Milliner v. Unemployment Comp. Bd. of Review

• Decision Date: 02 September 2011
• Docket Number: No. 113 C.D. 2011,113 C.D. 2011
• Parties: Jennifer Milliner, Petitioner v. Unemployment Compensation Board of Review, Respondent
• Court: Pennsylvania Commonwealth Court

Jennifer Milliner, Petitioner v. Unemployment Compensation Board of Review, Respondent

No. 113 C.D. 2011

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: June 10, 2011

September 2, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON

Petitioner Jennifer Milliner (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which reversed the Unemployment Compensation Referee's (Referee) award of benefits. The Board held that Claimant was ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law)¹. For the reasons set forth below, we affirm.

Claimant applied for unemployment compensation benefits after being discharged from her employment as a house manager at McGuire Memorial (Employer). The Duquesne Unemployment Compensation Service Center (Service Center) issued a determination, finding Claimant ineligible for unemploymentcompensation benefits under Section 402(e) of the Law. Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing at which both parties testified.

Employer presented the testimony of Tonia Benden (Community Home Technician (CHT)), Audrey Rousseau (Group Home Manager), and John Dobi (Vice President (VP) of Human Resources) in support of its position. The CHT, who worked in the same community home as Claimant, testified that at approximately 1:15 p.m. on July 29, 2010, after Claimant's lunch break, Claimant came upstairs and sat in a recliner chair. (Certified Record (C.R.), Item 8.) Initially, the CHT spoke with Claimant about a client and then about a show that was on the television. (Id.) The CHT testified that Claimant informed her that she woke up early that day, and, therefore, she was tired. (Id.) Claimant did not inform the CHT that she had a headache. (Id.) The CHT testified that shortly after Claimant sat down in the chair, the CHT noticed that Claimant was sleeping. (Id.) The CHT testified that she believed that Claimant was sleeping because her eyes were closed for a prolonged period of time and her hand was on her face supporting her chin. (Id.) The CHT then sent a text message to her Group Home Manager, and the Group Home Manager directed her to take a picture of Claimant, which the CHT did with her cellular phone. (Id.) The CHT reported that Claimant slept for approximately fifteen to twenty minutes. (Id.) The CHT did not attempt to wake Claimant; Claimant woke up on her own, and, shortly thereafter, left work for the day. (Id.) The CHT testified that she never observed a safety or health risk in the basement working environment. (Id.)

The Group Home Manager testified that she shared the basement office with Claimant and that she was not present in the home when the incidentoccurred. (Id.) The Group Home Manager was the CHT's direct supervisor, but she was not Claimant's supervisor; the Group Home Manager and Claimant had the same position but managed different community homes. (Id.) The Group Home Manager stated that she asked the CHT to take a picture of Claimant sleeping for evidentiary purposes. (Id.) The Group Home Manager also testified that she never saw or experienced any condition in the basement office that was unsafe or a health risk and noted that the home was subject to inspections. (Id.) She further testified that Claimant never complained to her about the working environment. (Id.)

The VP of Human Resources testified that after he was informed that Claimant was sleeping during work, he placed Claimant on an indefinite suspension, which was common practice for Employer when investigating any allegations against an employee. (Id.) He stated that he was notified there was a picture of Claimant sleeping, and he requested written statements describing the incident from the CHT and the Group Home Manager. (Id.) The VP of Human Resources testified that during his investigation, he obtained Claimant's electronic time sheet which indicated that on the day of the incident, Claimant took her lunch break between 10:30 and 11:00 a.m. (Id.) The day after the incident, the VP of Human Resources called Claimant and advised her that she was indefinitely suspended for sleeping while on duty. (Id.) He testified that during the conversation, Claimant did not advise him that she had a headache nor did she admit or deny the allegation that she was sleeping while on duty. (Id.) Claimant's suspension was converted to a discharge on August 26, 2010, after Employer was unsuccessful in arranging a meeting with Claimant to discuss the allegation. (Id.) The VP of Human Resources reported that the Commonwealth ofPennsylvania inspects the community home, and that a health or safety hazard in the basement was never discovered during an inspection. (Id.) Further, he noted that Claimant had not previously complained about the working environment. (Id.)

Claimant testified to the circumstances surrounding her separation from employment. Claimant testified that she was not sleeping while on duty. (Id.) She stated that on the day of the incident, she was working in the basement while the washer and dryer were running and there was a musty smell. (Id.) Claimant developed a headache, and, therefore, went upstairs to get some fresh air and rest her eyes. (Id.) She noted that it was around 1:15 or 1:30 p.m. when she went upstairs and started talking with the CHT about a client and sat down in the recliner chair. (Id.) Claimant testified that she then closed her eyes while nursing her headache, and, after a few minutes, she opened her eyes and went back downstairs to resume her paperwork. (Id.) Claimant noted that she had been suffering from headaches and that she had advised Lori Shay (Director of Community Homes) about her medical condition. (Id.)

Following the hearings, the Referee reversed the Service Center's determination and awarded benefits pursuant to Section 402(e) of the Law. (C.R., Item 9.) The Referee concluded that Employer failed to meets its burden to establish Claimant was sleeping during working hours. (Id.) Employer appealed the Referee's decision to the Board. The Board made the following relevant findings:

1. For the purpose of this appeal, Claimant was last employed full-time by McGuire Memorial, where she performed the job duties of house manager at a final hourly rate of $15.30. She began this employment January 2, 2006, and her last day of work was July 29, 2010.

2. On July 29, 2010, Tonia Benden, a community home technician, was in the living room with a client.

3. Claimant maintains an office in the community home's basement.

4. At approximately 1:15 p.m. on July 29, 2010, Claimant came upstairs and sat down in the same room as Ms. Benden. Claimant sat down in a recliner.

5. Claimant had a conversation with Ms. Benden. Claimant informed Ms. Benden that she got up early and was tired. Claimant did not indicate that she had a headache or that she was suffering from any adverse medical condition.

6. Afterward, Claimant stopped talking. Thereafter, Ms. Benden observed Claimant with her eyes closed for approximately fifteen to twenty minutes.

7. Ms. Benden contacted Employer's group manager. Ms. Benden was advised to take a picture.

8. Ms. Benden had taken a picture of Claimant in the recliner with her eyes closed. The picture depicts Claimant holding her chin with her hand.

9. Claimant was not on break at the time the picture was taken.

10. Claimant alleges that she was not sleeping. Rather, Claimant contends that she [was] in the recliner chair with her eyes closed because she was suffering from a headache. Claimant attributed her headache to working downstairs in the basement.

11. On July 30, 2010, Claimant was suspended indefinitely. At the time of her suspension, Claimant did not inform Employer that she had a headache.

12. On August 26, 2010, Claimant was discharged for sleeping while on duty.

(C.R., Item 12.)

The Board reversed the Referee's determination and concluded that Claimant was ineligible for benefits under Section 402(e) of the Law. The Board resolved conflicting testimony, in relevant part, in favor of Employer and found the testimony of Employer's witnesses to be credible. (C.R., Item 12.) The Board specifically rejected as not credible Claimant's testimony that she was not sleeping and that she merely closed her eyes because she was suffering from a headache. (Id.) The Board reasoned that Claimant's action of sleeping while on duty fell below the standards of behavior an employer has a right to expect from an employee. (Id.) The Board concluded that Claimant was terminated due to willful misconduct, and, therefore, Claimant was ineligible for benefits under Section 402(e) of the Law. (Id.) Claimant now petitions this Court for review of the Board's order.

On appeal,² we initially note that Claimant has not included a statement of questions presented in her brief. Nevertheless, Claimant essentially argues that (1) the Board's findings of fact are not supported by substantial evidence, and (2) the Board erred in concluding that Claimant's conduct rose to the level of willful misconduct under Section 402(e) of the Law.

First, we will address whether the Board's findings of fact are supported by substantial evidence. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp.Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon...