Opinion
No. 2370 C.D. 2012
07-31-2013
Janet Guy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Janet Guy (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied her claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant contends the Board erred in concluding there was sufficient evidence to support a finding that she violated a directive. She also asserts she had good cause for her actions. We vacate and remand to the Board to make findings, and to explain its conclusions regarding good cause.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant worked for Fair Acres Geriatric (Employer) for more than five years as a full-time beautician to the residents. After Employer discovered that Claimant cut the hair of a particular resident who was the source of a prior complaint about Claimant (Resident), Employer terminated Claimant's employment. Claimant then applied for unemployment compensation benefits. The local service center granted benefits. Employer appealed, and a hearing ensued before a referee.
At the hearing, the Director of Employer's in-house barber and beauty shop, who was Claimant's direct supervisor (Director), and Employer's personnel representative testified for Employer. No witnesses to the terminating event testified on Employer's behalf.
Director testified she instructed Claimant not to cut the hair of Resident because the family disliked the last haircut Claimant provided. Director instructed Claimant to notify her if requested to give Resident another haircut. However, more than a year later, Director received a call from Resident's daughter-in-law complaining about Resident's haircut and demanding Employer to take action against Claimant. When Director confronted Claimant about the complaint, Claimant explained that Resident's son requested a haircut and perm for the Resident for upcoming Easter holiday. Claimant also told Director that the nurse responsible for Resident's unit told Claimant to cut, but not perm, Resident's hair. Significant to our analysis, Director also confirmed on direct examination that the nurse had authority to tell Claimant to cut a resident's hair.
Counsel represented Claimant at the hearing. Claimant testified Director did not prohibit her from servicing Resident's hair. Claimant recalled the conversation with Director regarding the family's complaint about Resident's hair in March 2011. She understood that Director did not want her to cut Resident's hair unless the family requested services. Claimant explained that she no longer cut Resident's hair every month on a regular schedule, but rather only when the family called the Resident's unit and requested to be put on the schedule. Claimant testified she cut or permed Resident's hair on five separate occasions in the thirteen months since Director gave the instruction. Each time, the unit clerk notified Claimant that the family requested services. Claimant attested she advised Director the day before she worked on Resident's hair. On these separate occasions, Claimant testified Director never advised Claimant that she was in violation of any instructions.
Claimant then testified about what transpired on Good Friday, the day of the terminating event. Claimant's family previously requested services for the upcoming holiday. However, Resident's family was not in Resident's room when Claimant came to perform services. Claimant asked Resident's family to be present because Resident was scheduled for a perm. Claimant testified she called Director, but she was not available. Then, when Claimant advised the nurse that Resident was scheduled for services, the nurse told Claimant to cut it, but "don't cut it too short because she's still going to get a perm when the family comes, and that's what I did." Ref.'s Hearing, 8/28/12, Notes of Testimony (N.T.) at 26.
Crediting Director's testimony, the referee denied benefits based on willful misconduct. The referee did not make any discrete findings on good cause. However, in her reasoning, the referee "did not find [Claimant's] argument availing that she was instructed by the Unit Clerk to perform service on [Resident], as the directive not to perform services came from [Director], and does not justify [Claimant's] failure to discuss this matter with [Director] prior to performing service." Ref.'s Dec., 8/30/12, at 2. Claimant appealed the decision to the Board.
The Board adopted the referee's findings and conclusions with one notable exception. The Board modified the referee's reasoning that it was the unit clerk who directed Claimant to cut Resident's hair, apparently accepting Claimant's testimony that it was the nurse who directed her to perform services. The Board reasoned that because Claimant did not inform Director, the nurse could not authorize the service.
Claimant now petitions for review. Although counsel represented Claimant at the hearing, Claimant represents herself on appeal. Claimant contests Employer's recitation of the verbal directive at issue. She asserts Director did not prohibit hair services for Resident. Rather, the rule only required Claimant to wait for a family request for services, and to advise Director before performing the services. Claimant also argues she performed services on the date in question because Director was not available, and she was authorized to do so by the nurse. In her brief, Claimant challenges the Board's decision because there was insufficient evidence that she did not follow the orders she was given "[doing] her job as ... told to do." Pet'r's Br. at 6. Neither the Board nor Employer submitted briefs.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).
While Claimant's brief does not cite legal authority regarding her good cause argument, she sets forth the following justifications for her actions: she always does what is requested of her and she received orders from more than one individual. Claimant further explains "[she] has no problem of taking orders from more than one person; when other authority figures believe [you're] in subordinating [sic] your job in which [you're] doing what you were told to do by another boss." Pet'r's Br. at 10.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).
Employer bears the initial burden of proving a claimant engaged in willful misconduct. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). When asserting discharge based on to a violation of a work rule, an employer must establish existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Id.
Once an employer meets its burden, the burden shifts to the claimant, who then may prove she had good cause for her actions. Dep't of Corr. A claimant can establish good cause by showing her actions were justifiable or reasonable under the circumstances. Id. Whether a claimant's actions constitute willful misconduct and whether a claimant proved good cause are both questions of law fully reviewable by this Court. Id.
Here, Employer had a policy regarding insubordination in its employee handbook. The handbook defined insubordination as the "refusal to obey an order or work assignment under [a] supervisor." N.T. at 8. Claimant was aware of Employer's insubordination policy. F.F. No. 3. Although Employer did not provide Claimant any written instructions not to cut a particular resident's hair, the Director issued a verbal directive not to service Resident, and to inform the Director if Claimant was requested to perform services on Resident. F.F. No. 5.
If an employee knows of a work rule and intentionally disregards it, such conduct is more akin to disobedience of a direct instruction than inadvertence or negligence. Heitczman v. Unemployment Comp. Bd. of Review, 638 A.2d 461 (Pa. Cmwlth. 1994). Further, an employer's directive need not be written in order to support a determination that an employee's violation of the directive constitutes willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004). An employer may reasonably expect that its employees will follow its verbal directives. Id.
That Employer had a rule regarding Claimant's services to Resident is not disputed. Although Claimant did not construe the rule the same way Employer did, she did not dispute that the rule required her to speak with Director prior to performing services on Resident. The rule resulted from a specific complaint, and was designed to prevent future complaints. We agree the rule is reasonable.
The Board credited Director's testimony that at "no time did [Claimant] discuss this issue with [Director] prior to performing service." Ref.'s Dec., 8/30/12, at 2. On appellate review, we must accept the Board's credibility determinations. Ductmate.
Further, Claimant admitted that on the date in question, she did not inform Director before performing services on Resident because Director was not available. N.T. at 28. Accordingly, we agree with the Board's conclusion that Claimant violated the rule. However, that does not end our inquiry. We must also consider whether Claimant had good cause for violating the rule.
Willful misconduct is not found where a claimant can show good cause for her actions, that the actions which resulted in the discharge were justifiable and reasonable under the circumstances. Perez v. Unemployment Comp. Bd. of Review, 736 A.2d 737 (Pa. Cmwlth. 1999). Good cause can excuse a claimant's rule violation, if the claimant had valid justification for disobeying the rule under the circumstances. Brant v. Unemployment Comp. Bd. of Review, 477 A.2d 596 (Pa. Cmwlth. 1984) (remanding to the Board to make factual findings regarding allegations of good cause).
Claimant asserts it was reasonable for her to perform the services given the circumstances surrounding the terminating event. The Resident was due for a cut and a perm for Easter weekend. Because Director was not available, Claimant asked the nurse whether she should proceed with the requested services. The nurse advised Claimant to cut the Resident's hair, but not too short so a perm could be done later. N.T. at 29.
Notably, Employer offered no evidence to contradict Claimant's explanation of these events. To the contrary, Director's testimony seems to corroborate the explanation. In particular, Director testified that Claimant told her the responsible nurse approved cutting, but not perming, the Resident's hair. Director also confirmed that the nurse had authority to tell Claimant to cut a resident's hair.
That the nurse, and not the unit clerk, authorized Claimant to proceed is significant in this case. However, the Board did not recognize the materiality of the referee's mistake, and its potential effect on the conclusion. The Board reasoned that "since [Claimant] did not inform [Director], the nurse could not approve [Claimant] servicing [Resident's] hair." Bd. Op., 11/19/12, at 1. That determination is contrary to the record evidence. N.T. at 15. Thus, the Board did not recognize that Claimant received orders to perform services on Resident from another supervisor.
In contrast, the unit clerk did not have authorization to direct Claimant to cut a resident's hair. Ref.'s Hearing, 8/28/12, Notes of Testimony (N.T.) at 14. --------
Neither the referee nor the Board made specific findings regarding Claimant's alleged good cause. Moreover, the Board erred in reasoning that the nurse could not authorize services. Additionally, the Board did not explain its reason for rejecting Claimant's good cause arguments. This is particularly important when the Board did not discredit Claimant's uncontradicted testimony as to the circumstances surrounding the terminating event.
Where a separate finding of good cause is not made, this Court will remand the matter to the Board for further proceedings. Krentsel v. Unemployment Comp. Bd. of Review, 471 A.2d 178 (Pa. Cmwlth. 1984) (holding lack of findings on good cause is proper ground for remand). Remand to the Board is also necessary when the Board's reasoning as to a good cause determination is unclear or unsubstantiated. See Stana v. Unemployment Comp. Bd. of Review, 791 A.2d 1269 (Pa. Cmwlth. 2002) (finding lack of credibility determination is grounds for remand when credited testimony may be grounds for good cause); Herbert v. v. Unemployment Comp. Bd. of Review, 554 A.2d 616 (Pa. Cmwlth. 1989) (explaining remand is necessary when reasons for rejecting Claimant's evidence on good cause is not clear).
Given the lack of findings on good cause, and the discrepancy in the rationale as to whether Claimant received a directive from another supervisor, and the import of that discrepancy, a remand to the Board, limited to the good cause issue, is proper. See, e.g., Herbert; Brant. Therefore, we remand to the Board to make findings as to good cause and, if necessary, explain the basis for rejecting Claimant's good cause arguments.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 31st day of July, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby VACATED and this matter REMANDED in accordance with the foregoing opinion. Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge