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Elina Umedman v. Unemployment Compensation Board of Review

September 13, 2012


The opinion of the court was delivered by: Anne E. Covey, Judge

Submitted: August 24, 2012



Elina Umedman (Umedman) petitions for review of the Unemployment Compensation Board of Review's (UCBR) January 20, 2012 order reversing the Referee's order, thereby denying Umedman unemployment compensation (UC) benefits. There are essentially four issues for this Court's review: (1) whether the UCBR's decision was supported by substantial evidence; (2) whether the UCBR erred in failing to consider the City Health Department's unwritten "closure prevention policy;" (3) whether the two month delay between the incident and Umedman's discharge bars a holding of willful misconduct; and (4) whether the UCBR violated Umedman's constitutional rights. We affirm.

Umedman was employed by New Hope Adult Day Care, LLC (Employer) in Philadelphia, as a social director from August 1, 2005 through May 4, 2011. Umedman also owned 25% of Employer's stock. Employer selected Umedman to become certified in Food Establishment Personnel Food Safety in order to satisfy requirements of the City of Philadelphia's (City), Department of Public Health (Health Department) and to be able to serve food to its clients. The Food Establishment Personnel Food Safety Certificate (Certificate) Umedman received reflects, on its face: "This certification may be revoked upon finding that the certified holder has not complied with the obligation or applicable regulations of Title 6 §6-301 of the Philadelphia Health Code [Philadelphia Code]." Notes of Testimony, August 22, 2011 (N.T.) Emp. Ex. 1. It also clearly states: "This Certificate is Non-transferable," and "This Certificate MUST be publically displayed." N.T. Emp. Ex.

1. The certificate was displayed at Employer's premises, along with a food preparation license (License) issued to Employer by the City's Department of Licenses and Inspections. The License specifically states: "DISPLAY PROMINENTLY" and "THIS LICENSE IS GRANTED TO THE PERSON AND LOCATION FOR THE PURPOSE STATED ABOVE. IT IS SUBJECT TO IMMEDIATE CANCELLATION BY THIS DEPARTMENT FOR VIOLATIONS OF CITY ORDINANCES OR REGULATIONS. INQUIRIES 311 (215-686-8686)." N.T. Cl. Ex. 1.

On February 23, 2011, during Umedman's shift, Employer's Program Director, Lyudmila Gliot (Gliot),*fn1 could not locate Umedman on the premises for a period of several hours. Gliot was told by other employees that Umedman was at the Somerton Deli (Deli) across the street. Gliot found Umedman at the Deli, and asked her what she was doing there when she was supposed to be working. Umedman explained that she had received a call from the Deli owner who asked her to bring her Certificate to him, because the health inspector was at the premises, and the Deli's license was expired. Umedman did not immediately return to Employer's premises. Employer initiated formal action against Umedman as a result of her conduct on February 23, 2011. No harm came to Employer as a result of Umedman's actions on February 23, 2011. Following an investigation, corporate meetings and votes, Umedman was discharged on May 4, 2011, due to gross misconduct consisting of inappropriate and unethical actions.

Umedman filed for UC benefits. The Philadelphia UC Service Center denied Umedman benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn2 She appealed, and a hearing was scheduled. On July 20, 2011, Umedman's counsel requested subpoenas for Gliot and Olga Finkelberg (Finkelberg) to attend the hearing. The request was denied. Following a hearing, at which Umedman and Gliot testified, the Referee reversed the UC Service Center's determination and granted Umedman UC benefits. Employer appealed to the UCBR. By decision and order issued January 20, 2012, the UCBR reversed the Referee's order, thereby denying Umedman benefits pursuant to Section 402(e) of the Law. Umedman appealed to this Court.*fn3

Umedman first argues that the UCBR's finding of willful misconduct was not supported by substantial evidence. We disagree. Under Section 402(e) of the Law, an employee is not eligible for benefits if "his unemployment is due to his discharge . . . for willful misconduct connected with his work . . . ."

Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which 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.

Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064, 1069 n.7 (Pa. Cmwlth. 2009). "Whether a claimant's conduct constituted willful misconduct is a question of law subject to this Court's review. Further, the employer bears the burden of establishing that the claimant was discharged for willful misconduct on the job." Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009) (citation omitted). "Once the employer meets its burden, a claimant may then prove he had good cause for his actions. Good cause is established where the action of the employee is justifiable or reasonable under the circumstances. . . ." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (citation and quotation marks omitted).

At the hearing, Gliot testified that although she was not sure whether Employer had a policy about usage of the Certificate, Umedman's actions on February 23, 2011 harmed Employer. Specifically, Gliot stated that removal of the Certificate that is non-transferable and must be publically displayed, placed Employer's certification at risk. In addition, Employer's impeccable reputation would be harmed by having its Certificate tied to an inspection of a premises found in poor condition, and by deceiving a health inspector who also inspects Employer's premises. Finally, if the incident became known to the City, its License would be revoked, and it would have to close down.

Umedman testified that the Certificate represents merely that she was trained in food safety preparation and could teach and oversee others in the process. She stated that it is not specific to any premises, so she could take it and use it at any premises. She further testified that, during her food safety training, she learned that a restaurant could use a certificate from any other restaurant in order to pass inspection.

Umedman maintained that she was merely helping the Deli by using her Certificate for its inspection. Umedman confirmed that she did not work for the Deli, which the health inspector knew because he recognized her from inspections of Employer's premises, and thanked her for her effort to save the Deli. Umedman acknowledged that she did not know the Deli's food safety status when she presented her Certificate. She testified that she did not make any misrepresentations to the inspector. She stated that ...

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