IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Asata M. Kabba, : Petitioner : : v. : : Compensation : Board of Review, : No. 730 C.D. 2013 Respondent : Submitted: November 8, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY FILED: December 17, 2013 Asata M. Kabba (Claimant), petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that reversed the Referee’s grant of benefits to Claimant under Section 402(e) of the Unemployment Compensation Law (Law),1 43 P.S. §802(e).

The facts, as found by the Board, are as follows:

1. The claimant was last employed as a full-time residential counselor by the Woods Services from November 27, 2006 at a final rate of $11.27 per hour and her last day of work was November 11, 2012.

2. The employer maintains a policy prohibiting sleeping while on duty and the claimant was aware of the policy.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. 3. The claimant had been warned by her about remaining alert and not sleeping while on duty during the weekend of November 3-4, 2012.

4. On November 11, 2012, the claimant’s supervisor witnessed the claimant lying on the couch with her head back and her eyes closed.

5. The supervisor spoke with other staff and residents of the house for four to five minutes before the claimant woke up.

6. The supervisor asked the claimant to go to her office and write a statement about the incident.

7. The supervisor suspended the claimant while the allegation of sleeping on duty was investigated.

8. The claimant apologized to the supervisor.

9. The claimant was discharged for [sic] on duty. …. In this case, the employer provided credible testimony that it maintains a policy prohibiting sleeping while on duty and that the claimant was aware of the policy. The claimant was warned during her weekend shift on November 3-4, 2012 about remaining alert and not sleeping while on duty. On November 11, 2012, the claimant’s supervisor witnessed the claimant lying on the couch sleeping during her shift.

The claimant alleges that she had taken medication for her back pain that made her drowsy and she laid down to rest but was not sleeping. The Board resolves the conflict in favor of the employer and finds the employer’s testimony credible that the claimant was sleeping during her shift. The Board discredits the claimant’s testimony that she told the employer, prior to taking the medication, that it would make her drowsy. Because the claimant had been warned previously about remaining alert and awake during her shifts, the Board finds that the claimant had an obligation to safeguard her with additional precautions.

2 Board’s Decision, April 3, 2013, Findings of Fact Nos. 1-9 and Discussion at 2. 2

The Board resolved the conflicts in testimony in favor of the Woods’ Services (Employer) and concluded after review of the entire record in this matter, “[t]he claimant has not established good cause for violating the employer’s policy.” Board’s Decision, April 3, 2013, at 2.

On appeal, Claimant contends3 the Board erred when it reversed the Referee’s grant of benefits because the Board’s determination that Claimant committed willful misconduct was not supported by substantial evidence.

Whether a Claimant’s conduct rises to the level of willful misconduct is a question of law subject to this Court’s review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer’s interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer’s interest or employee’s duties and

2 The pages of the Reproduced Record are not numbered. 3 Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). This Court will review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony in order to determine if substantial evidence exists. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).

3 obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).

In the present case, Employer established through its witness, Michelle Bova (Ms. Bova), Employer’s program supervisor, that it had a policy that prohibits “sleeping on the .” Notes of Testimony, January 28, 2013, (N.T.), at 7. Claimant received the which described, “[s]leeping on the job” as a “more serious employee action considered as willful misconduct.” Employee Handbook Receipt, July 29, 2011, at 3-4.

Taralynn Hart (Ms. Hart), Employee Relations Specialist for Employer, testified that on November 11, 2012, she noticed Claimant “laying [sic] on the couch, sleeping….She had her head back and her eyes closed on the couch…as I was standing there, she didn’t move the entire time.” N.T. at 12. Ms. Hart explained that she had spoken to Claimant “several times about being less than alert on the couches in the building…not fully active with the kids; you’re lying on the couch, with your eyes semi-shut, and not dealing with your job.” N.T. at 14.

4 Claimant testified4 that she informed Ms. Bova that she took medication for injuries suffered in a motor vehicle accident. Claimant testified that on November 11, 2012, “I was not sleeping at all. I was sitting. I was even aware that she [Ms. Hart] -- when she came….I didn’t stand up, because there was no major incident or -- let’s say incident or action that would make me stand up and react for the clients there.” N.T. at 20.

In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Here, the Board found Employer’s testimony credible.

The findings of fact challenged by Claimant are supported by substantial evidence. Employer established that it had a rule, that Claimant was aware of the rule, and that Claimant violated that rule. Claimant failed to provide any legitimate argument that she had good cause for violating the rule.

4 An interpreter was present at the hearing on Claimant’s behalf.

5 Accordingly, the decision of the Board is affirmed.

______BERNARD L. McGINLEY, Judge

6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Asata M. Kabba, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : No. 730 C.D. 2013 Respondent :

O R D E R

AND NOW, this 17th day of December, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

______BERNARD L. McGINLEY, Judge