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 ineligible for UC benefits under 

section 402(e) of the Unemployment Compensation Law (Law)1because she 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 for 

compensation for any week . . . [i]n which [her] unemployment 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 with 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.) At 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., Nos. 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 and 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 them 
3

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

until 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 the 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 local 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 policy 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 affirmed.

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 that 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 employer rightfully can 

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

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

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

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 

the 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 violating 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 unsupported 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. Questions 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, 921 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 violated 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 in willful misconduct. 

Accordingly, we affirm.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN 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, 2016, we hereby affirm the October 14, 

2015, order of the Unemployment Compensation Board of Review.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge