Opinion
No. 726 C.D. 2012
11-29-2012
Isaac J. Wright, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Isaac J. Wright (Claimant) petitions for review of the March 26, 2012 order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits. The Board concluded that Claimant was terminated from employment by Charles Cole Memorial Hospital (Employer) due to willful misconduct and was therefore disqualified from receiving benefits under Section 402(e) of the Unemployment Compensation Law (Law). We affirm.
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 compensation for any week in which his or her unemployment is due to discharge for willful misconduct connected to his or her work. 43 P.S. § 802(e).
This matter initially came before this Court in an appeal from a decision of the Board that concluded Claimant had failed to timely appeal from the Altoona Unemployment Compensation Service Center's (UC Service Center) determination that Claimant was not eligible to receive benefits. The decision of the Board reversed the decision of the Referee, who found that Claimant had timely appealed the UC Service Center's determination and that Claimant should receive benefits. This Court reversed the Board on the issue of timeliness and remanded the matter to the Board for a decision on the merits of Employer's appeal from the Referee's decision awarding benefits. Wright v. Unemployment Compensation Board of Review, 41 A.3d 58 (Pa. Cmwlth. 2011). Following remand, the Board issued a March 26, 2012 decision and order that again reversed the Referee, concluding that Claimant could not receive benefits, because he had engaged in willful misconduct. Claimant appealed to this Court.
Our review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Dopson v. Unemployment Compensation Bd. of Review, 983 A.2d 1282, 1284 n.2 (Pa. Cmwlth. 2009). --------
Claimant was last employed by Employer as a pharmacy technician on June 4, 2010. (Board's Opinion, Findings of Fact (F.F.) ¶1.) As a pharmacy technician, Claimant's duties included replacing outdated medications on both the PYXIS automated medication dispenser cabinets and the emergency room crash carts. (Board's Opinion, F.F. ¶2.) The PYXIS machine dispenses medications from internal pockets and operates with a coding system that requires medication to be scanned as each individual pocket is loaded, in order to assure that the correct medication is dispensed when needed. (Board's Opinion, F.F. ¶4.) When medications stored in the PYXIS machine expire, a printout is automatically generated, alerting the pharmacy that the outdated medications need to be removed and the pockets containing the expired medications need to be refilled. (Board's Opinion, F.F. ¶2.) In contrast to the automated PYXIS machine, the emergency room crash carts are monitored by the nursing staff, and when expired medication needs to be removed from the crash carts, the nursing staff informs the pharmacy. (Board's Opinion, F.F. ¶2.)
Prior to the circumstances that led to the termination of Claimant's employment, Claimant was twice given warnings related to the removal of outdated medications. (Board's Opinion, F.F. ¶¶3, 4.) On January 13, 2010, Claimant received a verbal warning concerning his failure to follow the proper procedure for removing expired medications from the PYXIS machine. (Board's Opinion, F.F. ¶3.) On April 22, 2010, Claimant received a written warning for failure to scan the barcodes on medication he was refilling the PYXIS machine with and thereby failing to verify that the correct medication went in the correct internal pocket. (Board's Opinion, F.F. ¶4.) The written warning also stated that continued failure to follow the proper procedures for removing expired medications could result in suspension or termination from employment. (Board's Opinion, F.F. ¶5.)
The events giving rise to Claimant's termination from employment began on May 28, 2010, when Claimant's co-worker received a voicemail and facsimile from the nursing staff alerting the pharmacy that medications in the emergency room crash cart would expire on June 1, 2010, and therefore needed to be restocked. (Board's Opinion, F.F. ¶6.) As Claimant was scheduled to be working on May 29, 30, and 31, 2010, and the co-worker was not, the co-worker informed Claimant that the crash cart needed to be restocked. (Board's Opinion, F.F. ¶7.) Claimant did not remove the expired medications from the emergency room crash cart on either May 29, 30, or 31, 2010. (Board's Opinion, F.F. ¶10.) Claimant was suspended on June 4, 2010, and discharged from employment on June 10, 2010, for, in relevant part, failing to follow Employer's policy for replacing expired medication. (Board's Opinion, F.F. ¶¶11, 12.)
Whether or not an employee's conduct constitutes willful misconduct, is a question of law subject to this Court's appellate review. Rossi v. Unemployment Comp. Bd. of Review, 544 Pa. 261, 266, 676 A.2d 194, 197 (1996). 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 from 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. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Where an employer has alleged that a former employee committed willful misconduct and is not eligible for unemployment compensation due to the deliberate violation of a work rule or policy, it is the employer's burden to demonstrate the existence of the rule, the reasonableness of the rule, and the fact of its violation. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). If an employer satisfies its burden, the claimant then has the burden to demonstrate that there was good cause for the violation of employer's work rule because, under the circumstances, the actions taken were justified or reasonable. Id. If a claimant is unable to meet this burden, the claimant will be disqualified from receiving unemployment compensation benefits under Section 402(e) of the Law. 43 P.S. § 802(e).
Claimant argues that Employer did not meet its burden under the Law. As a part of his argument, Claimant contends that the Board's findings of fact in paragraph eight and nine of its decision were in error and that the Referee's contrary findings should stand. The specific findings of the Board challenged by Claimant are:
8. The [Claimant] told the coworker that he would replace the outdated medications on the emergency room crash cart over the weekend and instructed the coworker to place under the computer terminal the fax from the nursing staff that listed the expiring medications.(Board's Opinion, F.F. ¶¶8, 9.) Claimant contends that because these findings are in error and should be struck, Employer has not demonstrated that Claimant violated the procedure for restocking expired medications and has therefore not carried its burden.
9. The medications were not refilled until Wednesday, June 2, 2010, after they had expired.
The Referee held two hearings in this matter, the first to take testimony on the issue of timeliness alone, and the second, on September 30, 2010, to hear testimony relating to the allegations of willful misconduct. (Certified Record (R. Item) 11, September 30, 2010 Notes of Testimony (N.T.).) Claimant's co-worker testified at the hearing that she alerted Claimant to the need to replace the medications set to expire in the emergency room crash cart, following her receipt of a voicemail and facsimile from the nursing staff, and that Claimant asked her to place the facsimile under the computer terminal used by the pharmacy technicians to serve as a reminder for him to do so. (R. Item 11, N.T. at 2, 19.) Employer's Director of Pharmacy testified at the hearing that Claimant had been warned regarding his failure to follow procedures for restocking expired medications and that continued failure would lead to termination of his employment. (R. Item 11, N.T. at 2, 6-8.) Both of Employer's witnesses testified that the medications were not replaced until the day following expiration, June 2, 2010, and Employer's Director of Pharmacy testified that the medications were replaced on that date because the nursing staff alerted him that the medications had not in fact been replaced by Claimant. (R. Item 11, N.T. at 8, 23, 28.)
Claimant testified that May 29, 30, and 31, 2010, Memorial Day weekend, were very busy days and that he did not know that the emergency room cart needed to be restocked. (R. Item 11, N.T. at 23.) Claimant also testified that he did not recall being instructed to restock the emergency room cart or being made aware of the facsimile from the nursing staff placed under the computer terminal as a reminder. (Id.) Finally, Claimant testified that when instructed to replace the medications in the emergency room cart, which he stated happened on June 1, 2010, he immediately did so and that, as the medications became outdated at the end and not the beginning of the day, there was never any problem with the medications related to the expiration date. (R. Item, N.T. at 24.)
In the portion of the Referee's October 15, 2010 decision and order addressing the merits, the Referee credited Claimant's testimony. (Referee's Opinion, Finding of Fact (F.F.) ¶¶6, 13.) The Referee also concluded that Claimant's prior warnings concerning his violation of Employer's procedure for restocking expired medications were not applicable to an evaluation of the allegations of willful misconduct at issue, because the emergency room cart and the PYXIS machine were two different devices that did not fall within the same work rule. (Referee's Opinion, Reasoning at ¶4.)
The Board did not credit Claimant's testimony regarding the date on which the medications were restocked or his lack of knowledge concerning his duty to restock the outdated medications over Memorial Day weekend. (Board's Opinion, F.F. ¶¶7, 8, 9, Discussion at ¶6.) The Board did conclude, in contrast to the Referee, that the work rule violated by Claimant was Employer's procedure for the replacement of outdated medications, and that the procedure was inclusive of all machines that dispensed medications, so that Claimant's previous warnings regarding his failures to properly adhere to procedure in restocking the PYXIS machine was relevant evidence concerning the allegation of willful misconduct. (Board's Opinion, F.F. ¶¶2, 3, 12, Discussion at ¶5.)
In unemployment compensation cases, it is the Board, not the Referee or this Court, that is the ultimate finder of fact. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). As the ultimate finder of fact, the Board is empowered determine the credibility of witnesses and to resolve conflicts in the evidence. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). When supported by substantial evidence, Board's findings are conclusive and binding on appeal. Id.
The Board found the testimony of Employer's witnesses that Claimant violated Employer's work rule to be credible. The Board did not find Claimant's testimony that he did not violate the work rule to be credible. The Board's findings are conclusive. Claimant's argument amounts to nothing more than an attempt to persuade this Court to step beyond the bounds of its authority and substitute the Referee's judgment for the Board's. This we neither can nor will do.
The Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 29th day of November, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge