Opinion
No. 1473 C.D. 2011
04-04-2012
Shirley L. Wilks, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Shirley L. Wilks (Claimant) petitions, pro se, for review of the July 5, 2011, order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee that Claimant was ineligible for benefits 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). Section 402(e) of the Law provides that an employee shall be ineligible for UC benefits for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
Claimant was employed as a full-time certified nursing assistant with Magee Rehab Hospital (Employer) from April, 2008 until February 17, 2011. (Finding of Fact No. 1.) Employer has a policy that immediate discharge can result from disruptive and inappropriate behavior, which includes verbal incidents beyond the bounds of fair professional conduct, facial expressions, unwillingness to work with other staff, and the refusal to accept medical assignments. (Finding of Fact No. 2.) Claimant was or should have been aware of the policy through information provided at the time of her hire, monthly forums, a yearly program, and an internet site to which Claimant had access. (Finding of Fact No. 3.)
On February 17, 2011, Claimant had an incident with a supervisor relating to a scheduling issue. (Finding of Fact No. 4.) Claimant went to the supervisor's office to discuss the scheduling issue and became upset when the supervisor told Claimant that no schedule changes would be made and that Claimant should complete her assigned work. (Finding of Fact No. 5.) During the course of the incident, Claimant raised her voice, became visibly upset, and became aggressive with the supervisor. (Finding of Fact No. 6.) Claimant then went out into the hallway and continued to express her discontent with the schedule. (Finding of Fact No. 7.) The supervisor retrieved Claimant from the hallway, returned her to the office, and placed her on administrative leave pending an investigation. (Finding of Fact No. 8.) On February 18, 2011, Employer discharged Claimant citing disruptive and inappropriate behavior. (Finding of Fact No. 9.)
On February 18, 2011, Claimant filed a claim for benefits. The local service center determined that Claimant violated an Employer work rule, of which she was aware or should have been aware, without good cause. (Certified Record (C.R.) Item No. 4 at 1.) Accordingly, the service center determined that Claimant was ineligible for benefits under section 402(e) of the Law. (Id.)
Claimant appealed and a hearing was conducted before a referee on April 19, 2011. Marlene Gallagher, the nurse manager for Employer's Spinal Cord Unit, testified that Employer has a disruptive and inappropriate behavior policy that requires employees to conduct themselves in a professional and cooperative manner and prohibits inappropriate behaviors. (N.T. 4/19/11 at 10-11.) Employer's policy defined disruptive behavior as including: verbal attacks that are personal or go beyond the bounds of fair professional conduct; disrespectful language; nonverbal behavior such as facial expressions or manners; unwillingness to work with other staff that affects patient care; and refusal to accept medical staff assignments. (Exhibit E-1 at 1.) Gallagher stated that a single incident could result in immediate termination and that Claimant was or should have been aware of the policy through information provided at monthly forums, meetings, and Employer's intranet site, on which employees are instructed at the time of hire. (Id.)
"N.T. 4/19/11" refers to the transcript of the referee's hearing.
Employer's disruptive and inappropriate behavior policy was admitted into evidence as Exhibit E-1 without objection. (N.T. 4/19/11 at 11.)
Gallagher testified that on February 17, 2001, Claimant came into the office that Gallagher shared with Michele Watkins, the clinical nursing supervisor of Employer's spinal cord unit, complaining about her work schedule. (N.T. 4/19/11 at 8.) Gallagher stated that Watkins explained to Claimant that Watkins would look over the schedule after morning rounds and that Claimant should get to work. (Id.) Gallagher testified that Claimant was very belligerent, very loud, and aggressive, and refused her patient assignment. (Id.) Gallagher stated that Claimant became aggressive through the tone of her voice and her mean facial expressions, and that Claimant continued to escalate while Watkins attempted to calm the situation. (Id. at 9.) Gallagher testified that Claimant left the office and continued to complain loudly while walking down the hall past rooms occupied by patients and that Claimant could be heard by the patients. (Id. at 8, 12.) Gallagher stated that Watkins brought Claimant back into the office to continue calming Claimant and that Claimant again refused her patient assignment. (Id. at 8, 9.) Gallagher testified that Watkins then placed Claimant on administrative leave and that Gallagher terminated Claimant's employment the following day for Claimant's disruptive behavior and her failure to accept her patient assignment. (Id. at 10, 20.) Gallagher stated that neither she nor Watkins raised their voice during the incident. (Id. at 14.)
Watkins testified and corroborated Gallagher's version of the incident. (N.T. 4/19/11 at 21-23.) Watkins stated that Claimant was loud, argumentative, and belligerent during the argument in the office. (Id. at 22.) Watkins testified that she left the office to go and get Claimant from the hall because she could hear Claimant's loud voice going down the hallway. (Id. at 22, 23.) Watkins stated that Claimant did not offer to perform her assignment before Claimant was told that she was on administrative leave. (Id. at 22.)
Claimant testified that she went to Watkins' office to discuss an inconsistency with her schedule as Watkins had instructed her to do. (N.T. 4/19/11 at 24.) Claimant stated that after Watkins told her that the schedule would not be changed, she went out into the hallway and discussed her schedule with two co-workers. (Id. at 24-25, 28.) Claimant testified that Watkins came out into the hallway and called Claimant back into her office. (Id. at 25.) Claimant stated that she told Watkins that she was going to do her work and then Watkins put her on administrative leave. (Id.) Claimant stated that she did not raise her voice during the incident, she was not aware of Employer's policy, and she did not know how to access it on the intranet. (Id. at 25, 26, 28, 31.) Claimant sought to introduce the affidavits of two coworkers, but the referee sustained Employer's hearsay objection to this evidence. (Id. at 35.)
However, Employer's constructive disciplinary policy was admitted into evidence as Exhibit C-1 without objection. (N.T. 4/19/11 at 34-35.) The constructive disciplinary policy defines Class A actions that are serious enough to lead to immediate termination which include "[f]ighting or disorderly conduct on the job." (Exhibit C-1 at 3.)
On April 20, 2011, the referee issued a decision and order affirming the local service center's determination that Claimant was ineligible for benefits under section 402(e). (Certified Record (C.R.) Item No. 13.) Claimant appealed to the Board, which affirmed and adopted the referee's decision. (C.R. Item No. 18.) The Board specifically stated, "[T]here were conflicts between the claimant's and the employer's witnesses' testimony. The Board resolves the conflicts in the testimony, in relevant part, in favor of the employer and finds the employer's witnesses' testimony to be credible...." (Id.) Claimant then filed this petition for review.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997). --------
In this appeal, Claimant asserts that the Board erred in finding that there was sufficient evidence that she violated Employer's policy regarding disruptive and inappropriate behavior and, therefore, erred in determining that she is ineligible for benefits under section 402(e) of the Law. Specifically, Claimant contends that the Board acted arbitrarily and capriciously in accepting Employer's witnesses' testimony as credible and in rejecting her testimony and evidence as not credible.
Under section 402(e), an employee is ineligible for unemployment compensation benefits when she has been discharged from work for willful misconduct connected with her work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id.
Although willful misconduct is not defined by statute, it has been described 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 that an employer can rightfully expect from his 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. Guthrie, 738 A.2d at 521 (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)).
Thus, a violation of an employer's work rules and policies may constitute willful misconduct. Guthrie, 738 A.2d at 522. An employer seeking to prove willful misconduct based on a violation of a work rule must establish the existence of a reasonable work rule and its violation by the employee. Id. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove that he had good cause for his actions. Id. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Id.
In addition, the Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). Thus, issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831. This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn therefrom. Id.
Thus, in this case, the Board was free to weigh the evidence and to credit the evidence supporting the conclusion that Claimant conducted herself in a manner that violated Employer's disruptive and inappropriate behavior policy. Peak. When viewed in a light most favorable to Employer, Gallagher's and Watkins' testimony provides ample substantial evidence supporting the Board's findings in this regard. (N.T. 4/19/11 at 8- 9, 12, 21-23.) As a result, these findings are conclusive in the instant appeal. Taylor.
Moreover, the fact that there is testimony and evidence to support the conclusion that Claimant did not act in violation of Employer's disruptive and inappropriate behavior policy does not compel us to reverse the Board's order. See, e.g., Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994) ("[T]he fact that Employer may have produced witnesses who gave a different version of events, or that Employer might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's Findings."). In sum, we simply will not accede to Claimant's request to reweigh the evidence presented to the Board and to reverse the Board's credibility determinations.
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 4th day of April, 2012, the July 5, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge