S. Arias v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherie Arias, :
:
Petitioner :
:
v. : No. 251 C.D. 2020
: Submitted: January 22, 2021
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 10, 2022
Sherie Arias (Claimant), pro se, petitions for review of an order of the
Unemployment Compensation Board of Review (Board) that affirmed a referee’s
decision and held that Claimant was ineligible for unemployment compensation
(UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law
(Law),1 relating to willful misconduct. On appeal, Claimant contends that she was
never informed that her dismissal was for lying to her supervisor. Moreover, she
claims that she did not lie. For the following reasons, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e) (providing that an employee shall be ineligible for compensation when her separation from
employment is due to willful misconduct connected with her work).
Claimant was employed full-time as an intake caseworker for Sargent’s
Personnel Agency, Inc. (Employer), a temporary employment agency, from April 6,
2017, through June 26, 2019, earning $19.00 per hour. Referee’s 12/10/2019
Decision, Findings of Fact (F.F.) Nos. 1-2. Employer assigned Claimant to work at
Liberty Healthcare Corporation (Liberty), which she did until June 26, 2019, when
she was terminated based on her failure to follow Liberty’s policies and procedures
and for being untruthful regarding missing documentation. Id., F.F. No. 13.
Claimant applied for UC benefits on June 27, 2019. Certified Record (C.R.) at 5.
On October 1, 2019, the Altoona UC Service Center found Claimant not ineligible
for benefits under Section 402(e) of the Law because, although she was discharged
due to unsatisfactory work performance, Employer failed to provide any information
showing that Claimant was not working to the best of her ability or that she
committed any disqualifying willful misconduct. C.R. at 45.
On October 15, 2019, Employer appealed the grant of UC benefits,
asserting that it provided ample documentation of prior warnings that Liberty had
issued to Claimant, thereby demonstrating Claimant’s unsatisfactory work
performance. C.R. at 49, 51. On December 5, 2019, the referee conducted a hearing
on the issue of whether Claimant’s discharge was due to willful misconduct. C.R.
at 91, 98. Stacey Mitchell (Mitchell), Employer’s human resource manager,
appeared in person, with counsel, on behalf of Employer. Employer also presented
a second witness, Zachary Haines (Haines), Liberty’s lead intake caseworker and
Claimant’s supervisor, who testified by telephone. Claimant appeared pro se, via
telephone, and testified on her own behalf.
Preliminarily, Claimant testified that Employer had assigned her to
work at Liberty. Referee’s Hearing Transcript (H.T.) at 6; C.R. at 104. Claimant
2
stated that on June 26, 2019, Mitchell called Claimant and said that the assignment
with Liberty had ended and that Employer did not have any new positions available.
H.T. at 5-6; C.R. at 103-04. Claimant testified that neither Liberty nor Employer
stated that she was terminated for misconduct. H.T. at 6; C.R. at 104.
Mitchell responded that Claimant was not separated from her
employment because the assignment had ended. Rather, Mitchell explained,
Claimant received numerous warnings from Liberty for failing to follow protocol
and was, ultimately, terminated for misconduct. H.T. at 5-6; C.R. at 103-04.
Mitchell stated that Liberty was involved in the decision to discharge Claimant, and
that Employer discussed Claimant’s misconduct and discharge with Liberty.
Mitchell explained that Employer evaluated the reasons why Liberty personnel
thought that Claimant’s discharge was appropriate in order to determine whether
Employer should continue to retain Claimant in its agency and send her on future
assignments. H.T. at 7; C.R. at 105. Mitchell further explained that not only did
Claimant fail to correctly perform her job and enter necessary information into
Liberty’s database, but “[Claimant] was [also] untruthful [regarding the] information
saying it was placed . . . [in the file,] but in a wrong location, which wasn’t correct.
And she was given several warnings regarding the need to have this in the proper
files . . . because it’s very personal information.” Id. Mitchell then testified that,
following her review of documentation from Liberty indicating the above, Employer
decided to adopt Liberty’s decision regarding Claimant’s discharge. Id.
Haines testified that he was Claimant’s direct supervisor at Liberty, he
previously addressed disciplinary matters with Claimant, and he was familiar with
the reasons for Claimant’s discharge. H.T. at 8; C.R. at 106. He noted Claimant’s
3
repeated failure to make required notifications in Liberty’s database,2 and that he
advised Claimant of the importance of doing so on a number of occasions. H.T. at
10; C.R. at 108. Specifically, he recounted that Claimant received a verbal warning
on May 3, 2018, for “[e]xcessive errors, providing inaccurate information[,] and
fail[ing] to make required notifications.” See H.T. at 10, C.R. at 108; see also C.R.
at 42 (noting the May 3, 2018 verbal warning). Haines acknowledged that on
February 14, 2019, Claimant received her first written warning, documenting
numerous instances where, inter alia, she failed to copy essential personnel on email
assignments; gave incorrect information to investigators, program office contacts,
and the Department of Human Services; sent emails containing sensitive information
to the wrong parties; and failed to complete the required licensing notifications. See
H.T. at 10-11, C.R. at 108-09; see also C.R. at 38-42 (first Employee Disciplinary
Action Plan). The first written warning advised “that further incidents of this nature
may result in further discipline, up to and including termination.” C.R. at 42. Haines
noted that Claimant signed the document. Id.; H.T. at 11, C.R. at 109.
Haines then testified that Claimant received a second written warning
on May 28, 2019, for “not meeting minimum standards and expectations.” See H.T.
at 11-12, C.R. at 109-10; see also C.R. at 34-36 (second Employee Disciplinary
Action Plan). This warning detailed several instances where Claimant provided
sensitive information to the wrong parties, failed to document pertinent information
in files, and failed to make required notifications. C.R. at 34. Haines testified that
the second written warning again advised “that further incidents of this nature may
2
We note that Claimant’s job required documenting the licensing notifications in Liberty’s
database to generate reports and contacting “program office contacts” by email. C.R. at 38 (see
Claimant’s first Employee Disciplinary Action Plan, documenting her job duties).
4
result in further discipline, up to and including termination[,]” and that Claimant
signed the document. C.R. at 36; H.T. at 12-13, C.R. at 110-11.
Haines further testified that he discussed Claimant’s performance with
her a third time in June 2019. H.T. at 13; C.R. at 111. He explained that the incident
“result[ing] in [Claimant’s] termination was [her] lying about documenting a
required licensing notification that was made in [a file in] April [2019], and it was
questioned where the documentation for that was.” H.T. at 9; C.R. at 107. Upon
being told that the licensing notification information was missing from the April file,
Claimant responded that she had entered the licensing notification in the April file,
but entered it in the wrong section, and that she would move it to the correct section.
Id. Haines stated that was a lie, as he had already examined the April file and found
that the information had not been entered in another section. Id. To the contrary,
Haines testified that the required licensing notification was not inputted by Claimant
until June 2019. Id. Haines thus informed Claimant that “the audit system”
established she had not inputted the licensing notification in April, though she
insisted that she had. H.T. at 13; C.R. at 111. Haines explained the importance of
Claimant’s misrepresentation in terms of Liberty’s operations, stating that Liberty
works with state agencies to provide community services for individuals with
disabilities and is “required by the law” to generate reports and provide licensing
notifications to the state agencies in a timely manner. H.T. at 10; C.R. at 108. After
discussing the matter with Claimant in June 2019, Haines advised Claimant that she
was going to be terminated and issued a termination report.3 See H.T. at 13; C.R. at
111; see also C.R. at 30 (third Employee Disciplinary Action Plan). The termination
report advised that Claimant “lied to her direct supervisor, Zac Haines[,] and
3
The report is not signed or dated. See C.R. at 30, 32.
5
Madelyn Brown, a member of the Department of Human Services [], concerning
documentation of a required licensing notification in the Social Assistance
Management System [].” See C.R. at 30.
Claimant cross-examined Haines. She questioned his claim that she
was informed of the termination. She noted that the termination report did not even
contain her signature. Haines responded that he, in fact, brought Claimant into his
office and fired her, but she refused to sign the termination report. H.T. at 14; C.R.
at 112.
Claimant then testified. She stated that on her last day of work with
Liberty, she received a call from Mitchell “saying that I was just -- she didn’t have
any other positions for me. That was it.” H.T. at 15; C.R. at 113. Claimant testified
that “[t]his conversation regarding the fact that they feel like I lied about where I put
something . . . is a lie.” Id. She claimed that no one ever brought her into the office
to talk to her and that the incident “was never discussed.” Id.
Based on the parties’ testimony and other evidence presented, the
referee found that Liberty has work rules, protocols, and procedures that employees
are required to follow, and specifically, has rules requiring the appropriate and
timely documentation of client files. Referee’s 12/10/2019 Decision, F.F. Nos. 4-5.
The referee further found that Claimant had received multiple disciplinary warnings
stating that she was not complying with Liberty’s directives, and that, despite
receiving such warnings, Claimant’s conduct in failing to properly document files
continued. Id., F.F. Nos. 6-9. The referee found that in June 2019, Claimant was
questioned about missing documentation in a particular file, and later went into
Liberty’s system and added the missing information, but advised Haines that she had
properly recorded it in the file; it was merely in the wrong section; and “she had
6
simply moved it over.” Id., F.F. Nos. 9-11. However, the referee noted that an audit
done by Haines prior to confronting Claimant established that the missing
information had not been in another section of the file. Id., F.F. No. 12. Thus, on
June 26, 2019, Claimant was discharged by Liberty for failing to follow its policies
and procedures and for being untruthful regarding the missing documentation. Id.,
F.F. No. 13.
Based on the above findings, the referee determined that Employer
established the existence of work protocols and procedures that Claimant was
required to follow and that Claimant was aware of such protocols and procedures,
as she had been warned on numerous occasions about her failure to properly follow
the rules. Referee’s 12/10/2019 Decision at 2. The referee also concluded that
Claimant did not establish good cause for her failure to abide by Liberty’s rules or
show that Liberty’s policies were not uniformly enforced or unreasonable under the
circumstances. Id. Accordingly, the referee reversed the UC Service Center’s
determination and concluded that Claimant was ineligible for UC benefits under
Section 402(e) of the Law.
Claimant appealed to the Board,4 claiming that she never told Haines
that she definitely placed the missing documentation in the wrong section of the
April file but instead told him she might have put it in the wrong section and would
move it to the correct section. C.R. at 130. Further, she again claimed that she was
never called to Haines’ office to be terminated for lying, and that she was never
untruthful while working for Liberty. Id. By decision and order dated February 14,
2020, the Board adopted and incorporated the referee’s findings of fact and
4
Employer requested permission to file a brief before the Board, which the Board granted.
C.R. at 136, 139-61. Claimant requested permission to file a responsive brief to Employer’s brief,
which the Board also granted. C.R. at 165, 167-68.
7
conclusions of law and affirmed the referee’s decision finding Claimant ineligible
for UC benefits under Section 402(e) of the Law without further discussion. C.R. at
170.
Claimant now petitions for review to this Court.5 She argues that the
“Board made an error in [its] decision regarding my unemployment benefits. [The
Board] made an incorrect decision because of the lack of evidence and information.”
Claimant’s Brief at 5. The Board responds that Claimant is merely challenging its
credibility determinations, and further, that its findings are conclusive on appeal
because they are supported by substantial evidence.6
We begin with a review of the Law. In UC cases, the Board is the
ultimate finder of fact and is empowered to make credibility determinations. Doyle
v. Unemployment Compensation Board of Review, 58 A.3d 1288, 1291 n.4 (Pa.
Cmwlth. 2013). In making credibility determinations, the Board may accept or
reject the testimony of any witness in whole or in part. Id. When the Board’s
findings of fact are supported by substantial evidence, which has been defined as
such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, those findings are conclusive on appeal. Bruce v. Unemployment
Compensation Board of Review, 2 A.3d 667, 670 n.3, 671 (Pa. Cmwlth. 2010).
5
This Court’s review in an unemployment compensation case is limited to a determination
of whether constitutional rights were violated, errors of law were committed, or findings of fact
were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board
of Review, 637 A.2d 695, 697 (Pa. Cmwlth. 1994).
6
The Board also points out that Claimant attached a document to her brief that is not
contained in the Certified Record in this matter. It is well settled that this Court may not consider
extra-record evidence that is not part of the certified record on appeal. See Umedman v.
Unemployment Compensation Board of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012). We
therefore do not consider the extra-record evidence (i.e., phone records) attached to Claimant’s
brief in our review of this matter.
8
Where willful misconduct is alleged, the initial burden of proof lies
with the employer. Navickas v. Unemployment Compensation Board of Review, 787
A.2d 284, 288 (Pa. 2001). Though not defined in the Law, willful misconduct has
been interpreted to include: (i) a wanton or willful disregard of the employer’s
interests; (ii) a deliberate violation of the employer’s rules; (iii) a disregard of the
standards of behavior that the employer rightfully can expect from its employees;
and (iv) negligence showing an intentional disregard of the employer’s interest or
the employee’s duties and obligations. Temple University of the Commonwealth
System of Higher Education v. Unemployment Compensation Board of Review, 772
A.2d 416, 418 (Pa. 2001). Where an employer’s allegation of willful misconduct is
based on a violation of the employer’s work rule, the employer must show that the
rule existed, that the rule was reasonable, and that the claimant was aware of the rule
and violated it. Williams v. Unemployment Compensation Board of Review, 926
A.2d 568, 571 (Pa. Cmwlth. 2007). Whether a claimant’s actions constitute willful
misconduct is a question of law that is fully reviewable by this Court on appeal.
Temple University, 722 A.2d at 418 n.1.
Additionally, “[a] disregard of rightfully expected standards of
behavior has been described as including a knowing falsehood or misrepresentation
to an employer by an employee concerning an employee’s work.” DeRiggi v.
Unemployment Compensation Board of Review, 856 A.2d 253, 256 (Pa. Cmwlth.
2004) (quoting Groover v. Unemployment Compensation Board of Review, 579 A.2d
1017, 1019 (Pa. Cmwlth. 1990)). However, “an employee’s dishonesty constitutes
a disregard of expected standards of behavior only where the employee’s actions are
affirmatively deceptive.” Id. (quoting Groover, 579 A.2d at 1019-20). Absent a
specific directive from an employer, an employee who merely fails to disclose
9
information to her employer is not guilty of willful misconduct. DeRiggi, 856 A.2d
at 256.
If the employer meets its burden of showing willful misconduct, the
burden shifts to the claimant to show good cause for her conduct. Henderson v.
Unemployment Compensation Board of Review, 77 A.3d 699, 719 (Pa. Cmwlth.
2013). A claimant establishes good cause where her actions are justified or
reasonable under the circumstances. Id.Claimant asserts that she did not know she was fired because of missing
documentation in the April file until she filed for UC benefits. She claims that in
June 2019, Haines emailed her regarding documentation missing from the April file,
and she responded that she would check the file and add the information if it was not
included. If Haines audited the April file, Claimant asserts, he never told her about
it. Claimant believes that Haines fabricated the termination report because Employer
and Liberty did not want to be responsible for her UC benefits. Claimant’s brief at
7. Claimant additionally argues that she did not properly represent herself at the
hearing because she was given wrong information prior to the hearing and was
confused. Claimant’s brief at 8. Claimant contends that Mitchell informed her that
the hearing was happening because no one wanted to pay for her UC benefits and
that it was not necessary for Claimant to participate in the hearing.7
The Board responds that Claimant is attempting to challenge the
Board’s credibility determinations. The Board argues that because its findings are
supported by substantial evidence, they are conclusive on appeal. Further, according
to the Board, Employer established that Claimant committed willful misconduct, as
Liberty had a policy requiring that certain information be properly and timely
7
We note that Claimant did not express confusion at the hearing or suggest that she was
misled by Mitchell.
10
documented in its files, and that Claimant was aware of that policy, as she was
disciplined for not properly following it. The Board points out that when Haines
was made aware that Claimant had failed to properly document another file, he
questioned her about it, but she claimed the information was not missing; it was
merely in another section of the file. Haines stated this was a lie because an audit of
the file established Claimant did not input the information until June 2019, after he
informed her of the error. The Board credited Haines’ testimony as to Claimant’s
conduct, which was its prerogative.
As outlined above, when considering a work rule violation, Employer
has the burden of establishing the existence of a rule, the reasonableness of the rule,
and Claimant’s knowledge of the rule. Henderson, 77 A.3d at 719. Here, Employer
established that Claimant was required, by Liberty’s policies and procedures, to
appropriately and timely document licensing notifications in Liberty’s database.
Employer established that such policies and procedures were reasonable because
Liberty is “required by the law” to generate reports and provide licensing
notifications to state agencies in a timely manner as part of its day-to-day operations.
See H.T. at 10; C.R. at 108. Employer further established that Claimant had
knowledge of such policies and procedures, as she had received one verbal warning
and two written warnings based on her failure to properly follow those policies and
procedures. As such, we conclude that Employer met its burden of establishing a
work rule violation.8
However, Claimant was not terminated because she violated a rule.
Haines testified that Claimant was terminated because she lied in that when
confronted about her failure to properly document the April 2019 file, she claimed
8
Claimant presented no evidence of good cause for her failure to follow the rule.
11
that the information was included in the file, but in the wrong location, and that she
just needed to move it to the proper section. At the hearing, however, Claimant
denied that she lied or that anyone told her that she was discharged for lying. In her
appeal to the Board, she addressed the issue with the April file, claiming that she did
not say that the missing information was placed in the wrong section. C.R. at 130.
Instead, she said that it might be in the wrong section and she would double check.
Id. In her brief to this Court, however, she states that her discussion with Haines
regarding the April file was via email. Claimant’s brief at 7. Haines asked her about
missing information in the file, and she responded that she would check the file and
put the information in, if it was not there. Id.We agree with the Board that the issue before us is one of credibility.
Claimant was fired for lying to her supervisor. This requires a knowing falsehood
or misrepresentation by Claimant on an issue concerning her work. DeRiggi, 856
A.2d at 256. Haines testified that when confronted about yet another failure to
document a licensing notification in a file, Claimant asserted that she had properly
documented the file, but it was in the wrong section. Haines claimed that he checked
the file, and the “audit system” established that the licensing notification was not in
the file, as suggested by Claimant.
Haines’ testimony, which the Board credited, is sufficient to show that
Claimant affirmatively acted to deceive him in order to cover up her failure to
properly document the file. As such, Employer has established that Claimant
disregarded a standard of behavior that Employer had every right to expect from its
employee. Thus, Employer met its burden of showing that Claimant’s dishonesty
constituted willful misconduct under these circumstances such that UC benefits must
be denied.
12
For the above reasons, the order of the Board is affirmed.
MICHAEL H. WOJCIK, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherie Arias, :
:
Petitioner :
:
v. : No. 251 C.D. 2020
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 10th day of February, 2022, the order of the
Unemployment Compensation Board of Review, dated February 14, 2020, is hereby
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge