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Roberts v. Unemployment Compensation Board of Review

June 8, 2009

ALEXANDER W. ROBERTS, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: March 27, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Alexander Roberts (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits for reason of Claimant's willful misconduct. In doing so, the Board reversed the decision of the Referee. Concluding that the Board erred in holding that Claimant did not have good cause to leave his patient unattended for five minutes, we reverse.

Woods Services (Employer) is a private organization that provides educational, residential and vocational services to children and adults with special needs. As a client care worker in Employer's residential facility, Claimant was directly responsible for the care of a "one-to-one" client who was subject to "close reach supervision . at all times due to behavioral concerns." Board's Decision and Order, Finding of Fact No. 2 (F.F. ___). Employer's rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.

On May 9, 2008, Claimant's shift began at 7:00 a.m. When he arrived, Claimant's one-to-one client (Client) expressed the wish to remain in bed and eat breakfast later since he would not be going to school that day. At 8:00 a.m., after checking to make sure that Client's bedrail was properly in place, Claimant went to the kitchen to retrieve Client's breakfast. Employer's residential manager, Shanna Garland, discovered that Client was unattended. After waiting approximately five minutes, Garland learned that Claimant was in the kitchen. Garland suspended Claimant and, several days later, terminated his employment for leaving Client unattended.

Claimant applied for unemployment compensation benefits. In the Employer Questionnaire submitted to the Scranton UC Service Center, Employer stated that Claimant was suspended and terminated for preparing food for himself and leaving Client alone and unsupervised while he did so. The Scranton UC Service Center determined that he was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).*fn1 Claimant appealed, pro se, and a hearing was held before the Referee on July 8, 2008.

At the hearing, Garland testified that she went to Client's room at approximately 8:00 a.m. when it was discovered that Client was unattended. She stated that she waited for Claimant for five minutes. When a floor supervisor informed Garland that Claimant was in the kitchen, Garland directed the supervisor to remain with Client while she went to the kitchen. There, Garland found Claimant preparing food at the grill. She acknowledged, however, that Claimant was not preparing food for himself, as she previously believed, but for Client. Garland demanded an explanation from Claimant, suggesting that he should have requested one of the 19 employees in the building to supervise Client while he went to the kitchen. Garland testified that Claimant knew that Client was not to be left unsupervised while he was awake. Finally, Garland explained that Employer has pantry staff that is responsible for cooking and preparing food and that Claimant should not have been in the kitchen for any reason.

Claimant testified that on the morning of May 9, 2008, Client stated that he had suffered a skin breakdown from sitting in his wheelchair and would not be going to school. Client told him he wanted to eat breakfast later. At 8:00 a.m., Claimant explained that he went to the kitchen to secure breakfast for Client before all of the food was put away. He had covered Client's breakfast with aluminum foil and was "put[ting] it on top of the grill" when Garland found him in the kitchen. Notes of Testimony, 7/8/08, at 7 (N.T. ___).

Claimant testified that the presence of 19 other employees in the building did not matter. None were in his area when he went to get Client's breakfast, and there was no telephone available to call for help. Claimant further explained that the other employees would not have been able to leave their clients, who were preparing for school, in order to supervise Client, who was lying in bed watching television.

Claimant stated that he believed he was permitted to take care of Client's breakfast. Before he did so, Claimant safely secured Client in his bed with the railing in place; Client was not ambulatory. Claimant also testified that Employer routinely directed him and other client care workers to leave their clients unattended while they washed laundry, changed bed linens and did other tasks. Claimant stated that because "most of the time there's no pantry staff" and "there's nobody to fix food for the client," the client care workers routinely retrieve or put away meals for clients. N.T., 7/8/08, at 9. He explained that he and other client care workers had done this many times before and that Employer had never reprimanded them for doing so. Finally, Claimant testified that Client is often awake and unattended when he arrives at 7:00 a.m.

Upon cross-examination, Claimant admitted that there was pantry staff in the kitchen that morning. However, he explained that because there was no phone in the area where he worked, he was not able to contact the kitchen staff. When asked if a member of management had ever told him that it was permissible for Client to be out of close reach supervision, Claimant stated that Garland had previously required him to plant flowers around the building while Client remained unsupervised in his wheelchair "in the door." N.T., 7/8/08, at 10.

The Referee found that Claimant's conduct did not rise to the level of willful misconduct and concluded, therefore, that Claimant was eligible for benefits. Employer appealed, and the Board reversed. The Board found that Claimant had not shown good cause for leaving Client unattended. The Board found it significant that Claimant did not tell his supervisor that he was leaving Client unattended and had not asked a fellow employee to cover for him while he went into the kitchen. The Board found it irrelevant that Client was often awake and unattended when Claimant arrived at 7:00 a.m. because Employer permitted Client to be unattended between 11:00 p.m. to 7:00 a.m., except for checks every 30 minutes. Board's Decision and Order at 2-3. Claimant now petitions this Court to review the Board's order.

On appeal,*fn2 Claimant challenges the Board's findings on several bases. The crux of Claimant's argument is that he showed good cause for ...


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