IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen Marie Saxton, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 515 C.D. 2017
Respondent : Submitted: October 13, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 5, 2018
Colleen Marie Saxton (Claimant) petitions this Court, pro se, for review
of the Unemployment Compensation (UC) Board of Review’s (UCBR) February 27,
2017 order affirming the Referee’s decision denying her UC benefits under Section
402(e) of the UC Law (Law).1 The sole issue before the Court is whether the UCBR
erred by concluding that Claimant committed willful misconduct.2 After review, we
affirm.
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e)
(referring to willful misconduct).
2
Claimant’s Statement of Questions Involved lists five issues: (1) whether Employer met its
burden of proving willful misconduct; (2) whether there was substantial evidence of willful
misconduct; (3) whether the UCBR relied on hearsay evidence; (4) whether Employer properly
investigated Claimant’s conduct; and, (5) whether Employer’s employees were permitted to work at
home. See Claimant Br. at 7-8. Because these issues are subsumed in the analysis of whether the
UCBR erred by concluding that Claimant committed willful misconduct, we have combined the
issues herein.
Claimant was employed by Redstone Highlands SeniorCare (Employer)
as a full-time registered weekend nurse beginning October 16, 2006. Employer’s
Employee Conduct Guidelines (Policy) specified that misconduct including “falsifying
records, reports or information” and “dishonesty, including but not limited to
deception, fraud, lying, cheating or theft,” would result in “immediate termination of
employment.” Certified Record (C.R.) Item 11, Notes of Testimony, November 10,
2016 (N.T.) at Employer Ex. 7A at 2. On October 8, 2009, Claimant signed an
acknowledgement that she understood and agreed to the Policy. N.T. Employer Ex. 6.
On or about August 14, 2016, Employer discharged Claimant for dishonesty and
records falsification.
Claimant applied for UC benefits. On September 14, 2016, the
Greensburg UC Service Center determined that Claimant was ineligible for UC
benefits because the actions that led to her discharge constituted willful misconduct.
Claimant appealed, and a Referee hearing was held on November 10, 2016. On
November 30, 2016, the Referee affirmed the UC Service Center’s determination.
Claimant appealed to the UCBR and requested a remand hearing on the basis that she
was poorly represented at the Referee hearing. On February 27, 2017, the UCBR
adopted the Referee’s findings and conclusions, affirmed the Referee’s decision, and
denied Claimant’s remand hearing request. Claimant appealed to this Court.3
Claimant argues that Employer failed to prove that her discharge was due
to willful misconduct. This Court disagrees.
Section 402(e) of the Law provides that an employee is
ineligible for [UC] benefits when h[er] unemployment is due
to discharge from work for willful misconduct connected to
h[er] work. The employer bears the burden of proving
3
“Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
2
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 . . . she had good cause for . . . her conduct. ‘A
claimant has good cause if . . . her 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
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).
At the Referee hearing, Employer’s Nursing Director and Claimant’s
direct supervisor Beth Kohler (Kohler) explained that Employer’s Policy reflects its
zero tolerance for dishonesty and records falsification. Kohler further described
Employer’s timekeeping system, whereby, employees swipe their badges to record
their work hours. If an employee does not have her badge for any reason, the employee
is required, for compensation purposes, to complete and submit Payroll Exception
Reports (Green Sheets) explaining why she did not use her badge to record her work
time.4 See N.T. at 20, 23; see also N.T. Claimant Ex. 1; N.T. Employer Exs. 4-5.
Kohler also testified that Employer’s nurses, including Claimant, were required to
complete self-guided, computer-based PointClickCare (PCC) training using
4
Green Sheets are also used to record when unpaid meal times were not taken as scheduled,
and for bereavement and jury duty time off. See N.T. Claimant Ex. 1; N.T. Employer Exs. 4-5.
3
Employer’s computers during work hours or after scheduled work hours, but before
swiping out. See N.T. at 19. Kohler stated that Employer did not authorize the nurses
to complete PCC training at home. See N.T. at 12, 22.
Kohler recounted that Claimant’s employment was terminated because
she signed and submitted Green Sheets reflecting that she completed PCC training from
8:00 a.m. until 1:00 p.m. on August 10, 2016, see N.T. Employer Ex. 4, and from 10:00
a.m. until 3:30 p.m. on August 12, 2016, see N.T. Employer Ex. 5. However,
Employer’s computer records revealed that Claimant did not initiate the computer PCC
program on August 10, 2016 and was not logged into the PCC for the amount of time
Claimant submitted for August 12, 2016.
The August 10, 2016 Green Sheet contains Claimant’s signature, and
reflects that she “DID NOT USE PHOTO IDENTIFICATION BADGE TO RECORD TIME
REPORTING TO WORK AND/OR ENDING WORK” for the following reason: “Did PCC on
computer. Did not punch in.” N.T. Employer Ex. 4. The August 12, 2016 Green Sheet
contains Claimant’s signature, and states that she “DID NOT USE PHOTO IDENTIFICATION
BADGE TO RECORD TIME REPORTING TO WORK AND/OR ENDING WORK” for the following
reason: “PCC on computer.” N.T. Employer Ex. 5. Both Green Sheets were signed by
Employer’s daylight Supervisor Rita Treager (Treager).
Kohler clarified that Green Sheets were not to be used by the nurses to
report PCC hours. See N.T. at 19. Kohler met with Claimant on August 23, 2016 to
discuss her Policy violations. See N.T. at 9. Kohler described that, when confronted,
Claimant responded that she completed the PCC modules at home, and told Kohler that
“if it is not correct, don’t pay me for that time.” N.T. at 21.
Employer’s Executive Director Megan Henson (Henson) confirmed that
the nurses were not permitted to conduct the PCC training from home. See N.T. at 29,
31. She also declared that Employer discharged Claimant “[f]or dishonesty and
falsification of records.” N.T. at 24; see also N.T. at 26. Henson recalled that when
4
Treager asked her whether Claimant was permitted to conduct her PCC training from
home, Henson contacted Claimant who said she could not remember the dates for
which she completed the Green Sheets, but that she did work on the PCC from home.
See N.T. at 24-25, 32. Henson pronounced: “Then [Claimant] said what, now I’m not
going to get paid for these times? And I said no, I just need to verify the times and
dates.” N.T. at 25.
Henson described that she investigated Claimant’s PCC time by pulling a
PCC report from the computer system that specified what PCC modules Claimant
completed on which dates, and Henson hand-recorded the dates on the PCC Training
Module Agenda sheet.5 See N.T. at 25-29. Upon her comparison to Claimant’s Green
Sheets, Henson discovered that Claimant did not participate in any PCC training on
August 10, 2016 and only logged in for 2.6 hours on August 12, 2016.6 See N.T. at 25,
5
Claimant contends that Henson’s documentation of Claimant’s PCC computer log-in hours
was hearsay and admitted over her counsel’s objection. Certainly, an out-of-court statement offered
to prove the truth of the matter asserted is hearsay. Pa.R.E. 801(c). The law is well-settled that
“[h]earsay evidence, properly objected to, is not competent evidence to support a finding of the
[UCBR].” Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976).
However, Section 6108(b) of the Uniform Business Records as Evidence Act (Act), provides an
exception to the hearsay rule for records where a qualified witness testifies regarding its identity, and
its timing and mode of preparation. 42 Pa.C.S. § 6108(b). “Whether a document should be admitted
under the business records exception to the hearsay rule is within the discretion of the trier of fact
provided that his or her discretion is exercised within the dictates of Section 6108 [of the Act].” Toth
v. Workers’ Comp. Appeal Bd. (USX Corp.), 737 A.2d 838, 841 (Pa. Cmwlth. 1999).
Here, the Referee overruled Claimant’s hearsay objection relative to Henson’s notes and the
computer log that reflected the dates on which Claimant completed PCC modules (i.e., July 18,
August 9 and August 12, 2016). See N.T. at 14-15, 27, 39; see also N.T. Employer Exs. 1-2. Because
Henson testified relative to the identity, and the timing and mode of their preparation, and was cross-
examined concerning the same, the Referee did not abuse her discretion by admitting them into
evidence under the business records exception to the hearsay rule.
6
According to Henson’s handwritten notes that she placed on a PCC Training Module Agenda
sheet (a form Employer’s nurses received relative to what PCC modules must be completed and
when), Claimant was logged into PCC for 60 minutes on July 18, 2016, for 288 minutes on August
9, 2016, and for 158 minutes on August 12, 2016. See N.T. at 13, 25; see also N.T. Employer Exs.
1-2.
5
27-28, 35; see also N.T. Employer Exs. 1-2. These findings were in stark contrast to
what Claimant informed Henson. Henson met with Kohler and Claimant on August
23, 2016 to discuss Claimant’s Policy violations. See N.T. at 25.
Employer’s Assistant Vice President of Human Resources Kathie Brean
(Brean) confirmed that nurses were not authorized to complete their PCC training at
home. See N.T. at 37. She further explained that employees were supposed to swipe
their badges at work and, if they did so, there would be no need to complete the Green
Sheets to show their work hours and be paid accordingly.
Claimant testified that Tiffany Height (Height),7 the person in charge of
the computer component of PCC training, informed her that the training could be
completed from home, and provided Claimant with an email that allowed her to do so.8
See N.T. at 39-40, 46. Claimant also asserted that her former supervisor Donna
Lincoski (Lincoski) instructed her to report her PCC training hours on Green Sheets,
even when she was swiped in at work, despite Claimant’s impression that the nurses
would not be paid for the PCC training. 9 See N.T. at 40, 43, 45-46.
Claimant admitted to signing the Policy acknowledgment, and that she
would expect to be discharged for dishonesty. See N.T. at 40-41, 51. However,
Claimant maintained that although she completed two Green Sheets for two PCC
training days, she did not complete or sign the August 10, and 12, 2016 Green Sheets
7
Henson represented that Height is a quality nurse, not a supervisor. See N.T. at 31.
8
Employer’s counsel objected to this testimony as hearsay, which objection the Referee
sustained. See N.T. at 39-40. Employer’s counsel further represented: “Tiffany is not an agent of
[Employer][.]” N.T. at 40.
9
Claimant described that one Green Sheet was for PCC training at work, and the other was
for PCC training from home. See N.T. at 44. Notably, after first testifying that she was not paid for
PCC training, see N.T. at 43, when Claimant was later asked if she was paid for PCC training she did
at work, she responded: “I would assume yes.” N.T. at 53.
6
upon which Employer based her discharge.10 See N.T. at 41-44; see also N.T. Claimant
Ex. 2. Claimant explained that she did not intentionally provide incorrect or false
information on her Green Sheets, but was tired when she completed the Green Sheet
for her at-home training at 1:00 a.m. after a 19-hour shift, and since she did not attend
the PCC meeting, she was confused about the Green Sheet policy and relied upon
Lincoski’s instruction to submit Green Sheets for PCC training. See N.T. at 42-43, 45,
53, 55. She recounted that when Henson contacted her about the Green Sheets, she
told Henson relative to the at-home time that “if the [Green S]heet is wrong don’t pay
me . . . we’re not supposed to be paid.” N.T. at 46; see also N.T. at 49-50.
Claimant stated that Employer never permitted her to offer her side of the
story, and, since Employer was in financial distress, she felt her job may be in jeopardy
before the August 2016 Green Sheets incident arose. See N.T. at 49. Claimant further
reported that Employer’s Policy is not zero-tolerance since, when she had an error (an
incorrect date) on a previous Green Sheet, she was permitted to correct it rather than
10
Claimant contends that the Green Sheets were unauthenticated hearsay admitted into
evidence over her counsel’s objection and that they were not original documents. At the hearing,
Claimant asserted, and her mother Phyllis Cratty confirmed, that the signatures on the subject Green
Sheets were not hers. See N.T. at 41-44, 56-57; see also N.T. Claimant Ex. 2. The Referee overruled
Claimant’s objections because Employer received the Green Sheets from Claimant and maintained
them in the ordinary course of Employer’s business as business records used to calculate Claimant’s
pay. See N.T. at 4, 29; see also N.T. Employer Exs. 4-5. Claimant confirmed in her brief to this
Court that, at some point, she placed two Green Sheets in Treager’s mailbox. Claimant Br. at 23.
Under the circumstances, the Referee did not abuse her discretion by admitting the August 10, and
12, 2016 Green Sheets into evidence as business records.
Moreover, “[a] duplicate is admissible to the same extent as the original unless a genuine
question is raised about the original’s authenticity or the circumstances make it unfair to admit the
duplicate.” Pa.R.E. 1003. Under circumstances in which the UCBR did not find credible Claimant’s
assertions that she did not sign the Green Sheets upon which Employer’s case is based, there is not a
“genuine question” relative to their authenticity and, thus, the Referee did not err by admitting copies.
7
being disciplined.11 See N.T. at 47, 52-53. Claimant claimed that Employer has never
disciplined anyone for Green Sheet errors. See N.T. at 47.
Based upon the above-stated evidence, the UCBR adopted the Referee’s
findings, in relevant part:
2. [Employer] has a policy which prohibits the falsification
of record[s], reports, or information[.]
3. [Employer] uses a timecard system where employees
swipe badges to record the time [the employees] are working.
4. If an employee forgets [his/her] badge, loses [a] badge, or
has some other issue with punching in on the timeclock, the
employee must complete a [Green Sheet].
5. [Employer] does not grant permission for employees to
work from home and all computer[-]based training and other
work must be completed at [Employer’s] facility.
6. On August 10, 2016 and August 12, 2016, [Claimant]
submitted [Green Sheets] which both indicated she had
completed computer[-]based training on those days.
7. [Claimant] did not punch in using [Employer’s] standard
timekeeping system on August 10, 2016 or August 12, 2016.
8. [Employer’s] computer system did not show that
[Claimant] completed the computer[-]based training on
August 10, 2016 and had only completed approximately half
the time that she had charged [on the Green Sheet] on August
12, 2016.
Referee Dec. at 2. The UCBR also adopted the Referee’s conclusion that Employer
met its burden of proving that Employer had a Policy prohibiting records falsification,
Claimant was aware of the Policy, and Claimant violated the Policy:
11
Claimant submitted with her brief to this Court three statements by co-workers to support
her claims that she was permitted to conduct PCC training at home, and that Employer does not
automatically discharge employees who make mistakes on Green Sheets. As a matter of law, this
Court is prohibited from considering extra-record evidence on appeal. See 34 Pa. Code § 101.106;
Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012). Accordingly,
this Court did not consider those statements in its decision herein.
8
[Claimant] submitted documentation to [Employer] asking to
be paid for working on August 10, 2016 while in the
computer[-]based training and again for hours worked on
August 12, 2016 completing computer[-]based training.
Upon [Employer] checking the computer[-]based learning
system, [it] discovered that [Claimant] did not, in fact, log
into the computer[-]based training on August 10, 2016 at all
and had only been logged into the system for approximately
half the time that she had charged on the [Green Sheet] for
August 12, 2016. While [Claimant] argued . . . that the
[Green Sheet] was used for [] purposes other than to request
to be paid, the Referee finds that [Employer’s] testimony that
all employees must use the electronic timekeeping system
where employees swipe their individual time badges is the
standard procedure that employees must follow when
‘clocking in or out.’
Referee Dec. at 2.
The law is well-established:
[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.[12]
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted). Here, the UCBR expressly found credible
Employer’s testimony and evidence, and concluded that Claimant “deliberately
12
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).
9
violated [Employer’s P]olicy against engaging in dishonesty.” C.R. Item 16, UCBR
Order.
The issue of whether good cause exists is a factual one for
the [UCBR] to resolve. Wideman v. Unemployment Comp[.]
B[d.] of Review, . . . 505 A.2d 364, 368 ([Pa. Cmwlth.] 1986).
‘The [UCBR], as ultimate fact finder, determines the weight
and credibility of the evidence and is free to reject even
uncontradicted testimony.’ Id. Here, the [UCBR] adopted
the [R]eferee’s finding that Claimant’s testimony . . . was
insufficient to establish good cause. It was within the
exclusive province of the [UCBR] to make this finding and
Claimant cannot impugn it on appeal.
Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1164 (Pa. Cmwlth. 2013).
The UCBR in this case also adopted the Referee’s conclusion that “[Claimant] has
failed to provide any good cause for violating [Employer’s P]olicy, or to show that the
[P]olicy was unreasonable in the given circumstance[.]” Referee Dec. at 2.
Based upon this Court’s thorough review of the record, there is substantial
evidence to support the UCBR’s findings and conclusion that Claimant submitted
paperwork to Employer to be paid for hours on August 10, and 12, 2016 that she did
not work, in violation of Employer’s Policy prohibiting dishonesty and/or records
falsification. Moreover, the UCBR did not deem credible Claimant’s pronouncements
that she was authorized to conduct her PCC training from home, that she was not
properly advised regarding Employer’s Green Sheet policy, that she was not being paid
for PCC training hours, that Employer’s Policy was not uniformly enforced,13 that she
13
Although disparate treatment is an affirmative defense available to a claimant who has
engaged in willful misconduct, “‘[t]he mere fact that one employee is discharged for willful
misconduct and others are not discharged for the same conduct does not establish disparate treatment.’
Am[.] Racing Equip[.], Inc. v. Unemployment Comp[.] B[d.] of Review, . . . 601 A.2d 480, 483 ([Pa.
Cmwlth.] 1991)[.]” Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970,
975 (Pa. Cmwlth. 2009). Because Claimant in this case presented no credible evidence of similar
conduct by other employees that Employer disciplined in a disparate manner, this defense is not
available to Claimant.
10
may have made a mistake on her Green Sheets after working a 19-hour shift, and that
someone forged her signature on the August 10, and 12, 2016 Green Sheets. By
continuing to proffer this myriad of explanations, Claimant is essentially asking this
Court to re-weigh the evidence, which we cannot do. Ellis. Accordingly, there was no
credible record evidence that Claimant had good cause for violating Employer’s Policy.
Viewing the evidence in the light most favorable to Employer, as we must,
this Court holds that the UCBR properly concluded that Claimant committed willful
misconduct and, thus, she is not eligible for UC benefits under Section 402(e) of the
Law.
For all of the above reasons, the UCBR’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen Marie Saxton, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 515 C.D. 2017
Respondent :
ORDER
AND NOW, this 5th day of January, 2018, the Unemployment
Compensation Board of Review’s February 27, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge