IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ra'Nell Y. Rich,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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No. 776 C.D. 2013
Submitted: November 27, 2013
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY
FILED: January 15, 2014
Ra’Nell Y. Rich (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) that affirmed the
Referee’s determination that Claimant was ineligible for benefits under Section
402(e) of the Unemployment Compensation Law (Law)1, 43 P.S. §802(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a full-time
telemetry monitor technician by Tenet Health System
Hahnemann from May 7, 2007, at a final rate of $19.70
per hour plus shift differential. Her last day of work was
October 13, 2012.
2.
The employer’s policy prohibits fighting or
threatening violence in the workplace, boisterous or
disruptive activity in the workplace, and disrespectful
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
conduct. Violation can result in immediate corrective
action, up to and including termination of employment.
3. The claimant was aware of the employer’s policies.
4. On October 13, 2012, the claimant engaged in a loud
confrontation at work with a coworker with whom she
had had problems in the past.
5. The claimant told the coworker to “get out of my
face,” that she is “not going to argue with somebody
that’s the same age as my child,” and “this is the last time
I’m going to deal with this.”
6. The charge nurse had to intervene.
7. The claimant and the coworker continued to argue,
and the charge nurse had to return.
8. A patient and a patient’s family reported the incident
to the employer.
9. The employer began an investigation, which included
viewing the video surveillance.
10. The video surveillance showed the claimant and the
coworker pointing fingers at each other, standing up and
using aggressive arm movements.
11. The employer terminated the claimant’s employment
for disrespectful and threatening behavior, abusive
language, and disorderly conduct in the workplace, in
violation of the employer’s policies.
12. The employer terminated the other employee as well.
DISCUSSION:
….
The employer has proven that its policy prohibits fighting
or threatening violence in the workplace, boisterous or
disruptive activity in the workplace, and disruptive
conduct, violation of which can lead to termination of
employment. The claimant was aware of the employer’s
2
policies. On October 13, 2012, the claimant admittedly
got into a verbal shouting match with a coworker that
was so boisterous and disruptive that patients and family
members complained to the employer. The employer’s
view of the videotape corroborated the complaints,
showing the claimant confronting the coworker with a
pointed finger and aggressive arm gestures and that the
charge nurse had to twice intervene. The claimant argues
that the employer did not bring the videotape to the
hearing; however, the claimant did not object to the
employer’s testimony, and the employer’s testimony as
to what it saw on the videotape is competent evidence.
The Board finds that the claimant’s behavior violated the
employer’s policy. The burden shifts to the claimant.
The claimant did not deny the confrontation with the
coworker, but testified that the coworker approached her
first, using profanity, for reasons that are not clear from
the claimant’s testimony. The claimant asserted that she
had been bullied by the coworker since 2009 and had
reported incidents of bullying to the employer, but the
employer did nothing about it.
Board’s Decision, March 29, 2013, (Decision) Findings of Fact Nos. 1-12 and
Discussion at 1-3.
The Board resolved the conflicts in testimony in favor of Tenet Health
System Hahnemann (Employer) and concluded after review of the entire record in
this matter, “[t]he claimant has not proven that she was not an active participant in
the argument as credibly seen by the employer on the video surveillance or that she
had good cause for her behavior. The employer has proven that the claimant was
terminated from employment due to willful misconduct.” Decision at 3.
3
On appeal, Claimant contends2 that the Board erred when it affirmed
the Referee’s denial of benefits because the Board’s determination that Claimant
committed willful misconduct was not based on substantial evidence, but rather,
based on hearsay testimony.
Whether a Claimant’s conduct rises to the level of willful misconduct
is a question of law subject to this Court’s review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991).
Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
an Employer’s interest, deliberate violation of rules, disregard of standards of
behavior which an Employer can rightfully expect from the employee, or
negligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard for the Employer’s interest or employee’s duties and
obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d
879 (Pa. Cmwlth. 1977).
The Employer bears the burden of proving that it
discharged an employee for willful misconduct.
City of Beaver Falls v.
Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982).
The Employer bears the burden of proving the existence of the work rule and its
violation.
Once the Employer establishes that, the burden then shifts to the
2
Our review is limited to determining whether constitutional rights were violated,
whether errors of law were committed, and whether findings of fact are supported by substantial
evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa.
Cmwlth. 2010). This Court will review the case in the light most favorable to the party who
prevailed before the Board, drawing all logical and reasonable inferences from the testimony in
order to determine if substantial evidence exists. Taylor v. Unemployment Compensation Board
of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
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Claimant to prove that the violation was for good cause. Peak v. Unemployment
Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
In the present case, Employer established through its witness,
Shannon Wallace (Ms. Wallace), Employer’s Human Resources Generalist, that it
had a policy that prohibited “disrespectful and threatening behavior, abusive
language and disorderly conduct in the workplace.” Notes of Testimony, January
11, 2013, (N.T.) at 5. Claimant agreed to comply with Employer’s policies and
procedures on April 9, 2007, when she received the Employee Conduct and
Workrules. N.T. at 6.
Steve Newbert (Mr. Newbert), Clinical Manager for Employer, was
not present when the confrontation took place but he viewed footage from the
surveillance camera. Mr. Newbert testified that according to the surveillance video
and other employees that witnessed the altercation, Claimant and another employee
engaged in a “hostile” disagreement that involved “[a] lot of finger points, standing
up…[a] lot of aggressive movements.” N.T. at 13-14. Mr. Newbert stated that
Claimant was not shown the surveillance footage but her Union Representative
would have been permitted to view it by request. N.T. at 14-15.3
3
Claimant argues that she “made multiple requests for the video and was told that the
employer would only produce for the union. The union made requests for the video prior to the
January 11, 2013 hearing but the video was not produced until well after the hearing.”
Claimant’s Brief at 19.
This contention is not supported by the record:
[Claimant]: Did I ask to see the video several times?
[Mr. Newbert]: Not that I remember. Not from me.
(Footnote continued on next page…)
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Claimant argues that Mr. Newbert’s testimony was hearsay because
he did not have personal knowledge of the incident and because the surveillance
video was not introduced into evidence.
Hearsay is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing offered in evidence to prove the
truth of the matter asserted.” Pa.R.E. 801(c). A “statement” is defined in the
Pa.R.E. as “(1) an oral or written assertion or (2) nonverbal conduct of a person if
it is intended by the person as an assertion.” Pa.R.E. 801(a).
While Mr. Newbert was not present when the incident took place, he
related his observations of the video.4 Yost v. Unemployment Compensation Board
of Review, 42 A.3d 1158 (Pa. Cmwlth. 2012), is instructive. In Yost, Brian E. Yost
(Yost), a police officer, was terminated for willful misconduct when he used
excessive force to subdue a suspect. Yost argued that the testimony of the police
(continued…)
[Claimant]: Had [sic] the union tried to see the video since
October?
[Mr. Newbert]: They’ve always had the option. That was
extended by HR that they could see the video and it was never
asked by [sic] us.
N.T. at 14-15.
Therefore, Claimant’s argument that she was not permitted to view the
surveillance video was countered by Employer’s credible witness.
4
Claimant also argues that she was not required to object to Mr. Newbert’s testimony
because the Referee stated that she was not going to consider “[a]nything which is not firsthand.”
N.T. at 6. However, the Referee made this comment when Ms. Wallace attempted to admit a
security incident report that was written by someone not present at the hearing, into the record.
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chief, who was not at the scene of a suspect beating but viewed the surveillance
video from Yost’s police cruiser, was hearsay because the video was not
introduced into evidence. This Court disagreed and held that the chief testified to
what he witnessed on the video and was available for cross-examination about
what he observed. The Court also noted that the chief’s testimony was unobjectedto by Yost and corroborated by Yost’s testimony.
In the present case, Mr. Newbert testified about his personal
observations of the conduct depicted on the surveillance video. Claimant had the
opportunity to cross-examine Mr. Newbert concerning his observations.
Mr.
Newbert’s testimony was not introduced for the Board to assess the truthfulness of
any out of court statements made by others. Rather, the Board was tasked to make
a
credibility
determination
concerning
Mr.
Newbert’s
testimony.
In
unemployment compensation proceedings, the Board is the ultimate fact-finding
body empowered to resolve conflicts in evidence, to determine the credibility of
witnesses, and to determine the weight to be accorded evidence. Unemployment
Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975).
Findings of fact are conclusive upon review provided that the record, taken as a
whole, provides substantial evidence to support the findings.
Taylor v.
Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Here, the Board did not find the Claimant’s testimony to be credible.
“The claimant has not proven that she was not an active participant in the argument
as credibly seen by the employer on the video surveillance or that she had good
cause for her behavior.” Decision at 1-3. The Board also took into consideration
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that the confrontation was so disruptive that a charge nurse had to intervene twice
and a patient and a patient’s family reported the incident. Findings of Fact Nos. 68, Decision at 2. Additionally, Claimant admitted that she told the other employee
to “get out of my face” in a loud manner. N.T. at 20. This statement corroborated
Mr. Newbert’s testimony.
The findings of fact challenged by Claimant are supported by
substantial evidence. Employer established that it had a rule, that Claimant was
aware of that rule, and that Claimant violated that rule. Claimant failed to establish
that she had good cause to violate the rule.
Accordingly, the decision of the Board is affirmed.
____________________________
BERNARD L. McGINLEY, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ra'Nell Y. Rich,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
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No. 776 C.D. 2013
ORDER
AND NOW, this 15th day of January, 2014, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.
____________________________
BERNARD L. McGINLEY, Judge