Chapman v. Unemployment Comp. Bd. of Review

• Decision Date: 25 April 2011
• Citation: 20 A.3d 603
• Parties: Diane CHAPMAN, Petitionerv.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

20 A.3d 603

Diane CHAPMAN, Petitioner

v.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Jan. 14, 2011.Decided April 25, 2011.

Deirdre J. Kamber, Center Valley, for petitioner.

Jonathan D. Koltash, Assistant Counsel, Harrisburg, for respondent.BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.OPINION BY Senior Judge KELLEY.

Diane Chapman (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) reversing the decision of a Referee, and determining that Claimant is ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).¹ We affirm.

Claimant filed a claim for unemployment compensation benefits upon the termination of her employment as a registered nurse with Lifequest Nursing Center (Employer). The Allentown UC Service Center representative concluded that Claimant had been discharged for reasons that constitute willful misconduct under Section 402(e) of the Law based upon her use of a cell phone while working in violation of Employer's work rule prohibiting such cell phone use. As a result, unemployment compensation benefits were denied.

Claimant appealed this determination and a hearing was conducted before a Referee. See N.T. 2/16/10 ² at 1–34. On May 7, 2010, the Referee issued a decision disposing of the appeal in which she determined that Claimant had been discharged for reasons that do not constitute willful misconduct under Section 402(e) of the Law. As a result, the Referee issued an order reversing the Service Center's determination, and granting Claimant unemployment compensation benefits.

On May 24, 2010, Employer filed an appeal of the Referee's decision with the Board. On July 27, 2010, the Board issued a decision in which it made the following relevant findings of fact: (1) Employer has a progressive disciplinary policy, however, Employer may immediately discharge an employee who engages in conduct that could cause a life threatening situation; (2) Employer has a policy prohibiting the use of cell phones while on duty; (3) Claimant was aware of this policy as she had been warned for violating the policy on June 2, 2009; (4) on November 14, 2009, Claimant used her personal cell phone to post comments on her Facebook page about a coworker who had accidentally soiled her pants at work; (5) Employer discovered the comments and investigated Claimant's work activities at the time the comments were posted; (6) Employer's records indicate that Claimant had been distributing medications to patients while the comments were posted; (7) Employer confronted Claimant and she admitted posting the comments using her cell phone while on duty, and did not assert that she was on a break when the comments were posted; and (8) Employer discharged Claimant for engaging in conduct that could cause a life threatening situation by using her cell phone while distributing patient medications. Board Decision at 1–2.

Based on the foregoing, the Board concluded:

The claimant was aware of the employer's policy prohibiting the use of cell phones while on duty, yet she violated that policy despite having been previously warned for doing so. The employer credibly explained that it may advance through the progressive disciplinary policy and immediately discharge where the employee engages in conduct that could create a life threatening situation. The Board further credits the employer's testimony that the claimant admitted to using her cell phone while on duty, and that she made no verbal assertion of being on a break at the time the comments were posted. The employer's documentation further corroborates that the claimant was actively engaged in the distribution of patient medications while using her cell phone for a menial purpose. The claimant's distraction with the cell phone certainly could have placed patients at risk of serious harm. As such, the Board concludes that the employer has met its burden of proving willful misconduct in connection with the claimant's discharge. The Board discredits the claimant's assertion that she was on a break when she used her cell phone. Accordingly, she has not justified her conduct.

Board Decision at 2–3. Accordingly, the Board issued an order reversing the Referee's decision and denying Claimant unemployment compensation benefits. Id. at 3. Claimant then filed the instant petition for review. ³

In this appeal, Claimant contends the Board erred as a matter of law in determining that Employer had sustained its burden of proving that Claimant was ineligible for compensation benefits under Section 402(e) of the Law. More specifically, Claimant asserts ⁴: (1) there is not sufficient substantial evidence demonstrating the existence of a work policy prohibiting the use of cell phones while on duty, that Claimant was aware of such a policy, or that she violated the policy; (2) the Board erred in relying on Employer's illegal search of her Facebook page; and (3) the Board erred in overriding the credibility determinations made by the Referee.

As noted above, pursuant to Section 402(e) of the Law, an employee is ineligible for unemployment compensation benefits when she has been discharged from work for willful misconduct connected with her work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa.Cmwlth.1999). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id.

Although willful misconduct is not defined by statute, it has been described as: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior that an employer can rightfully expect from his 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. Id. (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 90, 309 A.2d 165, 168–169 (1973)).

Thus, a violation of an employer's work rules and policies may constitute willful misconduct. Id. An employer must establish the existence of the work rule and its violation by the employee. Id. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove that she had good cause for her actions. Id. The employee establishes good cause where her actions are justified or reasonable under the circumstances. Id.

In addition, it is well settled that the Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Chamoun v. Unemployment Compensation Board of Review, 116 Pa.Cmwlth. 499, 542 A.2d 207 (1988). Thus, issues of credibility are for the Board which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Peak; Chamoun. Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). This Court must examine the evidence in the light most favorable to the party who prevailed before the Board, and to give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Id.

Claimant first contends that there is not sufficient evidence demonstrating the existence of a work policy prohibiting the use of cell phones while on duty, or that she was aware of it, and that she had not violated the policy because she had posted the comments on her Facebook page during a break. However, when viewed in a light most favorable to Employer, our review of the certified record in this case demonstrates that there is substantial competent evidence supporting the Board's findings regarding the existence of Employer's policy prohibiting the use of cell phones while on duty, the reasonableness of the policy, Claimant's awareness of the policy, and the fact of its violation. See N.T. 2/16/10 at 5–8 ⁵, 19–20.⁶ More specifically, the testimony of Employer's Human Resource Administrator and Director of Nursing support the Board's findings in this regard. Id. See also Exhibit 8 “Counseling and Corrective Action Form”, Exhibits 9, 9A “Written Counseling and Corrective Action Form”, Certified Record Item No. 3 at 16, 17.

As noted above, the Board was free to credit the foregoing evidence regarding the violation of Employer's policy and to discredit evidence to the contrary. Peak; Chamoun. In addition, those findings are conclusive on appeal as they are supported by the foregoing substantial evidence. Taylor. As Employer satisfied its burden of proof in this regard, the burden then shifted to Claimant to establish good cause such that her actions were justified or reasonable under the circumstances. Guthrie.

In support of her burden, Claimant cites to evidence supporting her assertion that she was not aware of the policy and that her actions did not constitute willful misconduct. See Petitioner's Brief at 17–21. However, in its opinion, the Board specifically stated, “[t]he Board discredits the claimant's assertion that she was on a break when she used her cell phone. Accordingly, she has not justified her conduct.” Board Opinion at 3.

As noted above, the Board is the ultimate finder of fact in unemployment compensation proceedings. Peak; Chamoun. In addition, issues of credibility are for the Board which may either accept or reject a witness's testimony whether or not it is corroborated by other evidence of record. Id. Thus, the...