                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester Community Charter                    :
School,                                      :
                Petitioner                   :
                                             :    No. 1180 C.D. 2015
              v.                             :
                                             :    Submitted: November 20, 2015
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                             FILED: February 17, 2016


              Chester Community Charter School (Employer) petitions for review of
the June 15, 2015 order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s decision that Shanique E. Fontaine (Claimant)
was not ineligible for benefits under section 402(e) of the Unemployment
Compensation Law (Law).2


       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
         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 an employee will be ineligible for unemployment
compensation for any week “[i]n which his unemployment is due to discharge or temporary
suspension from work for willful misconduct connected with his work.” 43 P.S. §802(e).
                           Facts and Procedural History
            Claimant worked full-time as a Principal Secretary for Employer from
August 28, 2013, until her last day of work on January 23, 2015. The local service
center determined that Claimant was ineligible for unemployment compensation
benefits because she committed willful misconduct.          Claimant appealed that
determination to a referee who held a hearing on April 16, 2015.
            The underlying facts are largely undisputed. Susan Wadkins (Wadkins),
Employer’s Director of Human Resources, testified that Employer has a policy
contained within its code of conduct which prohibits the falsification of records or
documents and provides that violation of its policy is grounds for disciplinary action
up to and including termination. Wadkins stated that Employer’s code of conduct is
contained within an employee handbook which is distributed to employees at the
beginning of every year and produced a signed acknowledgment form indicating that
Claimant received an employee handbook. Wadkins testified that she terminated
Claimant for violating Employer’s code of conduct; specifically, Wadkins terminated
Claimant for falsifying employee time cards. (Reproduced Record (R.R.) at 5a-8a.)
            Wadkins further testified that Employer classifies its paraprofessional
staff members as hourly employees and authorizes them to work a maximum of
twenty-nine hours per week. Wadkins stated that part of the Principal Secretary’s
duties is time keeping; that is, the Principal Secretary must review employees’ time
cards, confirm that they are working no more than twenty-nine hours per week, and
send the time cards to the payroll department. Wadkins stated that, if an employee
works more than twenty-nine hours per week, the Principal Secretary should notify




                                          2
the Principal and the Principal would modify the schedule to ensure that the
employee only works twenty-nine hours per week. (R.R. at 9a, 13a.)
            Wadkins testified that employees had been approaching Claimant about
scheduling issues that she was not authorized to resolve. As a result, Wadkins
arranged a meeting with Claimant and Diane Stover (Stover), Employer’s Director of
Child Accounting, on January 9, 2015, to discuss Claimant’s time-keeping duties and
other issues. At the meeting, Wadkins advised Claimant that, if employees were
having issues with the schedule or were not doing what they were told, the issue
should be reported to her immediate supervisor, the Principal. If the Principal could
not remedy the situation or was unavailable, Claimant could report the issue to
Wadkins or Stover. Wadkins testified that, at the January 9, 2015 meeting, she
informed Claimant that Employer does not alter time cards and denied previously
advising Claimant to alter and initial a time card when an employee worked more
than twenty-nine hours in a week. Wadkins explained that Employer would pay an
employee for all time worked if an employee worked more than twenty-nine hours
per week; however, Employer monitored employees’ hours and could discipline an
employee who exceeded the hour limit. (R.R. at 12a-14a.)
            Wadkins stated that, on January 23, 2015, Claimant sent Wadkins an
email, advising her that certain paraprofessional staff members had worked more than
twenty-nine hours per week during the relevant pay period. Pursuant to the email,
Claimant informed Wadkins that she had altered the time cards to reflect that those
employees only worked twenty-nine hours and initialed the time cards to indicate that
she made the changes; specifically, Claimant altered the times that employees had
clocked-in or clocked-out of work.      Wadkins explained that Stover replied to
Claimant’s email and advised her that she could not modify the hours that employees



                                         3
had worked because it violated state wage laws. Claimant apologized and insisted
that she would not alter time cards in the future. Wadkins testified that she suspended
Claimant pending an investigation to determine whether Claimant had violated
Employer’s policy prohibiting the falsification of records or documents. Wadkins
further testified that she and Stover reviewed the relevant time cards and concluded
that Claimant had violated Employer’s policy prohibiting the falsification of records
and, consequently, terminated Claimant. (R.R. at 10a-11a.)
             Stover confirmed that employees were approaching Claimant to discuss
scheduling issues that she was not authorized to resolve and testified that the purpose
of Claimant’s weekly review of the time cards was to monitor employees’ hours
before they were in danger of exceeding the twenty-nine hour weekly limit. Stover
stated that, at the January 9, 2015 meeting, she and Wadkins advised Claimant that
changing time cards was unacceptable.
             Claimant testified that she received an employee handbook when she
was hired which contained Employer’s policy prohibiting the falsification of
company records and that she was aware that an employee who violated Employer’s
policy could be subject to discipline up to and including termination. Claimant
confirmed that she met with Wadkins and Stover on January 9, 2015, to discuss her
time-keeping duties and stated that, at the meeting, Wadkins and Stover advised her
that employees were not allowed to work more than twenty-nine hours per week, that
any issues should be reported to the Principal, and that she could report to Wadkins or
Stover if the Principal was unavailable.
             Claimant acknowledged that she had altered employees’ time cards, but
testified that she did not believe Employer’s policy prohibited her from doing so
because she was working in payroll and initialed the alterations. Claimant explained



                                           4
that employees were clocking-in fifteen minutes early or staying fifteen minutes late
and that she had instructed them that they were not allowed to do so, but stated that
she and the other employees believed that she was responsible for manually adjusting
the time cards to reflect the hours that employees were scheduled to work. Claimant
testified that she believed Employer’s policy only prohibited staff members from
altering their own time cards because she had previously changed time cards and
signed them to indicate that she had made the changes. Claimant stated that she did
not know that it was illegal to pay an employee for fewer hours than were worked and
that she would not have changed the time cards if she did. Claimant further testified
that she committed an honest error and, if she knew what she was doing was illegal,
she would not have initialed the time cards or emailed Wadkins to advise her that she
made the alterations. (R.R. at 12a, 16a-18a.)
             Following the hearing, the referee determined that Employer presented
sufficient evidence to prove that it had a policy prohibiting the falsification of
documents, including time cards, and that Claimant was aware of the policy.
However, the referee found Wadkins testimony that she specifically advised Claimant
not to alter time cards at the January 9, 2015 meeting not credible and found
Claimant’s testimony that she misunderstood the time-keeping instructions she was
given credible. The referee concluded that Claimant exhibited poor judgment and the
Employer had the right to discharge her; however, her conduct did not amount to
willful misconduct and, accordingly, she was entitled to compensation benefits.
Employer appealed the referee’s decision to the Board, which affirmed the referee.
             The Board found Claimant’s testimony that she had previously modified
and initialed time cards to indicate changes credible, adopted the referee’s findings of
fact and conclusions of law, and determined that Employer failed to establish that



                                           5
Claimant intentionally falsified time cards. Accordingly, the Board concluded that
Claimant’s confusion regarding Employer’s policy did not constitute willful
misconduct.
              On appeal to this Court,3 Employer argues that the Board erred because
it failed to shift the burden to Claimant and require her to show good cause for
violating Employer’s policy after Employer established that Claimant was aware of
and violated Employer’s policy prohibiting the falsification of records. Employer
also argues that the Board’s conclusion that Claimant did not commit willful
misconduct is not supported by the record because the Board failed to find that
Claimant showed good cause for violating a known Employer rule.


                                           Discussion
              Initially, we note that the Law does not define willful misconduct.
However, our Supreme Court has defined willful misconduct as:
              an act of wanton of willful disregard of the employer’s
              interest, a deliberate violation of the employer’s rules, a
              disregard of standards of behavior which the employer has a
              right to expect of an employee, or negligence indicating an
              intentional disregard of the employer’s interests or of the
              employer’s duties and obligations to the employer.
Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa.
1993).


       3
          Our scope of review in an unemployment compensation appeal is limited to determining
whether constitutional rights were violated, whether an error of law was committed, or whether
necessary findings of facts are supported by substantial evidence. Leace v. Unemployment
Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014). In unemployment
cases, the Board is the ultimate fact-finder and is empowered to make all determinations regarding
witness credibility and evidentiary weight and its findings are binding on appeal when supported by
substantial evidence. Id. at 1276.



                                                6
             An employer alleging willful misconduct bears the burden of proving the
existence of a reasonable work rule and its violation. Daniels v. Unemployment
Compensation Board of Review, 755 A.2d 729, 731 (Pa. Cmwlth. 2000).                  The
employer must also show that the employee intentionally or deliberately violated the
work rule. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716,
717 (Pa. Cmwlth. 1985); see also MacFarlane v. Unemployment Compensation
Board of Review, 317 A.2d 324, 326 (Pa. Cmwlth. 1974) (“In all these definitions [of
willful misconduct] there is an element indicating a consciousness of wrongdoing on
the part of the employe[e].”). An inadvertent or negligent violation of an employer’s
rule may not constitute willful misconduct. Grieb v. Unemployment Compensation
Board of Review, 827 A.2d 422, 426 (Pa. 2003); Morysville Body Works, Inc. v.
Unemployment Compensation Board of Review, 419 A.2d 238, 239 (Pa. Cmwlth.
1980). Therefore, a determination of what constitutes willful misconduct requires
consideration of all the relevant circumstances.             Rebel v. Unemployment
Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998).
             If an employer meets its initial burden to establish the existence of a
reasonable work rule and its deliberate violation, the burden shifts to the claimant to
demonstrate good cause for violating the rule.             Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999). However,
where an employer fails to carry its initial burden of proving a deliberate violation, it
is unnecessary to consider whether the claimant’s conduct constitutes good cause.
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1
A.3d 965, 969 (Pa. Cmwlth. 2010).
             Employer asserts that the Board erred because it failed to shift the
burden to Claimant and require her to establish good cause for violating Employer’s



                                           7
rule after Employer proved the existence of a reasonable work place rule, Claimant’s
knowledge of the rule, and its violation.          Employer asserts that the Board’s
determination essentially required Employer to prove that Claimant acted with
wrongful or malicious intent, which is a departure from established precedent.
             This      Court’s   decision   in   Philadelphia   Parking   Authority   v.
Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010), is
instructive. In Philadelphia Parking Authority, the claimant worked the 3:30 p.m. to
midnight shift as a money-room technician and was required to sit in a room for
hours at a time with nothing to do. The claimant advised the employer that she
suffered from sleep apnea and requested additional work to keep her busy and
prevent her from falling asleep; however, notwithstanding two limited assignments,
the employer did not offer the claimant additional work. The claimant fell asleep
during a shift and was terminated for violating the employer’s policy prohibiting
sleeping on the job.
             The claimant applied for unemployment compensation, but the local
service center concluded that she was ineligible for benefits because she committed
willful misconduct when she fell asleep during her shift. The claimant appealed to a
referee, who reversed the service center and determined that the claimant’s conduct
did not constitute willful misconduct. The employer appealed to the Board, which
affirmed the referee and concluded that the claimant’s medical condition constituted
good cause for violating the employer’s rule. The employer appealed to this Court,
arguing that the Board erred in relying solely on the claimant’s testimony to
determine that she suffered from a medical condition that caused her to fall asleep.
We affirmed on other grounds, reasoning that the employer failed to meet its initial
burden because it did not prove that the claimant intentionally or deliberately violated



                                             8
its work rule.   Accordingly, we concluded that the burden never shifted to the
claimant and, therefore, there was no need to consider whether her actions constituted
good cause for violating employer’s work rule.
             Here, the Board determined that Employer failed to prove that Claimant
intentionally falsified time cards when she altered them and, therefore, her conduct
did not constitute willful misconduct.         As in Philadelphia Parking Authority,
Employer did not meet its initial burden because it failed to establish that Claimant
intentionally or deliberately violated its work rule and the burden never shifted to
Claimant to prove good cause for her violation. Accordingly, Employer’s argument
that the trial court erred when it failed to shift the burden to Claimant to prove good
cause is without merit.
             Employer cites a number of cases to suggest that establishing the
existence of a known work rule and its violation is sufficient to shift the burden to
Claimant and require her to prove good cause for her violation. The cited authorities
are factually inapposite to the instant case because a critical component that is absent
here was that the claimants in those cases were previously warned that their conduct
violated the employers’ rules. Employer cites testimony from the referee’s hearing to
suggest that the instant case falls within the purview of the cited authority;
specifically, Employer states that it “presented testimony that the Claimant was
expressly told, on January 9, 2015, that she was not to alter the time cards.”
(Petitioner’s brief at 8.) However, Employer disregards the referee’s specific finding,
adopted by the Board, that the relevant testimony was not credible. Because the
referee’s credibility determination is binding on appeal, Employer’s argument fails.
             The sole case Employer cites that does not involve a prior warning is
Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa.



                                           9
Cmwlth. 1994) (en banc). In Heitczman, the employer’s rule required its truck
drivers to exit their vehicles before backing up to confirm that their path was
unobstructed. The claimant did not comply with this rule and an accident occurred.
On appeal to this Court, the claimant asserted that his conduct did not constitute
willful misconduct because he did not make a deliberate decision to operate the truck
improperly. Instead, the claimant argued that he committed an inadvertent mistake
and his conduct constituted negligence at most. Our Court recognized the existence
of the employer’s policy and the claimant’s awareness and violation thereof. In our
decision in Morysville, we noted that an employee violated a shop rule by punching
the time card of another employee, but we affirmed the Board’s finding that the
employee’s action was solely based on a mistake because the claimant credibly
testified that he punched another employee’s timecard because he believed it
belonged to him. We distinguished Morysville from Heitczman, noting that the
claimant’s backing-up of his truck without performing a “walk around” was not
inadvertent or negligent behavior, “but is more akin to disobedience of a direct
instruction.” Heitzcman, 638 A.2d at 464.
             Here, there was nothing in the record or credible testimony to indicate
that Claimant was advised contrary to Employer’s policy.           Instead, Claimant’s
credible testimony established that she was confused about Employer’s policy
because she had previously altered time cards and initialed them to indicate that she
had made the change. (R.R. at 16a-17a.) Therefore, the instant case presents a
situation where Claimant attempted to comply or believed she was complying with
Employer’s rule and stands in stark contrast to the disobedience of a direct instruction
that was at issue in Heitczman. Claimant’s confusion regarding Employer’s policy
does not amount to willful misconduct and, thus, Employer’s argument is



                                          10
unpersuasive. See also Frazier v. Unemployment Compensation Board of Review,
411 A.2d 580, 582 (Pa. Cmwlth. 1980) (“Willful misconduct implies action of an
intentional and deliberate nature, whereas the present facts indicate an honest mistake
made by an employee who was aware of his responsibilities and unintentionally erred
in his efforts to perform them.”).
              Next, although Employer does not challenge any specific findings,
Employer argues that the Board’s conclusion that Claimant did not commit willful
misconduct is unsupported by the record because the Board did not find that Claimant
had good cause for violating a known Employer rule.
             As indicated above, an employer bears the initial burden of proving the
existence of a work rule and its deliberate violation. The burden shifts to the claimant
to show good cause only after the employer’s initial burden is met. Where the initial
burden is not met, there is no need to consider whether the claimant’s conduct
constitutes good cause.
             Here, the Board found Claimant’s testimony credible that she had
previously modified time cards and signed them to indicate that she had made the
changes; that she did not believe Employer’s rule applied to her because she was
working in payroll and not altering her own time card; that she committed an honest
mistake and did not know it was illegal to pay employees for fewer hours than they
had worked; and that she would not have initialed the changes and reported them to
Wadkins if she did.       Moreover, the Board adopted the referee’s finding that
specifically discredited Employer’s testimony that Claimant was advised on January
9, 2015 that she was not to alter time cards. (Referee’s decision at 2; Board decision
at 1.)    Consequently, Employer cannot rely upon this testimony on appeal.
Metropolitan Edison Company v. Unemployment Compensation Board of Review,



                                          11
606 A.2d 955, 957 (Pa. Cmwlth. 1992). Here, the credible testimony supports the
Board’s conclusion that Employer failed to meet its initial burden to establish
Claimant’s intentional violation of its work rule. Hence, the burden never shifted to
Claimant and the Board was not obligated to consider whether Claimant’s conduct
constituted good cause. Philadelphia Parking Authority, 1 A.3d at 969.
            Accordingly, the Board’s order is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester Community Charter            :
School,                              :
                Petitioner           :
                                     :    No. 1180 C.D. 2015
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                  ORDER


           AND NOW, this 17th day of February, 2016, the June 15, 2015 order
of the Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
