IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fatoumata Camara, :
:
Petitioner :
:
v. : No. 1451 C.D. 2004
:
Unemployment Compensation Board : Submitted: October 15, 2004
of Review, :
:
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JIM FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: November 17, 2004
Fatoumata Camara (Claimant) petitions for review, pro se, from an order of the Unemployment Compensation Board of Review (Board), which, after taking no additional evidence, affirmed a referee’s decision denying benefits. The basis for the referee’s decision was a finding that Claimant had committed disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law), by inviting a personal visitor to Citizen Care Inc.’s (Employer) work site, despite a work rule prohibiting such a practice.1
Claimant asserts that she was not guilty of willful misconduct because Employer’s policy was not reasonable. She also questions whether the evidence is sufficient to support the referee’s decision and whether she was denied due process when she was not permitted to introduce "new evidence." Finally, she contends that Employer did not enforce the "no personal visitors" policy uniformly.
The referee found, after conducting a hearing, which Claimant failed to attend, that Employer’s facility is a "closed facility" for developmentally disabled adults. Claimant worked for Employer as a full-time Client Services Assistant beginning in May 2001. On December 27, 2003, Claimant brought a friend to work with her for thirty minutes in violation of Employer’s policy. The policy provided for termination for neglect of duties, which included permitting unauthorized personal visitors in the facility. The referee specifically found that Claimant was aware of the policy. Employer terminated Claimant for violating the rule and, thereafter, she sought unemployment benefits.
In denying benefits, the referee explained in his adjudication that Claimant "divided her attention" between her clients and her friend. He also found that the policy was reasonable due to the nature of Employer’s clientele. He further noted that Claimant, in the course of Employer’s internal investigation of the incident, admitted to Employer that she was aware of the policy, had violated it and knew of the possible repercussions for doing so. Because Claimant did not appear at the hearing, she did not offer any contradictory evidence or justification for her conduct.
Claimant appealed the referee’s decision to the Board and in her appeal she did not seek a remand and did not provide any explanation for her failure to attend the hearing. Claimant asserted only her belief that she was eligible for benefits because she did not think that she had violated Employer’s rule and that other co- workers had done the same thing. Thus, she has waived any opportunity to present evidence on her own behalf. Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1985). The Board, in its order, adopted the referee’s findings2 and summarily affirmed the referee. Claimant then appealed to this Court.3
On appeal Claimant first contends that she is not guilty of willful misconduct. Section 402(e) of the Law provides, in pertinent part, that an employee 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 ... ." The term "willful misconduct" has been defined as:
the wanton and wilful disregard of the employer's interest, ... the deliberate violation of rules, ... the disregard of standards of behavior which an employer can rightfully expect from his employee, or ... negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973) (emphasis added). An employer has the burden of establishing a claimant’s ineligibility for unemployment benefits on the basis of willful misconduct. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993). Whether the employee’s conduct rose to the level of willful misconduct is a question of law fully reviewable by this Court. County of Luzerne v. Unemployment Compensation Board of Review, 611 A.2d 1335 (Pa. Cmwlth. 1992).
Where, as here, the claimant’s discharge is based upon an employee’s violation of a work rule, the employer must establish the existence of the rule and the fact of its violation. Partsch v. Unemployment Compensation Board of Review, 439 A.2d 1331 (Pa. Cmwlth. 1982). The employee, if attempting to justify the violation, must prove good cause. Id.
In this case Employer, in support of its burden, presented the testimony of Grove Deming, Employer’s Executive Director of Human Resources. This witness stated that management received a report that Claimant brought a friend to her work site. Deming further stated that Claimant admitted as much when Employer conducted an internal investigation of the incident. (N.T. 6.) He also explained that at the time Claimant was assigned to the Highland Hills site, which had approximately ten residents for whom Claimant was responsible, and that her responsibilities included the health, safety and welfare of the residents. Id. In addition, Employer submitted the testimony of Employer’s Human Resources Specialist, Elizabeth Oslick who presented Employer’s policy, as well as a document signed by Claimant indicating that Claimant had received the policy in March of 2002. (N.T. 6-7; Employer’s Exs 1, 2.) The policy states, in pertinent part, "[s]taff are not permitted to have visitors on site in work areas during work hours." (Employer Ex 2.) We hold that the policy, the report, and the signed document affirming Claimant’s receipt of the policy is, as a matter of law, the requisite substantial evidence to prove the existence of the policy, Claimant’s knowledge of it and her violation. Moreover, as the referee noted, given the nature of Employer’s business, the rule is certainly reasonable because it attempts to assist its employees in focusing on the needs of the developmentally disabled clients for whom they bear responsibility and to protect the safety of both the clients and the visitors.
As noted earlier, Claimant, because she did not appear at the hearing, did not assert any justification or "good cause" for her actions. Her attempt to do so now by asserting facts in her brief based on matters not of record is prohibited.4 Andracki v. Workmen’s Compensation Appeal Board (Allied Eastern States Maintenance), 508 A.2d 624, 625 n.2 (Pa. Cmwlth. 1986) (factual statements that were contained in brief but were de hors the record would not be considered on appeal). Further, the contention in her brief that Employer did not enforce its policy uniformly suffers from this same problem.
Accordingly, because we conclude that the findings are supported by substantial evidence and Claimant did commit an act of willful misconduct without good cause, we affirm the Board’s order.
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RENÉE COHN JUBELIRER, Judge