Sunday, September 05, 2010

UC - willful v. unintentional conduct - credibility

Oliver v. UCBR - Cmwlth. Court (en banc) - September 1, 2010 - 5-2 decision

Daycare worker held to have committed willful misconduct by violating employer rule about "100% supervision policy" for the children under her care. "Claimant took her group of six children from the playroom to an outdoor play area. Employer had a policy that a teacher must supervise all of the children in her charge at all times. Claimant’s supervisor noticed that one child was still in the playroom. She retrieved the child and delivered him to Claimant. Claimant’s failure to supervise this child resulted in her termination," even though she claimed that this was an inadvertent "honest mistake."

While Claimant concedes that she violated Employer’s rule, she asserts that her conduct was not willful, intentional, or deliberate and does not constitute willful misconduct, but "[c]ritically, Claimant’s version of the events was not credited by the Board," which reversed the referee. The Claimant did not raise the issue of the Board’s alleged failure to support its decision for overriding the referee’s credibility determinations in the Statement of Questions Involved or in the Argument section of her brief. . . [I]t does not appear that Claimant preserved the issue of whether the Board failed to provide sufficient support for arriving at a different credibility determination than the referee in the Statement of Questions Involved. . . .Assuming arguendo, that Claimant did raise this issue in the Statement of Questions Involved, Claimant must also raise the issue in the Argument Section of the brief. . . .At no time in the brief did Claimant argue that the Board erred when it overrode the credibility determination of the referee without adequate explanation. This Court does not raise non-jurisdictional issues sua sponte. Claimant failed to preserve this issue." The court then goes on to discuss, at length, the issue of whether the claimant's testimony was uncontradicted, under Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982).

The court held that "Claimant’s conduct was not a mere mistake. . . Even if her actions constituted an honest mistake, it would not justify the violation of Employer’s rule." Heitczman v. UCBR, 638 A.2d 461 (Pa. Cmwlth. 1994) (fork-lift driver's accident was disqualifying willful misconduct because it violated an employer safety rule concerning about driving a fork-lift).

Dissent (Brobson and Leavitt) - The "Board failed to support its decision for overriding the credibility determination of the referee. . . ."As the ultimate finder of fact, the Board certainly had the right to disbelieve Claimant, even though her testimony was uncontradicted. Treon v. UCBR, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982). The Board, however, is not free to disregard findings of the referee based upon consistent and uncontradicted evidence without providing the reasons for its reversal." The court and Board were wrong to find the claimant's testimony "internally inconsistent. . . The Board has not set forth its reason for reversal, and the Board’s reason for reversal is not “plain enough” from the record. . . .Because I am unable to determine why the Board reversed the referee, there is not an adequate basis for judicial review"