Friday, January 09, 2009

admin. law - due process - discovery

Vaders v. State Horse Racing Commn. - Cmwlth. Cour - January 9, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/703CD08_1-9-09.pdf

due process - In an administrative hearing, due process requires, at a minimum, notice and the opportunity to be heard. See Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504; Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Cmwlth. 2003); and Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006).

discovery - Discovery, as provided for in the Pennsylvania Rules of Civil Procedure for court proceedings, is not made available in administrative proceedings.

Rule 35.142(a) of the General Rules of Admin. Practice and Procedure 1 Pa. Code § 35.142(a) http://www.pacode.com/secure/data/001/chapter35/s35.142.html allows parties to request subpoenas for the attendance of witnesses or production of documents upon written application to the agency’s head or oral application at a hearing. Weinberg v. Ins. Dep’t, 398 A.2d 1120 (Pa. Cmwlth. 1979).

UC - willful misconduct - failure to follow employer directive to attent meeting

Bonawitz v. UCBR - Cmwlth Court - Janaury 9, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1027CD08_1-9-09.pdf

“Where an employee is discharged for refusing or failing to follow an employer’s directive, both the reasonableness of the demand and the reasonableness of the employee’s refusal must be examined.” Dougherty v. UCBR, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).

Where an employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. UCBR, 450 A.2d 305 (Pa. Cmwlth. 1982). “In other words, if there was ‘good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.” Id. at 308 (citation omitted).

Under some circumstances, a claimant’s mistaken belief can constitute good cause justifying otherwise willful misconduct. Caterpillar, Inc. v. UCBR, 654 A.2d 199 (Pa. Cmwlth. 1995). However, incorrect subjective beliefs as to legal rights do not establish good cause for willful misconduct. Simpson.

Here, the Board did not find that Claimant had a mistaken belief as to the subject of the meeting. Instead, the Board determined Claimant failed to carry his burden to establish good cause for two reasons: [T]he employer credibly established that the claimant had proper representation present since a union steward was already in his office and another one was on the way.

Furthermore, the employer stated that no union representation was necessary, since the employer was not required to have union representation at a counseling session. Clearly, the Board made all credibility findings in favor of the Employer and none in favor of the Claimant. Also, the Board reasoned that any need for union representation was satisfied, regardless of the subject of the meeting.

UC- willful misconduct - intentional v. negligent conduct

Appleyard v. UCBR - Cmwlth. Court - January 8, 2009 - unreported en banc 4-3 decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf

Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.

"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."

Dissent - There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."

" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.

"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.

"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."

" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.

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