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 inel igible for UC benefits under

section 402(e) of the Unemployment Compensation Law (Law) 1 because s he 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 fo r compensation for any week . . . [i]n which [her] unemp loymen t is due to [her] discharge . . . from

work for willful misconduct connected with [her] work.” 43 P.S. § 802(e).2

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 w ith 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.) A t 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. , No s

. 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 a nd 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 them3

home because of staffing needs. ( Id. , No. 14. ) Thedford permitted Claiman t to work

un til 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 th e 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 l ocal 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 p olicy 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.)4

for UC benefits under the Law . Claimant appealed to the UCBR, which affi rmed.

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 tha t 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 em ployer rightfully can

expect from its employees; or (4) negligence that manifests culpability, wrongful

intent, evil design, or an intentional and substantial disregard of the employe r’ s

interests or the employee ’ s duties and obligations. Oliver v. Unempl oyment

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

th e 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 vi olating 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 unsupport ed by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.5

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. Q uestions 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 , 9 21 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 viola ted 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 i n willful misconduct.

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yeekpeh H. Karweh, : : No. 2222 C.D. 2015

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, :

: Respondent :

O R D E R

AND NOW, this 6 th day of July , 201 6

, we hereby affirm the October 14,

2015 , order of the Unemployment Compensation Board of Review

.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge