D.T. Bowen v. UCBRD.T. Bowen v. UCBR
BY JUDGE DUMAS
Dawn T. Bowen (Claimant), appearing pro se, has petitioned this Court to review the adjudication of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the Referee that Claimant was ineligible for unemployment benefits. After careful consideration, we find that Claimant‘s failure to submit to an employer-mandated COVID-19 vaccination and failure to apply for a medical or religious exemption constituted willful misconduct under Section 402(e) of the Unemployment Compensation Law (the Law).1 Accordingly, we affirm.
Claimant was employed as a full-time senior asset manager at Multi Family Asset Managers, LLC (Employer) from August 22, 2016, through November 30, 2021. Based on a federal mandate for federal contractors and subcontractors, Employer announced on September 19, 2021, that all employees were required to get a COVID-19 vaccination unless they applied for and were approved for a medical or religious exemption (Vaccine Policy). Employer discharged Claimant because Claimant did not comply with the Vaccine Policy. Claimant sought unemployment benefits, which the Office of Unemployment Compensation Benefits denied, finding that her actions constituted willful miscоnduct under Section 402(e) of the Law.3 Claimant appealed to the Referee.
At the Referee‘s hearing, Employer established that it adopted the Vaccine Policy to comply with the federal mandate for federal contractors. Further, employees were permitted to apply for a medical or religious exemption, and Claimant never did. Appearing pro se, Claimant conceded that she was informed of the Vaccine Policy, and she recognized that she would not have qualified for a medical or religious exemption. Instead, Claimant testified that she did not obtain a vaccine because of her own personal beliefs. The Referee found that Claimant was informed of the Vaccine Policy and committed willful misconduct by failing to comply.
II. ISSUES
Claimant asserts that Employer failed to meet its burden in establishing a prima facie case that Claimant engaged in willful misconduct.4 See Pet. for Review at 3; Claimant‘s Br. at 8-9. Additionally, Claimant contends that she established good cause for not complying with Employer‘s Vaccine Policy. See Claimant‘s Br. at 7-9. Finally, in support of these claims, Claimant argues that certain factual findings of the Board were not supported by substantial evidence. See Pet. for Review at 3; Claimant‘s Br. at 6.
In response, the Board argues that its factual findings were supported by substantial evidence, that it established willful misconduct, and that Claimant failed to establish good cause for her misconduct. Bd.‘s Br. at 4.
A. Employer Established Willful Misconduct
Claimant first asserts that Employer failed to establish her willful misconduct. See Claimant‘s Br. at 8-9. This claim is without merit.
Willful misconduct is defined as (1) wanton and willful disregard of an employer‘s interests; (2) deliberate violation of an employer‘s rules; (3) disregard of behavioral standards that an employer can rightfully expect from an employee; or (4) negligence showing an intentional disregard of the employer‘s interests or the employee‘s duties and obligations. Pierce-Boyce v. Unemployment Comp. Bd. of Rev., 289 A.3d 130, 135 (Pa. Cmwlth. 2022). An employer must prove the existence of a work rule, the reasonableness оf the rule, the claimant‘s knowledge of the rule, and the claimant‘s subsequent violation of the rule. Id. at 136.
“In determining reasonableness, this Court should consider whether application of the rule or policy under the circumstances is fair and just and appropriate to accomplish a legitimate interest of the employer.” Spirnak v. Unemployment Comp. Bd. of Rev., 557 A.2d 451, 453 (Pa. Cmwlth. 1989); see also, e.g., Brown v. Unemployment Comp. Bd. of Rev., 276 A.3d 322, 328-29 (Pa. Cmwlth. 2022) (finding employer‘s flu vaccine policy fair and just where it allowed medical or religious exemptions but rejected a form document submitted by the claimant asserting the claimant‘s right to not give consent). An employee who fails to comply with an employer‘s reasonable change or modification tо the terms of employment risks being ineligible for unemployment compensation. Tucker v. Unemployment Comp. Bd. of Rev., 319 A.2d 195, 196 (Pa. Cmwlth. 1974) (holding that an uncooperative employee is ineligible for unemployment compensation benefits for failing to comply with an employer‘s reasonable change or modification to the terms of employment); cf. Simpson v. Unemployment Comp. Bd. of Rev., 450 A.2d 305, 311 (Pa. Cmwlth. 1982) (explаining that an employee does not have the implied obligation “to stand on his head because the employer so requests.“).
In this case, Employer submitted a series of emails between Employer and Claimant in which Claimant acknowledged the existence of Employer‘s Vaccine Policy and indicated that she did not intend to comply with the Vaccine Policy. See Notes of Testimony (N.T.) Hr‘g, 4/29/22, at Exs. 3-6, 11-12. In her own testimony, Claimant acknowledged that she was informed of the Vaccine Policy and admitted that she did not receive a COVID vaccine or an exemption. See id. at 12-13. Thus, Claimant knowingly violated the Vaccine Policy.
Employer also satisfied its burden to establish that the Vaccine Policy was reаsonable and appropriate to accomplish a legitimate interest. The policy applied to all its employees but allowed exemptions for medical or religious reasons. N.T. Hr‘g, 4/29/22, at 9. Employer applied the Vaccine Policy to Claimant just as it did to the rest of its employees. Claimant was not entitled to receive a special exemption from the Vaccine Policy unavailable to her fellow employees. See Brown, 276 A.3d at 328-29. Additionally, Employer established that the Vaccine Policy was a reasonable response to the ongoing pandemic and appropriate to accоmplish a legitimate interest. Employer is a federal contractor. Id. The federal government issued a vaccine mandate applicable to all federal contractors and subcontractors. Id. at 10. Employer implemented its Vaccine Policy to comply with the federal mandate. Id. at 8-11.
B. Claimant Failed to Establish Good Cause
Claimant contends that she had good cause for not complying with the Vaccine Policy because she acted in good faith. Clаimant‘s Br. at 7-9. This claim, too, lacks merit.
Once an employer establishes that an employee committed willful misconduct, the burden shifts to the employee to establish good cause for her actions. Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022). “The employee can establish good cause where [her] actions are justified or reasonable under thе circumstances.” Id. (internal quotations omitted). Whether good cause existed for an employee‘s actions is evaluated considering all the attendant circumstances. Halloran v. Unemployment Comp. Bd. of Rev., 188 A.3d 592, 597 (Pa. Cmwlth. 2018).
An employee does not commit willful misconduct if her employer‘s directive directly threatens the employee‘s health or safety. Dougherty v. Unemployment Comp. Bd. of Rev., 686 A.2d 53, 54 (Pa. Cmwlth. 1996). Hоwever, a claimant‘s subjective beliefs alone do not establish good cause for failing to comply with an employer‘s directive. Id. at 55.
In Dougherty, a nursing assistant was reassigned to a unit that included patients with AIDS. The claimant refused to accept the work assignment because of his fear of getting HIV, and he was discharged. Id. at 54.7 The clаimant argued he had good cause for refusing the employer‘s directives because he believed that working with AIDS patients posed a health risk and the employer did not provide him with proper protective equipment. Id. The Dougherty Court found the claimant‘s fears about his risk of contracting HIV were unfounded because the claimant‘s duties did not involve him coming into contact with bodily fluids and to the extent it did, he was given proper protective equipment. Id. at 55. The claimant‘s reason for not complying was not justified because his fear of HIV was rooted in his own subjective misconceptions about HIV transmission. Id. Thus, the claimant failed to establish that he had good cause to refuse the employer‘s directive. Id.
C. Claimant‘s Evidentiary Concerns are Without Merit
Finally, Claimant challenges certain findings of the Board. When there is substantial evidence to support the Board‘s findings, they are conclusive on appeal, even if there is contrary evidence of record. Cambria Cnty. Transit Auth. v. Unemployment Comp. Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019) (CCTA). The Board is the ultimate factfinder, entitled to make its own determinations on evidentiary weight and witness credibility, and is free to accept or reject the testimony of any witness, in whole or in part. Id. Resolution of credibility questions and evidentiary conflicts within the Board‘s discretion “are not subject to re-evaluation on judicial review.” Id. (internal citation omitted).
Here, in an apparent effort to bootstrap her personal beliefs about the vaccine to a legitimate medical authority, Claimant disputes the Board‘s finding that “her doctor never advised her not to get the vaccine[.]” Claimant‘s Br. at 6. Claimant argues that this finding is not supported by the evidence because when she informed her doctor that she had not gotten the vaccine, her doctor “did not encourage or advise otherwise.” Id.
The Board‘s finding that Claimant‘s “doctor never advised her not to get the vaccine[]” was supported by substantial evidence. Claimant testified that when she told her doctor that she had not received the COVID vaccine he merely told her that it was up to her whether to get it. N.T. Hr‘g, 4/29/22, at 17. Claimant admitted that she never discussed possible negative side effects of the vaccine with her doctor. Id. Nothing in the evidence suggests that Claimant‘s doctor affirmatively advised her not to get the vaccine. Thus, we defer to the Board‘s finding.9 CCTA, 201 A.3d at 947.
Lastly, Claimant disputes the Board‘s finding that Employer gave her the option of applying for an exemption. Claimant‘s Br. at 6. Essentially, Claimant argues that she was de facto deprived of the option to apply for an exemption because
IV. CONCLUSION
Upon review, Employer established that Claimant committed willful misconduct under Section 402(e) of the Law by failing to comply with the Vaccine Policy. See
LORI A. DUMAS, Judge
President Judge Cohn Jubelirer concurs in result only.
AND NOW, this 9th day of January, 2024, the order of the Unemployment Compensation Board of Review, entered August 29, 2022, is AFFIRMED.
LORI A. DUMAS, Judge
Notes
In a single sentence of her brief, Claimant baldly asserts that the Vaccine Policy “substantially changed the conditions of employment[.]” Claimant‘s Br. at 9. Claimant has not supported this assertion with pertinent authority, nor does she develop a meaningful argument in support thereof. See generally id. Claimant‘s counsеled brief to the Board provides no further insight and similarly lacks relevant legal support. See Claimant‘s Br. to Bd., 6/13/22, at 4 (“[T]his was never a prior condition of employment and once it was added, Claimant had no choice but to decline.“).
We caution Claimant that her brief violates Pennsylvania Rule of Appellate Procedurе 2119, which requires “such discussion and citation of authorities as are deemed pertinent.”
We decline to find waiver and note the following. In response to Claimant‘s assertion, the Board briefly argues that the Vaccine Policy was a reasonable сhange within the purview of Employer. See Bd.‘s Br. at 12 (citing Dougherty v. Unemployment Comp. Bd. of Rev., 686 A.2d 53, 54-55 (Pa. Cmwlth. 1996)). We agree. The Vaccine Policy was reasonable and responsive to the unprecedented challenges presented by the COVID-19 pandemic. Therefore, we conclude that Claimant‘s argument fails on the merits. See Tucker, 319 A.2d 196.