IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jenny A. DeCoskey,
Petitioner
v.
Unemployment Compensation 2004 Board of Review
Respondent
Submitted: August 27,
BEFORE:
HONORABLE BERNAR D L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE KELLEY
FILED: November 1, 2004
Jenny A. DeCoskey (Claimant), proceeding pro se , petitions for
review from an order of the Unemployment Compensation Board of Review
(Board), which affirmed the decision of an unemployment compensation
referee (referee) and denied benefits.
We affirm.
Claimant was employed as a full-tim e Social Services Director with
Garvey Manor Nursing Home (Employer), an assisted living facility,
from 1975 until her last day of work on November 10, 2003 when she
was terminated. Claimant filed an application for unemploy ment
compensation benefits, which was denied by the UC Service Center on
the basis that Clai mant was ineligible for benefits under Section
402(e) of the Unem ployment Compensation Law 1 (Law) for willful
misconduct. Claimant timely appealed the UC Service Ce nter's
Notice of Determination and th e matter was heard before a referee.
T he referee affirmed and denied benefits. Claimant then appealed
the referee's decision to the Board.
Upon review of the testimony and the evidence submitted at th e
referee's hea ring, t he B oard made the following findings of
fact. Em ployer's rule s prohibit employees from accepti ng gifts
from residents or their family. Claimant knew or should have known
of this rule, and also th at entering into loan arrangements with
a resid ent amounted to a conflict fo r Employer and put Employer
at risk of a llegations of re sident a buse. A s pa rt of her
employment, Claimant had access to the resident's financial records.
In violation of Employer's policy, Claimant accepted a $3,000 loan
from a reside nt. Claimant was al legedly financially strapped
despite significant assets. Claimant was aware that this resident's
memory was failing. Cl aimant asserted that she did not b elieve
that loans were pro hibited by the rules but failed to check with
management before entering into the arrangement. Claimant initially
discouraged the resident from offering her cash because she did not
want it to app ear that she was "t aking something from someone."
Claimant believed that checks with an alle ged w ritten prom ise
t o re pay were more appropriate. Employer discharged Claimant
as a result of a policy or rule violation. The Board resolved
the confli cts in testimony, in re levant part, in favor of
Employer.
Based upon th ese findings, the Bo ard concluded that
Claimant was discharged for a delibe rate violation of Employer's
rule s an d, as a resu lt, in eligible for benefits for willful
m isconduct.
By order dated Marc h 26, 2004, the Board affirmed the decision
of the referee and denied benefits.
Claimant now petitions fo r review with this Court. 2 Cl aimant
h as presented the following questions for our review:
1. Whether th e Boar d er red in denying Claimant unemployment
compensation benefits.
2. Whether the Board's opini on that Claima nt's actions
constituted willful misconduct is supported by substantial
evidence.
Claimant contends that the Boar d's findings are not supported by
substantial evidence and do not support the conclusion that Claimant's
actions constituted willful misconduct. We disagree. To begin,
findings of fact are conclusive upon review provided that the record,
taken as a whole, contains substantial evidence to support the findings.
Taylor v. Unem ployment Com pensation Board of Review , 474 Pa. 351,
378 A.2d 829 (1977). Substantial evidence is such relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion. Hercules v. Unemployment Com pensation Board of Review ,
604 A.2d 1159 (Pa. Cmwlth. 1992). The Board is the ultimate fact finder
and is, therefore, entitled to m ake its own determ inations as to
w itness credibility and evidentiary weight. Peak v. Unem ployment
Com pensation Board of Review , 509 Pa. 267, 501 A.2d 1383 (1985).
Section 402(e) of the Law provides in pertinent part:
An employee shall be ineligible for compensation for any week---
(e) In which his unem ployment is due to hi s discharge or
tem porary suspension from work for wi llful misconduct
connected with his work, irrespective of whether or not
such work is "employment" as defined in the act.
43 P.S. $ 802(e). The term "willful m isconduct" is not
defined in the Law. Our Supreme Court has defined "willful
m isconduct" as an act of wanton or willful disregard of
the employer's interests, a deliberate violation of the
employer's rules, a disregard of the standards of behavior
which the employer has a right to expect of an em ployee,
or negligence indicating an intentional disregard of the
em ployer's interests or of the em ployee's duties and
ob ligations to the em ployer. Navickas v. Unemployment
Compensation Board of Review , 567 Pa. 298, 304, 787 A.2d 284, 288 (2001).
Whether an em ployee's c onduct rises to the level of willful misconduct
is a matter of law subj ect to appellate review. Id.; Miller
v. Unemployment Com pensation Board of Review , 405 A.2d 1034 (Pa.
Cmwlth. 1979). The burden of pr oving willful m isconduct rests with
the employer. Navickas; Brant v. Unemployment Co mpensation Board
of Review , 477 A.2d 596 (Pa. Cmwlth. 1984). Once an em ployer has
shown that the employee violated a work rule, the em ployee may show
that his conduct was justified and reasonable under the circ umstances.
Kelly v. Unem ployment Compensation Board of Review, 747 A.2d 436 (Pa.
Cmwlth. 2000); Kalenevitch v. Unemployment Co mpensation Board of Review ,
531 A.2d 590 (Pa. Cmwlth. 1987), petition for allowance of appeal denied,
517 Pa. 625, 538 A.2d 878 (1988). Here, the Board ultimately found that
Claimant was term inated because she violated a facility rule. Employer
presented credible evidence that it has a rule prohibiting employees
from accepting gifts from residents. The purpose of such a rule is to
protect the residents of the facility from solicitation and
financial exploitation. As an employee of 28 years, Claimant should
have been well aware of Employer's rule and the rationale behind it.
Notwithstanding the facility's written rule prohibiting the solicitation
or acceptance of gifts from residents, Claimant accepted a loan in the
amount of $3,000 from a resident. While Claimant argues that the rule
only prohibits gifts not loans, we believe that the solicitation and
acceptance of a loan from a resident at a nursing facility by a staff
member has the o bvious appearance of impropriety and is sufficiently
embraced within Employer's policy.
Even if Employer did not have a rule in place, Claimant's conduct
evidences a complete disregard of the professional and ethical
standards of behavior which Employer has a right to expect of an employee.
Claimant, as the Social Services Director for Employer, occupied
a position of trust with the residents and their families . By
accepting money from an 89-year-old resident suffering from dementia,
Cl aimant clearly abused her position of trust and put Employer at
risk for allegations of resident abuse. Claimant herself admits that
her actions constituted a lapse in judgment. N.T. at 27.
Having established the existence of a reasonable work rule and Claimant's
violation thereof, the remaining question is whether Claimant can show
good cause for her conduct. Claim ant asserts that this was an isolated
incident in an otherwise successful career and should not rende r her
ineligible for unemployment compensation. The law is clear that even
a single incident, if sufficiently serious, as is the case here , may
warrant a conclusion of willful misconduct for purposes of denying
unem ployment benefit s. See Williams v. Unemployment Com pensation
Board of Review , 380 A.2d 932 (Pa. Cmwlth. 1977). Claimant further
asserts that she was justified in accepting the money because of her
strained financia l situation and, under the circumstances, her actions
were at least reasonable. However, conduct mo tivated by personal
financial gain does not constitute good cause to violate a work rule.
For these reasons, we conclude that the Board did not er r in finding that
Claimant is ineligible fo r unemployment comp ensation under Section 402(e)
of the Law. Accordingly, the order of the Board is affirmed.
_________________________________ JAMES R. KELLEY, Senior Judge