K.E. Moyer v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Katie Elizabeth Moyer, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1466 C.D. 2022
Respondent : Submitted: October 10, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 1, 2023
Katie Elizabeth Moyer (Claimant), pro se, petitions this Court for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR)
August 30, 2022 order affirming the Referee’s decision that found Claimant
ineligible to receive UC benefits under Section 402(e) of the UC Law (Law).1 The
issue before this Court is whether the UCBR erred by concluding that Claimant
engaged in willful misconduct.2 After review, this Court affirms.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
2
Claimant’s brief does not comply with Pennsylvania Rule of Appellate Procedure
2111(4), which requires a Statement of the Questions Involved. See Pa.R.A.P. 2111(4). However,
her primary arguments appear to be that the Referee did not have all of the facts because Claimant
was unable to attend the hearing, and Claimant did not commit willful misconduct because she did
not intentionally do anything wrong. These arguments are encompassed in this Court’s statement
of the issue.
Presbyterian Medical Center of Philadelphia (Employer) employed
Claimant in a casual-per diem capacity as a physical therapist in the University of
Pennsylvania Health System (Health System) from October 10, 2016, until August
31, 2021. Employer maintained an Immunization Policy that required all Health
System employees to be fully vaccinated against COVID-19 by September 1, 2021.
Employer notified all employees, including Claimant, that they had to be fully
vaccinated for the COVID-19 virus no later than September 1, 2021. Employer sent
four emails to Claimant and other employees between May 19 and July 22, 2021,
informing them of the vaccination requirement and deadline. Claimant’s manager
also notified Claimant of the vaccination requirement and deadlines during weekly
meetings.
The Immunization Policy permitted requests for exemption from the
COVID-19 immunization requirement for medical or religious reasons. The
deadline to submit an exemption request was July 9, 2021. Employer sent Claimant
multiple emails notifying her of the exemption deadline. On August 2, 2021,
Claimant requested an exemption application from Employer. By August 3, 2021
email, Employer notified Claimant that the deadline to submit religious exemption
forms was July 9, 2021, and that Employer was no longer reviewing exemption
applications. See Certified Record (C.R.) at 79. On August 11, 2021, Claimant
submitted a religious exemption request. See C.R. at 88. On August 12, 2021,
Employer notified Claimant that it was no longer accepting exemption applications.
See id. Claimant did not provide a reason why she did not submit her request before
the exemption deadline. On September 1, 2021, Claimant was placed on
administrative leave because she did not obtain the COVID-19 vaccination by the
deadline and, thus, violated the Immunization Policy. By September 15, 2021 letter,
Employer discharged Claimant due to her failure to comply with Employer’s
COVID-19 Immunization Policy.
2
Claimant applied for UC benefits. On January 11, 2022, the Duquesne
UC Service Center determined that Claimant was eligible for UC benefits under
Section 402(e) of the Law. Specifically, the UC Service Center concluded that,
although the facts indicated that Claimant’s actions constituted willful misconduct,
i.e., a rule violation, Claimant had shown good cause for her actions, i.e., a religious
exemption. Employer appealed, and a Referee held a hearing on June 16, 2022.
Claimant did not attend the hearing. On June 16, 2022, the Referee reversed the UC
Service Center’s determination, finding Claimant ineligible for UC benefits under
Section 402(e) of the Law. Claimant appealed to the UCBR. On August 30, 2022,
the UCBR adopted the Referee’s findings of fact and conclusions of law, and
affirmed the Referee’s decision. Claimant appealed to this Court.3
Initially,
Section 402(e) of the Law provides that an employee is
ineligible for [UC] benefits when [her] unemployment is
due to discharge from work for willful misconduct
connected to [her] work. The employer bears the burden
of proving willful misconduct in a[] [UC] case. Willful
misconduct has been defined as[:] (1) an act of wanton or
willful disregard of the employer’s interest; (2) a
deliberate violation of the employer’s rules; (3) a disregard
of standards of behavior which the employer has a right to
expect of an employee; or (4) negligence indicating an
intentional disregard of the employer’s interest or a
disregard of the employee’s duties and obligations to the
employer.
3
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
3
Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev.,
755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)).
Where willful misconduct is based upon the violation of a
work rule, the employer must establish the existence of the
rule [and] its reasonableness, and that the employee was
aware of the rule. Once employer meets this burden, the
burden shifts to the claimant to prove that the rule was
unreasonable or that [she] had good cause for violating the
rule.
Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). Ultimately, “[t]he
question of whether conduct rises to the level of willful misconduct is a question of
law to be determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105
A.3d 839, 844 (Pa. Cmwlth. 2014).
Claimant argues that she had a religious exemption from the
Immunization Policy which she submitted to Employer. Claimant maintains that
she believed the deadline for submitting a religious exemption was September 1,
2021. However, Employer submitted evidence at the Referee hearing, which the
UCBR found credible, establishing that Employer provided notice of the July 9,
2021 exemption request deadline to Claimant and other employees several times by
email and during meetings.
Claimant does not dispute that she violated Employer’s Immunization
Policy requiring a COVID-19 vaccine by September 1, 2021. Claimant argues that
her violation of the Immunization Policy was justified because she timely submitted
a religious exemption. Claimant, however, did not raise this issue before the
4
Referee, as she did not appear at the hearing.4 The law is well established that “[t]he
UCBR cannot review evidence that was not submitted to the Referee, unless it
directs the taking of additional evidence. [See Section 101.106 of the UCBR’s
Regulations,] 34 Pa. Code § 101.106.” Umedman v. Unemployment Comp. Bd. of
Rev., 52 A.3d 558, 564 (Pa. Cmwlth. 2012). Moreover, notwithstanding Claimant’s
argument that her Immunization Policy violation was justified because she timely
submitted a religious exemption, the record evidence does not support her claim, and
“[t]his Court may not consider any evidence that is not part of the certified record
on appeal.” Id. (quoting Pa. Tpk. Comm’n v. Unemployment Comp. Bd. of Rev., 991
A.2d 971, 974 (Pa. Cmwlth. 2009)). Accordingly, based on the record evidence the
UCBR properly found that Claimant committed willful misconduct.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
4
Claimant did not request a remand hearing to explain why she did not appear at the
Referee hearing.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Katie Elizabeth Moyer, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1466 C.D. 2022
Respondent :
ORDER
AND NOW, this 1st day of November, 2023, the Unemployment
Compensation Board of Review’s August 30, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge