Opinion
No. 1102 C.D. 2011
02-07-2012
Torie R. Spanninger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Torie R. Spanninger (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which reversed the referee's grant of benefits to Claimant under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a cardiovascular technician by Abington Memorial Hospital from September 9, 2002 at a final rate of $34.74 per hour and her last day of work was December 2, 2010.
2. The employer has a policy which requires employees to keep the number and duration of personal phone calls and texting to a minimum during working hours. Calls that are not of an emergency/urgent nature are to be
conducted on non-working time (breaks/meal periods). Personal cell phones should be stored in the employee's locker, but if an employee needs to carry a personal cell phone, it must be on the silent or vibrate function.Board Opinion, May 18, 2011, (Opinion), Findings of Fact Nos. 1-10 at 1-2; Reproduced Record (R.R.) at 4a-5a.
3. Personal calls and texting during working time which are frequent or lengthy, interfere with patient care or employee productivity are prohibited.
4. The claimant was aware of the employer's policy.
5. On August 20, 2010, the claimant received a warning to refrain from using her cell phone and reading books during cases at the monitor. The claimant was told continued use of the cell phone/texting would result in discharge.
6. On November 22, 2010, the claimant received calls on her personal cell phone during working hours from her attorney, her mother, and her son.
7. The phone calls from her attorney and her mother were to discuss the claimant's divorce. The phone call from her son was to arrange transportation home for the Thanksgiving holiday.
8. The employer became aware of the telephone calls when her co-workers reported that the claimant had lengthy phone calls and one call occurred while the claimant was in the room with a patient.
9. The employer began an investigation as a result of the co-workers' complaints and determined that the claimant violated the employer's Personal Calls and Cell Phone Use Policy.
10. The employer discharged the claimant on December 9, 2010 as a result of the policy violation.
The Board determined:
In this case, the employer testified credibly that it has a policy governing employee's use of personal cell phones during working hours and that the claimant was aware of the policy. The claimant received a warning on August 20, 2010 advising that further violation of the employer's Personal Calls and Cell Phone Use policy would result in additional discipline, up to and including discharge. The employer received complaints from the claimant's co-workers regarding the claimant using the cell phone for lengthy conversations, including one that began while the claimant was in the room with a patient. The employer's investigation resulted in a determination that the claimant violated the employer's policy.Opinion at 2-3; R.R. at 5a-6a.
The burden now shifts to the claimant to demonstrate that she had good cause to violate the employer's policy or that the policy was unreasonable. The claimant testified that she had a lot going on in her personal life and because her meal periods and breaks were unpredictable, she didn't know when to ask that a caller call back at another time. The claimant admits to engaging in these calls during working hours, but denies that they interfered with the performance of her duties. Based upon the evidence and testimony, the Board cannot find that the claimant had good cause to violate the employer's policy, or that the policy was unreasonable. Accordingly, benefits must be denied.
Claimant contends that the Board erred when it concluded that she violated Abington Memorial Hospital's [Employer] personal calls and cell phone use policy, that the Board erred when it determined that Claimant did not demonstrate good cause to violate the policy or that the policy was unreasonable, and that the Board erred when it determined that she was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e).
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Claimant asserts that Employer's policy against cell phone use is vague and fails to set any standards of behavior because cell phone use is to be kept at a minimum, a number which is not defined. Further, Claimant argues that the cell phone policy also fails to define what an emergency is as emergency personal calls are exempt from the policy. Claimant believes that she did not willfully violate Employer's policy because of the subjective nature of the policy.
Employer's policy states:
Personal calls and texting during working time which are either frequent or lengthy, regardless of the phone or electronic device used, interfere with patient care and employee productivity and, therefore, are prohibited. . . . During working time, employees must keep the number and duration of textings or personal calls, regardless of the phone used, to a minimum. Employees should endeavor to conduct any calls that are not of an emergency/urgent nature during non-working time and in non-clinical areas. Employees should also advise family and friends of this policy. (Emphasis in original).Abington Health, Personal Calls and Cell Phone Use at 1; R.R. at 11a.
It is undisputed that Employer had an employee conference after three staff members and one physician expressed concern about Claimant's lack of attention to a case because she was using a cell phone to text and was reading a self-help book while observing cases at the monitor. Employer determined that "Continued use of cell phone [and] texting will result in termination." Record of Employee Conference, August 20, 2010, at 2; Supplemental Reproduced Record (S.R.R.) at 2b.
Nancy Gogal (Gogal), nurse manager at the cardiac lab for Employer, testified that, on November 22, 2010, Claimant was working in two different CAT Labs and "there were lengthy cell phone calls and reported by her co-workers in both of the cases." Notes of Testimony, March 3, 2011, (N.T.) at 9; S.R.R. at 8b. One time she picked up the cell phone when she was in a room with a patient and walked out to continue the call. N.T. at 9; S.R.R. at 8b. Gogal attended a meeting with Claimant, Gogal's director, Teri Riley, and Christine Rue, Human Resources business partner for the department of nursing for Employer. According to Gogal, when asked why she was on the phone, Claimant responded, "There was [sic] a whole lot of personal issues going on that day. Her son needed a ride to and from college. She called her parents about a conflict with her husband. She called a lawyer about a conflict with her husband." N.T. at 9; S.R.R. at 8b.
Claimant testified that it was her understanding that a personal cell phone "was allowed to be used on emergency cases or emergent crises, family crises. And it was used on your free time. You're allowed to use the phone. No use of it at the monitor or while the case is started whenever with the patient." N.T. at 21; S.R.R. at 13b. Claimant further testified that after an altercation with her husband in which he spit on her, Claimant went into work but contacted her lawyer:
I would say probably 15, 20 minutes before the physician even came into the room. We have finished prepping the patient. And we were . . . waiting for the doctor. The doctor had not started the case yet. And that's when I received the phone [call] when I was in the room. And I walked out of the room to speak with my lawyer, which the conversation was not long at all because it's an expensive phone call. And, also . . . my mother was calling me, which I finally had . . . tell her because I was going through this divorce.N.T. at 22; S.R.R. at 14b. Claimant's son also called her that day to say he might need a ride home from college for Thanksgiving. N.T. at 22; S.R.R. at 14b.
Claimant cites Unemployment Compensation Board of Review v. Bacon, 361 A.2d 505 (Pa. Cmwlth. 1976) for the proposition that an employer cannot establish willful misconduct based on an employer's rule or policy if the policy does not set forth real standards of behavior or expectations of the employer of which it could be said that the employee violated. However, in Gallagher v. Unemployment Compensation Board of Review, 378 A.2d 502 (Pa. Cmwlth. 1977), this Court recognized that Bacon was inapplicable in situations where an employee had prior violations and a prior warning for violating the policy. Here, Claimant had previously engaged in a conversation with Employer about her violation of the cell phone policy and was warned that continued usage could result in termination. The Board properly determined that Claimant violated Employer's rule.
The Board found credible Employer's evidence that Employer had a rule about cell phone use and that Claimant was aware of the rule. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
The burden then shifted to Claimant to prove that she had good cause for violation of the rule. Claimant argues that because the phone calls were "emergency" calls they are exempt from the rule and/or provide good cause for breaking the rule. Claimant was involved in an altercation with her husband that morning and took calls from her attorney and her mother. Claimant's marital difficulties were certainly a complication for her and her family. Similarly, her son's phone call concerning his Thanksgiving travel plans was important. However, at the hearing before the referee, Claimant did not argue that these phone calls constituted emergency calls. Instead, Claimant argued that she could make the personal calls because there was down time at work and her telephone calls did not imperil any patients.
Claimant argues that at the hearing she sought to present her own redacted cell phone records to show that Employer made four telephone calls to her cell phone from October 20, 2010, through November 4, 2010. However, a review of the record reveals that Claimant did not attempt to introduce documentation regarding her telephone calls.
Claimant also argues that the Board must provide a reason when it disregards the findings of the referee which were based upon consistent and uncontradicted testimony. See Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). However, where, as here, the parties present contradictory testimony, the Board is not required to provide a reason for its disregard of the referee's findings. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432 (Pa. Cmwlth. 2010).
This Court must agree with the Board that Claimant failed to demonstrate that she had good cause to violate Employer's policy or that the policy was unreasonable. Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 7th day of February, 2012, the order of the Unemployment Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge