            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yeekpeh H. Karweh,                            :
                                              : No. 2222 C.D. 2015
                             Petitioner       : Submitted: May 13, 2016
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                             Respondent       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                         FILED: July 6, 2016


              Yeekpeh H. Karweh (Claimant) petitions for review of the October 14,
2015, order of the Unemployment Compensation Board of Review (UCBR) affirming
the decision of a referee to deny Claimant unemployment compensation (UC)
benefits. The UCBR determined that Claimant was ineligible for UC benefits under
section 402(e) of the Unemployment Compensation Law (Law)1 because she was
discharged from work for willful misconduct. We affirm.



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that “[a]n employe shall be ineligible for
compensation for any week . . . [i]n which [her] unemployment is due to [her] discharge . . . from
work for willful misconduct connected with [her] work.” 43 P.S. §802(e).
             Claimant worked full time as a direct support professional for Devereux
Foundation (Employer) from July 23, 1999, through June 14, 2015.                 (UCBR’s
Findings of Fact, No. 1.) Claimant received a number of disciplinary actions during
her employment. (Id., No. 2.) On January 9, 2014, Claimant received a one-day
suspension for improper intervention with a client. (Id., No. 3.) Claimant signed a
document stating that further infractions or violations of Employer’s policies could
result in disciplinary action. (Id., No. 4.)


             On June 14, 2015, Claimant was working an overnight shift. (N.T.,
7/30/15, at 7; UCBR’s Decision at 3.) At 2:25 a.m., Leana Thedford, Employer’s
operation manager, observed Claimant in a chair with her head back and eyes closed.
(UCBR’s Findings of Fact, No. 7.) Claimant remained in that position as Thedford
spoke to two other employees in the same room. (Id., No. 8.) Claimant responded
when Thedford called her name. (Id., No. 9.) Thedford asked Claimant why she was
sleeping, but Claimant did not answer.             (Id., No. 10.)   Although Claimant was
required to fill out a chart for her clients every 15 minutes, she had not filled out a
chart since 11:00 p.m. (Id., Nos. 11-12.)


             Employer’s employee handbook includes a policy stating that employees
who are “[n]ot engaged or alert” may be subject to discipline, including discharge.
(Id., No. 6.) Claimant certified by her signature that she was aware of the policies in
the employee handbook. (N.T., 7/30/15, at 2; Ex. 8.) Employer’s normal policy with
regard to an employee sleeping on the job is to suspend the employee and send him or
her home for the night. (UCBR’s Findings of Fact, No. 13.) However, Employer
discovered five other employees sleeping that night and could not send all six of them


                                               2
home because of staffing needs. (Id., No. 14.) Thedford permitted Claimant to work
until her shift ended at 7:00 a.m. (Id., No. 16.) After June 14, 2015, Claimant was on
vacation for several days. (Id., No. 17.)


              On June 17, 2015,2 Edward Vincent, Employer’s program director,
discharged Claimant for violating Employer’s policy by sleeping and not being
engaged with clients. (Id., No. 18.) Vincent provided Claimant a discharge letter
stating that because Claimant had already been suspended in January 2014, Employer
was taking the next step in the disciplinary process.               (Id., No. 19.)     Employer
suspended rather than discharged the other five employees caught sleeping on June
14, 2015, because none had previously been suspended. (Id., No. 20.)


              Claimant filed a claim for UC benefits, which the local service center
denied. Claimant appealed to the referee, who held a hearing on July 30, 2015, at
which Claimant, Thedford, Vincent, and Jodi Pierson, Employer’s human resources
generalist, testified. The referee concluded that: (1) Employer had a policy requiring
employees to be engaged and alert; (2) Claimant was aware of Employer’s policy; (3)
Claimant violated Employer’s policy; and (4) Claimant failed to establish good cause
for not being engaged and alert. The referee credited the testimony of Employer’s
witnesses and resolved all conflicts in the testimony in Employer’s favor. Thus, the
referee concluded that Claimant was discharged for willful misconduct and ineligible




       2
         The UCBR’s decision mistakenly states that this event occurred on January 17, 2015. The
correct date appears in Vincent’s credited testimony and the referee’s decision. (N.T., 7/30/15, at
15; Ref.’s Findings of Fact, No. 15.)


                                                3
for UC benefits under the Law. Claimant appealed to the UCBR, which affirmed.
Claimant now petitions for review of that decision.3


              First, Claimant argues that the UCBR erred in concluding that Claimant
engaged in willful misconduct because Employer failed to prove that she violated
Employer’s policy requiring employees to be engaged and alert. We disagree.


              “Willful misconduct” is defined as: (1) a wanton and willful disregard
of the employer’s interests; (2) a deliberate violation of the employer’s rules or
policies; (3) a disregard of the standards of behavior that an employer rightfully can
expect from its employees; or (4) negligence that manifests culpability, wrongful
intent, evil design, or an intentional and substantial disregard of the employer’s
interests or the employee’s duties and obligations.                Oliver v. Unemployment
Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc).
When a claimant is discharged for violating a work policy, the employer bears the
burden of proving the existence of the policy, that the policy was reasonable, and that
the claimant was aware of and violated the policy. Rothstein v. Unemployment
Compensation Board of Review, 114 A.3d 6, 9 (Pa. Cmwlth. 2015). If the employer
satisfies its burden, the burden shifts to the claimant to establish that she had good
cause for violating the employer’s policy. Id.




       3
         Our 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.


                                                4
            Here, Employer’s policy provides that Employer may discharge
employees who are not engaged or alert. Although Claimant argues that she was not
asleep, the UCBR credited Thedford’s testimony that Claimant was found sleeping at
2:25 a.m. in violation of Employer’s policy. Questions of credibility and evidentiary
weight “are within the discretion of the UCBR 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). Claimant’s failure to fill out her client chart since
11:00 p.m. further supports the conclusion that she was not engaged and alert during
her shift. Therefore, Employer met its burden of proving that Claimant violated its
policy requiring employees to be engaged and alert.


            Next, Claimant argues that the UCBR erred in concluding that Claimant
engaged in willful misconduct because Employer permitted Claimant to finish her
shift. We disagree. Claimant was not sent home because five other employees were
caught sleeping that night and sending all of them home would have created a staff
shortage. Therefore, Employer’s decision to let Claimant finish her shift is irrelevant
to the question of whether Claimant engaged in willful misconduct.


            Accordingly, we affirm.




                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge




                                          5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yeekpeh H. Karweh,                   :
                                     : No. 2222 C.D. 2015
                       Petitioner    :
                                     :
                 v.                  :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                       Respondent    :



                                    ORDER


           AND NOW, this 6th day of July, 2016, we hereby affirm the October 14,
2015, order of the Unemployment Compensation Board of Review.



                                     ___________________________________
                                     ROCHELLE S. FRIEDMAN, Senior Judge
