEIE, the Board notes that this exception would not apply here because "Employer's witness credibly testified that ninety-five percent of Employer's clients receive Medicare or Medicaid, which bars virtually all of Employer's income from being used to compensate Claimant." (Board's Br. at 11 n.7.)
After Claimant and Employer filed their briefs, the Board ordered a remand hearing to determine what Claimant told Employer's Director of Nursing (DON) during her employment interview and whether Claimant was aware that she would not be permitted to work in a facility that accepted Medicaid and/or Medicare funds while her license was suspended. (Board's Remand Memorandum to Referee, R. Item 20; Board's Remand Hr'g Order, R. Item 21.) After the remand hearing, the Board issued a Decision and Order affirming the Referee's determination that Claimant was ineligible for benefits pursuant to Section 402(e) of the Law and made the following findings of fact:
1. [C]laimant was last employed as a unit clerk by [Employer] from January 22, 2007, at a final rate of $22.64 per hour and her last day of work was July 8, 2010.
2. Prior to being hired by [Employer], [C]laimant had been a licensed practical nurse holding certification from the State Board of Nursing in Pennsylvania and she had been discharged by one of her previous employers along with two of her co-workers from Maple Farms, where [C]laimant was a medications nurse, when Maple Farms discovered that there were narcotics missing.
3. Subsequently, [C]laimant entered into a voluntary agreement with the Board of Professional and Occupational Affairs surrendering her nursing license because [C]laimant had previously agreed to enter a treatment program but had failed to follow the terms of the Voluntary Recovery Program Consent Agreement ("VRP Agreement").
4. [C]laimant's nursing license was suspended indefinitely, but for at least three years, on April 3, 2001.
5. [C]laimant could have petitioned to have her license reinstated after the initial three year suspension.
6. [C]laimant failed to petition to have her license reinstated.
7. [C]laimant informed the . . .DON during her interview with . . . [E]mployer that her nursing license had been suspended.
8. [C]laimant did not inform the Human Resources personnel that her license had been suspended.
9. The DON was deceased at the time of the hearing.
10. Although [C]laimant was not required to hold a nursing license for the performance of her job duties . . . [E]mployer's facility is a licensed medical facility that is subject to federal and state regulation.
11. On May 31, 2001, the U.S. Department of Health and Human Services sent a letter to [C]laimant to notify her that she was being excluded from participation in or working in any federally funded health care programs including Medicare and Medicaid.
12. The letter was addressed to [C]laimant's parents' address, but had an incorrect zip code.
13. [C]laimant stated that she did not receive the letter.
14. [C]laimant could have restored her ability to work in a federally funded health care program if she had her nursing license reinstated.
15. During a routine check conducted on July 6, 2010, in connection with [E]mployer's annual review, [E]mployer discovered that [C]laimant was excluded from working for [E]mployer because she was on the [LEIE] list of the [OIG] of the Department of Health and Human Services.
16. Upon inquiry, [C]laimant informed [E]mployer that she had voluntarily relinquished her nursing license due to a substance abuse problem.(Board's Findings of Facts (FOF) ¶¶ 1-17.) In its reasoning, the Board noted that Claimant testified that she informed the DON that she voluntarily relinquished her license due to a substance abuse problem and, therefore, the Board "can only conclude that [E]mployer had notice that [C]laimant's license was suspended and so [Employer's] second reason for her discharge does not rise to the level of willful misconduct." (Board Decision/Order at 4.) Using Section 3 of the Law as an interpretive aid, the Board then reasoned that "[t]he correct inquiry here is whether [C]laimant's loss of license . . . was due to her fault." (Board Decision/Order at 4.) Determining that "[C]laimant's loss of license by theft of narcotics and substance abuse was due to her fault," the Board concluded that "[C]laimant's actions did rise to the level of willful misconduct," rendering her ineligible for benefits under Section 402(e) of the Law. (Board Decision/Order at 4.) Claimant now petitions this Court for review.
17. [E]mployer discharged [C]laimant because it was prohibited from employing an individual that was excluded from participation in Medicare, Medicaid and all federal health care programs and because she did not disclose her suspended license when she was hired.
Our review is limited to determining whether the Board's decision is in violation of constitutional rights, whether an error of law has been committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
"Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review." Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Section 402(e) of the Law provides, in relevant part, "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e). Willful misconduct has been defined as: (1) "a wanton and willful disregard of an employer's interest;" (2) a "deliberate violation of the employer's rules;" (3) a "disregard of standards of behavior which an employer can rightfully expect from the employee;" or (4) negligence that "manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or [the] employee's duties and obligations." Oliver, 5 A.3d at 438. The law is clear that the employer must show that the willful misconduct is connected with the employee's work. 43 P.S. § 802(e); Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board of Review, 506 A.2d 974, 977 (Pa. Cmwlth. 1986). "A critical distinction exists between an employer's right to terminate employment and a state's right to deny [UC] benefits." Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1215 (Pa. Cmwlth. 1996).
Claimant argues that the Board erred by concluding that her actions rose to the level of disqualifying willful misconduct under Section 402(e) of the Law, asserting that any willful misconduct under Section 402(e) must be work related, and, here, it was not. Claimant points out that what occurred with regard to her nursing license in 2001, nearly six years before becoming employed with Employer, was not in any way related to her clerical job with Employer for which no nursing license was required. (Claimant's Br. at 1-2.) Claimant contends that she did not know about the existence of the LEIE, or her inclusion on it, until Employer informed her about it at the time of her discharge. (FOF ¶¶ 11-13.) Therefore, lacking any knowledge about her inclusion on the LEIE arising from the events in her past and about which Claimant first became aware upon her discharge from Employer, Claimant maintains that her inclusion on such a list cannot constitute willful misconduct related to her unit clerk position. (Claimant's Br. at 2.) Claimant contends that she did not violate any standard Employer could rightfully expect in this matter because Employer could not rightfully expect Claimant to have known that the loss of her license six years before becoming employed with Employer as a clerical unit clerk would place her on a list that she did not know existed, which would render her "unemployable" for jobs that did not require a nursing license. (Claimant's Br. at 5.) Finally, Claimant argues that Employer did not show that Claimant's loss of license constituted negligence of such an egregious degree as to warrant a finding that it was willful, and Employer could not argue that she should be held to a higher standard as a formerly licensed LPN because the Supreme Court rejected such higher standards for health care workers in Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 307-308, 787 A.2d 284, 290 (2001). In sum, Claimant argues that she did not engage in willful misconduct in connection with her unit clerk job because: she told the DON about the loss of her license during her interview, (FOF ¶ 7); she never knew about the LEIE or her inclusion on it, (FOF ¶¶ 11-13); and she submitted to all of Employer's background checks, which purportedly included a check to determine whether she was on the LEIE, (Referee's Hr'g Tr., October 25, 2010, at 17, 21.)
The Board has filed an Application for Relief in the form of a Motion to Strike Part II of Claimant's Reply Brief (Motion) pursuant to Rule 2113 of the Pennsylvania Rules of Appellate Procedure, asserting that the arguments contained therein are not in response to arguments the Board made in its brief and which were absent from Claimant's brief. We grant this Motion to the extent that Claimant's Reply Brief does not comply with Rule 2113.
Based on the facts as found by the Board, we agree with Claimant that the Board erred in finding that her actions rose to the level of willful misconduct. The Board found that Claimant told Employer's DON about the loss of her license during her initial employment interview and screening process. (FOF ¶ 7.) Employer's Personnel Policies included a hiring procedure that states: "[a]ll offers of employment are conditional subject to successful completion of the criminal background check, physical examination, OIG Exclusion List check and the drug screening process." (Claimant's Hr'g Ex. 1.) The record establishes that Employer conducted a background screening and Claimant voluntarily submitted to the screening. (Referee's Hr'g Tr. at 17.) However, Employer's background check apparently did not reveal that Claimant was on the LEIE at the time Claimant was hired. (Referee's Hr'g Tr. at 17.) Furthermore, there is no evidence that Claimant knew about the existence of the LEIE or that her name appeared on it as a consequence of the loss of her license in 2001. Instead, the findings establish that Claimant did not receive a letter from the OIG notifying her that she was on the LEIE. (FOF ¶¶ 11-13.) The Board incorrectly framed the issue before it as whether Claimant's loss of her nursing license was due to her fault and, finding that it was, the Board reached the conclusion that this constituted willful misconduct in connection with her unit clerk position with Employer. (Board Decision/Order at 4.) However, Claimant's clerical job did not require that she have a nursing license, and Employer was aware when she was hired that she had lost her license. Moreover, as found by the Board and noted above, Claimant was unaware of the factor that rendered her ineligible for any position with Employer until her discharge. For these reasons, we conclude that Employer did not meet its burden of proving that Claimant committed willful misconduct in connection with her unit clerk position that would render her ineligible for benefits pursuant to Section 402(e).
The OIG Exclusion List is apparently the same list the parties herein refer to as the LEIE, which is the list of health care workers excluded from working in any health care facility receiving Medicare or Medicaid funds, as determined by the OIG of the Department of Health and Human Services. (Employer's Hr'g Ex. 4.) Employer's Separation Information shows that "Claimant was terminated due to exclusion from employment in Long Term Care by the . . . OIG. . ." (Employer's Separation Information, R. Item 2.)
Therefore, we reverse the Order of the Board.
Because of our disposition of this case that the Board erred as a matter of law in its application of Section 402(e), we do not reach Claimant's additional arguments. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 17, 2012, in consideration of the Unemployment Compensation Board of Review's (Board) Application for Relief in the Form of a Motion to Strike Part II of Claimant's (Susan Ranck) Reply Brief (Motion) and Claimant's answer thereto, we GRANT the Motion and strike Part II of Claimant's Reply Brief to the extent that it is not in compliance with Pa. R.A.P. 2113; and it is further Ordered that the Order of the Board in the above-captioned matter is hereby REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge