Brown v. Unemployment Comp. Bd. of Review
| Citation | 276 A.3d 322 |
| Decision Date | 05 May 2022 |
| Docket Number | 1306 C.D. 2018 |
| Parties | Niaja BROWN, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent |
| Court | Pennsylvania Commonwealth Court |
Niaja Brown, Pro Se.
Shawn Westhafer, Assistant Counsel, Harrisburg, for Respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,1 HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge2
OPINION BY JUDGE CEISLER
Niaja Brown (Claimant) petitions for review, pro se , of the August 16, 2018 Order of the Unemployment Compensation Board of Review (Board) affirming the decision of a Referee to deny Claimant unemployment compensation (UC) benefits. The Board concluded that Claimant is ineligible for UC benefits under Section 402(e) of the Unemployment Compensation Law (Law)3 because she was discharged from work for willful misconduct. We affirm the Board's Order.
Background
Claimant began working for The Children's Hospital of Philadelphia (Employer) on April 29, 2002. Bd.’s Finding of Fact (F.F.) No. 1. At the time of her discharge, she was a part-time Senior Nursing Assistant for Employer. Record (R.) Item No. 2.
In 2012, Employer implemented a policy requiring all employees to receive an annual influenza vaccination
(flu vaccine) unless they had a medical or religious exemption. Bd.’s F.F. No. 2. Claimant complied with Employer's policy and received the flu vaccine through 2016. Id. No. 3.4 On November 7, 2017, Claimant notified Employer that she did not want the flu vaccine, but she did not provide a medical or religious exemption. Id. No. 4.5
On November 8, 2017, Employer notified Claimant that if she did not receive the flu vaccine by November 15, 2017, she would be suspended for two weeks and then discharged. Id. No. 5; see R. Item No. 3 ).
Claimant did not receive the flu vaccine by November 15, 2017, so Employer suspended her for two weeks. Bd.’s F.F. No. 6. Employer gave Claimant until December 5, 2017, to either receive the flu vaccine or provide a medical or religious exemption with supporting documentation. Id. ; see R. Item No. 3.
Thereafter, Claimant submitted to Employer a one-page document titled "Advance Vaccine Directive" (AVD), which she had printed from the Natural Solutions Foundation website, proclaiming that she did not give her consent to be vaccinated. Bd.’s F.F. No. 7; see R. Item No. 6.6 Because the AVD was neither a medical nor a religious exemption, on December 6, 2017, Employer discharged Claimant for refusing to receive the mandatory flu vaccine. Bd.’s F.F. No. 8.
Claimant filed a claim for UC benefits, which the local UC Service Center denied. The Service Center determined that by refusing the Employer-mandated flu vaccine without good reason, Claimant committed an act of insubordination. R. Item No. 5. Thus, the Service Center concluded that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Id.
Claimant appealed to the Referee, who held an evidentiary hearing on April 11, 2018. Claimant appeared pro se and testified on her own behalf. Employer did not appear at the hearing.7
Claimant testified that she worked as a Senior Nursing Assistant for Employer until the date of her discharge. Notes of Testimony (N.T.), 4/11/18, at 2. Claimant testified that, in 2017, she "used her right of informed consent to say that [she does] not want the flu shot" and submitted the AVD to Employer, but Employer did not accept it. Id. at 3. According to Claimant:
I submitted [the AVD], and [Employer] said it did not fit the protocol because the protocol was ... you had to have either a medical exemption or a religious exemption. And ... the [AVD] didn't fit any of those, because that's a new thing that they ... haven't even approached yet.
Id. Claimant testified that she believed that because Employer allowed vaccine exemptions for medical or religious reasons, it should have accepted her AVD. Id. at 4.
Claimant further testified that when Employer first implemented the vaccine policy in 2012, she completed a questionnaire about the policy. Claimant testified:
I said on the questionnaire that I am against getting [the flu vaccine]. But yet I felt compelled and forced to get it because it was [for] the safety of my job. But upon coming into this knowledge [about the AVD], and saying that I have a right to object to it, that's when I decided to say no, enough is enough.
Following the hearing, the Referee determined that Employer's flu vaccine policy was reasonable because "[t]he patients at [Employer's hospital] often have immune systems that are at risk." Ref.’s Order, 4/16/18, at 2. The Referee also determined that because Claimant had a common law right to refuse the flu vaccine, her refusal alone was not willful misconduct. Id. at 3. However, the Referee concluded that, under the circumstances of this case, Claimant's refusal to get the vaccine was "a refusal to meet a reasonable condition of future employment." Id. The Referee explained that "Claimant [was] well aware of what it means to work in a hospital," yet "[s]he affirmatively refused to work under those reasonable circumstances." Id. Therefore, the Referee concluded that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Id.
Claimant appealed to the Board, which affirmed the Referee's decision. The Board first addressed Claimant's contention on appeal that the Referee denied her request to subpoena her health records in advance of the hearing. The Board found that Claimant failed to raise this issue before the Referee at the hearing, so the issue was waived. Bd.’s Order, 8/16/18, at 2.8
Next, the Board found that, given the nature of Claimant's job position, Employer's vaccine policy was reasonable. Id. The Board concluded, however, that Claimant failed to establish good cause for refusing the flu vaccine under the circumstances. The Board explained its reasoning as follows:
required to retain her job. Conversely, the [United States Court of Appeals for the Third Circuit] held in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania , 877 F.3d 487 ([3d Cir.] 2017), that an employee discharged for failure to be vaccinated was not protected by the religious discrimination provision of Title VII of the Civil Rights Act of 1964 because his refusal was not based on religious beliefs, but because "he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine."
[C]laimant's mistaken understanding of her legal rights does not justify her refusal to comply with [E]mployer's reasonable request.
Id. at 2-3 (emphasis added). Therefore, the Board concluded that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Claimant now petitions this Court for review.9
Analysis
Our courts have defined "willful misconduct" as: (a) a wanton or willful disregard of the employer's interests; (b) a deliberate violation of the employer's rules; (c) a disregard for the standards of behavior that the employer rightfully can expect of its employees; or (d) negligence indicating an intentional disregard of the employer's interests or of the employee's duties or obligations. Grieb v. Unemployment Comp. Bd. of Rev. , 573 Pa. 594, 827 A.2d 422, 425 (2003). The employer bears the burden of proving that the claimant was discharged for willful misconduct. Walsh v. Unemployment Comp. Bd. of Rev. , 943 A.2d 363, 369 (Pa. Cmwlth. 2008).
Moreover, "[a]n employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation." Klampfer v. Unemployment Comp. Bd. of Rev. , 182 A.3d 495, 500 (Pa. Cmwlth. 2018). "The employer must also show that the [claimant] intentionally or deliberately violated" the policy. Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Rev. , 138 A.3d 50, 54 (Pa. Cmwlth. 2016). This Court must determine whether the policy at issue was reasonable and whether the claimant had good cause for violating it. Klampfer , 182 A.3d at 500. The claimant bears the burden of proving good cause by demonstrating that her conduct was justifiable and reasonable under the circumstances. Kelly v. Unemployment Comp. Bd. of Rev. , 747 A.2d 436, 439 (Pa....
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