Opinion
No. 370 C.D. 2012
08-08-2012
Kathryn L. Patkalitsky, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Kathryn L. Patkalitsky (Claimant) petitions for review from the order of the Unemployment Compensation Board of Review (Board) that denied her unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). In so doing, the Board reversed the referee's decision and made its own factual findings. Claimant challenges the Board for rejecting the referee's credibility determinations and contends its decision disregards her evidence of good cause for noncompliance with a directive. As the Board's decision is supported by substantial evidence and in accordance with the 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 "[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." Id.
Claimant worked as a senior high school learning support teacher for the Philipsburg Osceola School District (Employer). Employer discharged Claimant for failing to follow directives regarding her role supporting special needs students.
Claimant applied for UC benefits, which the local service center denied, finding Claimant committed willful misconduct. Claimant appealed. A referee held a hearing at which Claimant, represented by counsel, and three Employer witnesses testified. The Employer witnesses were Cindi Marsh, Director of Student Services, LeAnn Shaw, Director of Human Resources, and David Simcox, Assistant Principal.
After hearing, the referee reversed the service center, reasoning that Employer did not meet its burden of proving willful misconduct. Specifically, the referee found Employer did not give Claimant a performance improvement plan regarding her deficiencies so that she could correct them. Employer appealed. The Board, without taking additional evidence, made its own factual findings and credibility determinations. The Board found the following facts.
In September 2010, Employer issued a written directive to teachers, including Claimant, to monitor student progress. Reproduced Record (R.R.) at 82a-84a (Superintendent Email). Claimant selected a "target student" for the new school year and was to compile his work through the end of the school year to gauge his progress. The directive required Claimant to bring samples of "student work" to weekly professional development sessions.
"[S]tudent work ... might be a composition that a student wrote, ... a class project, ... a math paper, ... an actual assignment that the student completed." Reproduced Record (R.R.) at 40a.
Employer's witnesses testified that Claimant did not bring student work to the weekly professional development sessions. Marsh and Shaw attended the weekly sessions. Claimant did not attend the session on October 28, 2010. Marsh testified Claimant did not have student work on November 3, and she did not have any of the accumulative collection of student work in her folder. When asked about the lack of student work, Claimant initially asserted her grade records complied. Then Claimant explained she did not have student work because she was busy monitoring Pennsylvania System of School Assessment (PSSA) retake tests the prior week and did not see the student. Nevertheless, Claimant offered no explanation for the absence of student work from the prior weeks since the sessions began in late September.
Employer emphasized the weekly sessions requirements in a follow-up email in early October. R.R. at 85a-86a. Employer explained that the student work should be collected in one folder brought to each session so that the folder contained work from September through June.
Shaw corroborated Marsh's testimony regarding the November 3 session. Shaw testified Claimant did not have student work compiled in her folder as required. She also testified that at the November 10 session, Claimant again only displayed grade records, not student work, and she had no student work in her folder.
Employer's Director of Human Resources also specifically directed Claimant to "push in" to the regular geometry classes to help the students who struggled with the material. Bd. Op., 2/15/2012, Finding of Fact (F.F.) No. 10. Claimant advised she did not want to do so because "it was not her strength." F.F. No. 12. Claimant did not "push in" to the geometry classes as directed. F.F. No. 13.
Claimant contended she brought student work to the meetings other than the meeting she missed in October, and the November 3 meeting. She excused her failure to bring student work to the November 3 meeting because of the PSSA retake tests and her student's absence on November 2. With regard to "pushing in," Claimant asserted she was not directed to attend any specific geometry class, but she eventually did so anyway on November 12. However, Claimant neglected to inform Employer that she attended any geometry classes when Employer met with Claimant on November 19 to discuss her noncompliance with directives. As to Claimant's excuse, Employer explained the PSSA retake tests were completed by sixth period, so Claimant would have had access to her target student at that time each day.
Ultimately, the Board reversed the referee's decision and found Claimant ineligible for benefits due to willful misconduct. Specifically, the Board found Employer terminated Claimant's employment based on her failure to follow its directives to compile and maintain her target student's work for the weekly development sessions. The Board also concluded Claimant did not "push-in" to regular geometry courses as directed.
The Board resolved the conflicts in testimony in favor of Employer and found Employer's witnesses credible. The Board also found Claimant did not prove good cause for her admitted failure to comply with Employer's directives.
Claimant filed a petition for review, asserting the Board erred in finding she committed willful misconduct because her noncompliance should be excused under the circumstances.
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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Whether a claimant's actions constitute willful misconduct "is a question of law fully reviewable on appeal." Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). While the Law does not define the term "willful misconduct," "[o]ur Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interest, a deliberate violation of the employer's work rules, or a disregard of standards of behavior that the employer can rightfully expect from its employees." Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)).
An employer bears the burden of establishing that a claimant's actions amount to willful misconduct. Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12 (Pa. Cmwlth. 2009). If the employer proves the existence and violation of a known work rule, the burden shifts to the claimant to show either the rule was unreasonable, or she had good cause to violate it. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006).
This Court defines "good cause" as justifiable or reasonable action taken under the circumstances confronting an employee. Id. If the claimant establishes good cause, the conduct is "not in disregard of standards that the employer had a right to expect." Rossi v. Unemployment Comp. Bd. of Review, 544 Pa. 261, 267, 676 A.2d 194, 197-98 (1996).
Here, Claimant admits that Employer issued a directive regarding compiling student work for the weekly sessions. She also admits her noncompliance. However, she contends she "was unable to comply with the Employer's directive not only because she was busy proctoring the PSSA retake tests, but also because her selected student was absent from school" the week of November 3. See Pet'r's Br. at 13 (citing Reproduced Record at 40a, 43a, 48a, 58a and 59a). Therefore, we evaluate whether the record supports the Board's finding that Claimant lacked good cause for violating Employer's directive.
Although Claimant challenges Marsh's authority to issue a directive to her, it is more accurate to state Marsh communicated the Employer directive issued by the Superintendent.
We 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 from the testimony. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (citing Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 378 A.2d 829 (1977)). We are also bound by the Board's findings when they are supported by substantial evidence, and we cannot reconsider its credibility determinations. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
The Board did not credit Claimant's explanations of good cause. Bd. Op., 2/15/2012, at 3 ("The Board discredits the claimant's testimony."). Claimant did not present any evidence in support of her position other than her testimony. Because the Board did not credit Claimant's testimony, there is no credited evidence that would support a determination that Claimant had good cause for violating Employer's directive.
Moreover, Employer's witnesses provided accepted evidence that Claimant had the opportunity to obtain student work each day by sixth period after the PSSA retake tests. F.F. Nos. 8-9. There is also no evidence or explanation offered as to why Claimant did not have student work compiled in her folder since the first session in September when the directive requires it.
Nevertheless, Claimant contends the Board erred in overriding the referee's credibility determinations. Claimant essentially asks this Court to find her testimony credible and reject the testimony of Employer's witnesses as not credible. This we cannot do.
As an appellate court, we are not permitted to reweigh the evidence and revisit credibility determinations. Chapman (citing Peak). The Board is the ultimate finder of fact and arbiter of witness credibility, and may resolve conflicts in testimony differently than a referee. Id. (affirming Board's decision that reversed referee's decision crediting claimant). In making credibility determinations, the Board may accept or reject the testimony of any witness in whole or in part. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003).
The Board is permitted to reverse a referee's decision finding no willful misconduct for reasons of credibility. Peak (Board is not required to defer to referee's credibility determinations in resolving factual questions). Moreover, in Peak, our Supreme Court recognized that when evidence of willful misconduct is conflicting, the Board may credit evidence a referee discredited and reach contrary credibility determinations. Credibility determinations are the province of the fact-finder, that is, the Board. Id. The Board's credibility determinations in favor of Employer's witnesses dictated the result here, and the Board adequately explained its decision to permit our review. Id. 509 Pa. at 277, 501 A.2d at 1389 (reasoning the Board is not required to explain its refusal to adopt referee's credibility determinations provided its decision passes the substantial evidence test and "explain[s] its decision in sufficient detail to permit meaningful appellate review."); Chapman, 20 A.3d at 613 ("Board's reasons for reversing the [r]eferee are plain enough," obviously compelled by diverging views on credibility, and do not require rationale specifically addressing reason for rejecting referee's credibility determinations).
The Board discredited Claimant's testimony, which is the only evidence in support of good cause, for which she bears the burden of proof. Thus, Claimant cannot sustain her appeal.
Claimant also argues the Board erred by ignoring the record evidence when it found that she did not attend any geometry classes, when her testimony that she attended one on November 12 is uncontroverted. However, any alleged error in this regard is of no moment. The Board found, and the evidence supports, that Employer terminated Claimant for failing to follow two separate directives. "[A] claimant who has been discharged for multiple reasons is disqualified from receiving benefits even if only one of those reasons amounts to willful misconduct." Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007). --------
In sum, because the testimony of Employer's witnesses constituted sufficient evidence upon which to find willful misconduct on the part of Claimant, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 8th day of August, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge