No. 2426 C.D. 2010.

Tara Williams, Petitioner, v. Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.

Filed: August 4, 2011.



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, as amended, 43 P.S. §802(e). We affirm.

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)1 of the Law. Claimant appealed to the Referee, and a hearing ensued at which both parties appeared and offered testimony and evidence.2

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. Id.

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. See Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003).

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.3 Long v. Unemployment Compensation Board of Review, 696 A.2d 876 (Pa. Cmwlth. 1997) (an issue not raised in the Statement of the Questions Involved is deemed waived pursuant to Pa. R.A.P. 2116(a)). Accordingly, as Claimant has not preserved any challenge to any of the Board's Findings in this case, those Findings are conclusive on appeal. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

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. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa. Cmwlth. 1984). In order to prove willful misconduct by showing a violation of employer rules or policies, the employer must prove the existence of the rule or policy and that it was violated. Caterpiller, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 199 (Pa. Cmwlth. 1995); Duquesne Light Company v. Unemployment Compensation Board of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994).

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 Unemployment Compensation Board of Review v. Filips, 336 A.2d 667 (Pa. Cmwlth. 1975), in which this Court overturned a Board conclusion of willful misconduct. Therein, the sole issue was whether the claimant had committed willful misconduct pursuant to the Board's determination of culpable negligence based on a showing that money was missing from the claimant's truck safe which the claimant could not explain. Filips, 336 A.2d at 481-82. We held that the evidence was sufficient to show that the claimant may have been negligent, or that he may have been culpable, but it was not sufficient to sustain the employer's burden of proving that the claimant was in fact guilty of willful misconduct in light of the fact that the record contained uncontroverted testimony which indicated that claimant's fellow employees had access to keys which would open the claimant's truck and safe. Id.

However, the facts of Filips bear no resemblance to the facts sub judice; in the instant matter, no uncontroverted credible evidence of record exists that can explain the entirety of Claimant's falsified mileage reports. Further, the Board's conclusion of Claimant's willful misconduct is not based upon a conclusion of negligent culpability, as in Filips, but is instead based upon a conclusion that Claimant's inflation of her day sheet mileage was a deliberate violation of Employer's policy. Frumento (willful misconduct is defined, in one regard, as a deliberate violation of an employer's rules).

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. Taylor. The gravamen of Claimant's argument on this point is essentially a request that this Court reweigh the evidence presented, or revisit the credibility determinations of the Board, which we cannot do.

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. Id. at 2, Findings 11-12, Reasoning. Those Findings, and the concomitant reasoning and credibility determinations4 accompanying them, are adequate to support the conclusion that Claimant deliberately violated Employer's policy. Frumento; Miller. We emphasize that the Board's proper conclusion on this issue is completely dispositive of this appeal. Id. Notwithstanding, we will address Claimant's remaining argument.

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. Peak; Taylor.

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. Peak; Taylor.

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. Frumento. As such, Claimant's behavior rose to the level of willful misconduct. Id.

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.


1. Section 402(e) reads: Ineligibility for compensation An employe shall be ineligible for compensation for any week— * * * (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act[.]

43 P.S. §802(e).

2. The Referee's Decision lists no counsel for Claimant in the proceedings before her. Referee's Decision at 1.
3. We note, however, that notwithstanding Claimant's waiver of her challenges to the Board's Findings of Fact, our thorough review of the record in its entirety reveals substantial evidence supporting each of the Board's Findings. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules v. Unemployment Compensation Board of Review, 604 A.2d 1159 (Pa. Cmwlth. 1992). Further, all of Claimant's arguments on this issue fail to account for the axiom that in determining whether substantial evidence supports the Board's Findings of Fact, it is irrelevant that the record may reveal evidence that would support a contrary finding; the relevant inquiry is whether the record contains substantial evidence supporting the actual findings that were made. Accord Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994).
4. The Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).


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