T. Pierce-Boyce v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Twanda Pierce-Boyce, :
:
Petitioner :
:
v. : No. 725 C.D. 2021
: Submitted: August 19, 2022
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 16, 2022
Twanda Pierce-Boyce (Claimant) petitions for review from an order of
the Unemployment Compensation Board of Review (Board) that reversed the
decision of a referee and denied her unemployment compensation (UC) benefits
under Section 402(e) of the Unemployment Compensation (Law).1 Claimant
contends Employer failed to establish Claimant’s conduct violated a known work
policy. Additionally, Claimant asserts that the Board’s determination is not
supported by substantial evidence. Upon review, we affirm.
1
Act of December 5, 1926, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides, “[a]n employe shall be ineligible for compensation
for any week . . . [i]n which his unemployment is due to [her] discharge . . . from work for willful
misconduct connected with his work . . . .”
Claimant worked as a full-time therapist for Resources for Human
Development (Employer) from July 15, 2019, until her last day of work on August
26, 2020. After her separation from employment, Claimant applied for UC benefits,
which a local service center denied. Claimant appealed, and a referee held a hearing.
At the hearing, the referee heard testimony and received evidence from Claimant,
who proceeded pro se; Employer’s Tax Consultant Representative, Joel Kincaid;
and Employer’s Witness, Sharon Kopyc (Director).
Based on the testimony and evidence presented, the referee determined
that Employer did not meet its burden of proving that Claimant committed willful
misconduct. Thus, the referee concluded that Claimant was eligible for UC benefits.
Employer appealed to the Board.
Based on the record created at the referee’s hearing, the Board found
the following facts. Employer maintains an employee policy that provides for
dismissal of an employee on the grounds of either neglect of the individuals served
by Employer, or a violation of safety standards that may endanger another person.
Claimant was aware of Employer’s policy. On August 21, 2020, Claimant was asked
to transport a resident to a halfway house in Altoona from Employer’s Philadelphia
location. Claimant drove exceedingly fast during her trip, averaging a trip speed of
86 miles per hour and a peak speed of 96 miles per hour. Employer discharged
Claimant for violating its safety rules. Board’s April 19, 2021 Opinion (Board Op.,
4/19/21), Findings of Fact (F.F.) Nos. 1-5.
Although Claimant testified that she was driving with the flow of
traffic, the Board did not find this testimony credible. Board Op. at 2. Claimant
acknowledged that the speed limit was no more than 65 to 70 miles per hour. Id.
Considering Claimant’s average speed of 86 miles per hour, the Board concluded
2
that Claimant’s claims of traveling with the flow of traffic was neither reasonable
nor justified under the circumstances. Id.
The Board also noted that Claimant made several admissions of her
infractions throughout the record. Board Op. at 2.; see Certified Record (C.R.) at
91. For example, on her internet initial claims form, Claimant “disclosed that she
was discharged for driving ‘too fast,’ answered ‘yes’ to whether she violated []
[E]mployer’s rule, and that it was ‘reported through GPS that I was driving too
fast.’” Id.; see C.R. at 16, 19. When asked at the hearing if she contested the report,
Claimant “conceded to its accuracy, stating, ‘I don’t know about the GPS. I wasn’t
aware of the GPS but if that’s what they are recording, I’m not going to battle that
because I don’t know.’” Board Op. at 2; see C.R. at 91.
As for the GPS report, the Board concluded that the GPS report, which
the referee did not admit into evidence,2 did not constitute an assertion prohibited
under the rule against hearsay. C.R. at 91. The Board opined administrative
agencies are not bound by the “best evidence rule,” which would require Employer
to introduce a physical copy of the GPS report. Id. The Board determined Claimant
sufficiently conceded and corroborated the assertions of her excessive speed. Id. at
92.
Based on the evidence as corroborated by Claimant’s admissions, the
Board concluded that Employer met its burden of proving that Claimant deliberately
violated Employer’s policies. C.R. at 92. Thus, the Board reversed the referee’s
determination upon concluding that Claimant was ineligible for benefits under
2
The referee did not admit into the record a report from AZUGA Fleet. The referee noted
in his decision that Employer submitted the document one day before the hearing.
3
Section 402(e) of the Law.3 Claimant’s petition for review to this Court followed.4
Id.
On appeal, Claimant contends that Employer failed to establish the
existence and violation of a known work policy. Claimant contests she was never
made aware of the safety policies in question. She contends her conduct did not rise
to the level of disqualifying willful misconduct. Claimant avers the Board’s findings
are not supported by substantial evidence because Employer failed to provide any
non-hearsay evidence that she violated its policy.
“[W]illful misconduct is defined by the courts as: (1) wanton and
willful disregard of an employer’s interests; (2) deliberate violation of rules; (3)
disregard of the standards of behavior which an employer can rightfully expect from
an employee; or (4) negligence showing an intentional disregard of the employer’s
interests or the employee’s duties and obligations.” Johns v. Unemployment
Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014), (citing
Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 425 (Pa.
2002)).
The employer bears the initial burden of proving that a claimant
engaged in willful misconduct. Johns, 87 A.3d at 1009. A determination of whether
an employee’s actions amount to willful misconduct requires a consideration of “all
of the circumstances, including the reasons for the employee’s noncompliance with
the employer’s policy or directives.” Navickas v. Unemployment Compensation
3
The Board denied Claimant’s request for reconsideration of its decision. C.R. at 96, 99.
4
Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Johns v.
Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014).
4
Board of Review, 787 A.2d 284, 288 (Pa. 2001) (quoting Rebel v. Unemployment
Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998)). “Whether a
claimant’s actions constitute willful misconduct is a question of law fully reviewable
on appeal.” Johns, 87 A.3d at 1010.
Once an employer meets its burden of proving willful misconduct, the
burden shifts to the employee to prove good cause for her actions. Johns, 87 A.3d
at 1010. An employee establishes good cause where her actions are justified or
reasonable under the circumstances. Docherty v. Unemployment Compensation
Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).
Further, in UC cases, the Board is the ultimate fact-finder and is
empowered to resolve all issues of witness credibility, conflicting evidence, and
evidentiary weight. Ductmate Industries, Inc. v. Unemployment Compensation
Board of Review, 949 A.2d at 338, 342 (Pa. Cmwlth. 2008). It is irrelevant whether
the record contains evidence that would support findings other than those made by
the Board; the proper inquiry is whether the evidence supports the findings actually
made. Id. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. Additionally, the party
prevailing below is entitled to the benefit of all reasonable inferences drawn from
the evidence. Id. This Court is bound by the Board’s findings of fact “so long as
the record taken as a whole contains substantial evidence to support them.”
Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 718 (Pa.
Cmwlth. 2013).
When asserting that a discharge was based on a violation of a work rule,
an employer must establish the existence of the rule, the reasonableness of the rule,
the claimant’s knowledge of the rule, and its violation. Henderson, 77 A.3d at 718
5
(citing Ductmate, 949 A.2d at 344). An employee who has no notice of a work rule
will not be denied benefits based on willful misconduct. Tongel v. Unemployment
Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985). Moreover, “an
employee is charged with constructive notice of [a] rule or policy [if] it could have
been discovered by due diligence.” Gibson v. Unemployment Compensation Board
of Review, 760 A.2d 492, 495 (Pa. Cmwlth. 2000).
A work rule violation need not be shown where the behavior standard
is obvious, and the employee’s conduct is so inimical to the employer’s best interests
that discharge is a natural result. Spare v. Unemployment Compensation Board of
Review, 432 A.2d 283 (Pa. Cmwlth. 1981). It is well-settled law that “a disregard
of the standard of behavior which the employer had a right to expect of [an
employee], . . . [can be] willful misconduct, apart from whether or not . . . that
[employee violated work rules . . . .” Lee v. Temple University (Personnel), 363
A.2d 890, 892 (Pa. Cmwlth. 1976). “It is not necessary to have an employer’s rule
where the act itself is contrary to the motor vehicle laws of the Commonwealth.”
Cadden v. Unemployment Compensation Board of Review, 169 A.2d 334, 335 (Pa.
Super. 1961) (the claimant’s speeding “constituted . . . a willful disregard of the
employer’s interests and of the standards of behavior which the employer has a right
to expect of its employees”).
Here, the Board found that Employer maintains a policy that provides
for dismissal of an employee on the grounds of either neglect of the individuals
served by Employer or a violation of safety standards that may endanger another
person. F.F. No. 2. Although Employer did not produce a copy of the policy manual,
Employer quoted provisions of its manual on the Progressive Disciplinary Action
Form and Employer Questionnaire to establish the existence of its work rules. C.R.
6
at 23-31. Section 1102.3 of Employer’s policy manual forbids “neglect of an
individual [Employer] serve[s].” C.R. at 26. Section 1102.4 of Employer’s policy
manual provides for immediate dismissal for a “violation of safety [sic] and
negligent/unsafe behaviors that may endanger another person, destruction of
property and equipment.” Id. Employer’s Director testified that Claimant should
have been aware of the policies because they are made available to all employees
online. C.R. at 71.; Notes of Testimony, Referee’s January 5, 2021 hearing (N.T.)
at 11. When asked why a verbal warning was not given before termination, Director
testified that “excessive speed” is grounds for “immediate termination as [] indicated
in the policy manual.” Id. at 12.
Although Claimant denied awareness of Employer’s work rules, she
acknowledged the policies were available online; she testified she “did some driving
for training”; and she was aware that the maximum speed limit on her trip was 70
miles per hour.5 See N.T. at 14; Petitioner’s Brief at 6. Upon review, substantial
evidence supports the Board’s finding that Employer maintains policies providing
for termination if an employee either neglects a person in the care of the employer
or violates safety standards that may put another person at risk and that Claimant
was aware or should have been aware of Employer’s policies.6
Next, Claimant argues that substantial evidence does not support the
Board’s finding that she violated Employer’s policies or otherwise committed willful
5
See Section 3362 of Vehicle Code, 75 Pa. C.S. §3362 (maximum speed limit in the
Commonwealth is 70 miles per hour).
6
The reasonableness of these policies is manifest. See, e.g., Webb v. Unemployment
Compensation Board of Review, 670 A.2d 1212, 1215 (Pa. Cmwlth. 1996) (in determining whether
an employer’s policy is reasonable, we “must consider whether application of the rule or policy
under the circumstances is fair and just and appropriate to accomplish a legitimate interest of the
employer”).
7
misconduct. Claimant contends that the testimony of Employer’s Director
constitutes hearsay and is therefore incapable of supporting the Board’s findings of
fact without corroborating evidence.
Hearsay is “an out of court [statement] offered to prove the truth of the
fact asserted [in the statement].” Commonwealth v. Coleman, 326 A.2d 387, 388
(Pa. 1974). However, testimony based on an individual’s personal knowledge and
observations is not hearsay. See Baird v. Unemployment Compensation Board of
Review, 372 A.2d 1254, 1257 (Pa. Cmwlth. 1977). Moreover, a hearsay statement
that is not objected to is still competent evidence and may form the basis for a finding
of fact if it is corroborated by other competent evidence. Remaly v. Unemployment
Compensation Board of Review, 423 A.2d 814, 816 (Pa. Cmwlth. 1980). “[I]t is
unnecessary that the finding of willful misconduct be supported by substantial
evidence absent the hearsay. . . . All that is necessary is that the facts adding weight
or confirming the hearsay be established by competent evidence.” Socash v.
Unemployment Compensation Board of Review, 451 A.2d 1051, 1053 (Pa. Cmwlth.
1982).
In Socash, a claimant was discharged from his position as a truck driver
for speeding. In support, the employer offered the testimony of its supervisor. The
supervisor testified that he received a phone call from his customer directing him not
to send the claimant back to the jobsite because the claimant was speeding and
almost collided with another truck. The supervisor testified that he and the customer
had previously warned the claimant on several occasions about his speeding. The
claimant argued the supervisor’s testimony was hearsay and, as such, could not
support the Board’s findings. This Court disagreed noting that there was nothing on
the face of the supervisor’s testimony indicating it was based solely on out-of-court
8
declarations of another rather than direct impressions. Socash, 451 A.2d at 1052.
Although the supervisor testified that he had received a telephone call from his
customer regarding the incident, it was equally plausible that the supervisor had
made his own observations regarding the claimant’s excessive speed. “[T]he process
of assuming and inferring has been committed to the Board and not to this Court.”
Id.
In Socash, this Court reasoned that, even if the testimony was hearsay,
such testimony admitted without objection is sufficient to support a finding if it is
corroborated by other competent evidence. Socash, 451 A.2d at 1053 (citing Walker
v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth.
1976)). The claimant’s testimony regarding the incident provided the necessary
corroboration. The claimant testified that he was driving a truck on the road in
question at the time of the alleged speeding incident; that he was observed by a
supervisory employee; that he engaged in maneuvers intended to accomplish his
arrival at a garage first and before another driver; and that the maneuvers created
dusty conditions on the road. “These circumstances lend[ed] weight and credibility
to the employer’s hearsay account of speeding.” Id. at 1053. Thus, we concluded
that the employer’s evidence was sufficiently corroborated by the claimant’s
admissions to support the Board’s findings that the claimant was terminated for
driving at an unsafe rate of speed. Id.
Here, Employer’s Director testified that Claimant was discharged for
violating its safety policy by speeding. N.T. at 9. Director testified regarding her
understanding that Claimant drove at high speeds while transporting a resident to a
halfway house based on a GPS report. Id. Director further testified that she received
an email from compliance personnel informing her that Claimant was traveling for
9
7 minutes at 96 miles per hour within an average speed of 85 miles per hour. Id.
Director testified that keeping up with the flow of traffic would not be an acceptable
reason for driving at that speed. Id. According to Director, there would never be a
time where driving at that speed would be acceptable. Id. at 11.
Although it appears that Director’s testimony regarding Claimant’s rate
of speed was based on out-of-court declarations – the GPS report and email –
Claimant did not object to Director’s testimony. Claimant’s testimony provided the
necessary corroboration. Claimant testified that she was driving the work vehicle
on the road in question at the time of the alleged speeding incident. N.T. at 13.
Claimant did not deny that she was speeding. N.T. at 13. Claimant testified “I know
at one point, the speed limit was 75 – I mean 70 miles per hour and 65. I’m not sure
after that.” N.T. at 14. Claimant acknowledged her speed was up to 76 miles per
hour, past the legal limit. N.T. at 13. Claimant defended that she was not pulled
over, stopped by the police, or issued a ticket and that no one was hurt by her driving.
N.T. at 13. When asked if there was anything else she wanted to share at the hearing,
Claimant replied:
[W]hen driving actually so when you look, you have to
look at the speedometer because it doesn’t actually seem
that you’re going as fast as the speedometer says, or if you
look at it, you would need to slow down. I do a lot of
driving, and I have no speed[ing] tickets whatsoever.
N.T. at 14.
Notably, Claimant did not dispute that she was driving at an average
rate of 85 miles per hour or as high as 96 miles an hour for an extended period. N.T.
at 14. Claimant testified “I don’t know about the GPS. I wasn’t aware of the GPS,
but if that’s what they are recording, I’m not going to battle that because I don’t
know.” Id. at 14. Claimant also acknowledged on her initial internet initial claims
10
form that Employer discharged her for driving too fast as reported on the GPS report.
Id. at 15, 17. Claimant explained that she was “driving with the flow of traffic.” Id.
at 16, 17.
Claimant’s testimony, lack of defense, and tacit admissions provide
ample corroboration of Director’s testimony to support the Board’s finding that
Claimant was driving “exceedingly fast” for most of her trip while transporting a
resident in a work vehicle. F.F. Nos. 3, 4. Claimant’s conduct constitutes a violation
of Employer’s safety policies. Even if Employer had not established a known work
rule, Claimant’s actions constituted a willful disregard of Employer’s interests and
of the standards of behavior that Employer has a right to expect of its employees.
See Cadden, 169 A.2d at 335. In short, Claimant did not show good cause for her
conduct.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Twanda Pierce-Boyce, :
:
Petitioner :
:
v. : No. 725 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 16th day of November, 2022, the order of the
Unemployment Compensation Board of Review dated April 19, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge