           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LuAnn B. Batista,                             :
                             Petitioner       :
                                              :
                v.                            :   No. 465 C.D. 2016
                                              :   Submitted: October 7, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: November 22, 2016

                LuAnn B. Batista (Claimant), representing herself, petitions for
review from an order of the Unemployment Compensation Board of Review
(Board) that affirmed a referee’s decision and denied her unemployment
compensation (UC) benefits under Section 402(e) of the Unemployment
Compensation Law1 (Law) (relating to willful misconduct). Additionally, the
Board determined Claimant did not show good cause for failing to attend the
referee’s initial hearing, and it declined to consider additional evidence offered on
the merits at a remand hearing. She contends the Board’s determination that she
committed willful misconduct is not supported by substantial evidence. Claimant
also asserts she did not attend the initial hearing because she did not receive notice
of the hearing. Discerning no error below, we affirm.


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
                                 I. Background
             Claimant worked for Reading Health System (Employer) as a full-
time, floating intake specialist from December 2008 until September 9, 2015, when
Employer discharged her. Claimant applied for UC benefits, which the local
service center granted. Employer appealed, and a referee held a hearing.


            At the referee’s hearing, Employer presented the testimony of its
Human Relations Business Partner (Human Relations Business Partner), and its
Patient Access Supervisor (Supervisor). Claimant did not attend the hearing.


            Based on Employer’s evidence, the referee made the following
findings.   Employer has a policy (Behavior Policy) requiring workers to
demonstrate the highest standards of integrity, truthfulness and honesty under any
and all circumstances.   Employer informed Claimant of the Behavior Policy.
Violation of this policy may result in termination. Employer warned Claimant for
previous disciplinary violations of its policies. When Employer administered the
warning to Claimant on June 15, 2016, Employer informed Claimant this was a
final written warning and future violations could result in termination. The final
incident leading to Claimant’s termination from employment occurred on August
28, 2015. Referee’s Op., 10/29/15, Findings of Fact (F.F.) Nos. 3-8.


            On the date of the final incident, Supervisor assigned Claimant to
work at telephone extension 7538 and her co-worker to work at telephone
extension 2460. Claimant called her co-worker five times on the date of the final
incident because Claimant was angry regarding an issue with insurance coverage



                                        2
of a patient.   Employer’s human resources department became aware of this
incident on or about September 1, 2015, and conducted an investigation of the
incident until September 9, 2015. F.F. Nos. 9-11.


            Employer questioned Claimant about the allegation during the
investigation. In response, Claimant told Employer she only called her co-worker
twice. Employer presented Claimant with telephone records showing there were
five calls made from extension 7538 to extension 2460 during a short period of
time on the day of the final incident. After being presented with this evidence,
Claimant acknowledged she contacted her co-worker four or five times. Employer
discharged Claimant based on dishonest behavior as well as alleged inappropriate
and unprofessional behavior. F.F. Nos. 12-16.


            The referee determined Claimant’s dishonesty during the investigation
constituted willful misconduct, and, therefore determined Claimant was ineligible
for UC benefits pursuant to Section 402(e) of the Law. Claimant appealed to the
Board.


            Claimant requested a hearing on the basis that she was unable to
attend the original hearing because she did not receive the notice of hearing. The
Board remanded to referee, acting as the Board’s hearing officer, to receive
evidence on Claimant’s reasons for her non-appearance at the initial hearing and to
allow the parties to present additional evidence on the merits if they wished to do
so.




                                        3
            At the remand hearing, Claimant, representing herself, testified that in
the beginning and middle of October 2015 vandals in her neighborhood scattered
her mail about the streets and smashed her pumpkins.           Claimant testified her
daughter found the mail in the street. Claimant testified she did not have any other
issues with mail delivery at her address. Claimant testified she had no knowledge
of the initial hearing because she did not receive notice of the hearing. However,
she testified she did receive the referee’s decision sent on October 29, 2015.
Claimant also testified she called the police, but did not make a police report.
Referee’s Hr’g, Notes of Testimony (N.T.), 12/16/15, at 5-7.


             For its part, Employer again presented the testimony of its Human
Relations Business Partner and Supervisor. These witnesses testified regarding the
merits of Claimant’s claim.


            After the remand hearing, the Board issued a decision in which it
expressly discredited the Claimant’s testimony about her mail. Bd. Op., 1/29/16 at
1. In addition, it stated, “The Board does not find the claimant’s bald allegations
credible.” Id. As a result, the Board determined the Claimant did not demonstrate
with credible testimony good cause for missing the first hearing, and the Board did
not consider the additional evidence on the merits offered at the remand hearing.
Id. The Board adopted the Referee’s findings and conclusions from the first
hearing regarding the merits. Id.


            Claimant requested reconsideration of the Board’s order, which the
Board denied. Claimant now petitions for review.



                                         4
                                       II. Issues
                On appeal,2 Claimant contends the Board’s findings regarding her
termination from employment are not supported by substantial evidence.
Specifically, Claimant argues she had proper cause for failing to appear at the
initial hearing because she did not receive notice of the hearing. Claimant also
argues the reasons for her termination do not constitute willful misconduct.
Claimant maintains Employer’s policies are not uniformly enforced because
another employee received no discipline for her actions; Supervisor was retaliating
against Claimant because she reported Supervisor; and, Employer simply “did not
like my attitude.”3 For these reasons, Claimant alleges her actions do not amount
to willful misconduct.


                                    III. Discussion
                In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in the evidence, witness credibility, and weight accorded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence
to support findings other than those made by the fact-finder; the critical inquiry is
whether there is substantial evidence to support the findings actually made. Id.
Where substantial evidence supports the Board’s findings, they are conclusive on
appeal. Id. In addition, we must examine the testimony in the light most favorable

      2
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).

      3
          Pet. for Review at ¶3.


                                            5
to the party in whose favor the fact-finder ruled, giving that party the benefit of all
logical and reasonable inferences from the testimony. Id.


             Substantial evidence is such relevant evidence upon which a
reasonable mind could base a conclusion. Umedman v. Unemployment Comp. Bd.
of Review, 52 A.3d 558 (Pa. Cmwlth. 2012); Johnson v. Unemployment Comp.
Bd. of Review, 502 A.2d 738 (Pa. Cmwlth. 1986). “The fact that [a party] may
have produced witnesses who gave a different version of the events, or that [the
party] might view the testimony differently than the Board is not grounds for
reversal if substantial evidence supports the Board's findings.” Tapco, Inc. v.
Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108–09 (Pa. Cmwlth.
1994).


             Section 101.24(a) of the Board’s regulations, 34 Pa. Code §101.24(a)
addresses requests for reopening the record where a party does not attend a
scheduled hearing. It states, in relevant part:

             If a party who did not attend a scheduled hearing subsequently
             gives written notice, which is received by the tribunal prior to
             the release of a decision, and it is determined by the tribunal
             that his failure to attend the hearing was for reasons which
             constitute ‘proper cause,’ the case shall be reopened.

Id.


             Here, the Board’s findings regarding Claimant’s failure to provide
proper cause for missing the initial hearing are amply supported. The notice of
hearing for the initial hearing was mailed to Claimant at 561 East Linden Street,


                                           6
Fleetwood, PA 19522. Certified Record (C.R.), Item No. 8. Claimant confirmed
561 East Linden Street, Fleetwood, PA 19522 was her correct address. N.T.,
12/15/16, at 2, 5. Claimant testified she did not receive her notice of initial hearing
in the mail. Id., at 5. However, Claimant testified she did receive the notice of
determination and did not have any other issues with the receipt of mail at her
address of record. Id., at 6-7; C.R., Item No. 19, at 1. Claimant did not file a
police report, and she testified she told the police, “I said no one had to come out.”
N.T., 12/15/16 at 5. Further, Claimant did not notify the postal authorities of the
alleged theft of her mail. Id. at 6. The Board expressly discredited Claimant’s
testimony about her mail. Bd. Op., 1/29/16 at 1.


             Claimant also argues the Board erred in determining Employer
properly terminated her because her actions constituted willful misconduct.
Claimant maintains: Employer did not uniformly enforce its policies because
another employee received no discipline for her actions; Supervisor retaliated
against Claimant because she reported Supervisor; and, Employer did not like her
attitude.


             Section 402(e) of the Law provides, “[a]n employe shall be ineligible
for compensation for any week … [i]n which [her] employment is due to [her]
discharge … from work for willful misconduct connected with [her] work….” 43
P.S. §802(e). “Willful misconduct” is “behavior evidencing a wanton or willful
disregard of the employer’s interest; a deliberate violation of the employer’s work
rules; a disregard of standard of behavior the employer can rightfully expect from
its employee; [or], negligence indicating an intentional disregard of the employer’s



                                          7
interest or an employee’s duties or obligations.” Dep’t of Corr. v. Unemployment
Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).


             Whether a claimant’s actions constitute willful misconduct “is a
question of law fully reviewable on appeal.” Downey v. Unemployment Comp.
Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). The employer bears the
initial burden of proving a claimant engaged in willful misconduct. Ductmate.
When asserting a discharge based on a violation of a work rule, an employer must
establish the existence of the rule, the reasonableness of the rule, the claimant’s
knowledge of the rule and its violation. Id.


             Because the Board determined Claimant lacked proper cause for her
failure to attend the initial hearing, it appropriately did not consider her testimony
on the merits at the remand hearing. See Ortiz v. Unemployment Comp. Bd. of
Review, 481 A.2d 1383 (Pa. Cmwlth. 1984) (requiring Board to make a
determination using record before referee if claimant’s absence at referee’s hearing
was not excused by proper cause); C.R., Item No. 18. Thus, the Board based its
decision regarding Claimant’s willful misconduct on the evidence of record prior
to the remand hearing. Ortiz. To that end, Employer’s witnesses established the
existence of its Behavior Policy, the reasonableness of that policy, Claimant’s
knowledge of the Behavior Policy, and Claimant’s knowledge that she violated the
Behavior Policy. N.T., 12/16/15, at 10, 12, 22; C.R. Item No. 9, Employer Exs.
Nos. 1-5.




                                          8
            Thus, the record supports the Board’s determination that Employer
met its burden of proof under Section 402(e) of the Law, as Claimant violated
Employer’s Behavior Policy. Ductmate; Dep’t of Corr. Claimant’s dishonesty
amounted to a willful violation of the standards of behavior Employer could expect
from an employee. Downey (employee’s dishonesty can exhibit a disregard of the
employer’s interests and disregard of standards of behavior that an employer can
rightfully expect from its employees).


                                 IV. Conclusion
            In sum, the Board’s findings are supported by substantial evidence.
The Board properly determined Claimant did not prove proper cause for failing to
appear at the initial hearing. The Board did not err in refusing to consider the
additional testimony and evidence offered on the merits at the remand hearing by
Claimant. The Board properly determined Employer terminated Claimant from
employment for reasons which rise to the level of willful misconduct under Section
402(e) of the Law, and therefore she is ineligible for UC benefits. Accordingly, we
affirm.




                                         ROBERT SIMPSON, Judge




                                          9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LuAnn B. Batista,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 465 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER

           AND NOW, this 22nd day of November, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
