Opinion
No. 2116 C.D. 2011
07-27-2012
Deborah Stead, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Deborah Stead (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board) that affirmed the Unemployment Compensation (UC) Referee's (Referee) Decision finding her ineligible for benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Law). The Board determined that Claimant was ineligible for benefits because The Hill at Whitemarsh (Employer) terminated her employment for willful misconduct. On appeal, Claimant argues that she did not commit willful misconduct because her violation of Employer's work policy was inadvertent. For the reasons that follow, we affirm the Order of the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) states in relevant part that a claimant is ineligible for benefits for any week "[i]n which [her] unemployment is due to [her] discharge or temporary suspension from work for willful misconduct connected with [her] work." Id.
Claimant worked as a housekeeper for Employer from December 17, 2010, through May 31, 2011, when Employer terminated her employment. Claimant applied for UC benefits, and the UC Service Center concluded that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant appealed and the Referee conducted an evidentiary hearing on July 22, 2011. Claimant, Employer's Manager of Housekeeping, and Employer's Director of Human Resources testified at the hearing. The Referee made the following findings of fact:
1. The claimant was last employed as a Housekeeper by The Hill at Whitemarsh from December 17, 2010 through May 31, 2011 at the final rate of pay of $12 per hour.
2. This employer has a policy which states that employees must honor the residents' personal and property rights.
3. The claimant was aware that she was not allowed to touch personal property belonging to the residents.
4. On May 27, 2011 a resident, whose apartment [Claimant] had cleaned, reported that her personal set of keys were missing.
5. Approximately two hours later the claimant was found to be in possession of the resident's personal set of keys.(Referee's Decision, Findings of Fact (FOF) ¶¶ 1-7.) On the basis of the parties' testimony and submitted evidence, the Referee concluded that Claimant had not justified her violation of Employer's policy. Claimant appealed to the Board, which affirmed the Referee's Decision and incorporated his findings and conclusions in their entirety. The Board stated in its Order that it did not credit Claimant's testimony. (Board's Order.) Claimant now petitions this Court for review.
6. When questioned by the employer[,] the claimant could not explain how she came into possession of the resident's personal set of keys or why she was in possession of the resident's personal set of keys.
7. As a result, on May 31, 2011 the claimant was discharged for violating the aforestated employer policy.
In an unemployment compensation case, this Court's review "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, 697 (Pa. Cmwlth. 1994).
Before this Court, Claimant argues that the Board erred in finding that she engaged in willful misconduct because her violation of Employer's work policy was inadvertent.
Whether a claimant's actions constitute willful misconduct "is a question of law fully reviewable on appeal." Downey v. Unemployment Compensation Board of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). Pursuant to Section 402(e) of the Law, a claimant is ineligible for unemployment compensation if her "unemployment is due to [her] discharge or temporary suspension from work for willful misconduct connected with [her] work." 43 P.S. § 802(e). While the Law does not define the term "willful misconduct," the Supreme Court has defined willful misconduct 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." Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). Where an employer discharges an employee for violating a work rule, the employer "must establish the existence of the rule, its reasonableness, and that the employee was aware of its existence." Williams v. Unemployment Compensation Board of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007).
Claimant does not appear to dispute that she violated Employer's work policy by possessing the resident's keys; instead, she argues that any violation should be excused because it was inadvertent and not willful. If the employer satisfies its burden that a claimant engaged in willful misconduct by violating a known work policy, the claimant must establish that good cause excuses her violation. American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 601 A.2d 480, 482 (Pa. Cmwlth. 1991). To establish good cause, a claimant is required to explain her violation to the employer prior to dismissal if given a chance to do so. Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609, 610-11 (Pa. Cmwlth. 1983).
Insofar as Claimant's brief might be read to dispute the existence of the work policy or her violation of it, these arguments would be unavailing. Claimant, herself, testified that Employer trained her not to touch the residents' personal property. (Referee Hr'g Tr. at 10, R. Item No. 9.) Additionally, Claimant signed Section III of Employer's Job Description and Performance Review, which asks whether an employee "[h]onor[ed] the Residents' personal and property rights." (Employer's Ex. 1 at 9, R. Item No. 9; Referee Hr'g Tr. at 4-5, R. Item No. 9.) Claimant also testified that she would not have taken any keys from the apartment, because she is "not allowed to touch personal property." (Referee Hr'g Tr. at 13, R. Item No. 9.) Therefore, substantial record evidence supports the Board's findings that a work policy existed and that Claimant knew of this policy. --------
When Employer asked Claimant to explain why she possessed the resident's keys, Claimant initially wrote in a statement that "I can honestly say I don't know how those keys got in my pocket. . . . I truly believe when I locked the door, they were in the door. I just don't know." (Referee Hr'g Tr. at 5-6, R. Item No. 9.) At the hearing Claimant reaffirmed that she did not know why she possessed the resident's keys, but speculated that the dog walker had left them in the apartment door. (FOF ¶ 6; Referee Hr'g Tr. at 5-6, R. Item No. 9.) Claimant also testified that she may have taken the keys "by force of habit." (Referee Hr'g Tr. at 8, R. Item No. 9.) The Board did not credit Claimant's explanation. As an appellate court, we are not permitted to reweigh the testimony and evidence; it is the Board who is the ultimate finder of fact and arbiter of witness credibility and, therefore, its findings are binding on appeal if they are supported by substantial record evidence. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 278, 501 A.2d 1383, 1389 (1985). Because the Board did not credit Claimant's testimony, there is no credited evidence that would support a determination that Claimant had good cause for violating Employer's work policy.
On appeal, Claimant argues that she must have inadvertently taken the resident's keys out of the door and put them in her pocket because of "habit or reflex" and that, therefore, the Board erred when it found she committed willful misconduct. (Claimant Br. at 6, 8.) However, Claimant did not proffer this justification to Employer despite being given the opportunity to write a statement explaining her actions. (Claimant's Written Statement to Employer, R. Item No. 2.) In short, Claimant did not provide to Employer the explanation that she wants us to adopt. Bortz, 464 A.2d at 610-11. At the hearing, Claimant again stated that she did not know why the keys were in her pocket, and only speculated that she took the keys out of habit. (Referee Hr'g Tr. at 8, R. Item No. 9.) The decision as to whether to believe Claimant's explanation, or not, is a decision for the Board. Because the Board did not believe Claimant's explanation, we must conclude that Claimant failed to establish good cause.
Accordingly, we are constrained to affirm the Order of the Board.
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RENÉE COHN JUBELIRER, Judge Judge McCullough dissents. ORDER
NOW, July 27, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
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RENÉE COHN JUBELIRER, Judge