                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sammiethia A. Jones,                            :
           Petitioner                           :
                                                :
                      v.                        :
                                                :
Unemployment Compensation                       :
Board of Review,                                :   No. 514 C.D. 2018
            Respondent                          :   Submitted: October 26, 2018


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY1                                        FILED: March 29, 2019

               Sammiethia A. Jones (Claimant) pro se petitions this Court for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) March 2, 2018
order affirming the Referee’s decision denying UC benefits under Section 402(e) of
the UC Law (Law).2 Claimant presents one issue for this Court’s review: whether the
UCBR erred by concluding that she was aware of the work rule prohibiting sleeping
on the job. After review, we affirm.
               Claimant was employed by BJ’s Wholesale Club (Employer) as an Asset
Protection employee from October 2008 through August 16, 2017.3 Employer has

       1
          This Opinion was reassigned to the author on January 24, 2019.
       2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
        3
          The Dissent declares that this representation is erroneous; see Dissenting Op. at 3 n.1.
However, this statement is consistent with the Referee’s finding of fact (FOF), see Referee Dec. at 1
(FOF 1), which was adopted by the UCBR, and supported by Claimant’s Internet Initial Claim. See
Original Record Item 2 at 2. Moreover, the only reference to additional positions is in Claimant’s
brief, which is not evidence. See Rothstein v. Unemployment Comp. Bd. of Review, 114 A.3d 6 (Pa.
Cmwlth. 2015).
rules that prohibit an employee from sleeping on the job. Further, Employer’s policy
is that it will discharge an employee for a first offense of falling asleep on the job.
Claimant was aware of this rule. Claimant did not seek Employer’s assistance in
regard to preventing sleep while working or tiredness issues. On August 6, 2017, at
approximately 2:00 a.m., Claimant fell asleep on the job.                 Employer terminated
Claimant’s employment for that reason.
              Claimant applied for UC benefits. On October 11, 2017, the Altoona
UC Service Center (UC Service Center) determined that Claimant was ineligible for
UC benefits under Section 402(e) of the Law. Claimant appealed and a Referee
hearing was held. On December 7, 2017, the Referee affirmed the UC Service
Center’s determination. Claimant appealed to the UCBR. On March 2, 2018, the
UCBR affirmed the Referee’s decision. Claimant appealed to this Court.4
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for [UC] benefits when his unemployment is due
              to discharge from work for willful misconduct connected to
              his work. The employer bears the burden of proving willful
              misconduct in a[] [UC] 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.




       4
         “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
Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747
n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added)).

            Where willful misconduct is based upon the violation of a
            work rule, the employer must establish the existence of the
            rule, its reasonableness, and that the employee was aware of
            the rule. Once employer meets this burden, the burden
            shifts to the claimant to prove that the rule was
            unreasonable or that he had good cause for violating the
            rule.

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Review, 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)).
            Claimant argues that the UCBR erred by concluding that she was aware
that Employer had a rule against sleeping on the job. This Court has explained:

            [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.

Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008)). Further,

            [s]ubstantial 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.

Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment Comp. Bd. of Review, 739
A.2d 616, 618 (Pa. Cmwlth. 1999)).
                                          3
             At the Referee hearing, Employer’s human resources manager Jennifer
McCann (McCann) presented Employer’s “Workplace Guidelines” which were
accepted into evidence. Certified Record (C.R.) at 61. They provided, in relevant
part:

             To assure safety and security and provide the best possible
             work environment, [Employer] expects Team Members to
             follow rules of conduct that protect the interests and safety
             of our Team Members, Members and the public. It is not
             possible to list all behavior considered unacceptable in the
             workplace, but the following are examples of infractions
             that may result in disciplinary action, up to and including
             separation of employment:
             ....
             • Sleeping on the job[.]

C.R. at 61-62. McCann also presented, and the Referee accepted into evidence,
Claimant’s signed acknowledgement that she received Employer’s: “Expectations;
Workplace Guidelines; Open Door” on March 14, 2008. C.R. at 64.
             Based on the above, the Referee found as a fact, which the UCBR
adopted, that “Claimant [was] aware of th[e] rule” “prohibit[ing] an employee from
falling asleep on the job.” Referee Dec. at 1. The exhibits were “relevant evidence
upon which a reasonable mind could base [the] conclusion” that Claimant was aware
of the rule. Sipps, 181 A.3d at 484 (quoting Sanders, 739 A.2d at 618). Accordingly,
the UCBR did not err by concluding that Claimant was aware of the rule prohibiting
sleeping on the job.
             The Dissent maintains that because Claimant listed the issue of
“[w]hether the [UCBR] erred in concluding that [] ‘[C]laimant is ineligible for
benefits under the provision of Section 402(e) of the [Law][,]’” she raised for this
Court’s review “[w]hether Claimant’s conduct constituted ‘willful misconduct’ under
Section 402(e) [of the Law]”. Dissenting Op. at 1-2. By adding words to Claimant’s

                                          4
issue, the Dissent addresses whether Claimant deliberately violated a work rule.
Further, a thorough reading of Claimant’s Petition for Review and Claimant’s entire
brief belies the assertion that Claimant raised this issue.
             Notwithstanding,
             (be)yond violating an express work rule, sleeping on the job
             constitutes a wanton or willful disregard of the standards of
             behavior that an employer has the right to expect of his
             employees, or negligence which manifests culpability,
             wrongful intent or evil design exhibiting an intentional and
             substantial disregard of the employer’s interest or the
             employee’s duties and obligations to the employer.

Kelley v. Unemployment Comp. Bd. of Review, 429 A.2d 1227, 1228-29 (Pa. Cmwlth.
1981) (quoting Johnson v. Unemployment Comp. Bd. of Review, 420 A.2d 794, 795
(Pa. Cmwlth. 1980)); see also Staudt v. Unemployment Comp. Bd. of Review (Pa.
Cmwlth. No. 768 C.D. 2014, filed January 13, 2015) (“In the absence of a specific
work rule forbidding sleeping while on duty, falling asleep at work generally is prima
facie evidence of willful misconduct as it demonstrates either a wanton or willful
disregard for an employer’s interest or a disregard for the standards of behavior
which an employer can rightfully expect of an employee.            Once a prima facie
showing of willful misconduct is made, an employee may rebut such a showing by
demonstrating good cause for sleeping on the job.”) (citations omitted); Criss v.
Unemployment Compensation Board of Review (Pa. Cmwlth. No. 1290 C.D. 2009,
filed February 5, 2010). Accordingly, even if Claimant had raised the issue, the
UCBR still properly concluded she committed willful misconduct.
             Moreover,     the    Court    in    Philadelphia   Parking   Authority    v.
Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010), the
case the Dissent cites to support its position, based its conclusion on the fact that the
claimant advised her employer that she had trouble staying awake and requested more
work to help her stay awake. While the Court is sympathetic to Claimant in the
                                             5
instant case and her circumstances, she has worked the overnight shift for a year and
has never expressed a concern to her Employer about staying awake. Philadelphia
Parking Authority is clearly inapposite.
             For all of the above reasons, the UCBR’s order is affirmed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sammiethia A. Jones,                  :
           Petitioner                 :
                                      :
                  v.                  :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 514 C.D. 2018
            Respondent                :


                                   ORDER

            AND NOW, this 29th day of March, 2019, the Unemployment
Compensation Board of Review’s March 2, 2018 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sammiethia A. Jones,            :
                 Petitioner     :
                                :
           v.                   :         No. 514 C.D. 2018
                                :         Submitted: October 26, 2018
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                                 FILED: March 29, 2019

            Respectfully, I dissent.      I agree with the majority that the
Unemployment Compensation Board of Review’s (Board) finding that Sammiethia
Jones (Claimant) knew of her employer’s work rule against sleeping on the job is
supported by substantial evidence. Claimant raised the additional issue, however,
of whether the Board erred in concluding that she committed disqualifying willful
misconduct by falling asleep at her desk during her shift. Because the Board failed
to determine whether Claimant’s conduct was deliberate or intentional, I would
vacate and remand.
            The majority opinion states that Claimant presents one issue for this
Court’s review, i.e., whether the Board erred in concluding she was aware of the
work rule prohibiting sleeping on the job. However, Claimant raised a second issue
in her statement of questions involved and summary of argument, i.e., whether the
Board erred in concluding she is ineligible for benefits under Section 402(e) of the
Law, 43 P.S. §802(e).1 Although Claimant, who is pro se, did not develop this issue
at length, her repeated statement of it in her brief is sufficient to require its review.2
Whether Claimant’s conduct constituted “willful misconduct” under Section 402(e)
is a question of law subject to this Court’s plenary review.                         Navickas v.
Unemployment Compensation Board of Review, 787 A.2d 284, 303 (Pa. 2001).
               On the question of whether sleeping on the job constitutes willful
misconduct, this Court has reached different conclusions.                          In Kelley v.
Unemployment Compensation Board of Review, 429 A.2d 1227 (Pa. Cmwlth. 1981),
the claimant left industrial machinery operating and unattended while he went into
another room to take a nap. This was held to constitute willful misconduct. In
Unemployment Compensation Board of Review v. Simone, 355 A.2d 614, 616 (Pa.
Cmwlth. 1976), the claimant took a nap while a mechanic worked on his truck and
continued to nap after the truck was repaired, i.e., after his “forced idleness” ended.
This also was held to constitute willful misconduct. In both cases, the claimants
made the deliberate decision to sleep on the job. By contrast, in Philadelphia
Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965


1
   Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e),
which states, 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....”
2
  The majority states that the dissent is “adding words to Claimant’s issue.” Majority slip op. at 4-
5. In her brief, Claimant queries whether the Board erred in concluding she is “ineligible for
benefits under the provision of Section 402(e) of the Pennsylvania Unemployment Compensation
Law,” Claimant Brief at 6. This is sufficient to challenge the Board’s legal conclusion that she
committed willful misconduct. Notably, the Notice of Hearing identified one of the specific issues
“to be considered” by the Referee was “Section 402(e) – Whether Claimant’s unemployment was
due to discharge or temporary suspension from work for willful misconduct connected with
employment.” Certified Record (C.R.) Item No. 8, at 1. “Willful misconduct” is the only basis
for disqualification in Section 402(e), 43 P.S. §802(e). The Board does not argue that this issue is
waived but, rather, addresses it at length in its brief.

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(Pa. Cmwlth. 2010), an employee who fell asleep on the job was held not to have
committed willful misconduct. The record showed that the claimant worked from
3:30 p.m. to midnight, seated at a desk in the “money room” with not enough to do
to prevent drowsiness. Id. at 967. She asked the employer for more work lest she
“konk out.” Id. We concluded that the employer “failed to prove that [the claimant]
deliberately or intentionally violated its work rule by sleeping during her shift.” Id.
at 969.
               In the case at bar, Claimant worked part-time for BJ’s Wholesale Club
(Employer) for nearly ten years in multiple positions, most recently as an asset
protection associate, when she was discharged for sleeping on the job. Claimant
testified that when she was hired in 2008 she worked day shifts. In November 2016,
she was assigned the 10:00 p.m. to 6:00 a.m. shift, which she had never done before.
At the hearing, Claimant testified as follows in response to the Referee’s
questioning:
               R:    How did it happen that you wind up working overnight?

               Well, the department that I was actually working was closed and
               was sold to Dunkin Donuts. And, they offered me a job to work
               overnight, which I told them that it would be hard; that I would
               absolutely try my best. But, if you’re used to working earlier
               hours than overnight, it’s hard for your body to just change,
               regardless if it’s four months, six months, seven, eight months.
               It’s hard to make that change.
                                            ***
               And, for me, they knew my husband was a -- a dialysis patient,
               which I’ve been taking care of him since 2014. So, what I did
               for him did not interfere with my job at work. It was just the
               hours.




                                       MHL-3
Notes of Testimony (N.T.), 12/5/2017, at 10 (emphasis added).3 Claimant testified
that she had difficulty adjusting to the night shift but acknowledged that she did not
so inform Employer. Instead, she kept her “ears open” for other jobs with Employer.
N.T. 12.
               Claimant testified that she found working overnight challenging
because it was a new experience. She did not deny falling asleep at her desk on
August 6, 2017.        In her written statement requested by Employer, Claimant
explained that she had a busy day taking care of her husband, who needs dialysis,
and was not able to nap enough before she reported to work at 10:00 p.m. Certified
Record, Item No. 9, Employer Exhibit 3. Claimant testified that she did not intend
to fall asleep. N.T. 12. She did not abandon her post, as did the claimant in Kelley;
she simply nodded off at her desk. She did not get comfortable on a sofa to take a
nap, as did the claimant in Simone. Claimant testified that she tried to stay awake
and would help out when the floor was short-handed to stay busy. In this respect,
her conduct was similar to that of the claimant in Philadelphia Parking Authority.
Claimant did not ask Employer for help with her shift assignment, as did the claimant
in Philadelphia Parking Authority, but she did tell Employer that the night shift
“would be hard[.]” N.T. 10.
               Nodding off on the job does not automatically constitute willful
misconduct, even if the employer has a work rule against sleeping. The Board
assumed, incorrectly, that falling asleep in violation of a work rule ipso facto
constitutes willful misconduct. To the contrary, the violation of the work rule must


3
  The majority states, erroneously, that Claimant was an asset protection employee during her
entire term of employment by Employer. Claimant’s testimony was that working the night shift
was a new job, caused by the elimination of her former position. Her lack of night shift experience
is directly relevant to the question of whether her “nodding off” was a deliberate act.

                                            MHL-4
be deliberate. Here, there was no finding by the Board that Claimant’s violation was
intentional and deliberate, and this is required. Philadelphia Parking Authority, 1
A.3d at 969; Kelley, 429 A.2d at 1229.
            For the foregoing reasons, I would vacate the Board’s adjudication and
remand for a finding of whether Claimant “deliberately or intentionally violated its
work rules by sleeping during her shift.” Philadelphia Parking Authority, 1 A.3d at
969.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




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