Opinion
No. 2282 C.D. 2012
07-31-2013
Teresa M. Pryor, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Teresa M. Pryor (Claimant) petitions, pro se, for review of the October 19, 2012 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to 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) states that an employee shall be ineligible for compensation for any week in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.
Claimant was employed by the Alternative Rehabilitation Company (Employer) as a full-time teacher's assistant from November 3, 2008, until Employer terminated her employment on February 2, 2012. The record does not disclose the educational nature of the school in which Claimant was employed, but many of the students are on probation and/or were sexually or physically abused. During Claimant's employment, Employer received complaints from students, who voiced objections about Claimant's body being too close to theirs, including instances where "the front of Claimant's body would touch them." (Notes of Testimony (N.T.) at 6-7.) Employer had multiple discussions with Claimant about maintaining an appropriate, personal boundary space between her and the students. Employer specifically instructed Claimant to maintain at least an arm's length distance from the students to avoid encroaching into the students' personal boundaries. Pursuant to Employer's policy entitled, "Doctrine of Safety and Security," the inappropriate touching of students could result in discipline up to and including discharge. Claimant signed and was aware of Employer's policy. (Findings of Fact Nos. 1-5; N.T. at 9, 24.)
On January 17, 2012, Claimant was handing out unwrapped candy, commonly known as Swedish Fish, to the students. One student was working in the kitchen. Claimant went to the kitchen and offered that student candy, but the student had rubber gloves on and could not touch the candy. Claimant put her hand into the student's pant pocket and placed the candy into the pocket. Thereafter, the student complained to Employer about Claimant's actions and Employer conducted an investigation. During the investigation, Claimant admitted that she placed her hand into the student's pocket to give him candy. On February 2, 2012, Employer discharged Claimant for failing to maintain appropriate boundaries and for inappropriate touching under its Safety and Security policy. (Findings of Fact Nos. 6-12.)
Following her termination, Claimant filed a claim for benefits. On March 5, 2012, the local service center issued a determination granting Claimant benefits. Employer filed an appeal, and a referee held a hearing on April 13, 2012. At the hearing, Employer presented the testimony of its Director of Education, Vermel Favors, who testified to the facts set forth above. Claimant, represented by counsel, also testified at the hearing. Claimant stated that the student consented to her placing the Swedish Fish in his pocket, and that she did not put her hand down into the pocket, but, instead, placed the Swedish Fish into the pocket so that it was "hanging halfway out of the top." Claimant further testified that the student later told her that the candy in his pocket "was no problem" and that other teachers often gave students candy. (N.T. at 15-16, 18, 21.)
By decision and order dated April 20, 2012, the referee reversed the local service center's decision, determining that Claimant was ineligible for benefits under section 402(e) of the Law. Claimant appealed to the Board.
By order dated October 19, 2012, the Board affirmed the referee's decision. In so doing, the Board found that the credible testimony of Favors established that Claimant committed willful misconduct by reaching into the student's pocket. Specifically, the Board determined that Claimant deliberately violated Employer's express directive to maintain an arm's-length distance from the students and also that Claimant violated Employer's policy prohibiting inappropriate touching. The Board further found that Claimant failed to demonstrate that she had good cause for her actions. (Board's decision at 3.)
On appeal to this Court, Claimant first argues that she did not commit willful misconduct because the student permitted her to place the candy into his pocket; her hand or fingers did not enter inside the student's pocket; and the student told her after the incident that he was not offended by the contact.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Although the Law does not define the term willful misconduct, our courts have defined it as including: "(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 Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The burden of proving willful misconduct initially rests with the employer. Id. If the employer carries its burden, the burden then shifts to the claimant to prove that she had good cause for her actions; good cause is shown "where the action of the employee is justified or reasonable under the circumstances." Id. at 522.
It is well-settled that a deliberate refusal to comply with a reasonable demand of an employer ordinarily constitutes willful misconduct. Affalter v. Unemployment Compensation Board of Review, 397 A.2d 863, 865 (Pa. Cmwlth. 1979). This Court recently reaffirmed that disregarding an employer's clear and simple instructions without good cause constitutes willful misconduct. Pearson v. Unemployment Compensation Board of Review, 954 A.2d 1260, 1263-64 (Pa. Cmwlth. 2008), overruled on other grounds by Maher v. Unemployment Comp. Bd. of Review, 983 A.2d 1264, 1268 (Pa. Cmwlth. 2009) (en banc). See Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (concluding that employee's use of computer for personal purposes despite directive not to do so constitutes willful misconduct); Hartman v. Unemployment Compensation Board of Review, 455 A.2d 756, 757 (Pa. Cmwlth. 1983) (concluding that the claimant committed willful misconduct when he dry-buffed a floor despite contrary instruction from the employer). Furthermore, a single refusal to follow an employer's instructions can constitute willful misconduct even when the claimant had a good work record. Pearson, 954 A.2d at 1264.
In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328, 329 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review where the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977).
Here, Favors' testimony constitutes substantial evidence supporting the Board's findings that Employer had multiple discussions with Claimant regarding personal boundaries and that Employer specifically instructed Claimant to maintain an arm's-length distance from the students. (N.T. at 5-6, 13-15, 18.) Regardless of whether the student consented to or was not offended by the touching, the Board found that Claimant deliberately placed her hand inside the student's pocket, and this finding is also supported by substantial evidence. (N.T. at 5-6.) Because the Board's findings are supported by substantial evidence and establish that Claimant failed to follow Employer's express and reasonable directive, we conclude that Claimant engaged in willful misconduct by placing her hand into the student's pocket. Pearson, 954 A.2d at 1264.
Claimant further asserts that there are situations where teachers are permitted to touch students under the Safety and Security policy, such as accepting a hug from a student when the student was leaving the program or greeting a student with a handshake. Claimant maintains that the Safety and Security policy was open to interpretation and that she observed other teachers engaging in physical contact with the students but none of them were terminated from employment.
Where, as here, the employer has two different reasons for the termination of employment, i.e., violation of Employer's Safety and Security policy and Claimant's failure to follow Employer's directive to maintain an arm's length distance from the students, the employer need only establish that one reason amounts to willful misconduct. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007). As explained above, the evidence of record supports the Board's findings and determination that Claimant committed willful misconduct in failing to abide by Employer's express directive and, consequently, Claimant's arguments concerning the Safety and Security policy are immaterial. Furthermore, although Claimant vaguely testified that other teachers gave children candy (N.T. at 19), there is nothing in her testimony nor the record to support a finding that similarly situated teachers engaged in similar conduct and received a lesser form of discipline. See Workinger v. Unemployment Compensation Board of Review, 667 A.2d 436, 438 (Pa. Cmwlth. 1995) (holding that the claimant failed to rebut the employer's showing of willful misconduct with evidence that other employees were not disciplined for similar misconduct). Therefore, Claimant's assertions are both irrelevant and lack support in the record, and we conclude that Claimant is not entitled to relief.
Finally, Claimant devotes a variety of arguments to unrelated matters, contending that Employer treated her unfairly and harassed her throughout her employment. We summarily reject these assertions because most of them are have no basis in the evidence. To any extent that Claimant's arguments are supported by her testimony, it was within the exclusive province of the Board as fact-finder to determine that Claimant's testimony failed to demonstrate that she had good cause for her conduct. (Board's decision at 3.) Therefore, Claimant's final arguments lack merit.
Moreover, we fail to see how Employer's alleged mistreatment of Claimant is relevant in this case because Claimant was terminated from her employment and did not voluntarily quit. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 31st day of July, 2013, the October 19, 2012 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge