                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dominique Mitchell,                           :
                 Petitioner                   :
                                              :   No. 2199 C.D. 2014
              v.                              :
                                              :   Submitted: May 1, 2015
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: August 4, 2015


              Dominique Mitchell (Claimant), proceeding pro se, petitions for review
of the November 14, 2014 order of the Unemployment Compensation Board of
Review (Board) affirming a referee’s determination that she is ineligible for benefits
pursuant to section 402(e) of the Unemployment Compensation Law (Law).1
              From July 25, 2011, to July 7, 2014, Claimant was employed as a full-
time Licensed Practical Nurse with Maplewood Nursing and Rehabilitation
(Employer). After conducting a quality assurance review, Employer discovered that

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) states that an employee shall be ineligible for compensation for any week
in which her unemployment is due to her discharge or temporary suspension from work for willful
misconduct connected with her work.
on July 4, 2014, Claimant did not provide the required, prescribed medication to two
residents. Employer suspended Claimant on July 7, 2014, investigated the incidents,
and discharged Claimant on July 16, 2014, for violating its medication administration
policy and falsifying records. (Findings of Fact Nos. 20-21, 23, 25.) The local
service center determined that Claimant was eligible for benefits, and Employer
appealed.   The referee convened a hearing, at which Fran Dwyer, Employer’s
Nursing Home Administrator, and Claimant testified.
             Dwyer testified to the various policies that Employer maintains
pertaining to medication storage and administration and submitted documentation
reflecting these polices.     Dwyer further testified to Employer’s progressive
disciplinary policy regarding medication administration, Claimant’s previous
violations in administering medication, and her final, written warning.        Dwyer
explained that Employer suspended, and ultimately discharged, Claimant as a result
of incidents occurring on July 4, 2014; specifically, Claimant failed to follow the
procedure for obtaining prescription medication for two residents and documented
that prescription medication was given to both residents when there was evidence that
the medications were not available. Dwyer stated that Claimant admitted that she did
not give the residents their prescribed medication, claimed that it was a mistake, and
completed an omission/inaccurate form five to seven days after she was suspended.
Dwyer said that there was nothing in the medication chart to indicate that Claimant
administered a substitute – or PRN or as needed – medication to one of the residents
in lieu of the prescribed medication. (N.T. at 7-8, 12-13, 17, 21, 25, 39.)
             Claimant testified that the charge nurse made an error on a prescription,
listing the resident’s incorrect name, and that she received permission from her
supervisor to administer a PRN medication to one of the residents. Claimant also



                                           2
testified that she did not give the other resident his prescribed medication, realized the
mistake, and completed an omission/inaccurate form to acknowledge and correct the
error, leaving the form on the unit manager’s desk the morning of July 5, 2014.
(Notes of Testimony (N.T.) at 29-30, 32-33, 37.)
             In light of the evidence presented, the referee made the following
relevant findings of fact:

             2.   Employer maintains a written Medication
             Administration Policy to ensure that medications are
             administered in accordance with State and Federal
             Regulations . . . .

             3.     Employer also provides medication administration
             training to new staff upon initial hire, on a routine basis,
             and following any medication administration errors or
             serious violations.

             4.      During said training, Employer notifies staff that they
             are to record all medication administered on the medication
             administration record by initialing it and that staff are not to
             initial the medication administration record if medication
             was not administered.

             5.     Employees who become aware of a medication
             administration or documentation error may complete a
             documentation omission/inaccurate entry form which they
             are to provide to the unit manager.

                                     *      *      *

             10. In cases where a medication is unavailable and
             medication is needed to be administered to the patient, such
             as a pain medication, Employer does provide a PRN
             medication, or [an] as needed medication, which may in
             cases of emergency be provided in lieu of the standard
             medication.

             11. Employer provides training to staff that all attempts
             should be made to obtain the standard medication

                                            3
prescribed to the patient but if those efforts are unsuccessful
the PRN medication could be administered but had to be
clearly indicated on the medication administration record.

12. Claimant was, or should have been, aware of the
above policies and procedures.

13. Employer generally follows a progressive discipline
policy for violation of [its] medication administration
policies in the form of a verbal warning, written warning,
final written warning, suspension pending an investigation
and termination of employment.

14. Claimant was provided an educational consult and
follow-up training regarding medication administration on
November 1, 2012, and November 2, 2012, which
Employer considered an oral warning.

15. On January 6, 2014, Employer issued Claimant a first
written warning for a medication administration violation.

16. On April 30, 2014, Employer issued Claimant a final
warning for a medication administration violation.

17. On July 4, 2014, Claimant was working a double
shift from 3:00 p.m. until 7:00 a.m. the following day.

18. Claimant completed a medication administration
record for two separate residents for July 4, 2014, which
indicated Claimant had administered prescription
medications which she had not.

19. For at least one of the patients on the date in
question, Claimant admitted to not obtaining the
prescription order from the physician.

                        *     *      *

22. Upon questioning by Employer, Claimant admitted to
not giving the prescribed medications to the residents which
she had recorded as being administered due to a mistake.

                        *     *      *

                              4
             24. Approximately five to seven days after her
             suspension, Claimant provided a documentation
             omission/inaccurate entry form to Employer reporting and
             showing that the Claimant had recorded an error regarding
             one of the clients in question on July 4, 2014.
(Findings of Fact Nos. 2-5, 10-19, 22, and 24.)
             Based upon these facts, the referee concluded that Claimant engaged in
willful misconduct, determining, among other things, that Employer presented
sufficient competent testimony and evidence to establish the existence of its
medication administration policies; Claimant had been progressively warned,
disciplined, and terminated in accordance with Employer’s disciplinary policies; and
the undisputed evidence established that Claimant completed a medication
administration record indicating that she had administered standard prescribed
medications to two residents when in fact she had not. (Referee’s decision at 3.)
             After determining that Employer demonstrated that it discharged
Claimant for willful misconduct connected with her work, the referee proceeded to
analyze whether Claimant had met her burden of establishing good cause for her
actions. (Id.)
             In this regard, the referee rejected as not credible Claimant’s contention
that a resident’s name on a prescription was incorrect and that she was authorized to
administer a PRN medication in place of the standard prescription. In doing so, the
referee noted that Claimant’s assertion was supported only by her “own self-serving
testimony” and found, as a matter of fact, that Claimant did not indicate on the
medication administration record that she had administered a PRN medication in
place of a standard prescription, as required by Employer’s policies. (Id.)
             Furthermore, the referee rejected as not credible Claimant’s contention
that she made a mistake in indicating that she had administered prescribed medication


                                           5
to one resident, as reflected by the fact that she completed an omission/inaccurate
entry form to correct the error. The referee noted that Claimant did not complete this
form until after she was suspended and stated that Claimant’s history of medication
administration violations further render her testimony not credible. (Id.)
              For these reasons, the referee concluded that Claimant failed to establish
good cause for her actions, reversed the local service center, and determined that
Claimant was ineligible for benefits pursuant to section 402(e) of the Law.
              Claimant appealed to the Board, which, by decision dated November 14,
2014, affirmed the referee’s decision, adopting and incorporating the referee’s
findings and conclusions. The Board also added that it specifically found Claimant’s
allegation that she made a mistake was not credible; instead, the Board found that
Claimant recorded the prescribed medications as being administered while knowing
that they were not. (Board’s decision at 1.)
              Claimant now appeals to this Court,2 argument that the Board erred in
determining that her actions constituted willful misconduct. Claimant contends that
she established good cause for her actions because she administered a PRN
medication to one resident as authorized and ordered by her supervisor; completed an
omission/inaccurate form in a timely fashion and submitted it to the proper personnel;
and mistakenly pressed the incorrect computer key code for “medication
administered.” Claimant also asserts that Dwyer was not present during Claimant’s
suspension meeting or any of the incidents that comprise the basis for her



       2
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799
n.3 (Pa. Cmwlth. 1997).



                                              6
termination, thus implying that Dwyer’s testimony should not have been accepted as
credible.
              An employer contesting a claimant’s right to benefits pursuant to section
402(e) bears the burden of proving willful misconduct. Walsh v. Unemployment
Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). Where an
employer bases a claim of willful misconduct on the violation of a work rule, the
employer must prove: (1) the existence of the work rule, (2) the reasonableness of the
rule, (3) the claimant’s awareness of the rule, and (4) that the employee violated the
rule. Bell Socialization Services, Inc. v. Unemployment Compensation Board of
Review, 74 A.3d 1146, 1147 (Pa. Cmwlth. 2013).3
              If the employer satisfies its initial burden, which is undisputed in this
case, the burden then shifts to the employee to demonstrate good cause for her
actions. Lausch v. Unemployment Compensation Board of Review, 943 A.2d 363,
369 (Pa. Cmwlth. 2008). A claimant establishes good cause by demonstrating that
her actions were justified or reasonable under the circumstances, Roberts v.
Unemployment Compensation Board of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009),
and the issue of whether good cause exists is a factual one for the Board to resolve.
Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1164 (Pa.


       3
         Claimant does not contend on appeal that Employer failed to establish willful misconduct.
Even if she did, we would conclude that such an argument lacks merit. Upon our review of the
record, the referee’s findings and determination that Claimant was discharged in accordance with
Employer’s progressive disciplinary policy, and, therefore, committed willful misconduct, are
supported by substantial evidence and free from legal error. (N.T. at 12-13, 25.) See PAM
Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625-26 (Pa.
Cmwlth. 1989) (stating that a claimant will be ineligible for benefits where an employer
promulgates a specific disciplinary system and follows that system in discharging the claimant).
See also Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 647-48 (Pa. Cmwlth.
2012).



                                                7
Cmwlth. 2013).     In unemployment compensation proceedings, the Board is the
ultimate fact-finder, empowered to determine the weight and credibility of the
evidence, resolve conflicts in the evidence, and is free to reject even uncontradicted
testimony. Id.; Curran v. Unemployment Compensation Board of Review, 752 A.2d
938, 940 (Pa. Cmwlth. 2000).
             Here, Claimant relies on her preferred version of the facts and disregards
the findings made by the Board. The Board adopted the referee’s findings and
specifically found that Claimant’s testimony was not credible and was insufficient to
establish good cause. Essentially, Claimant is arguing that the Board should have
believed her evidence and it did not. However, “[q]uestions of credibility and the
resolution of evidentiary conflicts are within the discretion of the [Board] and are not
subject to re-evaluation on judicial review.” Bell v. Unemployment Compensation
Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007). Because the Board found
that Claimant’s testimony was not credible and that Claimant failed to carry her
burden of establishing good cause, this Court has no legal basis upon which to disturb
the Board’s decision.     See Ellis, 59 A.3d at 1164 (concluding that claimant’s
argument that her testimony proved good cause lacked merit where the Board found
that the claimant’s testimony was not credible and was insufficient to establish good
cause).
             Accordingly, we affirm.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dominique Mitchell,                  :
                Petitioner           :
                                     :    No. 2199 C.D. 2014
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :

                                  ORDER


           AND NOW, this 4th day of August, 2015, the November 14, 2014
order of the Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
