O.A. Ubom v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Offiong A. Ubom, :
Petitioner :
:
v. : No. 1236 C.D. 2021
: Submitted: April 22, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: June 10, 2022
Offiong A. Ubom (Claimant) petitions for review, pro se, of the October 4, 2021
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to deny Claimant unemployment compensation (UC) benefits.
The Board concluded that Claimant was ineligible for UC benefits because he
committed disqualifying willful misconduct under Section 402(e) of the
Unemployment Compensation Law (Law).1 We affirm the Board’s Order.
Background
Claimant worked as a slitter/bailer for Pratt Allentown Corrugating LLC
(Employer) from September 17, 2018 through March 19, 2021. Bd.’s Finding of Fact
(F.F.) No. 1; Record (R.) Item No. 1. In the early morning hours of March 20, 2021,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for UC benefits for any week
in which his unemployment is due to his discharge from work for willful misconduct. 43 P.S. §
802(e).
Claimant slept at work during his scheduled shift without authority to do so. Bd.’s F.F.
No. 2; Notes of Testimony (N.T.), 7/8/21, at 6-7.2 Later that day, Employer discharged
Claimant for sleeping on the job. Bd.’s F.F. No. 3; N.T., 7/8/21, at 6. On his Internet
Initial Claims form, Claimant stated that he was discharged for sleeping on the job, he
was aware that Employer had a rule prohibiting sleeping on the job, he violated the
rule, and he knew that the rule was uniformly enforced. Bd.’s F.F. No. 4; R. Item No.
2.
Claimant filed a claim for UC benefits, which the local UC Service Center
granted. The Service Center determined, based on its review of the claim record, that
Employer discharged Claimant for sleeping on the job. R. Item No. 4. The Service
Center found, however, that Claimant had good cause for sleeping on the job because
Claimant stated that his job required two people, his co-worker quit one month earlier,
and he “had to work 12 hours every[]day for more than [one] month with no
replacement.” Id. Thus, the Service Center determined that Claimant was not
ineligible for UC benefits under Section 402(e) of the Law. Id.
Employer appealed to the Referee, who held a telephone hearing on July 8, 2021.
Claimant appeared pro se and testified on his own behalf. Employer presented the
testimony of its Human Resources Manager, Estelle Gehringer.
Ms. Gehringer testified that she terminated Claimant’s employment on March
20, 2021 for sleeping on the job because Claimant “was found sleeping on the forklift[]
while the forklift was in the middle of the production area . . . in the wee hours of the
morning.” N.T., 7/8/21, at 6. Ms. Gehringer explained that “an employee found
2
The Board found that Claimant’s sleeping incident occurred on March 19, 2021. Bd.’s F.F.
No. 2. However, the record shows that while Claimant’s overnight shift began on March 19, 2021,
the sleeping incident actually occurred in the early morning hours of March 20, 2021. N.T., 7/8/21,
at 6-7, 12; see R. Item No. 7 (stating that the sleeping incident occurred around 1:45 a.m.).
2
[Claimant] sleeping in the forklift, took [a] picture, [and] contacted his supervisor.” Id.
Immediately after learning of the sleeping incident, the supervisor sent Claimant home.
Ms. Gehringer testified:
[L]ater, I received a phone call from the plant letting me know that
[Claimant] had come in on his own, and began working, although he was
instructed not to. So[] they pulled him off the [production] floor, and at
that time I was able to speak with him and let him know that his
assignment had been ended for sleeping on the job.
Id. at 7.
Ms. Gehringer then explained the reasons for Claimant’s discharge as follows:
I need you to understand that this [picture was taken] in the middle of our
production floor. . . . [Claimant’s] foot was near the gas pedal. The other
foot was toward[] the exit and entering bay . . . . His head was resting on
. . . the head rest of [the] vehicle. Regardless, if there was jam up, or . . .
if . . . [Claimant] accidentally would have hit [the] gas pedal . . . , he could
have caused not only tragedy to possibly machinery, but if someone would
have been near or around, he could have hurt and/or killed somebody. We
have a policy here at [Employer] that states that you are not allowed to
sleep on the job. If [Claimant] would have walked to the breakroom, it
still would have been unacceptable to sleep in the breakroom, but in th[is]
case where he was sleeping, that could have been a very horrible situation,
severely unsafe.
Id. at 10; see also R. Item No. 5 (wherein Employer stated that Claimant’s sleeping on
a forklift on the production floor was a “[m]ajor safety infraction”).
Ms. Gehringer acknowledged that Claimant had previously sent a text message
to his supervisor, though she did not specify what the message stated. N.T., 7/8/21, at
10-11.3 However, Ms. Gehringer testified that she often “had to counsel [Claimant]
3
Claimant submitted into the record two email messages that he apparently sent to Ms.
Gehringer on June 18, 2021 and June 28, 2021. See R. Item No. 9; N.T., 7/8/21, at 4-5. The first
email appears to be a screenshot of a text message Claimant sent to Ms. Gehringer on January 4,
(Footnote continued on next page…)
3
because when he comes into work, . . . he will punch in . . . hours before his scheduled
start time, he’ll stay in the breakroom, he’ll take extended breaks” and that “he’s been
counseled numerous times about doing that” during his shifts. Id. at 11.
Claimant testified that he slept on the job on the day in question “because he was
tired.” Id. at 8. Claimant explained:
I think it was around December or January, . . . I was working by myself
there. I was working 12 hours. . . . [E]verybody was working 12 hours
because we have two machine[s] . . . . And I didn’t work like two shifts,
three in the morning till three in the afternoon, three in the afternoon till
three in the morning. So . . . I told [my supervisor] he cannot make . . . 12
hours [sic] for everybody. He said we should stay four hours to help each
other. So[] we were working 12 hours. . . . I was working by myself for
so long, which I always adapted to . . . and I was working by myself and
I was tired.
Id. Claimant testified that he worked to the best of his ability and never knowingly
violated a work rule. Id. Claimant then testified: “I sent them [a message] that I was
working by myself and . . . the [p]lant [m]anager told me that he was going to send
somebody . . . [but] they did not send nobody [sic], that’s why I explained that they
should find me somebody that would be helping me work.” Id. at 9.
Claimant disagreed with Ms. Gehringer’s testimony regarding the circumstances
of the sleeping incident. Claimant testified that he “did not sleep in the middle of the
2021; the second email contains the text of the January 4, 2021 text message. The January 4, 2021
text message stated:
Good evening Tyler [(Claimant’s supervisor)], This is [Claimant]. Please, I can’t be
working by myself and running the two lines alone. It’s stressing me up. Lidio came
by [at] 7 am and left by 3 pm. We should follow the schedule because I can manage
for 2 hours when Lidio leaves by 9 pm until Steve comes. It can’t continue like this.
Don’t count the helper because he sweeps and I don’t need a sweeper now.
R. Item No. 9.
4
production” floor and he “was not really fully sleeping.” Id. at 11, 13. Rather, he
testified that he was resting his head on a packing crate and was “waiting for . . . the
maintenance man to come and load” the bailer machine. Id. at 11, 13. Claimant
testified that while he was seated inside the forklift, “[t]he forklift [engine] was off,”
“the hand brake was on,” and “there was no way the forklift could have moved.” Id.
at 12-13. He further testified: “[E]ven if I wanted to sleep, I would not . . . sleep in an
open area, I would [go] to my car and sleep.” Id. at 13.
Following the hearing, the Referee reversed the Service Center’s decision. The
Referee found, based on Employer’s credible testimony, that Claimant was discharged
for sleeping on the job, which was a disregard of the standards of behavior that
Employer had a right to expect of its employees and a violation of Employer’s policy.
The Referee explained his reasoning as follows:
Claimant admitted [that] he slept on the job and cited his belief [that his]
workload caused by a co-worker leaving as the reason for his conduct.
. . . Employer credibly testified [that] Claimant slept on the job on March
[20], 2021. . . . Employer further testified that Claimant was captured [in
a] photo sleeping. . . . Claimant did not contest sleeping but contested the
location and nature of the sleeping episode.
Here, . . . Claimant admitted [that] he slept at work and was discharged
for sleeping at work in his documentary submissions. . . . Employer
credibly testified [that] Claimant slept at work[,] which was below . . .
Employer’s standards and violated a [work] rule.
Based on the testimony of . . . Claimant, . . . Employer, and the competent
evidence contained in the record, the Referee finds that . . . Claimant’s
conduct fell below the standards of behavior that [E]mployer reasonably
expected from Claimant[] and violated [Employer’s] sleep rule. . . .
Ref.’s Order, 7/12/21, at 2-3 (emphasis added). The Referee also found that Claimant
did not “establish[] good cause or justification” for sleeping on the job. Id. at 3.
5
Therefore, the Referee concluded that Claimant was ineligible for UC benefits under
Section 402(e) of the Law. Id.
Claimant appealed to the Board, which adopted the Referee’s findings of fact
and conclusions of law in their entirety and affirmed the Referee’s decision. Bd.’s
Order, 10/4/21, at 1.4 Claimant now petitions this Court for review.5
Analysis
Our courts have defined “willful misconduct” as: (a) a wanton or willful
disregard of the employer’s interests; (b) a deliberate violation of the employer’s rules;
(c) a disregard for the standards of behavior that the employer rightfully can expect of
its employees; or (d) negligence indicating an intentional disregard of the employer’s
interests or of the employee’s duties or obligations. Grieb v. Unemployment Comp.
Bd. of Rev., 827 A.2d 422, 425 (Pa. 2003). The employer bears the burden of proving
that the claimant was discharged for willful misconduct. Walsh v. Unemployment
Comp. Bd. of Rev., 943 A.2d 363, 369 (Pa. Cmwlth. 2008).
It is well settled that sleeping on the job is a disregard of the standards of
behavior that an employer has the right to expect of its employees. See Kelley v.
Unemployment Comp. Bd. of Rev., 429 A.2d 1227, 1228-29 (Pa. Cmwlth. 1981); see
also Biggs v. Unemployment Comp. Bd. of Rev., 443 A.2d 1204, 1205 (Pa. Cmwlth.
1982) (stating that sleeping on the job is “prima facie an act of willful misconduct”).
Once the employer proves that the claimant intentionally slept on the job, the burden
shifts to the claimant “to prove that, under the facts of the particular case, sleeping on
4
The Board did not issue its own findings or conclusions or further explain its ruling in its
Order.
5
Our scope of review is limited to determining whether constitutional rights were violated,
an error of law was committed, or the necessary factual findings are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
6
the job does not constitute willful misconduct.” Ragland v. Unemployment Comp. Bd.
of Rev., 428 A.2d 1019, 1020 (Pa. Cmwlth. 1981). “Only if there is justifiable or
reasonable cause under the circumstances [can] the willful misconduct taint be
purged.” Biggs, 443 A.2d at 1205.
On appeal, Claimant does not challenge the Board’s finding that Employer
discharged him for intentionally sleeping on the job, which was a disregard of
Employer’s interests and violated Employer’s work rule. Claimant only challenges the
Board’s finding that he lacked good cause for sleeping on the job. See Unemployment
Comp. Bd. of Rev. v. Simone, 355 A.2d 614, 616 (Pa. Cmwlth. 1976) (“When an
employer proves that an employe[e] slept on the job, or an employe[e] admits that he
slept on the job, [a] prima facie case of willful misconduct has been set forth.”).
Specifically, Claimant asserts that he slept on the job because he had been working 12-
hour shifts and covering two lines of production for three months alone, when the job
should have been covered by two people. Pet. for Rev. at 1. Claimant also asserts that
two months before the sleeping incident, he complained about his workload via text
messages to his supervisor and Ms. Gehringer and requested help, but they ignored his
requests. Id.; see Claimant’s Br. at 3-4.
In support of his position, Claimant cites, without any explanation or discussion,
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1
A.3d 965 (Pa. Cmwlth. 2010). In that case, the claimant was discharged for sleeping
on the job, which was a violation of her employer’s work rule. Id. at 967. The claimant
did not deny sleeping, but she testified that she was diagnosed with sleep apnea, which
caused her to fall asleep unintentionally. Id. She also testified that she had long periods
at work with nothing to do and had asked her employer to give her additional work so
she would not fall asleep, but the employer did so only two times. Id. On appeal, this
7
Court concluded that the employer failed to meet its initial burden of proving that the
claimant deliberately violated the employer’s work rule. Id. at 969. We explained:
The record reveals that [the c]laimant’s position involved sitting in the
money room for hours with nothing to do and that she would get drowsy.
[The c]laimant recognized the problem and attempted to address it by
informing [her e]mployer that she was tiring and asking for additional
work to keep her busy and alert. However, with the exception of two small
assignments, [the e]mployer did not provide her with additional work or
take any other action to remedy the situation. Although [the c]laimant fell
asleep during her shift, [she] attempted to resolve her drowsiness problem
in a responsible manner that protected the interests of [the e]mployer.
Considering [the c]laimant’s actions in light of all of the circumstances of
this case, we conclude that [the e]mployer failed to prove that [the
c]laimant deliberately or intentionally violated its work rules by sleeping
during her shift.
Id. (internal citations omitted).
We conclude that Claimant’s reliance on Philadelphia Parking is misplaced.
The employer in that case attempted to show that the claimant deliberately violated a
work rule by sleeping while on duty, while the claimant maintained that she fell asleep
unintentionally. As a result, the employer did not rely on cases in which sleeping on
the job, in and of itself, constituted prima facie evidence of willful misconduct, as is
the case here. Because we concluded that the claimant’s conduct was not deliberate
and, thus, not willful misconduct, we did not engage in a good cause analysis to
evaluate whether her actions were reasonable or justifiable under the circumstances.
Consequently, Philadelphia Parking is inapposite here, because the only issue before
us is whether Claimant had good cause for sleeping during his shift. Accord Staudt v.
8
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 768 C.D. 2014, filed Jan. 30,
2015) (distinguishing Philadelphia Parking on a similar basis).6
In his appellate brief, Claimant asserts that he “was faced with health hazards
caused at the work place, [he] did not have family time, fati[g]ue set in, [he had] no
time to recuperate,” he suffered from “tiredness,” and he “was faced with
environmental hazards as well as mental health [issues] like anxiety and [post-
traumatic stress disorder].” Claimant’s Br. at 6. At the hearing, however, Claimant
presented no evidence to support these assertions; rather, to establish good cause,
Claimant only presented evidence that he was working 12-hour shifts and had
previously asked his supervisor for assistance. See N.T., 7/8/21, at 9; R. Item No. 9.
Despite his claim that he was overextended by having to work 12-hour shifts, however,
Claimant acknowledged at the hearing that “everybody was working 12 hours” at that
time. N.T., 7/8/21, at 8. Claimant also attempted to minimize his conduct, asserting
that: (1) he slept while he was waiting for a maintenance worker to get the bailer
machine working again; (2) he was not asleep in the middle of the production floor; (3)
he “was not really fully sleeping” inside the forklift; and (4) he could not have harmed
anyone because “there was no way the forklift could have moved.” Id. at 11-13.
However, the Board credited Employer’s testimony to the contrary, and we will not
disturb those findings on appeal. See Oliver v. Unemployment Comp. Bd. of Rev., 5
A.3d 432, 438 (Pa. Cmwlth. 2010) (stating that the Board’s findings are conclusive on
appeal when the record, as a whole, contains substantial evidence to support those
findings).
6
Unreported decisions of this Court issued after January 15, 2008, may be cited for their
persuasive value. Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210
Pa. Code § 69.414(a).
9
In essence, Claimant contends that he had good cause for sleeping at work
because he was tired from working 12-hour shifts, he previously requested help, and
he was waiting for a maintenance worker to arrive. However, the Board concluded,
based on the credible evidence of record, that none of Claimant’s reasons constituted
good cause for sleeping inside a forklift in the middle of the production floor during
his shift. See Bd.’s Order, 10/4/21, at 1; Ref.’s Order, 7/12/21, at 3; see also Simone,
355 A.2d at 616 (“As a matter of public policy, an employer has a right to expect that
his employe[e]s will not go to sleep when they have a short period of forced idleness.
Absent proof that the employer either permits or tolerates such sleeping, . . . sleeping
during a period of forced idleness constitutes willful misconduct.”) (emphasis added).
Furthermore, Ms. Gehringer credibly testified that Claimant’s act of sleeping inside a
forklift on the production floor created a potentially hazardous situation at the work
site. N.T., 7/8/21, at 10. There is also no evidence that Claimant ever informed
Employer that he was tired or having difficulty staying awake that night.7 We agree
with the Board that, under these circumstances, Claimant did not act reasonably or
justifiably in sleeping during his shift.
Conclusion
Accordingly, because we conclude that Claimant failed to establish good cause
for sleeping on the job, we affirm the Board’s Order.
____________________________
ELLEN CEISLER, Judge
7
In fact, in the January 4, 2021 text message Claimant sent to his supervisor, Claimant did
not mention that he was experiencing fatigue or difficulty staying awake during work hours; he only
stated the workload was causing him stress. See R. Item No. 9.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Offiong A. Ubom, :
Petitioner :
:
v. : No. 1236 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 10th day of June, 2022, the Order of the Unemployment
Compensation Board of Review, dated October 4, 2021, is hereby AFFIRMED.
__________________________
ELLEN CEISLER, Judge