Opinion
No. 455 C.D. 2014
10-06-2014
Judith Silva, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Judith Silva (Claimant), representing herself, asks whether the Unemployment Compensation Board of Review (Board) erred in determining she was ineligible for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant argues substantial evidence does not support the Board's decision. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Comhar (Employer) as a full-time Recovery Counselor/Employment Specialist from January 2011 until August 2013. After her separation from employment, Claimant applied for UC benefits, which were denied. Claimant appealed, and a referee held a hearing. Before the referee, Claimant testified, and three employees testified for Employer: Ramon Crasto, Continuing Care Director (Continuing Care Director), Gary Schoenberg, Coordinator of Programs (Coordinator of Programs), and Tonica Lowe-Miller, Assistant Human Resources Director (Assistant Human Resources Director).
After the hearing, the referee issued a decision in which she found the following facts. Employer's policy provides insubordination, including actions that undermine the authority or credibility of a supervisor, may justify immediate discharge. Claimant was aware or should have been aware of Employer's policy as she acknowledged it when hired. In 2012, Employer warned Claimant, after she refused to assist an employee, that further incidence of insubordination or failure to work cooperatively with the team could result in disciplinary action including termination of employment.
On July 31, 2013, Employer's Continuing Care Director asked Claimant to speak with a member who brought in a five-year-old child to the program. Employer's program is intended for adults only, and children are not allowed to attend. Claimant refused to inform the member, and she told the Continuing Care Director that it was the job of the Coordinator of Programs. However, it was Claimant's responsibility to inform the member as she was the Recovery Counselor for this particular member. Claimant became upset as she believed Employer singled her out, and she threatened to resign. Employer previously informed Claimant that if she wished to submit her resignation, Employer would accept it immediately whether it was verbal or in writing. Continuing Care Director called Claimant into the conference room with the member and the child to resolve the situation.
On August 2, 2013, Continuing Care Director presented Claimant a memorandum regarding her insubordinate behavior for her review and signature. Claimant tore it up. Claimant stated she had not done anything wrong. When the Coordinator of Programs asked Claimant to leave the premises, she refused. The Assistant Human Resources Director called a security guard, who escorted Claimant out of the building. The same day, Employer suspended Claimant pending investigation. A week later, Employer discharged her for insubordination.
The referee credited the testimony of Employer's witnesses. The referee determined Claimant deliberately refused to comply with the reasonable instructions of Employer, without a valid reason. The referee concluded Claimant's conduct amounted to willful misconduct. Thus, the referee denied Claimant benefits under Section 402(e) of the Law. Claimant appealed.
The Board affirmed, adopting and incorporating the referee's findings and conclusions in their entirety. This appeal by Claimant followed.
On appeal, Claimant argues the Board's determination of willful misconduct is not supported by substantial evidence because the Board did not consider all the facts and relied on hearsay evidence. She claims the Board misunderstood and misconstrued Employer's contention that Claimant engaged in willful misconduct. According to Claimant, there was merely a misunderstanding as she did not refuse to help a member or refuse to follow her supervisor's directive. Rather, Claimant maintains, Employer fired her in retaliation for charges of sexual and racial discrimination in the workplace.
Our review is limited to determining whether necessary findings of fact were supported by substantial evidence, whether errors of law were committed or whether constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth.), appeal denied, 87 A.3d 1006 (Pa. 2014).
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which [her] unemployment is due to [her] discharge ... from work for willful misconduct connected with [her] work ...." 43 P.S. §802(e). "[W]illful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations." Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied, 87 A.3d 1006 (Pa. 2014) (citing Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002)).
The employer bears the initial burden of proving a claimant engaged in willful misconduct. Id. When asserting a discharge based on a violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Id. (citing Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
Once an employer meets its burden, the burden shifts to the employee to prove she had good cause for her actions or the unreasonableness of the work rule. Johns. An employee establishes good cause where her actions are justified or reasonable under the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006).
Further, in UC cases, the Board is the ultimate fact-finder and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate. It is irrelevant whether the record contains evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Additionally, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
Here, Employer presented its policy pertaining to grounds for discharge. Referee's Hr'g, 10/8/13, Notes of Testimony (N.T.) at 7; Certified Record (C.R.), Item No. 9, Ex. No. E-1. The policy provides: "[i]nsubordination, including actions which undermine the authority or credibility of the supervisor" may justify immediate discharge. C.R., Item No. 9, Ex. No. E-1; see N.T. at 8 (exhibit admitted without objection). Claimant was aware or should have been aware of this policy as she signed the policy acknowledging her receipt and review. C.R., Item No. 9, Ex. No. E-2; see N.T. at 7-8 (exhibit admitted without objection). In addition, in 2012, Employer warned Claimant that further incidence of insubordination would be immediate grounds for termination of employment. C.R., Item No. 9, Ex. No. E-4; N.T. at 22-23.
Employer's witnesses testified regarding the events leading to Claimant's termination. Claimant worked in Employer's psychiatric rehabilitation day program for adults. N.T. at 18. On July 31, 2013, one of the members brought her young child to the program. Id. Continuing Care Director directed Claimant to advise the member to send her child home. Id. at 18-19, 28-29. Claimant refused, stating it was not her job responsibility. Id. at 6, 19, 28-29, 40. Continuing Care Director advised Claimant it was her client and therefore her responsibility. Id. at 19; see also id. at 6. Claimant became upset and threatened to resign, but ultimately she agreed to follow the directive. Id. at 19. Continuing Care Director drafted a memo documenting the incident. Id. at 20-21.
Two days after the incident, Coordinator of Programs presented Claimant the memo to review, sign and then return for her supervisor's signature, but she tore it up. Id. at 11, 22, 40; C.R., Item No. 9, Ex. No. E-3. At that point, Assistant Human Resources Director asked Claimant to leave. N.T. at 6, 10. She refused. Id. at 10. At Employer's direction, a security guard escorted Claimant out of the building. Id. at 25, 36. Employer terminated her employment for insubordination. Id. at 30, 37, 40.
Although Claimant initially objected to the memo exhibit on the basis it was different from the memo she received, she ultimately conceded the memos were the same and the referee overruled the objection and admitted the evidence. N.T. at 22, 35.
To the extent Claimant alleges the Board improperly relied on hearsay evidence, Claimant did not raise this issue in her petition for review, identify the hearsay evidence, or otherwise develop the issue in her brief. Consequently, this issue is waived. See Staffmore, LLC v. Unemployment Comp. Bd. of Review, 92 A.3d 844 (Pa. Cmwlth. 2014) (failure to develop issue in appellate brief results in waiver); Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400 (Pa. Cmwlth. 2010) (issues not raised in petition for review are waived).
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted in the statement. Pa. R.E. 801(c). --------
Notwithstanding, Claimant did not raise any hearsay objection at the hearing, and her own testimony corroborated Employer's evidence in several key respects. See Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976) (holding hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record); see also Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606 (Pa. Cmwlth. 2014) (same). Specifically, Claimant testified she received the memo documenting her conduct. N.T. at 33. Claimant admitted she tore up the memo and called her attorney. N.T. at 33-34. She did not leave Employer's premises when asked. Id. at 34. Claimant testified a security guard escorted her out of the building. Id. at 25, 36.
Nevertheless, Claimant maintains her conduct did not amount to willful misconduct. Claimant testified Employer wrongfully discharged her in retaliation for filing harassment claims. See N.T. at 30, 32-33, 35. However, the Board found her testimony "neither convincing nor credible." See Referee's Op., 10/28/13, at 3. Rather, the Board credited Employer's witnesses' testimony that Employer followed its grievance procedure, investigated her claims, and took appropriate action. Id.; see N.T. at 30. The Board determined Employer terminated Claimant's employment for insubordination. See Referee's Op., 10/28/13, at 3.
Upon review, the record contains substantial evidence to support a termination for willful misconduct. Claimant's conduct of refusing to follow her supervisor's directive as well as her act of tearing up the memo and refusing to leave when asked amounted to insubordinate behavior in violation of Employer's work policy. Claimant did not establish good cause for her actions. Therefore, the Board did not err in determining Claimant was ineligible for UC benefits under Section 402(e) of the Law.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 6th day of October, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge