WILLIAMS v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEWNo. 2426 C.D. 2010.
Tara Williams, Petitioner,
Unemployment Compensation Board of Review, Respondent.
Unemployment Compensation Board of Review, Respondent.
Commonwealth Court of Pennsylvania.
Submitted: June 3, 2011.
Filed: August 4, 2011.
BEFORE: McGINLEY, Judge; LEAVITT, Judge and KELLEY, Senior Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE KELLEY.
Tara Williams (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming an order of a Referee denying benefits to Claimant pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
The following are the facts as adopted by the Board in this matter. For two years prior to the incident at issue, Claimant worked as an Admissions Registered Nurse for Mercy Home Health Services (Employer). Employer maintained a Code of Conduct prohibiting, inter alia, engagement in unprofessional behavior and the falsification of documents, of which policies Claimant was, or should have been, aware. Employer reimbursed its nurses $0.50 per mile, and the nurses were required to submit day sheets for their mileage traveled indicating the patients visited, where the patients were seen, and the total mileage for the date in question.
As a result of two patient complaints about care received, Employer began a review of Claimant's day sheets. The investigation included Claimant's day sheets from January 4, 2010, to March 29, 2010. Employer's investigation revealed that Claimant had submitted mileage totaling 2,300 miles when she traveled 836 miles, causing an overpayment to Claimant of $732 in mileage fees.
On May 3, 2010, Employer met with Claimant regarding the investigation. Claimant could not give an explanation about the mileage discrepancy discovered by Employer. During the course of the meeting, Claimant became upset, stood up, belched, and spit her gum at Employer's representatives. Subsequently, by letter dated May 11, 2010, Claimant was terminated for falsification of mileage and unprofessional behavior.
Claimant subsequently applied for benefits under the Law at the Philadelphia Unemployment Compensation Service Center, which found Claimant ineligible for benefits under Section 402(e)
The Referee thereafter issued a decision and order in which she found the facts as listed above, including a finding that in the proceedings before her, Claimant alleged that the mileage discrepancies could have been caused by patients that she visited but were not recorded on the day sheet. Referee Decision at 2, Finding 12. The Referee further found that Claimant did not offer this explanation at the time of Claimant's meeting with Employer regarding the investigation.
The Referee expressly noted that where a conflict in the parties' respective testimony existed, the Referee resolved the conflict in all relevant parts in Employer's favor. The Referee further reasoned that Employer's witness gave sworn credible testimony that Claimant had inflated her mileage on her day sheets, and had behaved in an unprofessional manner when questioned about the discrepancies. The Referee concluded that Claimant had failed to show good cause for her actions. Accordingly, the Referee concluded that Claimant's conduct rose to the level of willful misconduct, and denied benefits pursuant to Section 402(e) of the Law.
Claimant appealed to the Board, which adopted and incorporated the Referee's findings and conclusions, and affirmed by order dated October 18, 2010. Claimant now petitions for review of the Board's order.
This Court's scope of review of the Board's order is set forth in Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704, which provides that the Court shall affirm unless it determines that the adjudication is in violation of the claimant's constitutional rights, that it is not in accordance with law, that provisions relating to practice and procedure of the Board have been violated, or that any necessary findings of fact are not supported by substantial evidence.
Claimant presents one issue for review: whether the Board erred in determining that Claimant engaged in willful misconduct in connection with her dismissal from employment. However, within the Argument section of her brief to this Court, Claimant utilizes the majority of her argument to this Court to challenge several of the Board's Findings of Fact. Claimant has failed to preserve any challenges to the Board's Findings of Fact for our appellate review, and they are thusly waived. Specifically, Claimant's counsel failed to preserve these issues within the Statement of the Questions Involved section of her brief, and this procedural error on Claimant's part is dispositive of these issues.
Turning to Claimant's one preserved issue, we note that willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest or the employee's duties and obligations.
Claimant first argues that the Board erred in relying upon Employer's investigation into Claimant's inaccurate mileage reports, which reports were found to constitute a violation of Employer's document falsification policy. Claimant argues that Employer failed to take into account Claimant's true employment responsibilities that were not required to be reported on the day sheets, and thusly did not satisfy its burden of proving Claimant's intentional violation of Employer's policy. In support, Claimant cites solely to
However, the facts of
We emphasize again that, in the absence of Claimant's preservation of any challenge to the Board's Findings, the Findings in this matter are conclusive for purposes of our appellate review.
The Board found that Employer maintained a policy prohibiting the falsification of documents, and that Claimant was or should have been aware of that policy. Referee Decision at 1, Findings 3-4. The Board further found that Claimant was not able to provide a credible explanation of the entire mileage discrepancy on her day sheets.
Next, Claimant argues that the Board erred in finding that Claimant belched and spit her gum during the disciplinary meeting, rather than finding that Claimant engaged in such behavior after the meeting had been drawn to a formal close. This argument fails for three reasons. First, the Board rejected, on credibility grounds, Claimant's assertion that she did not engage in such behavior. Referee Opinion at 2, Finding 13; Reasoning. That Finding is conclusive on appeal.
Secondly, Employer's two witnesses presented two differing versions of whether Claimant engaged in such behavior immediately before, or immediately after, the conclusion of the disciplinary meeting. Reproduced Record at 70a; 74a-77a. The Board was free to accept as credible either of those two offered versions of events, and the weight assigned to those respective versions, and the credibility determinations made thereon, are conclusive on appeal.
Finally, whether Claimant engaged in the belching and spitting behavior before, or immediately after the disciplinary meeting, that behavior constitutes both a violation of Employer's policy against unprofessional behavior, and also constitutes a disregard of the standards of behavior which an employer can rightfully expect from his employee.
Accordingly, we affirm.
AND NOW, this 4th day of August, 2011, the order of the Unemployment Compensation Board of Review dated October 18, 2010, at B-507897, is affirmed.
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