Opinion
No. 687 C.D. 2013
09-05-2013
Patricia A. Watkins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Patricia A. Watkins (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) March 20, 2013 order reversing the Referee's decision to grant Claimant unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). Essentially, Claimant presents two issues for this Court's review: 1) whether the UCBR erred by finding Claimant committed willful misconduct; and 2) whether the UCBR's findings of fact are supported by substantial evidence. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was last employed as a full-time daycare teacher at Boychick Corporation, doing business as Little Learners Daycare Association (Employer), beginning on September 22, 1997, and ending on October 24, 2012. Employer has a policy mandating employment termination of any employee who abuses a child. Claimant was or should have been aware of Employer's policy. The father of an autistic child who attended school at Employer reported to Employer that he observed Claimant push his autistic daughter twice in the head. Employer discharged Claimant for violating its policy prohibiting child abuse.
Claimant subsequently applied for UC benefits. On November 9, 2012, the UC Service Center determined that Claimant was eligible for UC benefits under Section 402(e) of the Law. Employer appealed and, on January 9, 2012, a Referee held a hearing. On January 18, 2012, the Referee affirmed the UC Service Center's determination. Employer appealed to the UCBR. The UCBR reversed the Referee's decision and denied Claimant UC benefits. Claimant appealed to this Court.
Claimant was represented by counsel at the Referee hearing.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant first argues that the UCBR erred by finding Claimant's actions constituted willful misconduct. Specifically, Claimant contends that she was unaware of the rule for which her employment was terminated and any violation thereof was not deliberate. Claimant also maintains she was acting in Employer's best interests by preventing an injury to a child.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted). "In the case of a work rule violation, the employer must establish the existence of the rule, the reasonableness of the rule and its violation." Lindsay v. Unemployment Comp. Bd. of Review, 789 A.2d 385, 389 (Pa. Cmwlth. 2001).
Here, Elizabeth McGonagle (McGonagle), Employer's Director, testified at the Referee hearing that Employer has a policy prohibiting employees from punishing children with any form of physical touching. Notes of Testimony 1/9/13 (N.T.) at 6, 11. McGonagle also stated that "anyone who does put their hands on a child must be dismissed." Id. at 6. Pennie Parker (Parker), Employer's Owner, testified "[Claimant] is aware of all the rules, all the regulations, all State rules ... there's been many classes on child supervision ... many meetings on handling children." Id. at 11. Claimant also admitted at the Referee hearing that she attended Employer sponsored training sessions which addressed how to properly care for and supervise children. Specifically, when asked if she was "aware of rules and regulations of daycare, policies?" Claimant responded, "Yeah." Id. at 18. When asked whether she had attended any "inservices", Claimant answered: "What, training sessions?" Id. at 18. Employer clarified as follows: "Any classes for the six hours that we have to get every single year, about taking care of children , the children (sic) and supervision of children?' Id. at 18. Claimant replied: "Yeah." Id. at 18. Moreover, Claimant admitted in her UC Questionnaire that she was or should have been aware of the rule prohibiting physical abuse of a child. Certified Record (C.R.), Item No. 2 at 1.
In her UC Oral Interview, Claimant explained her actions as follows: "We were in [Employer's] yard. There was a gate being opened, and I pushed [the child] back from the gate so she wouldn't get hit." C.R., Item No. 2 at 3. When asked whether "the father saw [Claimant] push[] [the child] in the head twice . . .?" Claimant explained: "Yes, I pushed her so that she wouldn't get hit by the gate. I know maybe I should have grabbed her by the arm or something like that, but I was tired and [s]tressed out, and I wasn't thinking." Id. Parker testified that when she asked Claimant about the incident, Claimant acknowledged she pushed the child twice and admitted she should not have. N.T. at 11. McGonagle also reported that when she approached Claimant and asked if she pushed the child, Claimant admitted to pushing her twice. Id. at 7. Thus, the record evidence supports the UCBR's finding that a reasonable workplace rule existed, Claimant was aware of the rule and Claimant violated Employer's rule when she pushed the child twice in the head. Therefore, the UCBR did not err in finding Claimant committed willful misconduct.
"Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove that [her] actions were justified or reasonable under the circumstances." Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). Here, Claimant asserts two potential justifications for violating Employer's rule. First, Claimant contends that because she was tired and stressed her conduct is justified. However, a claimant's fatigue or stress, absent any further evidence, is not good cause to justify the violation of a workplace rule. See Bolden v. Unemployment Comp. Bd. of Review, 430 A.2d 359 (Pa. Cmwlth. 1981); Wilson v. Unemployment Comp. Bd. of Review, 388 A.2d 796 (Pa. Cmwlth. 1978). Accordingly, Claimant's argument fails.
Claimant also argues that she had good cause for her conduct because she was preventing the child from being injured. Specifically, Claimant maintains she had to move the child because people were coming through the gate and the child would have been hit by the gate when it opened. However, Parker stated in her UC Oral Interview that "[n]o one comes through that gate ... [Claimant] never said anything to me or the father about someone [sic] coming through the gate ... if someone would have come through the gate you still wouldn't push the child by the head out of the way." C.R., Item No. 3 at 1-2. Claimant testified she had no knowledge of a child ever being struck by the gate. N.T. at 14. Notwithstanding her alleged justification, Claimant conceded the correct response would have been to move the child by the arm instead of pushing her in the head. C.R., Item No. 2 at 3. "Having an alternate means of addressing her concerns, Claimant did not have good cause to violate Employer's rule." Arbster v. Unemployment Comp. Bd. of Review, 690 A.2d 805, 810 (Pa. Cmwlth. 1997). Thus, Claimant has failed to meet her burden of showing good cause for violating Employer's rule.
Claimant next argues that there is not substantial evidence to support the UCBR's findings concerning her knowledge of the Employer's child abuse policy and that she pushed the child. The UCBR's findings of fact 4 and 6 read as follows:
4. The claimant was aware of [Employer's child abuse] policy.Bd. Op., 3/20/13, Findings of Fact Nos. 4, 6.
. . . .
6. On or around October 24, 2012, the claimant, in an effort to prevent a child from being hit by a gate, pushed a child in the head twice.
[I]t is well settled that the [UCBR] is the ultimate finder of fact in unemployment compensation proceedings. Thus, issues of credibility are for the [UCBR] which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings.Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (citations omitted). "Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion." Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). "[T]his [C]ourt must view the record in a light most favorable to the party which prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence." Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997).
Here, Parker testified that Claimant was aware of all relevant Employer policies and regulations. N.T. at 11. Parker also stated Claimant attended many classes and meetings on child supervision and the correct way to handle children. Id. Claimant argues in her brief that any training in which she did participate did not focus on special needs children; therefore, she was not aware of Employer's rule as it relates to children with special needs. Claimant's Br. at 11. However, as stated above, Claimant conceded in her UC Questionnaire that she was aware of the rule for which she was discharged, and she admitted at the Referee hearing that she attended training programs concerning the care and supervision of children. C.R., Item No. 2 at 1, N.T. at 18. Therefore, the record contains substantial evidence to support the UCBR's finding that Claimant was aware of Employer's rule on child abuse.
This Court recognizes Claimant's brief follows a section based numbering system. However, this Court will cite to Claimant's brief as if the pages were consecutively numbered.
Claimant next contends that the parent who reported the incident to Employer could not have seen the incident because his view from the parking lot was obstructed. This assertion, however, is contrary to Claimant's own testimony at the Referee hearing that "[t]he parent came in ranting, and raging and upset." N.T. at 14. Clearly, the parent must have witnessed the incident to immediately approach Claimant in such an upset condition.
Claimant also argues that she did not push the child, but only cupped the child's head with her hands to gently move the child away from the gate. However, the UCBR credited Employer's testimony that Claimant "pushed the head of an autistic child twice." Bd. Op. at 2. The UCBR specifically discredited Claimant's testimony that she cupped the child's head. Id. The UCBR also credited Employer's testimony that Claimant admitted she should have taken the child by the hand instead of the head. Id. "Where there is conflict in testimony, credibility determinations and the resolution of evidentiary conflicts are within the Board's discretion and not subject to re-evaluation on judicial review." Horton v. Unemployment Comp. Bd. of Review, 953 A.2d 851, 854 n.7 (Pa. Cmwlth. 2008). Moreover, Claimant's concession in her UC Oral Interview that she pushed the child because she "wasn't thinking" supports the UCBR's findings. C.R., Item No. 2 at 3. There is substantial record evidence establishing that Claimant pushed the child in violation of Employer's rule prohibiting child abuse. Thus, the UCBR did not err in this regard.
Claimant also asserts that because ChildLine did not contact her during its investigation she should not be denied benefits. However, a finding by ChildLine is not required for a determination of willful misconduct under the Law. See 43 P.S. § 802 (which provides under what circumstances an employee shall be ineligible for UC benefits); see also Woods Servs. v. Unemployment Comp. Bd. of Review, 885 A.2d 630 (Pa. Cmwlth. 2005) (wherein, an indicated report of abuse was not per se willful misconduct). --------
For the aforementioned reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 5th day of September, 2013, the Unemployment Compensation Board of Review's March 20, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge