               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Taliah Webb,                                   :
                              Petitioner       :
                                               :
                       v.                      :   No. 2137 C.D. 2016
                                               :   Submitted: June 23, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: August 22, 2017


       Taliah N. Webb (Claimant), pro se, petitions for review from the
December 5, 2016 Order of the Unemployment Compensation Board of Review
(Board) affirming a UC Referee’s (Referee) September 19, 2016 Decision and
Order finding her ineligible for unemployment compensation (UC) benefits
pursuant to Section 402(e) of the UC Law (Law).1 Claimant argues that the Board
erred in determining she was discharged for willful misconduct in connection with
her work at Belmont Behavioral Hospital (Employer). She contends that Employer


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
did not provide any evidence to justify its initial reason for her termination and,
when pressed, gave another reason for termination altogether. At the hearing,
Claimant argues, Employer’s witness gave contradictory testimony.              Finally,
Claimant asserts, her termination was improper because Employer’s handbook did
not call for termination under these circumstances, and she was not given any
warning or retraining before being terminated. Finding no error in the decision of
the Board, we affirm.
      Claimant was employed by Employer as a full-time behavioral health
associate from December 14, 2015 to July 21, 2016, on which date she was
discharged.      She subsequently applied for UC benefits, which were initially
granted by the Department of Labor and Industry (Department).                Employer
appealed this determination and was granted a hearing before a referee, who
reversed the determination of the Department. The Referee’s findings of fact are
as follows:

      1.      The [C]laimant was last employed as a full-time Behavioral
              Health Associate with the employer from December 14, 2015,
              until July 21, 2016, at a final rate of pay of $16.19 per hour.

      2.      The employer’s Rounds Record policy states that every bedroom
              should be checked by knocking on the door, and then entering the
              room to do the observation of a sleeping patient which includes
              looking for the rise and fall of the chest, counting at least three
              respirations, and making sure that the patient has moved from
              his/her previous sleeping position.

      3.      The employer prohibits employees from sleeping while on duty.

      4.      The [C]laimant was aware of this policy, as she had
              acknowledged receiving it during orientation.

      5.      The [C]laimant’s shift was from 11:00 pm to 7:30 am.



                                            2
        6.     On July 18, 2016, two employees observed the [C]laimant
               sleeping in the day room; the [C]laimant was awakened but
               denied sleeping.

        7.     During this time, the [C]laimant was supposed to make her 15-
               minute rounds.

        8.     The employer conducted an investigation.

        9.     The employer observed the video surveillance camera footage,
               which showed that the [C]laimant would peep into the rooms,
               and complete her rounds instead of following the proper
               procedure.

        10. The employer discharged the [C]laimant on July 21, 2016 for
            sleeping on duty, and for her failure to do the rounds properly.

(Referee’s Decision, Findings of Fact (FOF) ¶¶ 1-10.) The Referee determined
that the evidence Employer’s witness provided regarding the allegation that
Claimant was sleeping on duty constituted hearsay and credited Claimant’s
testimony that she was not sleeping. However, the Referee found that Employer
met its burden in proving that Claimant was discharged for willful misconduct in
connection with her work based on the testimony of Employer’s witness that he
had reviewed the video footage and observed Claimant not conducting her rounds
in accordance with Employer’s rounds policy.2 Thus, the Referee concluded that

        2
            The Employer’s “Expectations When Rounding” read in pertinent part:

        Every bedroom should be checked by knocking lightly on the door, waiting a
        reasonable amount of time for a response, and then entering the room . . . .
        The observation of a sleeping [patient] will include:
        a.      Looking for the rise and fall of the chest
        b.      Counting at least three respirations, and
        c.      Making sure that the [patient] has moved from his/her previous sleeping
        position.

(Ex. 1 at 2, R. Item 8.)



                                                3
Claimant deliberately violated Employer’s policy and, as such, is ineligible for
benefits under Section 402(e) of the Law.
      Claimant appealed to the Board. In her appeal, Claimant asserted that her
conduct did not amount to willful misconduct and specifically challenged findings
of fact 2, 4, 6, and 9. Claimant argued that she was not sleeping when the two staff
members approached her that morning, but was sitting in the “day room” waiting
to conduct her next set of rounds. Despite the testimony of Employer’s witness
that he observed Claimant failing to follow proper rounds procedure, Claimant
argued that she completed her rounds according to the way Employer’s staff
trained her, and that the Employer failed to provide any evidence that Claimant
was aware of the policy. Additionally, Claimant asserted that her discharge was
improper because Employer failed to provide any evidence that Claimant had
received a warning or been retrained prior to her termination. Claimant averred
that the Referee’s determination that Claimant intentionally violated Employer’s
rounds policy was unsupported by substantial evidence. The Board adopted the
Referee’s findings of fact and conclusions and issued an Order affirming the
Referee’s decision.
      On appeal,3 Claimant asserts that the Board erred in denying her UC benefits
under Section 402(e) of the Law. Claimant argues that the Board erred because
Employer was unable to prove she was sleeping on the job, which was the initial
reason for her termination, and Employer only accused her of failing to perform
her rounds properly after Employer’s witness was unable to prove that she had

      3
          “Our 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.” Havrilchak v. Unemployment Comp. Bd. of Review, 133
A.3d 800, 803 n.2 (Pa. Cmwlth. 2015).



                                            4
been sleeping on the job.     Claimant argues that Employer’s witness testified
inconsistently at the hearing, first claiming she had done her rounds improperly,
then claiming she had not done them at all, and when the Referee pressed him
about the inconsistency, again claiming that she had performed them improperly.
Additionally, Claimant contends that Employer’s witness could not provide any
evidence that she performed her rounds improperly and that, though he claimed to
be familiar with the unit on which Claimant worked, he works in human resources
and rarely came to Claimant’s floor. Claimant asserts that Employer’s handbook
does not state that completing rounds improperly is grounds for termination, but,
rather, that making a mistake on the job is grounds for retraining.        Because
Employer did not warn Claimant or suggest ways she could improve her
performance before terminating her, Employer did not follow proper protocol. In
any event, Claimant contends, she performed her rounds as she had been trained.
      As we perform this review, this Court is cognizant that “[i]n an
unemployment compensation proceeding, the Board is the ultimate fact finder and
is empowered to resolve conflicts in the evidence and to determine the credibility
of witnesses.” Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940
(Pa. Cmwlth. 2000). The Board’s findings are conclusive and binding on appeal
provided that the record, as a whole, contains substantial evidence to support those
findings. Id. Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”          Peak v.
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1387-88 (Pa. 1985) (internal
quotation marks and citation omitted). For this appeal, any unchallenged findings
of fact are conclusive. Munski v. Unemployment Comp. Bd. of Review, 29 A.3d
133, 137 (Pa. Cmwlth. 2011). In determining if substantial evidence exists, “this



                                         5
Court must examine the testimony in the light most favorable to the prevailing
party, giving that party the benefit of any inferences that can logically and
reasonably be drawn from the evidence.” Henderson v. Unemployment Comp. Bd.
of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 2013).
      Section 402(e) of the Law provides that an employee shall be ineligible to
receive unemployment compensation for any week “[i]n                   which [her]
unemployment is due to [her] discharge or temporary suspension from work for
willful misconduct connected with [her] work . . . .”             43 P.S. § 802(e).
Determining whether a claimant’s actions constitute willful misconduct is a
question of law that this Court may review. Caterpillar, Inc. v. Unemployment
Comp. Bd. of Review, 703 A.2d 452, 456 (Pa. 1997). Though the Law does not
directly define willful misconduct, the Pennsylvania Supreme Court has held that:

      Willful misconduct is a) wanton or willful disregard for an employer’s
      interests; b) deliberate violation of an employer’s rules; c) disregard
      for standards of behavior which an employer can rightfully expect of
      an employee; or d) negligence indicating an intentional disregard of
      the employer’s interest or an employee’s duties or obligations. The
      employer bears the burden of proving that the claimant engaged in
      willful misconduct.
      If the employer alleges willful misconduct because the claimant
      violated a work rule, the employer must prove both the existence of
      the rule and its violation. We then decide if the violation constituted
      willful misconduct. In doing so, we examine whether the rule or
      policy is reasonable in light of all the circumstances and if so, whether
      the employee had good cause to violate the rule or policy.
      Reasonableness is determined by whether the employer’s application
      of the rule under the circumstances is fair, just and appropriate to
      pursue a legitimate interest.

Id. at 456-57 (internal quotation marks and citations omitted).




                                         6
       Claimant argues that the Board erred in concluding that she was terminated
for willful misconduct because Employer changed its initial reason for her
termination at the hearing. An employer is bound by the reasons it initially gave
for a claimant’s dismissal and new reasons cannot be raised at the hearing. Scott v.
Unemployment Comp. Bd. of Review, 105 A.3d 839, 845 (Pa. Cmwlth. 2014).
“[T]he employer must also prove that the act in question was the actual reason for
the claimant’s discharge.” Panaro v. Unemployment Comp. Bd. of Review, 413
A.2d 772, 774 (Pa. Cmwlth. 1980). Claimant is correct that Employer was unable
to establish that she was sleeping on the job at the hearing, as the Referee correctly
determined that Employer’s evidence regarding such was inadmissible hearsay.4
However, Claimant signed a discharge document upon termination which, in
addition to referencing Claimant’s alleged sleeping on the job, stated that “[f]urther
investigation revealed that you failed to complete patient rounds, which includes
entering patient rooms, and watching the rise and fall of a patient’s chest.” (Ex.
SC7, R. Item No. 3.) Therefore, Claimant’s argument that she was discharged for
reasons other than those discussed at the hearing is unpersuasive under these
circumstances.
       Claimant asserts that the Board erred in concluding that her actions
constituted willful misconduct. The Employer’s witness established the existence

       4
          Though the Referee credited Claimant’s testimony that she was not sleeping, Finding of
Fact 6 still reflects that she had been seen doing so. The Board concedes that, as written, Finding
of Fact 6 is unsupported by competent evidence. Regarding such inaccuracies, this Court has
previously stated that “[w]hile we do not condone even the slightest inaccuracy in findings of
fact, we will not upset a determination of the Board when the inaccuracy has no effect upon the
application of the relevant legal principles and the ultimate resolution of the case.” Wetzel v.
Unemployment Comp. Bd. of Review, 370 A.2d 415, 416-17 (Pa. Cmwlth. 1977) (internal
footnote omitted).




                                                7
of the rounds policy at the hearing by entering Exhibit 1, the Rounds Record, into
evidence. This record states it is the Employer’s policy that, on rounds, the
Claimant was expected to do the following:

      Every bedroom should be checked by knocking lightly on the door,
      waiting a reasonable amount of time for a response, and then entering
      the room . . . .

      The observation of a sleeping [patient] will include:

   a. Looking for the rise and fall of the chest
   b. Counting at least three respirations, and
   c. Making sure that the [patient] has moved from his/her previous
      sleeping position.

(Ex. 1 at 2, R. Item 8.) The Employer’s witness established that Claimant was
aware of this policy by entering Exhibit 7, Claimant’s Orientation Checklist, into
evidence.   The Orientation Checklist establishes that Claimant both read and
discussed the Rounds Policy on December 18, 2015 and is signed by the Claimant.
Although Claimant asserts that she was performing her rounds the way she was
trained by Employer’s staff, the Orientation Checklist shows that Claimant read the
policy for herself, and so was aware of Employer’s requirements. Therefore,
Claimant’s failure to perform rounds properly constitutes a deliberate violation of
Employer’s rules.
      Claimant argues that the Board erred when it deemed the firsthand testimony
of Employer’s witness that she violated the Rounds Policy to be credible. The
testimony of Employer’s witness established that Claimant had been observed on
video simply peeking into the rooms rather than entering them to satisfy the
Rounds Policy. As previously stated, questions of witness credibility are for the
Board to determine. Curran, 752 A.2d at 940. Further, firsthand testimony about



                                         8
the contents of a video is not hearsay because the video itself is non-assertive
conduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1164 n.6 (Pa.
Cmwlth. 2012); see Pa. R.E. 801(a). Therefore, we find no error in the Board’s
decision to allow the testimony of Employer’s witness.
       Claimant asserts that the Board should not have relied on the testimony of
Employer’s witness due to the contradictory statements he made regarding whether
or not she had completed the rounds, but any conflicts in evidence were for the
Board to resolve. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d
1159, 1163 (Pa. Cmwlth. 1992).               The Referee asked for clarification from
Employer’s witness regarding his testimony,5 at which point the Employer’s

       5
           The hearing testimony of Employer’s witness (EW) before the Referee (R) reads as
follows:

       EW:      I mean, all I can say is that I reviewed the tapes from 4:00 – from 4:30
                until 6:00 A.M.
       R:       From 4:30 . . .
       EW:      A.M. and 6:00 A.M. She was not viewed doing any rounds until 5:00
                A.M. And even – that was after this incident.
       R:       From 4:30 A.M. . . .
       EW:      Um-hmm
       R:       . . . to what time?
       EW:      Until approximately 6:00 A.M. is what I looked at.
       R:       No rounds made?
       EW:      Right. So, when I say no rounds, what I am saying is that she didn’t
                properly do the rounds.
       R:       Okay.
       EW:      She walked . . .
       R:       Rounds not done properly?
       EW:      Correct. She walked up and down the hallway for about a minute, peered
                her head into the room and just looked at them. Unfortunately, that’s not
                conducting rounds. Just because you fill out a piece of paper, it does not
                indicate that that’s conducting a round.

(R. Item 8 at 12-13.)



                                                9
witness clarified his statement to reflect that Claimant did not complete the rounds
properly. Additionally, Claimant argues that Employer’s witness is not familiar
with the floor where she worked, but Employer’s witness would not have to be
familiar with a specific location to know the Employer’s policy, watch video
footage, and determine that Claimant violated the policy. As no error of law was
committed in admitting or crediting the testimony of Employer’s witness, these
observations are sufficient to establish that Claimant did not perform her rounds
properly, thereby violating the Rounds Policy.        Based on the testimony of
Employer’s witness, Employer met its burden in proving that Claimant violated
that policy.
      Having established that the policy existed and that Claimant violated the
policy, this Court must now consider whether the policy was reasonable under the
circumstances.   According to Employer’s Close Level of Observation Policy,
patients who are subject to these fifteen minute checks “are assessed to be at risk
for suicidal/self-injurious behavior, homicidal/violence toward others, or other
behaviors that requires increased level of observation to maintain the safety of the
[patient] and unit milieu.”   (Ex. 3, R. Item 8.)     The Rounds Policy requires
employees to confirm that each patient is present and unharmed.          Failure to
properly complete the Rounds Policy could potentially lead to patient harm. As
Employer’s Code of Conduct states that it is committed “to the creation of
behavioral health centers where people receive individualized and quality care that
enables them to regain hope in a supportive, caring and financially responsible
environment,” it is clearly against Employer’s interest for a patient to come to
harm. (Ex. 5 at 5, R. Item 8.) Therefore, the Rounds Policy is reasonable under
the circumstances. Since Employer has established the policy’s existence and



                                        10
reasonableness, along with Claimant’s deliberate violation thereof, the burden
shifted to Claimant to show good cause for violating the Rounds Policy, which she
failed to do. Chester Cnty. Charter Sch. v. Unemployment Comp. Bd. of Review,
138 A.3d 50, 54 (Pa. Cmwlth. 2016). Thus Claimant’s improper performance of
rounds constitutes willful misconduct.
      Claimant finally argues that the Board erred in finding that Employer
followed proper protocol in her discharge because she was neither retrained nor
warned before being terminated. While Employer does maintain a progressive
discipline policy, patient abuse or neglect is listed among the “behaviors that could
result in immediate termination.” (Ex. 4 at 3, R. Item 8.) The Employer’s policies
define patient neglect as “failing to provide for the patient’s basic emotional or
physical needs or failing in any way that would endanger the patient’s emotional or
physical well-being.” (Ex. 2 at 1, R. Item 8.) As previously established, failure to
properly complete rounds to observe patients who are considered a risk to
themselves or others places said patients at emotional or physical risk. Further,
Claimant argues that a mistake on the job requires retraining, but, as previously
established, Claimant’s actions were intentional rather than mistaken. Therefore,
Claimant’s failure to perform rounds properly amounts to patient neglect and was
grounds for immediate termination.
      Based on the foregoing, we affirm the Board’s Order, which determined
Claimant was ineligible for benefits under Section 402(e) of the Law.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge



                                          11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Taliah Webb,                          :
                      Petitioner      :
                                      :
                 v.                   :   No. 2137 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


     NOW, August 22, 2017, the Order of the Unemployment Compensation
Board of Review, dated December 5, 2016, is hereby AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
