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Yusef Saleem v. Unemployment Compensation Board of Review

January 27, 2012

YUSEF SALEEM, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: September 2, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

Yusef Saleem (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which affirmed an Unemployment Compensation Referee‟s (Referee) determination finding Claimant ineligible for benefits because his actions constituted disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law),*fn1 42 P.S. § 802(e). Claimant argues, inter alia, that the Board erred in finding him ineligible for benefits because: (1) the reason given for Claimant‟s discharge was not the reason cited by the Referee and Board in finding him ineligible for benefits; (2) Children‟s Crisis Treatment Center (Employer) did not meet its burden of proving that Claimant engaged in willful misconduct; and (3) even if Employer established a rule violation, Claimant had good cause for his actions. Additionally, Claimant asserts that he was denied a fair and impartial hearing because Employer‟s representative at the hearing was the Referee‟s former supervisor and the Referee reflected bias towards Employer by improperly assisting Employer in satisfying its burden of proof.

Claimant worked for Employer in three positions, the most relevant being his work as a school clinician from February 12, 2003 until June 3, 2010. (Referee‟s Decision, Findings of Fact (FOF) ¶ 1.) Employer provides the School District of Philadelphia (District) therapeutic and intervention services for troubled students who are enrolled in the District. (FOF ¶ 2.) Claimant worked with one such student (Student) who was twelve years old, six feet tall, who had been subject to sexual trauma or abuse, and who attended school at General John F. Reynolds Elementary School (School). (FOF ¶¶ 3, 11-12.) On June 2, 2010, Student became upset with Claimant and began running down the hallway, "banging on door windows with his fist, kicking doors, and screaming obscenities." (FOF ¶ 13.) "When [Claimant] approached [Student], [Student] struck [Claimant] with his elbow," and "then ran into the bathroom." (FOF ¶¶ 14-15.) "[Claimant] followed [Student] into the bathroom" and did not request help "before entering the bathroom." (FOF ¶¶ 16-17.) Student then pushed Claimant into the door jamb of the bathroom door, ran past Claimant, and ran down to the School Principal‟s (Principal) office, whom he told that Claimant had punched him twice in the stomach. (FOF ¶¶ 18-19.)

After Student ran out of the bathroom, Claimant began writing an incident report regarding what occurred. (FOF ¶ 20.) While Claimant was completing his report, Employer‟s lead clinician at the School, Patricia Palermo, asked Claimant if he had followed Employer‟s protocol, to which Claimant responded that he entered the bathroom because he was concerned that Student "might hurt himself or someone else." (FOF ¶¶ 21-22.) Ms. Palermo told Claimant that he should contact his supervisor, Leslie Becton, and that he should not file a police report until after speaking with Mrs. Becton. (FOF ¶ 26.) Thereafter, Principal called Claimant to her office, where Student and two police officers were present. (FOF ¶ 23.) Claimant showed the police officers the scrape on his arm and cut on his hand that he sustained when Student pushed him, and the police officers arrested Student. (FOF ¶ 24.) The police officers "instructed [Claimant] to report to the Central Detectives Division to speak with a detective," which Claimant did and, while there, Claimant requested that charges be filed against Student. (FOF ¶¶ 24, 25.) At around 4:00 p.m. that afternoon, Claimant spoke with Mrs. Becton and "informed her that he had filed [a] police report to protect himself." (FOF ¶ 27.) Mrs. Becton advised Claimant that Principal did not want him to return to the School "because of the conflict between [Claimant] and the students at that point." (FOF ¶ 28.) Employer told Claimant to complete his paperwork and case notes, which he completed on June 3, 2010. (FOF ¶ 29.) "On June 18, 2010, [Employer] informed [Claimant] that he was discharged for reason of unprofessional conduct because he filed criminal charges against" Student. (FOF ¶ 30.)

Claimant applied for benefits, stating that he was discharged for "unprofessional conduct" because he filed criminal charges against Student, and Employer did not submit an Employer‟s Separation Questionnaire. (Internet Initial Claims at 2-3, R. Item 2.) The Philadelphia Service Center (Service Center) found Claimant eligible for benefits because there was insufficient evidence to show whether Claimant engaged in any disqualifying conduct under Section 402(e). (Notice of Determination, September 15, 2010, R. Item 3.) Employer appealed, stating "[C]laimant worked . . . as an independent contractor" and "[C]laimant was not an employee of this" Employer. (Employer‟s Petition for Appeal from Determination, September 30, 2010, R. Item 4.) The matter was assigned to Referee, who held a hearing at which Claimant, who was pro se, and three Employer witnesses, Ms. Palermo, Mrs. Becton, and Renee Griffin, a Human Resources representative, testified. At the beginning of the hearing, Referee informed the parties that Employer‟s representative previously had worked for the Department of Labor and Industry and had been Referee‟s supervisor. (Referee Hr‟g Tr. at 2-3.) Referee asked whether Claimant objected to his considering Employer‟s appeal, to which Claimant responded that he did not object. (Referee Hr‟g Tr. at 2-3.)

Mrs. Becton testified that Claimant was discharged because of the June 2, 2010, incident. She stated that "after the incident was over, [Claimant] was injured and he, instead of contacting myself, which he was informed to contact, he filed a police report" and that "[t]he [P]rincipal . . . of the [S]chool that I provide services to, she didn‟t feel it . . . ma[d]e any appropriate sense for [Claimant] to return back to the [S]chool to provide therapeutic services" "[b]ased on the filing of the police report." (Referee Hr‟g Tr. at 10, 16-17.) However, she acknowledged that Employer does not have a "particular policy" with regard to filing a police report against a student. (Referee Hr‟g Tr. at 15.) Mrs. Becton described, generally, Employer‟s policies on how to deal with student confrontations, which require that the staff member talk to the student in calm voices so as not to "escalate" a student‟s behavior any further, the staff member should try not to approach the student or follow the student into a closed off area so that the student feels he could not escape, and should handle the student as required by their treatment plan. (Referee Hr‟g Tr. at 11.) Mrs. Becton stated that, if a student is destroying property, the staff member should try to get the student to Employer‟s therapy room with the assistance of another staff member so that the student can calm down, which she acknowledged was some distance away from where the incident occurred. (Referee Hr‟g Tr. at 13, 26.) She stated that, if a student is in danger of harming himself or someone else, there are approved physical restraints that staff members learn. (Referee Hr‟g Tr. at 13.) Mrs. Becton indicated that Claimant would be aware of these policies through his training with Employer, particularly the approved physical restraints. (Referee Hr‟g Tr. at 14.) However, she indicated that there had not been any discussion on what an employee should do if a student becomes "assaultive." (Referee Hr‟g Tr. at 21.) Employer‟s representative asked Mrs. Beacon, "You testified also that one of the reasons for [Claimant] -- could [Claimant] have been terminated for this violation in and of itself?," to which Mrs. Becton responded, "Yes." (Referee Hr‟g Tr. at 14-15.)

Ms. Griffin testified as to the specifics of Claimant‟s employment and that, to her knowledge, Claimant would have been discharged even if Principal had not requested Claimant‟s removal from the School. (Referee Hr‟g Tr. at 27.) However, she acknowledged that she was "not actually involved in the actual process" and that the person in charge told her that Claimant was discharged "because he had an incident in the [S]chool with a child." (Referee Hr‟g Tr. at 27.) Ms. Griffin stated that the only training documents she had in Claimant‟s file were those that were associated with the approved physical restraint techniques. (Referee Hr‟g Tr. at 28.) Ms. Griffin also acknowledged that, to her knowledge, there was no documentation regarding what Claimant would have to do if he was injured on the job or prohibiting him from filing a police report against a student. (Referee Hr‟g Tr. at 28-29.)

Ms. Palermo testified that she had not witnessed the event herself, but learned of it from someone else. (Referee Hr‟g Tr. at 31.) She stated that, when she saw Claimant, he was writing his report regarding what happened and he explained to her what happened with Student. (Referee Hr‟g Tr. at 32.) Ms. Palermo indicated that she told him to call Mrs. Becton and that, when she next saw him, Claimant was going to file a police report. (Referee Hr‟g Tr. at 33.) Ms. Palermo testified that she informed Claimant that he should speak with Mrs. Becton before filing the police report, to which Claimant responded that he was "not going to be thrown under the bus." (Referee Hr‟g Tr. at 33.) Ms. Palermo indicated that Claimant and others were informed that no staff member should touch Student because of his past history of sexual abuse. (Referee Hr‟g Tr. at 38.) She acknowledged that Student is frequently involved in aggressive confrontations. (Referee Hr‟g Tr. at 38.)

Claimant testified that he was discharged from his employment for unprofessional conduct in connection with filing the police report against Student and that no other reason was given for his discharge. (Referee Hr‟g Tr. at 39-40.) Claimant described the June 2, 2010, incident, stating that he observed Student in the hallway being confronted by several female students about Student physically touching them and Claimant advised the female students that if Student, or anyone else, touched them in a manner they did not like, they had the option of calling the police. (Referee Hr‟g Tr. at 41.) According to Claimant, Student became enraged and began screaming more obscenities, kicking doors, hitting windows, and Claimant repeatedly asked Student to calm down, indicating that he could call Student‟s mother to take Student home if Student wanted. (Referee Hr‟g Tr. at 41-42.) Claimant stated that he moved toward Student and Student pushed his elbow into Claimant‟s chest. (Referee Hr‟g Tr. at 42.) Claimant testified that Student then starting banging the window to the bathroom door and went into the bathroom. (Referee Hr‟g Tr. at 42.) Claimant explained that, because he was afraid that Student was going to hurt himself or someone else who may have been in the bathroom, he pulled open the bathroom door and, as he was opening the door, Student pushed Claimant into the door jamb and, when Student attempted to push Claimant again, Claimant shifted and pushed Student away. (Referee Hr‟g Tr. at 42.) Claimant stated that Student then left the bathroom and went down to Principal‟s office. (Referee Hr‟g Tr. at 42.) Claimant indicated that, after Student left, another staff member pointed out Claimant‟s scrapes and cuts on his hands and elbows, which he cleaned; he called Student‟s mother; he started filling out an incident report; and he was requested to go to Principal‟s office. (Referee Hr‟g Tr. at 42-43.) Claimant testified that he told Ms. Palermo that, if Principal called the police, he was going to file charges, which is what happened, but Claimant denied that he said anything about being thrown under a bus. (Referee Hr‟g Tr. at 44-45.) Claimant indicated that, when the police officers saw his injuries, they took Student into custody and told Claimant to go to the police station and fill out a report, which Claimant did. (Referee Hr‟g Tr. at 46.) Thereafter, the District Attorney‟s Office contacted Claimant before he was discharged and asked him if he would accept a consent decree for Student, and Claimant indicated that he would. (Referee Hr‟g Tr. at 47.) On cross-examination, Claimant acknowledged that one should not escalate a situation with a student and that following Student to the bathroom might escalate the situation. (Referee Hr‟g Tr. at 49-50.) Claimant stated that he did not call for assistance because there was no other staff person in the area. (Referee Hr‟g Tr. at 50.)

Referee made additional findings of fact pertaining to Employer‟s procedures for handling aggravated students whose behavior becomes highly emotional, disturbed, angry, combative, and who use foul language, destroy property, and exhibit a disregard for authority. (FOF ¶¶ 5-6.) Claimant was aware that, with certain exceptions, Employer did not want a student‟s movements blocked or for the student to feel that there was no escape. (FOF ¶ 7.) Employer‟s staff were to handle students consistent with the students‟ treatment plans and were not to individually approach or confront them. (FOF ¶ 8.) Where students were damaging property, Employer wanted staff to obtain the assistance of another staff member to escort the student to Employer‟s therapy room. (FOF ¶ 9.) Where students are endangering themselves or others, the employee can use the approved physical restraints against the student. (FOF ¶ 10.)

Based on this evidence and his findings of fact, Referee concluded that Claimant did not engage in willful misconduct when he filed the police report because he was instructed to go to the police station, provide statements to a detective, and Claimant has a lawful right to file charges. (Referee Decision at 3.) Referee further held that Employer did not present any testimony "to explain why [Claimant‟s] filing of charges against [Student] was contrary to [Employer‟s] interests or fell below the standard of behavior [E]mployer could expect of [C]laimant." (Referee Decision at 3.) However, Referee explained that:

The employer‟s appeal (SC-4) is non-specific as to the basis for disagreeing with the Department‟s determination, although the employer‟s agent asked that the claimant[‟s] eligibility be considered on the basis that the claimant was an independent contractor. Under the provisions of 34 Pa[.] Code § 101.87, the Referee is constrained to limit his consideration to the issues raised in the Notice of Determination. Thus, the Referee would normally be limited to considering the non-professional conduct as consisting of making the police report. However, where there is no surprise and the parties are prepared and, in ...


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