           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Bensalem Park Maintenance, LTD,              :
                                             :
                            Petitioner       :
                                             :
              v.                             :    No. 661 C.D. 2015
                                             :
Unemployment Compensation                    :    Submitted: September 11, 2015
Board of Review,                             :
                                             :
                            Respondent       :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                   FILED: January 6, 2016


       Bensalem Park Maintenance, LTD (Employer) petitions for review of an
Order of the Unemployment Compensation (UC) Board of Review (Board) finding
Yarsiah A. Welwolie (Claimant) not ineligible for UC benefits pursuant to Section
402(e) of the UC Law (Law).1 On appeal, Employer argues that the Board did not
consider all the reasons it provided for terminating Claimant. Therefore, Employer
       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides, in relevant part, that “[a]n employe shall be ineligible for
compensation for any week . . . [i]n which his unemployment is due to his discharge or
temporary suspension from work for willful misconduct connected with his work.” Id.
contends, the Board’s Decision is not supported by substantial evidence, and the
Board capriciously disregarded evidence in concluding that Claimant’s conduct did
not constitute willful misconduct under Section 402(e).        Because the Board
erroneously concluded that the only reason given by Employer for Claimant’s
discharge was sleeping on the job and therefore, did not address all the reasons
given by Employer for discharging Claimant, we vacate and remand.


      Claimant was employed by Employer as an Environmental Services (EVS)
employee since February 2010.        After his termination on October 9, 2014,
Claimant filed for UC benefits.     In response, Employer submitted to the UC
Service Center a packet of separation information. Therein, Employer stated on
the “Employer Questionnaire” that Claimant was discharged for failing “to comply
with a reasonable order,” specifically that: (1) “the claimant was asked to go sweep
and failed to do so. Instead the claimant was sleeping in the guest bathroom;” and
(2) “[t]he claimant stated that he was having [] bathroom issues but never informed
anyone.” (Employer Questionnaire, R.R. at 48a-49a.) Employer also provided
with its separation information a document entitled “Coaching Document,”
wherein Employer stated that Claimant violated Employer’s code of conduct by
purposefully failing to follow the rules or policies established for his assigned
department and for sleeping on the job. (Coaching Document, R.R. at 56a.) The
Coaching Document describes the incident that led to Claimant’s termination as
one involving Claimant’s failure to answer his manager’s calls and to complete his
assigned duties.   This portion of the Coaching Document further states that
Claimant’s manager found Claimant asleep inside a public restroom and that “EVS
Team member[s] are not to use the public rest[] rooms.” (Coaching Document,


                                         2
R.R. at 56a.) The Coaching Document describes the results of Claimant’s failure
to complete his given work duties without justifiable reasons as hampering
Employer’s “ability to keep those key areas clean and free of trash and debris.”
(Coaching Document, R.R. at 56a.) In the “Action Plan” portion, the Coaching
Document states that Claimant “did not follow the specific instructions given by
his manager and along with sleeping on the job resulted in his termination.”
(Coaching Document, R.R. at 56a.)


      The UC Service Center issued a Notice of Determination finding that
“Claimant was discharged for sleeping on the job” and that there was insufficient
information to determine whether Claimant had good cause for his actions.
(Notice of Determination, R.R. at 2a.) Thus, the UC Service Center determined
that Claimant’s conduct rose to the level of willful misconduct and found him
ineligible for UC benefits under Section 402(e) of the Law.


      Claimant appealed and a hearing was held before a UC Referee (Referee).
Claimant appeared pro se and testified on his own behalf. Employer presented the
testimony of an EVS Manager (Manager), who was Claimant’s direct supervisor.
The separation information submitted to the UC Service Center by Employer was
entered into the certified record without objection. (Hr’g Tr. at 2, R.R. at 13a.)


      Manager testified as follows.2           On the day in question, Employer was
preparing for a visit from the board of directors, thus requiring “all hands [] on
deck, everybody working overtime.” (Hr’g Tr. at 4, R.R. 15a.) Claimant was

      2
          Manager’s testimony may be found at pages 14a-23a of the reproduced record.

                                               3
instructed to sweep outside and then proceed to his zone, both of which he failed to
do. When Manager attempted to contact Claimant on the radio, he was unable to
reach Claimant. After being unable to locate Claimant over the radio for nearly 40
minutes, Manager began looking for Claimant; Manager eventually found
Claimant in the guest bathroom, from which Claimant emerged looking “very, very
sleepy.” (Hr’g Tr. at 9, R.R. 20a.) Manager explained that sleeping on the job and
using the guest bathroom violates company policy. When asked by the Referee
whether “Claimant was discharged for disappearing for over an hour, sleeping on
the job, and . . . being in the public restroom[,]” Manager answered, “[y]es.” (Hr’g
Tr. at 12, R.R. 23a.)


      Claimant testified that he was not sleeping on the job, but rather was in the
guest bathroom because he was feeling ill.3 Claimant further testified that he was
aware of the policy prohibiting employees from using guest bathrooms but,
because he was feeling ill, used the bathroom anyway. Claimant also testified that
he did not inform Manager of his whereabouts because his radio was off. When
asked whether, “on a day where the board of directors is there, . . . [Claimant
thought] it might be important to check in with [his] boss when [he] was in the
bathroom for over 40 minutes,” Claimant answered, “[y]eah.” (Hr’g Tr. at 15,
R.R. 26a.)


      Based on the parties’ testimony, the Referee found that Claimant, without
good cause, used a guest bathroom and was sleeping on the job in violation of
Employer’s policies. Therefore, the Referee determined that Claimant engaged in

      3
          Claimant’s testimony may be found at pages 24a-27a of the reproduced record.

                                               4
willful misconduct, rendering him ineligible for benefits under Section 402(e) of
the Law. Claimant appealed to the Board, which made the following findings of
fact:

        1. The claimant was last employed as an EVS by Bensalem Park
           Maintenance from February 2010 at a final rate of $10.65 per hour
           and his last day of work was October 9, 2014.

        2. The employer has a policy that prohibits sleeping on the job, of
           which the claimant was aware.

        3. On October 9, 2014, the claimant, who was not scheduled to work
           and was feeling ill, was required to report for work by the
           employer to help the employer clean for a visit from the board.

        4. The claimant did not want to call out because he would receive
           two attendance points.

        5. Because the claimant arrived a few minutes late, he was trying to
           quickly begin working at his station and did not check to see if his
           radio was on.

        6. When the manager could not make contact with the claimant, he
           began to look for him.

        7. The manager entered the restroom and noticed someone sitting
           down in the last stall.

        8. After knocking on the stall door, the claimant opened the stall and
           told the manager he was not feeling well; the manager then left the
           restroom.

        9. The manager entered the restroom a second time with his director
           and banged on the last stall door.

        10. The claimant popped his head out of the stall.

        11. The claimant was not sleeping.



                                           5
       12. On October 9, 2014, the claimant was terminated for sleeping on
           the job.
(Board Decision, Findings of Fact (FOF) ¶¶ 1-12.)


       Based on the findings, the Board reversed the Referee’s Decision, and found
Claimant not ineligible for UC benefits under Section 402(e).                    Noting that
Employer only testified that Claimant “looked very, very sleepy,” and did not
actually see him sleeping, the Board resolved the conflict in testimony in favor of
Claimant. (Board Decision at 2.) The Board determined that “[C]laimant credibly
testified that he was not sleeping, but had a stomach sickness and was relieving
himself and explained the situation to the manager the first time the manager
entered the bathroom.” (Board Decision at 2.) Because “sleeping on the job [was]
the only reason for the claimant’s discharge as stated on the employer
questionnaire,” the Board determined that Employer did not sustain its burden of
establishing that Claimant was discharged for willful misconduct. (Board Decision
at 2.) Employer now petitions this Court for review of the Board’s Order.4


       On appeal, Employer argues the Board erred in determining Claimant was
not ineligible for benefits under Section 402(e) because it failed to consider the

       4
          Our scope of “review is limited to determining whether the necessary findings of fact
were supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review,
87 A.3d 1006, 1009 n.2. (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746
(Pa. 2014). In UC cases, the Board is the ultimate fact finder and, if supported by substantial
evidence, its findings are conclusive on appeal. Middletown Township v. Unemployment
Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). “Substantial evidence is
such relevant evidence which a reasonable mind might accept as adequate to support a
conclusion.” American General Life and Accident Insurance Company v. Unemployment
Compensation Board of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994).

                                              6
other reasons for Claimant’s termination. Employer maintains that sleeping on the
job was not the sole act of willful misconduct that caused Claimant’s termination.
Rather, Employer argues, Claimant’s use of the guest bathroom, an hour-long
absence from his work station, and failure to respond to a supervisor’s radio calls
were also violations of Employer’s policy, thereby constituting willful misconduct.
Employer points to our previous decision, holding that “a claimant who has been
discharged for multiple reasons is disqualified from receiving benefits even if only
one of those reasons amounts to willful misconduct.” Glenn v. Unemployment
Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007).
Employer contends that the Board’s findings are not supported by substantial
evidence, and that the Board’s failure to address or comment on Claimant’s other
willful misconduct constitutes capricious disregard of evidence.5                    Therefore,
Employer concludes, the Board’s Order should be reversed.


       “Whether conduct rises to the level of willful misconduct is a question of
law to be determined by this Court.” Brown v. Unemployment Compensation
Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012). This Court has defined
willful misconduct as:

       5
          Although this Court will not interfere with the Board’s fact finding function, “review
for capricious disregard of competent evidence is an ‘appropriate component of appellate
consideration in every case in which such question is properly before the court.’” Wise v.
Unemployment Compensation Board of Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015)
(quoting Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812
A.2d 478, 487 (Pa. 2002)). “A capricious disregard of evidence occurs where the fact finder
willfully and deliberately disregards competent and relevant evidence that one of ordinary
intelligence could not possibly have avoided in reaching a result.” Id. “Disturbing an agency’s
adjudication for a capricious disregard of evidence is appropriate only where the fact[]finder has
refused to resolve conflicts in the evidence, has not made essential credibility determinations or
has completely ignored overwhelming evidence without comment.” Id. at 1263.

                                                7
      (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; and (4) negligence indicating an intentional disregard of
      the employer’s interest or of the employee’s duties and obligations to
      the employer.


Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869
(Pa. Cmwlth. 1996). “The employer has the burden of proving that it discharged
an employee for willful misconduct.” Adams v. Unemployment Compensation
Board of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). “In order to deny
benefits to a discharged employee, the employer’s stated reasons for the discharge
must be the actual cause of the claimant’s unemployment.”                Charles v.
Unemployment Compensation Board of Review, 764 A.2d 708, 711 n.4 (Pa.
Cmwlth. 2000).


      Our review of the certified record leads us to conclude that the Board
erroneously determined that the only reason given by Employer for Claimant’s
termination from employment was sleeping on the job. The Board stated that the
only reason provided on the “Employer Questionnaire” for discharging Claimant
was that he was sleeping on the job; however, the questionnaire also states that
“the claimant was asked to go sweep and failed to do so,” that he “fail[ed] to
comply with a reasonable order,” and that “[t]he claimant stated that he was having
bathroom issues but never informed anyone.” (Employer Questionnaire, R.R. at
48a, 50a.) In addition, Employer also provided to the UC Service Center the
Coaching Document detailing the incident that led to Claimant’s termination and
the reasons why Claimant was discharged. (Coaching Document, R.R. at 56a.)

                                         8
This Coaching Document states that Claimant violated Employer’s code of
conduct by purposefully failing to follow the rules or policies established for his
assigned department and for sleeping on the job. (Coaching Document, R.R. at
56a.) The Coaching Document further provides that Claimant was terminated for
not following Manager’s specific instructions and for sleeping on the job.
(Coaching Document, R.R. at 56a.) This, coupled with the Manager’s testimony
that “Claimant was discharged for disappearing for over an hour, sleeping on the
job, and . . . being in the public restroom[,]” (Hr’g Tr. at 12, R.R. at 23a), is
evidence that Claimant was terminated for failing to follow Employer’s
instructions, rules, policies, and for sleeping on the job.    Because the Board
erroneously concluded that the only reason given by Employer for Claimant’s
discharge was sleeping on the job, the Board did not make any findings of fact
addressing the additional reasons given by Employer.


      Accordingly, the Board’s Order is vacated and this matter is remanded for
the Board’s consideration of all the reasons set forth in the record for Claimant’s
discharge from employment and to make findings of fact and conclusions of law
on whether these reasons that resulted in Claimant’s discharge constituted willful
misconduct and, if so, whether Claimant had good cause for his actions.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                        9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA




Bensalem Park Maintenance, LTD,         :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 661 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                         Respondent     :


                                      ORDER



      NOW, January 6, 2016, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is VACATED and this
matter is REMANDED for further proceedings consistent with the foregoing
opinion.


      Jurisdiction relinquished.



                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bensalem Park Maintenance, LTD,          :
                                         : No. 661 C.D. 2015
                         Petitioner      : Submitted: September 11, 2015
                                         :
                   v.                    :
                                         :
Unemployment Compensation                :
Board of Review,                         :
                                         :
                         Respondent      :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                                 FILED: January 6, 2016


             I respectfully dissent.    Because the Board did consider whether
Claimant’s actions in failing to respond to his supervisor’s radio calls, being absent
from his work station, and using the bathroom constituted disqualifying willful
misconduct, and concluded that such actions did not, I would affirm the Board’s
decision.


             As to Claimant’s failure to respond to his supervisor’s radio calls, the
Board specifically found that because he was a few minutes late for work, Claimant
quickly started to clean his station and did not check to see if his radio was on.
(Findings of Fact, No. 5.) As to Claimant’s absence from his work station and use of
a guest bathroom without first notifying his manager, the Board stated that
“[C]laimant credibly testified that he . . . had a stomach sickness and was relieving
himself and explained the situation to the manager the first time the manager entered
the bathroom.” (Bd.’s Decision, 3/30/15, at 2.)


            Because the Board addressed all of the reasons for Claimant’s separation
from employment, and substantial evidence supports the Board’s determination that
Claimant did not engage in disqualifying willful misconduct, I would affirm the
Board’s decision.




                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge




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