Opinion
No. 1938 C.D. 2012
09-17-2013
Stepanian & Muscatello, LLP, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Stepanian & Muscatello, LLP (Employer), a law firm, petitions for review of the order of the Unemployment Compensation Board of Review (Board) that granted Robin L. Donovan (Claimant) unemployment compensation benefits, concluding that she was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Because the record supports the Board's conclusion, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) provides in pertinent part that an employee 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 ...."
Claimant was employed by Employer first as a temporary employee and then as a full-time paralegal from January 1, 2011 until she was discharged on April 20, 2012. The Indiana UC Service Center determined that Claimant was not ineligible for benefits under Section 402(e) of the Law. After a hearing, the referee reversed the UC Service Center's determination. On appeal, the Board found the following events leading to Claimant's discharge.
Claimant's job duties as a paralegal included answering the phone, typing dictations, preparing simple letters and pleadings, filing, and proofreading. Claimant was a single mother of a 14-year old son who was receiving counseling for suicidal thoughts. Due to her son's condition, Claimant suffered from anxiety, for which she was taking medication. Beginning the end of 2011, her performance in filing and proofreading deteriorated. After she placed documents in the wrong client's file, she was twice counseled by Employer.
On March 9, 2012, Claimant's son called her from the restroom in Employer's building and told her that he had smoked a joint after school and was sick. He then passed out on the restroom floor. She was thereafter told by an attorney as well as another paralegal, Holly Machak, to take her son to the hospital for treatment. Employer's managing partner, Leo M. Stepanian II, Esquire, was not in the office at that time. Claimant was scheduled to work until 4:00 p.m. but left work at 3:00 p.m. to take her son to the hospital emergency room. On March 14, Claimant prepared a codicil to a client's will. Machak then took the codicil prepared by Claimant to the client who was in the hospital. After the client signed the codicil, Machak noticed an incorrect date in the codicil, which would make the codicil invalid and could subject Employer to a potential malpractice action. Machak reported Claimant's mistake to the managing partner who then counseled Claimant about the need to improve her proofreading skills. Claimant immediately corrected the error in the codicil and took the corrected codicil to the hospital for the client's signature. Finally, Claimant took her scheduled one-hour lunch break at 1:30 p.m. on April 17 and went home. While at home, she felt extremely drowsy due to her new anxiety medication and fell asleep. After she woke up at 2:50 p.m., she immediately called and informed Employer that she fell asleep due to the new medication. She returned to work at 3:15 p.m. On April 20, Employer discharged her for unsatisfactory work performance and for returning to work late after the lunch break on April 17.
The Board found that Claimant's shortcomings in her work performance were not intentional and that she worked to the best of her ability. The Board also noted that Employer did not immediately discharge her after the March 9 and 14 incidents. As to the April 17 incident, the Board found that her conduct was not intentional, accepting as credible her testimony that she fell asleep during the lunch break because of the new medication's side effect. The Board concluded that she had good cause for her April 17 conduct and was not ineligible for benefits under Section 402(e) of the Law. Employer's appeal to this Court followed.
Employer argues that Claimant was discharged for willful misconduct and was, therefore, ineligible for benefits. Employer maintains that she willfully disregarded its interest and standards of behavior for employees by leaving work one hour early without permission on March 9, by making an error in preparing the codicil on March 14, and by falling asleep during the lunch break and returning to work 45 minutes late on April 17. It claims that her poor job performance constitutes willful misconduct because she had the ability to perform her work correctly.
An employer denying a claimant's eligibility for benefits under Section 402(e) of the Law has the initial burden of proving that the claimant engaged in willful misconduct. Patla v. Unemployment Comp. Bd. of Review, 962 A.2d 724, 727 (Pa. Cmwlth. 2008). Once the employer establishes a prima facie case of willful misconduct, the burden then shifts to the claimant to demonstrate good cause for his or her conduct. Id. The claimant has good cause if his or her action "is justifiable or reasonable under the circumstances." Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Whether the claimant's conduct rose to the level of willful misconduct is a question of law subject to this Court's plenary review. Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1016 (Pa. Cmwlth. 2008).
The term "willful misconduct" has been defined as: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect of its employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008).
Employer submits that Claimant's conduct of leaving work one hour early on March 9 without Employer's permission constitutes willful misconduct. Leaving work early without permission constitutes willful misconduct, unless motivated by good cause. Grispino v. Unemployment Comp. Bd. of Review, 472 A.2d 288, 289 (Pa. Cmwlth. 1984). Claimant testified, and the Board found, that she left work one hour early to take her son, who was sick and passed out in Employer's restroom, to the hospital emergency room, as suggested by another paralegal and an attorney in the office. Employer does not dispute that the managing partner was not in the office at that time to give Claimant permission to leave work one hour early. Under these circumstances, the action taken by Claimant in her son's medical emergency was reasonable and justifiable.
In its brief, Employer further states that Claimant improperly allowed her son to come to Employer's premises on March 9 while under the influence of illegal substance and interrupted one attorney in a meeting with a client by asking him to remove her son from the restroom. The Board, however, found credible Claimant's testimony that she previously told her son that he was not permitted on Employer's premises. She further testified that she was unaware of her son's presence in Employer's building on March 9 until he called her from the restroom. Notes of Testimony at 20; Reproduced Record at 21a. Moreover, Employer's stated reasons for the discharge did not include the additional reasons asserted in the brief. See Certified Record Item No. 4 (Record of Employer's Oral Interview). It is well established that in order to deny benefits, the reasons stated by the employer must be actual reasons for discharging the claimant. Charles v. Unemployment Comp. Bd. of Review, 764 A.2d 708, 711 n.6 (Pa. Cmwlth. 2000).
Claimant's proofreading error on March 14 also did not rise to the level of willful misconduct. An employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act; rather, it must present evidence indicating that the conduct was of an intentional and deliberate nature. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 426 (2003); Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 307, 787 A.2d 284, 290 (2001). An employee's mere incompetence, incapability or inexperience may well justify his or her discharge but does not rise to the level of willful misconduct rendering the employee ineligible for benefits. Rung v. Unemployment Comp. Bd. of Review, 689 A.2d 999, 1002 (Pa. Cmwlth. 1997). The Board found that Claimant's poor work performance was not intentional. Her testimony accepted by the Board as credible demonstrated that her job performance was affected by the stresses in her personal life related to her son's having suicidal thoughts and her resulting anxiety. As the Supreme Court has held, an employee's action that was not intentional and was caused by the stresses in his or her personal life does not constitute willful misconduct. Grieb, 573 Pa. at 601, 827 A.2d at 426. The Board's finding that Claimant worked to the best of her ability supports the grant of benefits under Section 402(e). Norman Ashton Klinger & Assoc. v. Unemployment Comp. Bd. of Review, 561 A.2d 841, 843 (Pa. Cmwlth. 1989). In addition, after Claimant's proofreading error on March 14, the managing partner told Claimant only that she should "start proofreading better and start putting together." Notes of Testimony (N.T.) at 12; Reproduced Record (R.R.) at 13a.
In an unemployment compensation case, the Board is the ultimate fact-finder and is empowered to make credibility determinations. Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064, 1069-70 n.8 (Pa. Cmwlth. 2009). --------
As to the April 17 incident, Employer insists that Claimant's conduct of returning to work 45 minutes late after the lunch break constitutes willful misconduct. Employer also cites Biggs v. Unemployment Compensation Board of Review, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982), and Johnson v. Unemployment Compensation Board of Review, 420 A.2d 794, 795 (Pa. Cmwlth. 1980), to argue that her sleeping on the job during the lunch break constitutes willful misconduct. Unlike in Biggs and Johnson, however, the Board accepted Claimant's testimony and found that she unintentionally fell asleep during the lunch break due to the side effect of the anxiety medication. She testified that she told the managing partner about her son's having suicidal thoughts and her taking the anxiety medicine. She further testified that she "made [her] time up" for being 45 minutes late in returning to work from the lunch break. N.T. at 20; R.R. at 21a. The record amply supports the Board's conclusion that she had good cause for her conduct. See also Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965, 969 (Pa. Cmwlth. 2010) (holding that the employer failed to establish that the claimant's sleeping during her shift constituted willful misconduct, where the Board accepted her testimony that her conduct was caused by her medical condition of sleep apnea).
Employer had the right to discharge Claimant but "the issue is not whether the employer had the right to discharge for the questioned conduct of the employee, ... but whether the State is justified in reinforcing that decision by denying benefits ... for the complained of conduct." Frumento, 466 Pa. at 86, 351 A.2d at 634 (footnote omitted). Because the record supports the Board's grant of benefits under Section 402(e) of the Law, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 17th day of September, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge