               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Holly Wotring,                                 :
                              Petitioner       :
                                               :
                       v.                      :   No. 1551 C.D. 2016
                                               :   Submitted: April 13, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: July 26, 2017


       Holly Wotring (Claimant), pro se, petitions for review of an Order issued
August 12, 2016, by the Unemployment Compensation (UC) Board of Review
(Board), affirming the Referee’s decision that found Claimant ineligible for UC
benefits under Section 402(e) of the UC Law1 for willful misconduct. For the
reasons discussed below, we affirm.
       Claimant worked as a full-time Administrative Assistant and Safe Crisis
Management (SCM) Trainer for Building by Design (Employer) from April 25,
2013, until April 4, 2016. The Employer terminated her employment on April 5,
2016, for refusing to perform her job duties. After filing a claim for UC benefits,

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Claimant received a Notice of Determination, which found Claimant was
discharged for willful misconduct for not fulfilling her job responsibilities of
providing staff training and, therefore, was ineligible for benefits.    Claimant
petitioned for review, and a hearing was held before a Referee, who affirmed the
determination of ineligibility. Claimant appealed to the Board, which subsequently
affirmed the decision, adopting and incorporating all findings of fact and
conclusions of law made by the Referee. The findings of fact adopted by the
Board are as follows:

      3. The employer has an Internet usage policy, of which the claimant
      was aware, in which an employee may use the Internet for work-
      related items.

      4. On October 9, 2015, the employer placed a block on the
      claimant’s use of the Internet due to violations of the Internet use
      policy.

      5. On October 13, 2015, the claimant received a verbal warning to
      discuss unsatisfactory work performance and time management
      issues.

      6. In December 2015, the claimant received a verbal warning for
      failure to submit paperwork in a timely fashion, which caused the
      employer to lose two clients and staff to lose work hours.

      7. The employer offered the claimant help to improve her work
      performance and oversight of necessary tasks, but the claimant
      refused.

      8. On February 22, 2016, the claimant was placed on a 30-day
      performance improvement plan, where she was required to maintain
      updated staff clearances, completeness in client files and complete
      training properly.

      9. The claimant was made aware that she had 30 days to improve
      her work performance or she would be discharged.



                                        2
10. The claimant did not meet the goals under the performance
improvement plan.

11. On March 23, 2016, the employer notified the claimant that she
would be discharged effective April 23, 2016, due to unsatisfactory
work performance.

12. The employer gave the claimant one-month notice in order to
give her an opportunity to secure other employment and to have her
complete staff training which was scheduled for 10 days in April
2016.

13. On April 1, 2016, the claimant continued to misuse company
equipment when she used company email to discuss a reprimand with
staff and a personal friend outside the company.

14. On April 4, 2016, when the clinical director arrived, the claimant
was clearing her desk and loading her car with her belongings.

15. On April 4, 2016, the clinical director told the claimant that she
no longer had to report to work. The claimant was aware that she was
required to complete the scheduled staff training and that she would
be paid her full salary to do so.

16. On April 4, 2016, the claimant advised the employer that she
would not complete the scheduled trainings because she was
unavailable to do so.

17. On April 5, 2016, which is a day of scheduled training, the
claimant sent an email indicating that she was ill.

18. On April 5, 2016, the claimant completed an application for
employment with East Pennsboro School District, despite notifying
the employer that she could not report to work that day because she
was ill.

19. On April 5, 2016, the employer received documentation from
East Pennsboro School District showing that the claimant applied for
employment on April 5, 2016.

20. On April 5, 2016, the claimant was discharged for refusing to
perform her job duties.


                                  3
(Board Order; Referee Decision, Findings of Fact (FOF) ¶¶ 3-20.)
       In the Referee’s Decision, which was adopted by the Board, the Referee
acknowledged that the Claimant had been scheduled for discharge effective April
23, 2016, due to unsatisfactory work performance—not willful misconduct. But
the Referee also found that before the scheduled termination date, Claimant
refused to perform her assigned trainings and failed to establish good cause for
doing so, which was the reason for her discharge on April 5, 2016. Based upon the
Claimant’s refusal to perform the training, the Referee and Board concluded the
Employer had met its burden of proving Claimant’s willful misconduct and that
Claimant was ineligible for benefits under Section 402(e) of the UC Law.
       On appeal,2 Claimant’s relevant arguments are essentially that: (1) the
Findings of Fact are not supported by substantial evidence; and (2) the Board erred
as a matter of law in concluding that Claimant’s actions constituted willful
misconduct because she was ill on April 5, 2016.


       A.     Substantial Evidence
       We first address whether the Board’s findings of fact are supported by
substantial evidence. “Substantial evidence is relevant evidence upon which a
reasonable mind could base a conclusion.” Johnson v. Unemployment Comp. Bd.
of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986) (citing Clark v. Unemployment
Comp. Bd. of Review, 471 A.2d 1309, 1310 (Pa. Cmwlth. 1984)). In reviewing
whether the Board’s findings are supported by substantial evidence, this Court

       2
        In reviewing orders issued by the Board, this Court’s standard of review is “limited to
determining whether constitutional rights were violated, whether an error of law was committed,
or whether necessary findings of fact are supported by substantial evidence.” Reading Area
Water Auth. v. Unemployment Comp. Bd. of Review, 137 A.3d 658, 661 n.6 (Pa. Cmwlth. 2016).



                                              4
must examine testimony in the light most favorable to the party that prevailed
before the Board. Id. (citing Dickey v. Unemployment Comp. Bd. of Review, 466
A.2d 1106, 1107 (Pa. Cmwlth. 1983)). We are to give the party prevailing before
the Board, here, the Employer, the benefit of any inference that can be logically
and reasonably drawn from the evidence. Id. The Board’s findings of fact are
binding on appeal as long as the record, taken as a whole, contains substantial
evidence to support them. Serrano v. Unemployment Comp. Bd. of Review, 149
A.3d 435, 439 (Pa. Cmwlth. 2016) (citing Penflex, Inc. v. Bryson, 485 A.2d 359,
365 (Pa. 1984)). In addition, it is within the Board’s discretion to “make its own
determinations as to witness credibility and evidentiary weight.” Id. (citing Peak v.
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985)). The
Board’s credibility determinations and resolution of conflicts in evidence “are not
subject to re-evaluation on judicial review.” Id.
      Claimant disputes the Board’s finding that she told Employer’s clinical
director that she refused to fulfill her duties as a SCM trainer. At the hearing,
Employer’s clinical director testified that on the morning of April 4, 2016, he
arrived at the place of employment to find Claimant in the process of emptying her
desk and office and loading her things into her car. He explained to Claimant that
she was not required to come to work anymore but that she was nevertheless
required to conduct the scheduled SCM trainings. The clinical director further
testified that at this time Claimant told him that she would not complete the
trainings as scheduled because she was “unavailable” to do so. (R. Item 12, Hr’g
Tr. at 14-15, 22.) Claimant disputes the clinical director’s version of events. She
testified that she did not clean out her desk until after the clinical director took her
keys, and that she did so simply because her personal items were no longer safe.



                                           5
Claimant also testified that she never told the clinical director that she would not
complete the trainings. The Board specifically discredited Claimant’s testimony
on this matter, adopting the clinical director’s version of events. (Board Order;
Referee Decision, FOF ¶¶ 14-16.) Claimant essentially asks us to accept her
version of events; however, we are not permitted to re-evaluate the Board’s
credibility determinations.        The clinical director’s credited testimony provides
substantial evidence to support the Board’s finding. Therefore, because it is within
the Board’s discretion to make credibility determinations, the finding that Claimant
told the clinical director on April 4 that she would not complete the job training, as
required, is binding on this Court.3


       B.      Willful Misconduct
       We next address Claimant’s argument that the Board erred as a matter of law
in concluding that her actions constituted willful misconduct. Because it is a legal
conclusion, this Court may fully review whether an employee’s particular actions


       3
          In her appeal to the Board, which Claimant attached to her Petition for Review,
Claimant had contested Findings of Fact Nos. 5-10, 18, and 20. To the extent Claimant, by
attaching her appeal to the Board, is attempting to challenge those findings on appeal to our
Court, she is not entitled to relief for a number of reasons. First, to dispute many of the findings,
she attempts to rely on new evidence or arguments that were not introduced or raised at the
Referee’s hearing. Because they were not before the Board, we are not able to consider them on
appeal. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558, 565 (Pa. Cmwlth.
2012). Second, several of the findings she challenges are immaterial to our determination. For
instance, because Findings of Fact Nos. 5-10 relate to prior conduct that resulted in Claimant
being placed on a performance improvement plan for poor work performance, they have no
effect on our analysis of whether Claimant’s refusal to perform trainings in April amounted to
willful misconduct. Even though immaterial, the credited evidence provides substantial evidence
to support the Board’s findings. In fact, Claimant’s own testimony supports some of the
findings. (See, e.g., R. Item 12, Hr’g Tr. at 17 (wherein Claimant concedes she applied for
another job on April 5, 2016, which supports Finding of Fact ¶ 18).)



                                                 6
amount to willful misconduct. Smith v. Unemployment Comp. Bd. of Review, 967
A.2d 1042, 1046 (Pa. Cmwlth. 2009). Section 402(e) of the UC Law disqualifies
employees from receiving unemployment benefits during any week in which they
have been discharged because of willful misconduct. 43 P.S. § 802(e). Though
not defined by statute, our Supreme Court has defined “willful misconduct” as:

      (a) wanton or willful disregard for an employer’s interests;
      (b) deliberate violation of an employer’s rules; (c) disregard for
      standards of behavior which an employer can rightfully expect of an
      employee; or (d) negligence indicating an intentional disregard of the
      employer’s interest or an employee’s duties or obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). The
employer has the burden of proving that the claimant’s discharge was due to the
claimant’s willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943
A.2d 363, 368 (Pa. Cmwlth. 2008). Refusal to follow an employer’s directive
without good cause constitutes willful misconduct.     Kretsch v. Unemployment
Comp. Bd. of Review, 476 A.2d 1004, 1006 (Pa. Cmwlth. 1984). If an employer
meets its burden of showing willful misconduct, the claimant must then show good
cause to justify such conduct. Henderson v. Unemployment Comp. Bd. of Review,
77 A.3d 699, 719 (Pa. Cmwlth. 2013) (citing McKeesport Hosp. v. Unemployment
Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993)). An employee has
established good cause if her actions are justified or reasonable under the
circumstances. Id. (citing Chapman v. Unemployment Comp. Bd. of Review, 20
A.3d 603, 607 (Pa. Cmwlth. 2011)). Both the reasonableness of an employer’s
demand and the reasonableness of a claimant’s refusal should be considered in
determining whether claimant’s actions constitute willful misconduct. Dougherty
v. Unemployment Comp. Bd. of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 1996).


                                        7
       In Dougherty, this Court affirmed the Board’s denial of unemployment
benefits to a nurse who was discharged by his employer after refusing to work with
patients with Acquired Immunodeficiency Syndrome (AIDS). This Court held that
“only when an employee’s refusal to [follow] such directive directly threatens that
person’s health or safety will we refuse to hold that the employee’s actions were
willful misconduct.” Id. (citing McLean v. Unemployment Comp. Bd. of Review,
383 A.2d 533, 537 (Pa. 1978)).               This Court reasoned that “extraordinary
circumstances” are typically required to justify an employee’s refusal of an
employer’s directive. Id. (citing Gwynedd Square Ctr. v. Unemployment Comp.
Bd. of Review, 656 A.2d 562, 566 (Pa. Cmwlth. 1995)).
       Here, Claimant similarly refused a directive from her employer to perform
trainings. Claimant does not properly offer any basis for this Court to find that the
training assignment itself was unreasonable.4              We discern no “extraordinary
circumstances” or unreasonableness in requiring someone employed as the “Safe
Crisis Management Trainer” to perform Safe Crisis Management trainings. Such
refusal to perform a reasonable directive from the Employer exhibits both
disregard for the Employer’s interests and disregard for behavior that the Employer
can rightfully expect of an employee. The burden, therefore, shifts to Claimant to
show good cause for her refusal.
       Claimant argues that her absence on April 5, 2016, was justified and
reasonable because she was ill.5 This Court has held that “absence from work

       4
         In her brief, Claimant mentions that the trainings as scheduled violated “regulations of
JKM Training, Inc.,” without explanation of what the regulations are or whether non-compliance
with such regulations speak to reasonableness. Regardless, this argument is not properly
preserved because Claimant first raises it in her brief to this Court.
       5
         In support of this argument, Claimant relies on The Fair Work Act of 2009, which
appears to be an Australian law with no applicability here.



                                               8
because of sickness does not constitute willful misconduct unless the illness is not
properly reported as required by the employer’s work rules.”            Gardner v.
Unemployment Comp. Bd. of Review, 372 A.2d 38, 40 (Pa. Cmwlth. 1977) (citing
Unemployment Comp. Bd. of Review v. Kells, 349 A.2d 511, 513 (Pa. Cmwlth.
1975) (“Absence from work because of sickness, of course, is not willful
misconduct.”)). At the Referee hearing, Claimant introduced a note showing that
she was seen by her doctor on April 5; however, she acknowledges that she never
submitted the note to the Employer.      Moreover, on April 4, the day before
Claimant fell ill, the credited evidence is that she verbally refused to conduct the
SCM trainings and was found clearing her personal belongings from her office.
(Board Order; Referee Decision, FOF ¶¶ 14, 16.) Claimant provides no basis of
good cause for such a refusal on that date. Therefore, Claimant fails to meet her
burden of establishing good cause for refusal to conduct the SCM trainings.
      Because the facts relied on by the Board are supported by substantial
evidence, and because they support the conclusion that Claimant’s actions
constituted willful misconduct, we discern no error. Accordingly, we affirm.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                         9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Holly Wotring,                        :
                      Petitioner      :
                                      :
                 v.                   :   No. 1551 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


     NOW, July 26, 2017, the Order of the Unemployment Compensation Board
of Review, dated August 12, 2016, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
