April 25, 2011
DIANE CHAPMAN, PETITIONER
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW,
The opinion of the court was delivered by: James R. Kelley, Senior Judge
Submitted: January 14, 2011
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. 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).*fn1 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*fn2 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 co-worker 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.*fn3
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*fn4 : (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, 309 A.2d 165, 168-169 (Pa. Cmwlth. 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, 542 A.2d 207 (Pa. Cmwlth. 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*fn5 , 19-20.*fn6 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 fact that there is evidence cited by Claimant in her appellate brief which contradicts the Board's determinations with respect to the violation of Employer's policy, and Claimant's purported good cause for the violation, this does not compel the conclusion that the Board's determinations should be reversed. See, e.g., Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-1109 (Pa. Cmwlth. 1994) ("[T]he fact that Employer may have produced witnesses who gave a different version of events, or that Employer might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's Findings.").
In short, there is ample substantial competent evidence demonstrating 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. In short, we will not accede to Claimant's request to revisit the Board's credibility determinations in this regard, and the Board did not err as a matter of law in determining that Claimant was ineligible for benefits pursuant to Section 402(e) of the Law by violating Employer's policy. See, e.g., Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) ("The Board correctly argues that Claimant's conduct constituted willful misconduct because 'it is contrary to reasonable standards of behavior for an employee to use company property for personal activities without authorization, even absent a rule prohibiting such conduct.' Using computers for personal, non- work purposes after being instructed not to do so amounts to willful misconduct, and a lack of prior warnings 'is not a defense in willful misconduct cases' regarding admitted misconduct. The Court is compelled to agree with the Board. Claimant accessed the internet during working hours rather than during her personal breaks or lunch. Moreover, Claimant was aware of the policy prohibiting use of the internet for personal purposes except for designated times and requiring her to seek out more work from her supervisor if she was short on work. The Board therefore properly determined that Claimant violated a clearly established policy and that her behavior constituted willful misconduct. Accordingly, benefits were properly denied, and the order of the Board is affirmed.") (citations omitted).*fn7 *fn8
Claimant next contends that the Board erred in relying on Employer's illegal search of her Facebook page. More specifically, Claimant asserts that Employer's access to her Facebook page violated her federal constitutional rights. As a result, Claimant submits that the Board erred in relying upon the purported contents of her Facebook pages in determining that she committed willful misconduct under Section 402(e) of the Law.
However, Claimant fails to set forth in her brief where this allegation of error was raised or preserved for our review as required by Pa.R.A.P. 2117(c). In addition, our review of the certified record demonstrates that this allegation of error was not raised either before the Referee or before the Board. As a result, this allegation of error has been waived for purposes of appeal, and will not be addressed for the first time by this Court in this appeal. Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a); Pa.R.A.P. 1551(a); Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981); Schneider .v Unemployment Compensation Board of Review, 523 A.2d 1202 (Pa. Cmwlth. 1987).*fn9
Finally, Claimant contends that the Board erred in overriding the credibility determinations of the Referee. Relying on Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), Claimant argues that the Board exceeded its authority in making credibility determinations and findings of fact contrary to those of the Referee based upon undisputed facts in this case. This argument lacks merit.
In Treon, the Board rejected a referee's finding that was based on the consistent, uncontradicted testimony of one witness. Treon, 499 Pa. at 458-459, 453 A.2d at 961. The Pennsylvania Supreme Court held the Board could not disregard a referee's findings of fact based on consistent, uncontradicted testimony without stating its reasons for doing so. Id. at 461, 453 A.2d at 962-963.
However, the court explicitly limited its holding, noting "[i]n this case ... we are concerned not with findings made by the Board, but with findings made by the referee which the Board failed to adopt." Id. at 460, 453 A.2d at 962. Further, "[t]he Board certainly had the right to disbelieve [the claimant's] testimony, even though that testimony was uncontradicted." Id. Thus, our Supreme Court found error in the Board's unexplained failure to adopt a crucial finding of the referee that was based on uncontradicted evidence.
Claimant mistakenly relies on Treon for the proposition that the Board must defer to the Referee's findings. Claimant fails to recognize that where factual matters are in dispute, and both sides offer testimony, the Board is the ultimate finder of fact with power to substitute its judgment for that of its referees. Peak, 509 Pa. at 270, 501 A.2d at 1385. Indeed, as the Supreme Court has previously noted:
Nevertheless, appellant claims, even if the Board remains free to reverse its referee's credibility determinations when the evidence is conflicting, its decision here cannot stand because Treon also requires the Board to set forth its reasons for doing so whenever it departs from a referee's findings of fact. To the extent Treon does impose such a requirement, its purpose is to ensure an adequate basis for judicial review. On this record, the Board's reason for reversing the referee is plain enough. Unlike the referee, it chose to believe the employer, not the employee. It disagreed with the referee's factual resolution of conflicting evidence, a power it has under Section 504 of the [Law.*fn10 ]
We are not inclined to require a busy agency, whose swift disposition of the many cases before it is vital to the subsistence of our fellow citizens who suffer lack of work, to engage in acts of supererogation. The Board's reasons for reversing the referee are plain enough on this record and permit adequate judicial review. We will not impose on it a requirement of redundant explanation....
Id. at 273-274, 501 A.2d at 1387 (citations omitted). See also M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review, 603 A.2d 271, 275 (Pa. Cmwlth. 1992) ("Thus, where there is conflicting evidence, the Board is free to reject the findings of the referee where it believes one side or the other, and our review is limited to a determination of whether the decision is in violation of constitutional rights, or is not in accordance with the law or is not supported by substantial evidence. It is with this scope of review in mind that we consider [Employer's] contentions on appeal.").
In this case, both Claimant and Employer's Human Resource Administrator and Director of Nursing testified and submitted evidence before the Referee. There were conflicting factual issues relating to the existence of a work policy prohibiting the use of cell phones while on duty, Claimant's awareness of such a policy, and Claimant's violation of the policy. Given the conflicting testimony, the Board properly exercised its role as fact-finder and, as outlined above, it chose to credit the testimony of Employer's witnesses over that of the Claimant. See Board Decision at 1-3. Moreover, its findings are conclusive in this appeal as they are supported by substantial evidence. Peak; Taylor. In short, the Board's reasons for reversing the Referee are plain enough in the certified record of this case and permit adequate judicial review, Peak, and Claimant's allegation of error in this regard is patently without merit.
Accordingly, the order of the Board is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Diane Chapman, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : Respondent :
No. 1583 C.D. 2010
AND NOW, this 25th day of April, 2011, the order of the Unemployment Compensation Board of Review, dated July 27, 2010 at No. B- 503497, is AFFIRMED.
JAMES R. KELLEY, Senior Judge