Opinion
No. 1129 C.D. 2013
02-07-2014
Dieudonne Durand, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Dieudonne Durand (Claimant) petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) finding her ineligible for UC benefits pursuant to Section 402(e) of the UC Law because she was discharged from her nursing assistant position at Neshaminy Manor (Employer) for violating Employer's policy pertaining to resident safety on January 12, 2013. On appeal, Claimant argues that Employer did not satisfy its burden of proving that Claimant engaged in willful misconduct by deliberately violating a work policy and, if Claimant did violate a work policy, she had good cause for doing so.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week the employee's unemployment is due to willful misconduct connected with the employee's work).
Claimant asserts seven allegations of error, but those allegations can be consolidated into these two overall issues.
Claimant worked as a full-time nursing assistant in Employer's nursing home from December 2011 until January 29, 2013, when she was discharged. (Board Op., Findings of Fact (FOF) ¶ 1.) Claimant filed a claim for UC benefits, and Employer filed a response asserting that it discharged Claimant for "patient neglect." (Employer Questionnaire, R.R. at 44a.) The UC Service Center denied Claimant's claim pursuant to Section 402(e), concluding that she violated Employer's rule that prohibits "act[s] which might endanger the safety or life of others." (Notice of Determination, R. Item. 8.) Claimant appealed, and a UC Referee (Referee) held a hearing at which Claimant and Employer appeared and presented evidence.
Employer offered documentary evidence, including its work policies, documents signed by Claimant acknowledging those policies, the report related to the January 12, 2013 incident, Claimant's record of past discipline and warnings, and Claimant's January 12, 2013 work assignment sheet. (Hr'g Tr. at 8, 10-19, R.R. at 13a, 15a-24a; Employer's Exs. E-2 - E-10, R.R. at 57a-119a.) Employer also presented the testimony of its Deputy Director of Human Resources (HR Director) and Assistant Director of Nursing (Nursing Director).
HR Director testified about Claimant's job duties, Employer's progressive discipline policy, Employer's patient safety policies, and how employees become aware of those policies. (Hr'g Tr. at 4-6, R.R. at 9a-11a.) HR Director explained that, on January 12, 2013, Claimant was required to place a pair of Derma Savers on a resident's (Resident) legs, but only placed one on Resident; subsequently, Claimant moved Resident, who then suffered a skin tear on the unprotected leg. (Hr'g Tr. at 5, R.R. at 10a.) HR Director stated that Claimant was at the final warning stage in Employer's progressive discipline policy when the January 12, 2013 incident occurred. (Hr'g Tr. at 4-5, R.R. at 9a-10a.) HR Director was unable to say whether, absent the prior discipline, Claimant would have been discharged for the January 12, 2013 incident. (Hr'g Tr. at 6, R.R. at 11a.) HR Director testified that Employer discharged Claimant for failing to follow her assignment sheet and for violating Employer's work rule that prohibits an employee from engaging in "any act which might endanger the safety or life of others." (Hr'g Tr. at 5, R.R. at 10a.)
Derma Savers are fabric tubes that "protect fragile skin from pressure, friction and minor traumas that result in tears, bruising and minor abrasions." http://dermasaver.com/about.html (last visited January 7, 2014).
Nursing Director explained that Claimant did not follow her assignment sheet on January 12, 2013 when she did not place Derma Savers on both of Resident's legs to protect against skin tears. (Hr'g Tr. at 7-8, R.R. at 12a-13a.) Nursing Director testified that, after she received the complaint about Resident's skin tears, she discussed the matter with Claimant and Claimant's union representative, and Claimant acknowledged that she did not follow her assignment sheet and "took full responsibility for the matter." (Hr'g Tr. at 8-9, R.R. at 13a-14a.) According to Nursing Director, Claimant indicated that she could not find a second Derma Saver. (Hr'g Tr. at 9, R.R. at 14a.) However, Nursing Director stated that, if this was the case, Claimant should have gone to one of the charge nurses, who are always on the floor, to obtain one, and Resident should have remained in bed until a second Derma Saver could be located. (Hr'g Tr. at 9, 27, R.R. at 14a, 32a.) Nursing Director testified that Claimant did not indicate that she contacted a charge nurse to obtain a second Derma Saver. (Hr'g Tr. at 9, R.R. at 14a.) Nursing Director also discussed Claimant's disciplinary record and noted that Claimant was on final warning status when this event occurred. (Hr'g Tr. at 10-19, R.R. at 15a-24a.)
Claimant did not dispute that she did not place Derma Savers on both of Resident's legs but explained that, despite repeatedly looking in various places, she could not find a second Derma Saver. (Hr'g Tr. at 20-23, R.R. at 25a-28a.) According to Claimant, that morning was very busy and, after finding only one Derma Saver in the linen closet and placing it on Resident's leg, she continued caring for her nine other residents. (Hr'g Tr. at 21, R.R. at 26a.) Claimant indicated that she continued to look for a second Derma Saver throughout her shift without success. (Hr'g Tr. at 21, R.R. at 26a.) Claimant stated that, at one point, Resident's daughter (Daughter) visited, and Daughter requested Claimant to take Resident to the bathroom and place Resident in a wheelchair, both of which Claimant did. (Hr'g Tr. at 21-22, R.R. at 26a-27a.) Claimant explained that she did not inform Daughter that Resident should have had two Derma Savers on, indicating that it was not her responsibility to tell Daughter what to do with her mother, and that, normally, if a family member has a question about moving a parent the family member asks the charge nurses, not the nursing assistants. (Hr'g Tr. at 22, 24-25, R.R. at 27a, 29a-30a.) Claimant stated that she was not going to question Daughter's request to put Resident in the wheelchair. (Hr'g Tr. at 25, R.R. at 30a.) Claimant testified that she always worked to the best of her abilities, but acknowledged that she was aware in January 2013 that her job was in jeopardy. (Hr'g Tr. at 23, R.R. at 28a.) Claimant also acknowledged that Resident should not have been moved from the bed, but that she was told by Daughter that Resident had to go to the bathroom and could not wait, and she deferred to Daughter's wishes. (Hr'g Tr. at 24, R.R. at 29a.) Claimant indicated that she did not ask anyone for a second Derma Saver because, with all of her other activities and also being called to help with other residents, including one that had fallen, it slipped her mind. (Hr'g Tr. at 22, 25-26, R.R. at 27a, 30a-31a.)
The Referee found that there was no competent evidence in the record regarding Claimant's prior work discipline and that, with regard to the January 12, 2013 incident, Claimant did not deliberately refuse to follow the instructions, but merely was caught up in the multiple demands on her time. (Referee Decision at 2.) Accordingly, the Referee concluded that Claimant's actions did not rise to the level of willful misconduct and reversed the UC Service Center's determination. (Referee Decision at 2-3.) Employer appealed to the Board, which rendered the following findings of fact.
1. For the purposes of this appeal the claimant was last employed as a full-time nursing assistant with [Employer]. The claimant began working as a per diem nursing assistant December 7, 2010 and became a full-time employee in December 2011. The claimant
maintained full-time employment until January 29, 2013, her last day of work, at a final rate of pay of $18.54 per hour.
2. The employer's policy provides that employees such as the claimant be administered progressive discipline pursuant to the employer's progressive discipline policy.
3. On July 26, 2012, the employer issued a step one disciplinary action to the claimant alleging the claimant violated a policy regarding the proper use of a lift.
4. On December 5, 2012, the employer issued a step two disciplinary action to the claimant alleging the claimant failed to follow a nurse's instruction and made other performance errors.
5. On December 12, 2012, the employer issued a step three disciplinary action to the claimant alleging the claimant made performance errors and was insubordinate.
6. On December 17, 2012, the employer issued another step three final warning due to allegations made by a resident who complained about the claimant's care.
7. On January 12, 2013, the claimant attempted to place [D]erma [S]avers on the resident's legs in accordance with the assignment sheet, but could only locate one [D]erma [S]aver.
8. The claimant became busy caring for other residents.
9. The daughter of the resident who required the [D]erma [S]avers came to visit. She asked the claimant to toilet her mother.
10. The daughter then asked the claimant to place her mother in a wheelchair so that she could take her out of her room.
11. The claimant did not tell the resident's daughter that the resident was not allowed out of bed without two [D]erma [S]avers.
12. The claimant did not ask a charge nurse to locate a [D]erma [S]aver for the resident.
13. The resident's daughter reported that her mother suffered a skin tear.
14. After an investigation, the employer discharged the claimant for violation of its policies regarding resident safety while on a final warning.(FOF ¶¶ 1-14.) Stating that the deliberate refusal to comply with an employer's rules or policies constitutes willful misconduct, the Board held that Claimant knew she was on final warning status and her job was in jeopardy, that Resident's assignment sheet required that Claimant use two Derma Savers, and that Resident was not permitted out of bed without the Derma Savers. (Board Op. at 2-3.) The Board concluded that, notwithstanding this knowledge, Claimant "chose to allow the resident's daughter to take her [mother] out in a wheelchair without the second [D]erma [Saver]," which resulted in the skin tear. (Board Op. at 3.) Moreover, the Board noted that Claimant could have contacted the charge nurse to obtain the second Derma Saver, either before or after taking Resident to the bathroom, but did not do so. (Board Op. at 3.) The Board credited Claimant's testimony that she was busy on January 12, 2013 and had multiple responsibilities on that day, but it held that the fact that Claimant was busy and wanted to accommodate Daughter's wishes did not constitute good cause for not providing the prescribed care to Resident, particularly in light of Claimant's previous warnings. (Board Op. at 3.) Thus, the Board found Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Section 402(e) of the Law provides, in pertinent part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which h[er] unemployment is due to h[er] discharge or temporary suspension from work for willful misconduct connected with h[er] work." 43 P.S. § 802(e). While the Law does not define "willful misconduct," our Court has defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010) (emphasis added). "If the employer alleges willful misconduct because the claimant violated a work rule, the employer must prove both the existence of the rule and its violation." Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). A claimant must also be "made aware of the existence of the work rule." Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). The claimant's actions must be intentional and deliberate. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 601, 827 A.2d 422, 426 (2003).
If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). A determination of willful misconduct requires a consideration of "all of the circumstances, including the reasons for the employee's noncompliance with the employer's directives." Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998). If an employee had "good cause for the conduct, it was not willful misconduct." Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 267, 676 A.2d 194, 198 (1996). Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review. Docherty, 898 A.2d at 1209. Moreover, whether an employee has good cause also is a question of law that should be viewed in the light of all the attendant circumstances. Id. at 1208.
Based on these principles, our inquiry in cases involving work rule violations is comprised of two questions—did the employer establish that the claimant intentionally and deliberately violated a known work rule, and, if so, did the claimant establish that he or she had good cause for doing so? In answering these questions, we are mindful that this inquiry involves questions of law subject to our de novo review. Id. at 1208-09. We begin with the question of whether Employer satisfied its burden of proof.
The General Assembly and our Supreme Court have indicated that willful misconduct requires a certain state of mind. See 43 P.S. § 802(e) (disqualifying employees who commit willful misconduct); Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (stating that an employer must produce evidence demonstrating that the employee's actions were intentional and deliberate in nature). The state of mind necessary for a determination of whether a rule violation constitutes willful misconduct is whether the violation was deliberate, Philadelphia Parking Authority, 1 A.3d at 968, and intentional, Grieb, 573 Pa. at 601, 827 A.2d at 426. The following definitions help guide us in determining whether Claimant's actions constituted willful misconduct: "intentionally" means "in an intentional manner: with intention: PURPOSELY"; "intentional" means "an intended object: AIM, END"; "purposely" means a "deliberate intent; in order to attain an end"; and "deliberate" is "characterized by presumed or real awareness of the implications or consequences of one's actions . . . or by fully conscious often willful intent." Webster's Third New International Dictionary 596, 1176, 1847 (2002). Requiring an employer to show that its employee deliberately or intentionally violated a work rule before the employee is found ineligible for UC benefits is consistent with the Law's remedial purpose, which mandates that the "'disqualification provisions, such as Section 402(e), should be narrowly construed and a claimant must not be denied compensation unless [s]he is unequivocally excluded by the plain language of these provisions.'" Diehl v. Unemployment Compensation Board of Review, ___ Pa. ___, ___, 57 A.3d 1209, 1217 (2012) (quoting Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984)).
"Willful" is defined as "done deliberately: not accidental or without purpose." Webster's Third New International Dictionary 2617 (2002).
There is no dispute that Claimant's assignment sheet on January 12, 2013 required her to place Derma Savers on both of Resident's legs and that Claimant did not comply with that requirement. Nor is there any dispute that Claimant, at Daughter's request, removed Resident from bed, took Resident to the bathroom, and placed Resident in a wheelchair without the second Derma Saver. The Board characterizes that failure as an intentional and deliberate refusal to comply with Employer's work rules. (Board Op. at 3.) In contrast, Claimant asserts that not placing the second Derma Saver on Resident's leg was not an intentional or deliberate deviation from the work rules, but the result of Employer's insufficient supply of Derma Savers and, at most, her negligently forgetting to ask a charge nurse about obtaining a second Derma Saver during her busy day.
The Board credited Claimant's testimony, particularly her testimony regarding her very busy day and her interactions with Daughter. (Board Op. at 3.) Claimant acknowledged that she needed to place a second Derma Saver on Resident's leg, as directed by the assignment sheet, but testified that she could not because there was only one available when she began her care of Resident; nevertheless, Claimant attempted, throughout her shift, to comply with the assignment sheet by looking for a second Derma Saver. (Hr'g Tr. at 21, R.R. at 26a.) Thus, although Claimant did not follow the directive on the assignment sheet, there is no evidence that it was with the aim, end, or willful intent to deviate from the instructions; instead, the credited evidence is that it was necessitated by the circumstances. In fact, Claimant's credited testimony is that she attempted to follow the assignment sheet's directions and work rule by continuing to look for a second Derma Saver. Accordingly, we conclude that Employer did not establish that Claimant intentionally and deliberately violated its work policy requiring its employees to follow the directions on the assignment sheet.
As for not asking a charge nurse for a second Derma Saver, Claimant testified, and the Board did not discredit that testimony, that she became so busy with her other work duties, including caring for a fallen resident, that it slipped her mind to ask for help to find a second Derma Saver. (Hr'g Tr. at 22, R.R. at 27a.) Forgetfulness lacks an element of intent and is more akin to inadvertent or unintentional, i.e., negligent, conduct than deliberate or intentional conduct. See Zimmerman v. Unemployment Compensation Board of Review, 836 A.2d 1074, 1079 (Pa. Cmwlth. 2003) (stating "forgetfulness does not equate with deliberate withholding of information" or "deliberate action"); Izzo v. Unemployment Compensation Board of Review, 452 A.2d 912, 914 (Pa. Cmwlth. 1982) (providing that "an element of intent . . . cannot be inferred in situations involving carelessness, forgetfulness, inaccuracy, or the like"). "[A]n employer cannot demonstrate willful misconduct by 'merely showing that an employee committed a negligent act.'" Myers, 533 Pa. at 378, 625 A.2d at 625 (quoting Bucher v. Unemployment Compensation Board of Review, 463 A.2d 1241, 1243 (Pa. Cmwlth. 1983)). Accordingly, Claimant's forgetting to ask a charge nurse about a second Derma Saver does not support a finding that she committed willful misconduct.
Because of our resolution of this issue, we do not address Claimant's contention that the requirement to ask a charge nurse was a work rule that Employer failed to communicate to its employees.
This leaves for our examination, however, Claimant's actions in removing Resident from bed knowing that doing so violated Employer's policy and placed Resident at risk of skin tears. Claimant's testimony indicates that she was aware of the potential consequences of her actions if she moved Resident out of the bed and still decided to move Resident. Such awareness and consideration of the consequences of not complying with Employer's policy is more in line with a deliberate work rule violation than Claimant's other conduct. However, Claimant asserts that she was justified in moving Resident despite the lack of the required number of Derma Savers.
Claimant points out that she was faced with a situation involving conflicting work policies and, using her best judgment, was forced to choose which policy she was going to follow. Claimant contends that she acted reasonably in light of these conflicts. The policy for which Claimant was discharged, in part, mandates that an employee follow his or her assignment sheet, which for Claimant required that she place two Derma Savers on Resident or keep Resident in bed. However, a second policy requires staff to preserve the dignity and personal hygiene of residents, which Claimant arguably would have violated if she had not taken Resident to the bathroom at the direction of Daughter. (Resident's Personal Hygiene and Immediate Environment Policy at 1, R.R. at 90a; Section (o) of Resident's Rights, R.R. at 99a.) Yet another of Employer's policies requires staff to respect residents' right to have unimpeded and private visits. (Sections (o) and (u) of Resident Rights, R.R. at 99a-100a.) Claimant maintains that, had she attempted to stop Daughter from visiting with Resident in the manner Daughter wanted, she ran the risk of violating this policy as well. Claimant indicated that she did not see Daughter take Resident out of the room, she was not in the position to disagree with Daughter's directive, and, generally, family members ask charge nurses about their family members' care, not nursing assistants. (Hr'g Tr. at 24-26, R.R. at 29a-31a.)
Claimant had to rapidly choose which of Resident's needs to meet first, and she chose to take Resident to the bathroom and allow Daughter to visit in the manner Daughter wanted while continuing to look for the second Derma Saver. The Board found that Claimant's decision to defer to Daughter's request did not establish good cause for violating Employer's policy. However, Nursing Director's testimony corroborates Claimant's testimony that she was not in the position to disagree with Daughter, answering "no" when asked "if the family member is interest[ed in] putting a patient in a wheelchair, taking the patient out in a wheelchair, what should the [nursing assistant] do, should [the nursing assistant] dispute the family's request?" (Hr'g Tr. at 27, R.R. at 32a.)
Claimant further asserts that her actions on that day were reasonable and justifiable based on her credited testimony that her ability to apply the second Derma Saver was hindered by circumstances beyond her control, namely the inadequate supply of Derma Savers on that morning, and because of how busy she was in caring for nine other patients. Claimant credibly described her day as follows:
During that morning I had ten residents to give care and two showers. And these residents, they were total care residents. None of them can walk, none of them can do for themselves. I [inaudible] that. I have residents that I have to use the lift to get them out of bed, to get them in the dining room so they can eat breakfast and lunch. I managed to do my work. I completed my assignment. And when I got back to the linen closet again, continued to look for that other Derma[]Saver[] to put [o]n the other leg. I could not find one.
* * * *(Hr'g Tr. at 21-23, R.R. at 26a-28a.) During all of this activity, Claimant continued to look for the Derma Saver, took Resident to the bathroom, conversed with Daughter, and placed Resident in the wheelchair at Daughter's direction.
During that morning, it was a Saturday morning, everything was moving fast like the way it is in nursing. . . . . You have ten residents and you're also helping with breakfast tray[s], feeding in bed, getting people out of bed. We are all so busy during that time. . . . . We [are] always running and running.
* * * *
When I saw the laundry people come from downstairs to bring up the linen, I kept going back before my shift ended. And the incident happened, I believe around 11:30 or 12:30[.] . . . . And during that time I had other things that w[ere] occurring on the floor. Again, out of my ten residents the nurse had to call me while I was feeding to take a resident of mine to the bathroom. I needed someone else to help me . . . . I needed a lift to put her on the toilet. When we bring her back out, while she was sitting by the nursing station . . . she fell out of a chair.
* * *
Somebody had a fall. That caused the whole chaos again. She was on one-on-one from that point on [inaudible] she was assigned to me. They had - - they didn't pull me from my assignment but she was my responsibility. . . . I was the one that stayed with her until they get someone else to do a one-on-one on her for the rest of the shift.
During this time Claimant was also required to take a lunch and two breaks. (Hr'g Tr. at 22, R.R. at 27a.)
The Board concluded that the fact that Claimant was busy did not provide her with good cause for not applying the second Derma Saver or for moving Resident. (Board Op. at 3.) Citing Vale-Sotomayor v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 2520 C.D. 2010, filed April 25, 2011), as persuasive authority, the Board again asserts that Claimant's being busy is insufficient to show good cause for her conduct. In Vale-Sotomayor, the claimant argued that the Board erred in finding him ineligible for benefits because he only violated the employer's safety rule once, not twice as the Board found, which we rejected based on there being substantial evidence to support the Board's finding. Id., slip op. at 6-7. There is no indication in Vale-Sotomayor that the claimant argued, to this Court, that his being busy provided good cause for his conduct; therefore, we did not address that issue.
The claimant did argue this to the Referee and the Board, but the argument was rejected. Vale-Sotomayor, slip op. at 3, 6.
To determine whether Claimant had good cause for her actions, we must consider whether Claimant's actions are justifiable and reasonable under all of the circumstances. Docherty, 898 A.2d at 1208-09. The busyness of Claimant's day is a factor in the attendant circumstances that surrounded her actions on January 12, 2013, which also include: the insufficient supply of Derma Savers; Claimant's continuing to look for a second Derma Saver throughout her shift; being called to help with other residents, including one that had fallen; Resident's needs; Daughter's directives; and the conflicting policies. We conclude that Claimant's actions were reasonable and justifiable, and, because Claimant had "good cause for [her] conduct, it was not willful misconduct." Rossi, 544 Pa. at 267, 676 A.2d at 198. Accordingly, Claimant is not ineligible for UC benefits.
The Board asserts that a finding of willful misconduct is particularly warranted here because Claimant previously had been warned for violating similar policies. (Board's Br. at 12 (citing Department of Transportation v. Unemployment Compensation Board of Review, 479 A.2d 57, 58 (Pa. Cmwlth. 1984) (holding that "[a] conclusion that [an] employee has engaged in disqualifying willful misconduct is especially warranted in such cases where . . . the employee has been warned and/or reprimanded for prior similar conduct").) Acknowledging that she did not object to references to the prior discipline at the hearing, Claimant argues that the Board, nonetheless, cannot rely on the prior warnings because Employer's witnesses had no firsthand knowledge of the prior discipline and there is no competent evidence in the record to corroborate the underlying facts associated with that discipline. The Board agrees that the underlying facts constitute hearsay, but maintains that the relevant fact is that Claimant received the warnings. (Board's Br. at 12 n.8.)
Claimant further argues that because Claimant, as a public employee, had a property interest in her continued employment, the Board violated Claimant's due process rights by relying on the hearsay testimony about her prior disciplinary actions to find that she committed willful misconduct. (Claimant's Br. at 21-22.) However, the Board's determination had no bearing on Claimant's property interest in her continued employment, it related solely to her eligibility for UC benefits. As for Claimant's property rights in her public employment, Nursing Director testified that Employer held a due process hearing pursuant to Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985), prior to discharging Claimant at which Claimant and her union representative were present. (Hr'g Tr. at 8-9, R.R. at 13a-14a.) --------
It is well-settled that unobjected-to hearsay evidence "will be given its natural probative effect and may support a finding of the Board . . . [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand." Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). We agree with the Board that it could consider that Claimant had received prior warnings, a fact undisputed by Claimant, which was necessary in this matter because Employer has a progressive discipline policy, (FOF ¶ 2). However, the Board refers to specific conduct contained in those warnings to support its argument that Claimant had violated similar policies in the past, which, it contends, demonstrates that Claimant's present actions were an intentional and deliberate violation of Employer's policies. (Board's Br. at 11-12.) In doing so, the Board attempts to rely on the facts asserted in the hearsay documents for their truth, which is only proper if there is competent evidence in the record for support, Walker, 367 A.2d at 369-70, and there is not. Neither of Employer's witnesses could testify with firsthand knowledge of the underlying facts and, although Claimant acknowledged that she received the warnings, she disputed the content of those warnings and indicated that she had filed appeals, which were ongoing. (Hr'g Tr. at 11-14, 16, 27-28, R.R. at 16a-19a, 21a, 32a-33a.) Because we conclude that Claimant had good cause for the conduct that resulted in her final rule violation and discharge, we conclude that Claimant's prior warnings do not require a different result.
For the foregoing reasons, we reverse the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 7, 2014, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge