IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vital Support Home Health :
Care Agency, Inc., :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1598 C.D. 2016
Respondent : Submitted: March 17, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 20, 2017
Vital Support Home Health Care Agency, Inc. (Employer) petitions this
Court for review of the Unemployment Compensation (UC) Board of Review’s
(UCBR) August 30, 2016 order affirming the Referee’s decision granting Unique S.
Brown (Claimant) UC benefits. Essentially, the issue before the Court is whether the
UCBR erred by finding Claimant eligible for UC benefits.1 After review, we
reverse.2
1
Employer’s Statement of Questions Involved listed three questions: (1) whether Employer
established that Claimant was discharged for willful misconduct; (2) whether Claimant failed to
establish good cause for her willful misconduct; and, (3) whether the Referee found Claimant’s
testimony more credible than the testimony offered by Employer’s witness. See Employer Br. at 5.
Because the second and third issues are subsumed in the analysis of the first, we have combined the
issues herein.
2
Currently, there is a vacancy among the commissioned judges of this Court. While the
panel of judges that heard the case voted 2 to 1 to affirm, pursuant to our opinion circulation rules
all commissioned judges voted on the opinion and a tie vote resulted. Therefore, this opinion is
filed pursuant to Section 256(b) of the Internal Operating Procedures of the Commonwealth Court,
210 Pa. Code § 67.256(b).
Claimant was employed as a home health aide by Employer beginning in
May 2014. On May 13, 2014, Claimant executed an Employment Agreement for At
Will Employee (Agreement) which stated, inter alia:
1.2 Acceptance of Employment. [Claimant] accepts
employment with [Employer] upon the terms set forth
above and agrees to devote all [Claimant’s] time, energy
and ability to the interests of [Employer], and to perform
[her] duties in an efficient, trustworthy and business-like
manner.
1.3 Devotion of Time to Employment. [Claimant] shall
devote [her] best efforts and substantially all of [her]
working time to performing the duties on behalf of
[Employer]. [Claimant] shall provide services during the
hours that are scheduled by [Employer’s] management.
[Claimant] shall be prompt in reporting to work at the
assigned time.
Reproduced Record (R.R.) at 71a (emphasis added); see also R.R. at 44a, 79a. In the
Agreement, Article VII, Claimant further agreed to comply with Employer’s
Employee Conduct Policy, which provided, in relevant part:
Payroll and Patient Care Documentation
1. All home health aides work time is verified through
the employee submitted ‘time sheets’ and ‘visit notes.’
It is the employee’s responsibility to notify the
office if a problem occurred where a mistake on
the time sheet or visit notes was made by the
employee.
All employee signatures, patient signatures, in and
out times and dates must accurately reflect the
times worked/services rendered.
[Employer] reserves the right to conduct an
investigation of employees times worked, should a
concern and/or complaint arise, by either a
patient, family member or through a third[-]party
report.
2
ANY FALSIFICATION OF INFORMATION BY AN
EMPLOYEE WILL RESULT IN IMMEDIATE
EMPLOYMENT TERMINATION.[3]
R.R. at 80a (bold emphasis added); see also R.R. at 45a, 80a-82a. In addition,
Claimant executed Employer’s revised Employee Conduct Policy Addendum, in
which she agreed to “notify [Employer] immediately when [her] client gets
hospitalized,” “not to take care of [a] client while he/she is hospitalized,” and her
“[f]ailure to advise and report to work as assigned will be considered job
abandonment and subject to immediate dismissal.” R.R. at 81a; see also R.R. at 45a.
Claimant’s father had a medical benefit allowing Claimant to be paid to
provide him home health services, which she performed weekdays from 9:00 a.m. to
3:00 p.m. Claimant usually had her father sign her Home Health Aide Weekly Visit
Note form certifying her work hours in advance of providing services for him.4
According to the certification at the bottom of her time sheets, Claimant agreed by
signing her name that “[s]ervices cannot be provided when consumer is hospitalized .
. . ,” and that she “must at all times follow the [Agreement], employee policy
handbook, employment conduct policy manual to which [she was a] signatory.” R.R.
at 84a-85a; see also R.R. at 48a-49a. Claimant’s father was admitted to the hospital
from October 31 to November 3, 2015. The time sheets Claimant submitted to
Employer for the weeks ending November 1 and 8, 2015 listed her usual work hours
3
Employer’s policy stated that “[f]alsification of documents regarding patient care,. . . or
inaccurate documentation of patient care . . . or other acts of deception raise serious concerns;
thus will result in immediate employment terminations.” R.R. at 80a (emphasis added).
4
Employer’s aides complete Home Health Aide Weekly Visit Note forms for each client,
which contain their hours worked and the client’s signature. Claimant transferred those hours from
the weekly visit note forms to her time sheets and submitted them to Employer. See R.R. at 47a,
84a-85a, 88a.
By signing the Home Health Aide Weekly Visit Note form, the patient certifies: “[I] hereby
agree and acknowledge receipt of rendered services.” R.R. at 88a (emphasis added). By signing
the forms, the aide certifies: “I hereby state that the time sheet reflects accurate representation of
the hours worked.” R.R. at 88a (emphasis added).
3
with her father. Claimant did not correct her pre-written entries to reflect that she did
not care for her father so she would not be paid for November 1, 2 or 3 and, thus,
Employer paid her for those days.
Claimant was assigned to a new client (New Client) in February 2016.
Claimant was scheduled to work for New Client from 12:00 p.m. until 4:00 p.m. on
April 14, 2016. Claimant notified New Client’s contact (New Client’s sister) that she
would be late, but did not report her tardiness to Employer’s office. At 1:51 p.m.,
Employer’s office manager, Vitaliya Gerasimenko (Gerasimenko), called Claimant,
who stated that she was on her way to New Client’s house. Gerasimenko told
Claimant it was unacceptable for her to be late and that she should have notified the
office. Gerasimenko also questioned Claimant about her November timesheet
entries. Claimant replied that she had left messages at the office about her father’s
hospitalization. After discussing the November time sheets, the call was
disconnected. Gerasimenko called her again, but Claimant refused to talk with her
because she was working with New Client. Gerasimenko instructed Claimant to put
New Client on the phone to prove it, but Claimant cursed at Gerasimenko and hung
up on her. On April 14, 2016, Employer mailed Claimant a letter stating that it
served as notification and confirmation of Claimant’s employment termination
pursuant to their conversation.
Claimant applied for UC benefits. On May 25, 2016, the Erie UC
Service Center determined that Claimant was ineligible for benefits under Section
402(e) of the UC Law (Law).5 Claimant appealed, and a Referee hearing was held.
On July 11, 2016, the Referee reversed the UC Service Center’s determination, and
granted Claimant UC benefits. Employer appealed to the UCBR. On August 30,
5
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
4
2016, the UCBR adopted the Referee’s findings and conclusions, and affirmed the
Referee’s decision. Employer appealed to this Court.6
Employer argues that the UCBR erred by finding Claimant eligible for
UC benefits where Employer established that Claimant was discharged for work rule
violations that amounted to willful misconduct. 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 an unemployment
compensation 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.
Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted). “If the employer satisfies its burden, the burden
shifts to the employee to show that [s]he . . . had good cause for h[er] . . . conduct. ‘A
claimant has good cause if h[er] . . . actions are justifiable and reasonable under the
circumstances.’” Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55
A.3d 186, 190 (Pa. Cmwlth. 2012) (citation omitted; quoting Docherty v.
Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
Ultimately, “[t]he question of whether conduct rises to the level of willful misconduct
6
Where, such as here, the party with the burden of proof does not
prevail before the [UCBR], our scope of review is limited to
determining whether or not findings of fact are consistent with
each other and with the conclusions of law and whether they can be
sustained without a capricious disregard of competent evidence.
Kuna v. Unemployment Comp. Bd. of Review, 512 A.2d 772, 775 (Pa. Cmwlth. 1986) (emphasis
added).
5
is a question of law to be determined by this Court.” Scott v. Unemployment Comp.
Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).
The law is well established that:
[T]he [UCBR] is the ultimate fact-finder in [UC] matters
and is empowered to resolve all conflicts in evidence,
witness credibility, and weight accorded the evidence. It is
irrelevant whether the record contains evidence to support
findings other than those made by the fact-finder; the
critical inquiry is whether there is evidence to support the
findings actually made. Where substantial evidence
supports the [UCBR’s] findings, they are conclusive on
appeal.[7]
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted).
At the Referee hearing, Gerasimenko testified that, on April 14, 2016,
New Client complained to Employer’s office that Claimant was “coming in late and
leaving early[.]” R.R. at 49a. Gerasimenko described that she immediately contacted
Claimant to discuss the complaint and the issue of Claimant’s time sheets during her
father’s hospitalization. She reported that Claimant was scheduled to work for New
Client from 12:00 p.m. to 4:00 p.m. that day, but when she contacted Claimant at
1:51 p.m., Claimant reported that she was running a little bit late, and she was on her
way to New Client’s house. Gerasimenko described:
7
This Court has explained:
Substantial evidence is relevant evidence upon which a reasonable
mind could base a conclusion. In deciding whether there is
substantial evidence to support the [UCBR’s] findings, this Court
must examine the testimony in the light most favorable to the
prevailing party, giving that party the benefit of any inferences which
can logically and reasonably be drawn from the evidence.
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999).
6
And I told her that it was unacceptable because being late
almost two hours is not considered to be a little bit late
and she never called the office to notify us that she was
going to be running late also. She -- her response to me was
okay, I’m just running a little late and she hung up on me
the first time. And then I called her back. She picked it up
again and she said okay, well, I am with [New C]lient right
now and I can’t really talk to you. I said okay, put [New
C]lient on the phone, because I want to verify that you are
with [New C]lient right now. And she -- this is when she
started cursing me out. She said what the f . . . are you
doing on my phone and FU and you are an f-ing B. I
said okay, do you know that this is completely
unacceptable that you cannot do that and you cannot
prove to me that you are with [New C]lient right now. Do
you understand that? And she just hung up on me. I was
trying to call her back and I even told the office staff to try
to get a hold of her. I never did. I mailed out a letter. Also
there was -- in between that, that conversation that we had
with her, I also questioned her about the days that she
submitted to us for her [f]ather, when she was working for
[her f]ather. I said well, I obtained the record. I got the
record just recently, stating that you were also
submitting for the time when [he was hospitalized.]
R.R. at 50a (emphasis added). According to Claimant’s Weekly Visit Notes for New
Client, Claimant worked from 1:40 p.m. to 3:00 p.m. on April 14, 2016. See R.R. at
88a. Gerasimenko added:
When [Claimant] submitted the residential notes to the
office, I called [New Client] and I asked her about the April
14th date and she said that [Claimant] only showed up for a
few minutes and gave her the paper to sign that day and it
was around -- she couldn’t tell me the exact time, but she
said -- she said it was sometime in the morning and then
[Claimant] left, so [Claimant] didn’t do any work that day. .
..
R.R. at 51a. By April 14, 2016 letter, Employer notified Claimant that she was
discharged for violating Employer’s policies and procedures, falsifying time sheets,
7
yelling, using foul, offensive language and having a poor attitude toward Employer.8
See R.R. at 89a.
Moreover, Claimant acknowledged that she signed the Agreement and
Employer’s conduct policies. Claimant also admitted that Gerasimenko called her on
April 14, 2015 after 1:00 p.m., that she stated that she was not yet at New Client’s
house and that Gerasimenko told her it was unacceptable to be so late for work.
Claimant also conceded that she cursed at Gerasimenko, hung up the phone on her
and was yelling inside New Client’s house. Claimant maintained that it was standard
practice for aides to contact the affected client rather than the office when they will be
late. She articulated:
8
Gerasimenko issued the letter, which specifically stated:
As per our conversation with you today, where I explained [the]
reasons for your termination [-] you were yelling, using foul,
offensive language[,] such as saying ‘What the f…ck, F…ck It, What
the f…ck are you doing on my phone, F…ck you!’ which is
unacceptable. Also, when you were called today at 1:51 p.m.[,] you
were not at work, although you were scheduled to be there from 12:00
to 4:00 p[.]m.
Your position with the agency has been terminated due to direct
violation of the Employee Conduct Policy which you are aware of.
We regret to inform you of our decision that has resulted due to your
conduct based on the following:
Failure to contact your supervisor and inform of your work
status
Failure to follow procedures and [Employer] policies
Falsifying time worked on several occasions, such as
submitting paperwork for the time you didn’t work
Poor attitude toward [E]mployer
Your employment is hereby terminated as a result of your actions.
R.R. at 89a.
8
I said I talked to [New Client’s sister] already. I explained
to [Gerasimenko] my situation, they work with me because
I said I was pregnant. And I had to make sure somebody
was watching my son. . . . I did not hang up in
[Gerasimenko’s] ear. My phone hung up. She called me
back, I picked right back up. I’m walking down Franklin
Terminal now, walking up to [New C]lient’s house. She
said well, I’m -- the reason why I’m calling you is because
we got some previous – received previous papers [about
your father]. . . . So like I explained to her, when my
[f]ather was hospitalized and like they say on the paper,
you’re supposed to call 24 hours ahead or to call and leave a
message and nobody -- they said they’d have somebody call
you right back. That’s a lie. Nobody never calls back. I
don’t care how many times you call, it can be the weekend,
it can be during the week day [sic]. They do not return your
calls at all. . . . I talked . . . to somebody that was working
there. . . . I said I left you all two messages. That’s it. I
wasn’t going to keep doing you all [sic], leaving messages
on your phone. And I wasn’t, I didn’t do it. So she said
well, I don’t know what dates you’re talking about, but the
dates that I’m talking about are right here. I have the proof
of document [sic]. Today will be your last day of working.
So yes, I got mad. For one, it’s hot, I’m already running
late for work, I’m irritable and you’re telling me today is
my last day of work for something that happened in 2015.
How do you expect for somebody to sit up there and be
calm about it? No, I was not calm. . . . I’m not going to
lie. I was wrong for cussing at her. But in the same
token, for you to tell me that you’re going to let me go for
any reason that you want to, no matter if it’s an old
statement or not.
R.R. at 55a-56a (emphasis added). Claimant further expounded:
Now . . . , this time I did hang up, because I’m going
inside somebody’s house now. Then you call me right
back. I’m upstairs with [New Client]. I can -- if they was
here, they would tell you. I done seen [sic] [New Client and
her sisters] and everybody that was living there. You’re
telling me that I’m not at work. You never asked can you
speak to [New C]lient.
R.R. at 57a (emphasis added).
9
Now [Gerasimenko] called back again, because like I said, I
did hang up on her. I said I’m in [New C]lient’s house
right now, I’m running late. I’m trying to do everything I
got to do before I have to go pick my child up. She is like
this is unacceptable. She said like, she said you’re using
profanity. I have not cussed at you. She was like I wish
you the best of luck in life and she said something else and I
said [Gerasimenko] I got to go, because I’m yelling inside
of a client’s house and she’s right there. . . . So for you to
say. . . [New Client] called you, . . . that’s another lie. [New
Client] can barely talk on the phone. So you have to talk to
her sister, which is her caretaker, well, who she lives with.
That’s how you have to talk to her. And yeah, she wants to
tell you yeah, I was late. . . . Yes, I was running late, that’s
not a lie. That’s the truth.
R.R. at 57a (emphasis added).
Relative to Claimant’s November 2015 patient care records, Employer’s
Employee Conduct Policy specifically required that “[a]ll employee signatures,
patient signatures, in and out times and dates must accurately reflect the times
worked/services rendered.” R.R. at 80a. Notwithstanding, Claimant admitted that
she regularly had her father sign her weekly visit note form in advance of providing
him care. She explained that her father cannot write every day, so on the days he is
able to sign his name, she has him sign the form for the entire week “as best as he
can, . . . and [] make copies of that.” R.R. at 58a. Claimant described:
I don’t fill out the dates or nothing until the end of the week
and I make copies of it, before my signature is on there . . . .
So I fill them out and then I fax it over. So like I said, I was
wrong. Don’t get me wrong, like I told her on the phone, I
was wrong for that. But you’re not going to sit up there and
come to me a year later.
R.R. at 58a; see also R.R. at 59a (wherein Claimant testified “if he was in the
hospital, I was wrong for submitting [that time]”).
The UCBR adopted the Referee’s findings that:
10
8. [Employer] had a policy, which it listed at the bottom of
its ‘weekly time schedule’ forms, that ‘[s]ervices cannot be
provided when [a client] is hospitalized . . . .’
9. [Claimant’s] father was admitted to the hospital [on] the
evening of October 31, and discharged [on] the evening of
November 3, 2015.
10. [Claimant] submitted two ‘weekly time schedule
sheets’ for the weeks ending November 1 and 8, 2015 on
which she listed her usual work hours with her father,
and failed to correct her pre-written entries so that she
would not be paid for November 1, 2, or 3; [Employer]
did pay her for those days.
11. On April 14, 2016, the following events occurred:
a. [Claimant] was scheduled to work at 12:00 Noon;
and
b. The babysitter for [Claimant’s] five year old son
had not arrived in time for her to go to [New
Client’s] home; and
c. [Claimant] called [New Client’s] contact (New
Client’s sister) and told her she would be late; and
d. [Claimant] did not tell [Employer] she was going
to be late; and
e. [Gerasimenko] called [Claimant] about 1:50 p.m.,
[Claimant] said she was traveling to [New Client’s]
house, [Gerasimenko] told her it was ‘unacceptable’
that she was late and that she did not notify the
office, and then questioned [Claimant] about her
November time entries, to which [Claimant] replied
‘I left you messages about my father being in the
hospital’; and
f. After discussing the November time sheets,
[Gerasimenko] told [Claimant], among other things
that, ‘Today will be your last day’, to which
[Claimant] replied by cursing at [Gerasimenko] and
then disconnecting the call; and
g. After [Claimant] arrived at [New Client’s] house
and was providing services, [Gerasimenko] called
11
her again, [Claimant] replied that she could not
discuss anything because she was working with
[New Client], [Gerasimenko] said to put [New
Client] on the phone to prove it, and [Claimant]
again disconnected the call.
Referee Dec. at 2 (emphasis added). In finding Claimant eligible for UC benefits, the
UCBR adopted the Referee’s reasoning:
[Employer] cited several reasons for termination, the
first being [Claimant’s] profane outburst. There is a
conflict in the parties’ testimony, however, as to whether
that came before or after [Gerasimenko] said ‘today will be
your last day[.]’ [Claimant] was more credible on this
point;[9] thus, the record shows the reason for her
termination was not her outburst but rather either the
November time sheets, [Gerasimenko’s] discovery that she
was late getting to [New Client’s] house on April 14, or a
combination thereof.
Regarding the November incident, [Employer] was unclear
as to why it was not discovered until April; even if there
was good cause for that, however, [Claimant] explained
how it occurred and testified that she had left messages
[with Employer] about the dates her father was hospitalized.
While [Claimant] was negligent in submitting her time
sheets, the record is insufficient to show she committed
fraud by claiming pay for those days.
Regarding the April 14 lateness, [Claimant] showed good
cause for it. Although she did not inform [Employer], she
did inform [New Client] and testified it was standard
practice; [Employer] did not show a rule stating she had to
notify someone other than the client on days she was going
to be late or vary her hours. While [Employer] has the
right to terminate [Claimant’s employment] based on
[New Client’s] complaints, it did not show [Claimant] was
late on specific days other than April 14. On this record,
therefore, [Claimant’s] separation may not be considered
disqualifying under Section 402(e) [of the Law].
Referee Dec. at 2-3 (emphasis added).
9
This was the Referee’s only credibility determination.
12
However, the record evidence is undisputed that Employer had
written policies that required Claimant to be prompt when reporting to work, to
act in a business-like manner, and not to submit false or innacurate time sheets.
Claimant was well aware of those policies and expressly agreed to them.
Nevertheless, Claimant admitted she knowingly submitted
inaccurate time sheets and was paid for days in October and November 2015
during which her father was hospitalized. Her only defenses to the charge were
that she left messages with Employer that her father was hospitalized, and that
Employer should not be permitted to penalize her for past behavior. According to
Gerasimenko’s undisputed testimony, she “just recently” obtained documentation that
Claimant submitted time sheets in the fall for days during which Claimant’s father
had been hospitalized. R.R. at 50a. Notwithstanding, when or if Claimant timely
informed Employer that her father was hospitalized, and when Employer may have
become aware of that violation does not change the fact that Claimant knowingly and
admittedly submitted two false and/or inaccurate time sheets and was paid for hours
she did not work.
Claimant prepared, signed and submitted the time sheets. She was
responsible to ensure their accuracy. Claimant admitted that she was wrong for
consciously and deliberately directing her father to certify her work hours on her
weekly visit note forms in advance of her rendering services for him during those
weeks, and thereafter transferring that false/inaccurate information to two time sheets
and submitting them to Employer. Employer’s Employee Conduct Policy specifies:
“It is the employee’s responsibility to notify the office if a problem occurred where a
mistake on the time sheet or visit notes was made by the employee.” R.R. at 80a.
The policy further states: “It is [the employee’s] responsibility to ensure the
paperwork [he or she] submit[s] is filled out correctly.” R.R. at 81a.
13
Although Claimant pronounced that she “left [Employer] two messages”
about her father’s hospitalization, R.R. at 56a, there is no record evidence about when
those messages may have been left, or whether she specifically informed Employer
that two time sheets she submitted were inaccurate as a result. In fact, Claimant
acknowledged that she left two messages, but refused “to keep . . . leaving messages
on [Employer’s] phone.” R.R. at 56a. Under such circumstances, we disagree with
the Referee and the UCBR that “while [Claimant] was negligent in submitting her
time sheets,” she did not commit disqualifying willful misconduct. Referee Dec. at 3.
We have explained that ‘an employer cannot demonstrate
willful misconduct by merely showing that an employee
committed a negligent act, but instead must present
evidence indicating that the conduct was of an intentional
and deliberate nature.’ Myers [v. Unemployment Comp. Bd.
of Review,] 625 A.2d [622,] 625 [(Pa. 1993)]. (internal
citation omitted). Furthermore, this Court has
acknowledged that a determination of whether an action
constitutes willful misconduct requires a consideration of
‘all of the circumstances, including the reasons for the
employee’s noncompliance with the employer’s directives.’
Rebel v. Unemployment Comp[.] B[d.] of Review, . . . 723
A.2d 156, 158 ([Pa.] 1998).
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 426 (Pa. 2003).
Pennsylvania Courts have long held:
a knowing falsehood or misrepresentation to the
employer concerning the employee’s work
constitutes a willful disregard of the employer’s
interest and a departure from the standards of
behavior an employer can rightfully expect of an
employee, and therefore is willful misconduct under
the statute.
Smith v. Unemployment Comp. Bd. of Review, . . . 411 A.2d
280, 281 ([Pa. Cmwlth.] 1980) (citing, inter alia, Miokovic
v. Unemployment Comp. Bd. of Review, . . . 171 A.2d 799
([Pa. Super.] 1961)).
14
Melomed v. Unemployment Comp. Bd. of Review, 972 A.2d 593, 595 (Pa. Cmwlth.
2009).
This Court’s review of the record reveals that Claimant knowingly
submitted false and/or inaccurate time sheets and she did not notify Employer of the
inaccuracies,10 in violation of Employer’s policies.11 Moreover, Employer’s
prohibition against falsification12 and/or inaccurate patient care records does not
require that violations be intentional and fraudulent,13 see R.R. at 80a, nor do
Employer’s conduct policies restrict when Employer may terminate Claimant’s
employment for violations thereof.14 In fact, Claimant agreed with Employer’s “right
to conduct an investigation of employee times worked, should a concern . . . arise[.]”
R.R. at 80a.
Accordingly, we hold that although the UCBR’s findings 8, 9 and 10 are
supported by substantial record evidence, those findings do not support the UCBR’s
conclusion that Claimant is entitled to UC benefits because her conduct relative to her
November 2015 time sheets was merely negligent. Willful misconduct includes
“deliberate violation of [Employer’s] work rules” and “negligence indicating an
intentional disregard of [Employer’s] interest or a disregard of [Claimant’s] duties
10
Even if we were to assume, as the Dissent proffers, that the two messages Claimant left
Employer regarding her father’s hospitalizations could have included explanations that her
timesheets were inaccurate as a result, then Employer would not have paid her for those days. The
UCBR found to the contrary.
11
Notably, Claimant timesheet for her work with New Client on April 14, 2016, reflects that
Claimant arrived at New Client’s home at 1:40 p.m. See R.R. at 88a. However, according to the
testimony, Claimant had not yet arrived at New Client’s home when Gerasimenko contacted her at
1:51 p.m. See Referee Dec. at 2.
12
To “falsify” is “[t]o make something false; . . . [t]o prove something to be false or
erroneous . . . .” Black’s Law Dictionary 678 (9th ed. 2009).
13
A “fraudulant act” is defined as “[c]onduct involving bad faith, dishonesty, a lack of
integrity, or moral turpitude.” Black’s Law Dictionary 733.
14
Claimant acknowledged her understanding of Employer’s policy regarding falsification of
documents, which clearly defined falsification to include “incomplete or inaccurate
documentation.” R.R. at 80a.
15
and obligations to [Employer].” Dep’t of Transp., 755 A.2d at 747 n.4. Based on the
findings the UCBR made and which are conclusive on appeal, Claimant’s
falsification and/or inaccuracies in her time sheets, and her subsequent failure to
correct them violated Employer’s specific policies and demonstrated an intentional
disregard of Employer’s interests and Claimant’s obligations and, thus, constituted
willful misconduct.
Claimant also clearly admitted that she was late to work on April 14,
2016, thereby violating Employer’s policy, used profanity, yelled at Employer
while inside New Client’s house, and hung up the phone on Employer when
Employer attempted to discuss these matters with her. The UCBR’s adopted
conclusion that Claimant’s discharge was due to Claimant’s false November time
sheets and being late on April 14, 2016, rather than her unbusiness-like treatment of
Gerasimenko, does not alter that Employer’s documented reasons for Claimant’s
employment separation were for violating Employer’s policies and procedures,
falsifying time sheets and having a poor attitude toward Employer. See R.R. at 89a.
Moreover, precisely when during the April 14, 2016 exchanges
Gerasimenko told Claimant that day would be her last day of employment makes no
difference when, by Claimant’s own admission and based upon her time sheet, and
the Board’s adopted finding, Claimant continued to provide services for New Client
after her profane outburst occurred.15 See R.R. at 56a, 88a. Under the circumstances,
15
According to the record, Employer “considered [April 14, 2016] [Claimant’s] last day of
work[.]” R.R. at 51a; see also R.R. at 52a-53a (where the Referee corrected Gerasimenko’s
misstatement that she considered April 13, 2016 Claimant’s last day). Claimant confirmed that
Employer told her: “Today will be your last day of working.” R.R. at 56a. Moreover, Claimant
continued on to New Client’s home where she yelled at Employer in New Client’s presence and
then, according to Claimant’s weekly visit note, still provided New Client care for approximately
one hour and twenty minutes (from 1:40 to 3:00 p.m.). See R.R.at 88a. The Board specifically
found: “After [Claimant] arrived at [New Client’s] house and was providing services,
[Gerasimenko] called her again, [and Claimant] replied that she could not discuss anything because
she was working with [New Client.]” Referee Dec. at 2 (Finding of Fact 11.g) (emphasis added).
16
Claimant was still an employee when she treated Gerasimenko in that manner. The
law is well settled that “[a]n employee’s use of abusive, vulgar or offensive language
with a superior is a form of insubordination that can constitute willful misconduct,
even if the employer has not adopted a specific work rule prohibiting such language.”
Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012).
This Court has held that such behavior, particularly in the presence of an employer’s
clients or customers, “evidences a disregard of standards that an employer can
rightfully expect of its employees.”16 Leone v. Unemployment Comp. Bd. of Review,
885 A.2d 76, 81 (Pa. Cmwlth. 2005). Accordingly, we hold that there was substantial
evidence of Claimant’s willful misconduct in violating Employer’s policies and in her
treatment of Gerasimenko on April 14, 2016, and the UCBR erred by concluding
otherwise.
In addition, the UCBR’s finding notwithstanding, there was no record
evidence of the reason for Claimant’s tardiness on April 14, 2016 that would
demonstrate good cause. Despite that Employer’s policy did not specifically
address tardiness, Claimant was on notice that her “[f]ailure to advise and report to
work as assigned will be considered job abandonment and subject to immediate
dismissal.” R.R. at 81a. Claimant knew that her failure to report to work as assigned
and/or failed to provide services during her scheduled hours violated Employer’s
express policy and would subject her to immediate discharge. See R.R. at 65a.
Rather than offering good cause for her April 14, 2016 tardiness, Claimant declared
Thus, neither party considered Claimant’s employment terminated as of the moment the
confrontation occurred. So, notwithstanding Claimant’s assertion that she did not swear at
Employer until after her discharge, Claimant was still employed at least until she left New Client’s
home at 3:00 p.m.
16
Claimant testified: “I’m yelling inside of [New C]lient’s house and she’s right there.”
R.R. at 58a.
17
that she was only “a little late.”17 R.R. at 55a. Further, the record does not reflect, as
the Referee and the UCBR claimed, that “[t]he babysitter for [Claimant’s] five[-
]year[-]old son had not arrived in time for her to go to [New Client’s] home[.]”
Referee Dec. at 2. Rather, Claimant stated only: “[New Client and her sister] work
with me because I said I was pregnant. And I had to make sure somebody was
watching my son.” R.R. at 55a. These statements alone do not establish that
Claimant’s “actions are justifiable and reasonable under the circumstances.” Grand
Sport Auto Body, 55 A.3d at 190.
Finally, this Court has held that “[a] work rule violation need not be
shown where the behavior standard is obvious, and the employee’s conduct is so
inimical to the employer’s best interests that discharge is a natural result.” Tongel v.
Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985); see
also Evans v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 2419 C.D. 2014,
filed December 2, 2015).18 Certainly, “[a]n employer has the right to expect that his
employees will attend work when they are scheduled, that they will be on time and
that they will not leave work early without permission.” Fritz v. Unemployment
Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982); see also Ellis v.
Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) (“It is
well-settled that an employer has the right to expect that its employees will attend
work when they are scheduled and that they will be on time[.]”). Here, Claimant’s
submission of and failure to correct her November 2015 time sheet, together with her
failure to timely report to work on April 14, 2016, and her profane outburst related
thereto, were not “justifiable and reasonable under the circumstances[,]” Grand Sport
17
This Court is hard-pressed to agree that Claimant being nearly two hours late for a four-
hour shift is just a little late.
18
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
18
Auto Body, 55 A.3d at 190, nor were they of the type of conduct Employer had a right
to expect. See Leone; see also Fritz.
Because Employer met its burden of proving that Claimant violated its
policies, and Claimant did not meet her burden of proving that she had good cause for
doing so, we hold that the UCBR erred by finding Claimant eligible for UC benefits.
Based on the foregoing, we reverse the UCBR’s order.
___________________________
ANNE E. COVEY, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vital Support Home Health :
Care Agency, Inc., :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1598 C.D. 2016
Respondent :
ORDER
AND NOW, this 20th day of October, 2017, the Unemployment
Compensation Board of Review’s August 30, 2016 order is reversed.
___________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vital Support Home Health :
Care Agency, Inc., :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1598 C.D. 2016
Respondent : Submitted: March 17, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: October 20, 2017
Because I believe the findings of fact made by the Unemployment
Compensation Board of Review (Board) are supported by substantial evidence in
the record, I cannot agree with the Majority’s decision to reverse and, therefore,
respectfully dissent.
The appellate court’s duty is to examine the testimony in the light most
favorable to the party in whose favor the Board has found, giving that party the
benefit of all inferences that can logically and reasonably be drawn from the
testimony, to see if substantial evidence for the Board’s conclusion exists. Penflex,
Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). The Board’s August 30, 2016 order
adopted and incorporated the Referee’s findings and conclusions.
With regard to the alleged falsification of paperwork, the Board
accepted Unique Brown’s (Claimant) testimony that she left messages with Vital
Support Home Health Care Agency, Inc. (Employer) about the dates her father was
hospitalized. (Referee’s Decision/Order at 3; Reproduced Record (R.R.) at 116a.)
Claimant’s testimony was uncontroverted. Employer’s evidence consisted of
Claimant’s signed time sheets. Claimant admitted it was her signature on the form
which indicated she performed services while her father was hospitalized. (R.R. at
59a.) However, Claimant could not recall the circumstances and what happened at
the time of his hospitalization. Id. While Claimant didn’t testify to the dates or exact
content of the messages left, her testimony was unequivocal that she called
Employer about her father’s hospitalization. Id. at 56a. Claimant further testified
that Employer never returned calls, no matter “how many times you call, it can be
the weekend, it can be during the week. They do not return your calls at all.” Id.
In support of its decision to reverse the Board’s order, the Majority cites
the lack of record evidence about “when those messages may have been left, or
whether she specifically informed Employer that two time sheets she submitted were
inaccurate as a result.” (Majority, slip op. at 13.) While this is facially accurate,
neither does the record contain evidence that Claimant did not, in fact, attempt to
notify Employer her father was hospitalized.
The Majority takes issue with the behavior of Claimant when speaking
with Vitaliya Gerasimenko (Gerasimenko), the office manager for Employer.
Claimant readily admitted that, during a telephone conversation with Gerasimenko
which took place on Claimant’s final day of employment, she became angry and
cursed at Gerasimenko. However, Claimant testified the outburst was precipitated
by Gerasimenko’s statement that “today would be [her] last day.” (R.R. at 56a.)
JMC-2
Contrary to this, it was Gerasimenko's position that Claimant began to curse at her
before she terminated Claimant’s employment. Id. at 50a. The Board resolved this
conflict in testimony with a finding that Claimant was the more credible witness.
That is the Board's job, not ours. The Board, not this Court, is the ultimate factfinder
empowered to make credibility determinations. McCarthy v. Unemployment
Compensation Board of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003). This
Court should not reweigh the evidence and substitute its judgment for that of the
factfinder, Commonwealth v. Williams, 854 A.2d 440 (Pa. 2004), but that is precisely
what we are doing here. As to the Majority’s conclusion that Claimant’s behavior
evidenced a disregard of standards an employer can rightfully expect from its
employee and, thus, Claimant committed willful misconduct, (Majority, slip op. at
15), it goes without saying that an employer’s expectations of an employee’s
behavior are no longer relevant once the employment relationship has been
terminated.
Finally, the Majority contends Claimant failed to demonstrate good
cause for being tardy to work on her last date of employment. Claimant testified she
contacted the client, which was standard protocol, and the client was willing to work
with her because Claimant was pregnant. (R.R. at 55a.) Given Claimant’s
uncontroverted testimony that Employer did not return phone calls, it seems logical
that Claimant would contact the client and not Employer. As noted in the Referee’s
decision, Employer provided no policy that required Claimant to notify anyone other
than the client that she would be late or needed her hours adjusted. (Referee’s
Decision at 3; R.R. at 116a.) Employer’s Conduct Policy required employees to
provide the office with 24-hour notice if unable to work. (Employer Exhibit #2;
R.R. at 80a.) Claimant was admittedly late (a fact which was accurately reported on
JMC-3
her time sheet), (Employer’s Exhibit #9; R.R. at 88a), but she did not fail to report
to work in contravention of the policy.
Simply put, the Majority does not give the successful party the benefit
of all inferences that could be logically and reasonably drawn from the testimony, in
contravention of our Supreme Court’s directive in Penflex. I must, therefore, dissent.
___________________________
JOSEPH M. COSGROVE, Judge
JMC-4
Vital Support Home Health Care Agency, Inc. v. UCBR
Combined Opinion