             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula Yvonne Caruso,                            :
                 Petitioner                     :
                                                :
                 v.                             :    No. 281 C.D. 2018
                                                :    Submitted: July 27, 2018
Unemployment Compensation Board                 :
of Review,                                      :
               Respondent                       :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: September 19, 2018

                 Paula Caruso, pro se, petitions for review of an adjudication of the
Unemployment Compensation Board of Review (Board) denying her claim for
benefits under Section 402(e) of the Unemployment Compensation Law (Law),
43 P.S. §802(e).1 In doing so, the Board affirmed the Referee’s decision that
Claimant committed disqualifying willful misconduct by leaving work before the
end of her shift. Finding no error by the Board, we affirm.
                 Claimant worked for John’s Diner (Employer) as a waitress from
March 4, 2015, until she was discharged on August 18, 2017, for clocking out before
the end of her shifts. Claimant filed a claim for unemployment benefits, which the
UC Service Center granted after determining that Claimant was not ineligible under
Section 402(e) of the Law. Certified Record (C.R.) Item No. 4, at 1. Employer
appealed, and the Referee held a hearing on September 26, 2017.


1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
             At the hearing, Employer presented the testimony of Anna
Politsopolous (Manager) and George Politsopolous (Owner). Manager testified that
on August 17, 2017, Claimant asked to leave at 7:30 p.m., even though she was
scheduled to work until 10:00 p.m. Manager explained as follows:

             I had an incident where she wanted to leave, but we were still
             busy. She picked up a table 15 minutes before she wanted to
             leave and then she was demanding that she leave. And, I said to
             her, “You’re going to stay til you’re finished your table.” And,
             then she went about telling the customer, as soon as they got their
             food, and I have their check with their clock-out time when they
             paid, that no sooner did they get their food, then Ms. Paula went
             over and told them that, “I’m leaving now. Would you mind
             taking care of these charges so that I can go home?” That’s not
             done.

Notes of Testimony, 9/26/2017, at 8 (N.T. __). Claimant then clocked out at 8:12
p.m.
             Manager stated that on August 18, 2017, Claimant got into an argument
with another employee during her shift. The employee informed Manager of this
incident, stating “I don’t know what happened to her. She just got in my face, you
know.” N.T. 10. Claimant then came into Manager’s office “screaming and yelling”
that the other employee had pushed her. Id. Claimant told Manager that she could
not deal with the situation and that she was going to leave early. Manager replied,
“[g]o, and don’t come back.” N.T. 11. Claimant clocked out at 6:11 p.m.
             Manager explained that she has authority over every employee’s work
hours. As a general rule, employees are permitted to clock out based on a first-in,
first-out policy. Manager testified that Claimant regularly arrived at the restaurant
two hours before her scheduled shift so that she could always be the first to leave.
In response, Manager established a rule that employees were not permitted to arrive

                                          2
more than 15 minutes before the start of their scheduled shifts. Claimant did not
follow this rule. Manager testified that Claimant asked to work part-time because
she could not receive Social Security disability benefits if she worked full-time.
             Owner testified that Claimant was scheduled to work 4:00-10:00 p.m.
four days a week, and 2:00-10:00 p.m. one day a week. He informed Claimant on
several occasions that she was expected to work until 10:00 p.m. Owner testified
that he accommodated Claimant after she was released from the hospital following
surgery for a brain aneurysm. Owner explained:

             She had discussed her medical issue shortly after she was
             discharged from the hospital. I tried to work with her as best I
             could, get her the schedule she wanted. I was given a paper that
             she was, from her Doctor [], I believe, that she was eligible to
             return to work no restrictions. At that point, I then put her on her
             normal schedule as she had until she was discharged.

N.T. 23.
             Claimant testified that she worked full-time for Employer from March
2015 until January 2017, when she suffered a brain aneurysm. Claimant stated that
after her release from the hospital, her neurologist sent her back to work, but
restricted her to working 12 to 15 hours per week. Claimant testified that Owner
accepted this restriction and reduced her scheduled shifts to 15 hours per week. She
also stated that she experienced memory lapses because of her aneurysm, including
while she was working. Claimant acknowledged that she was scheduled to work
until 10:00 p.m., but explained that she believed Owner was accommodating her
medical condition. Claimant denied arriving early at the restaurant for the purpose
of leaving early and denied asking Manager whether she could leave early at the
beginning of her shifts.


                                          3
             Claimant testified about the incident of August 18, 2017, with another
employee. Claimant recalled telling Manager that her co-worker “purposefully ran
into me trying to knock me over and I can’t do this during my recovery.” N.T. 19.
Claimant then asked Manager whether she could leave after her tables were clear,
and Manager told her to “[g]o home[]” and “[d]on’t come back.” Id. Claimant stated
that she then left quietly through the back door and did not yell at Manager.
             The Referee rejected Claimant’s testimony as not credible, explaining
that it was incomplete because Claimant only reported events that were favorable to
her. The Referee noted that Claimant did not provide any medical documentation
about her work restrictions. The Referee credited the testimony of Employer’s
witnesses, including Owner’s testimony that he repeatedly informed Claimant that
she was expected to work until 10:00 p.m. The Referee also credited Manager’s
testimony that Claimant requested part-time hours so that she could qualify for
Social Security disability benefits. The Referee concluded that Claimant’s refusal
to work her full shift constituted disqualifying willful misconduct under Section
402(e) of the Law.
             Claimant appealed to the Board, contesting the Referee’s findings of
fact. The Board affirmed the Referee. In doing so, the Board adopted the Referee’s
findings, conclusions, and credibility determinations. The Board explained:

             On appeal the claimant asserts extra record evidence that was not
             presented at the Referee’s hearing. The Board cannot consider
             any evidence not presented at the Referee’s hearing. At the
             hearing, the claimant testified that she has memory problems. As
             such, the claimant was unable to recall many parts of the
             separating incident and the Board discredits her remaining
             testimony. Furthermore, the employer’s witness offered credible
             testimony that the claimant was warned about leaving early
             multiple times and, ultimately, discharged for her final early
             departure.
                                         4
Board Adjudication at 1. Claimant petitioned for this Court’s review.
                 On appeal,2 Claimant argues that the Board’s conclusion that she
committed disqualifying willful misconduct is not supported by substantial
evidence.       Specifically, she challenges the Board’s adoption of the Referee’s
Findings of Fact Nos. 7, 8, 10, 13, 14 and 16-19.
                 In considering Claimant’s appeal, we begin by noting that substantial
evidence is “relevant evidence upon which a reasonable mind could base a
conclusion.” Stage Road Poultry Catchers v. Department of Labor and Industry,
Office of Unemployment Compensation, Tax Services, 34 A.3d 876, 885 (Pa.
Cmwlth. 2011). In reviewing a substantial evidence argument, this Court examines
the evidence in the light most favorable to the prevailing party and gives that party
the benefit of any inferences that can be logically drawn from the evidence. Id.
“Findings made by the Board are conclusive and binding on appeal if the record,
when examined as a whole, contains substantial evidence to support those findings.”
Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336
(Pa. Cmwlth. 2001).
                 Claimant challenges Findings of Fact Nos. 7, 8, 10, 13, 14 and 16-19.3
In summary, the Board found, based upon Owner’s and Manager’s testimony, that

2
 Our review determines whether constitutional rights were violated, whether an error of law was
committed or whether necessary findings of fact are supported by substantial competent evidence.
Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa.
Cmwlth. 1995).
3
    The challenged factual findings are as follows:
         7. The Claimant previously arrived prior to her scheduled start time, and then would
         request to leave at 7:30 PM.
         8. Other employees began to complain because the Claimant was arriving hours
         prior to her start time and then employees scheduled to start earlier than her would
         not be chosen to leave early.


                                                  5
Claimant left work before 10:00 p.m. on August 17 despite Employer’s warnings
about leaving early. She attempted to do so again on August 18 after getting into an
argument with a co-worker. When Manager denied her request, she responded by
yelling and screaming at Manager. Essentially, Claimant challenges the Referee’s
decision to credit the testimony that she was insubordinate and asks us to accept her
version of events. It is well-settled that “[q]uestions of credibility and the resolution
of evidentiary conflicts are within the sound discretion of the Board, and are not
subject to re-evaluation on judicial review.” Miller v. Unemployment Compensation
Board of Review, 405 A.2d 1034, 1036 (Pa. Cmwlth. 1979). We reject Claimant’s
challenge to Findings of Fact Nos. 7, 8, 10, 13, 14 and 16-19.
               Claimant next argues that the Board erred in concluding that she
engaged in willful misconduct. Section 402 of the Law establishes eligibility
standards for unemployment compensation. 43 P.S. §802. Section 402(e) states:


                                               ***
       10. The Employer also informed the Claimant on multiple occasions that she was
       expected to remain until the end of her scheduled shift and that the manager on duty
       had sole discretion whether she was sent home early.
                                               ***
       13. The Claimant subsequently rushed customers [on August 17, 2017,] to pay their
       tabs so she could leave.
       14. The Claimant punched out at 8:12 PM.
                                               ***
       16. [On August 18, 2017, t]he Claimant again asked to leave at 7:30 PM, after an
       argument with a coworker.
       17. The manager told the Claimant, “that’s not going to happen,” due to her conduct
       on August 17, 2017.
       18. The Claimant began screaming and yelling about her argument with the
       coworker and eventually told the manager, “I can’t take this anymore!”
       19. The manager told the Claimant to go and don’t come back at 6:11 PM.
Referee Decision at 2.
                                                6
             An employe shall be ineligible for compensation for any week--

                                              ***

             (e) In which his unemployment is due to his discharge or
             temporary suspension from work for willful misconduct
             connected with his work, irrespective of whether or not such
             work is “employment” as defined in this act[.]

43 P.S. §802(e). As this Court has explained:

             There are four categories of activity that can constitute willful
             misconduct: (1) the wanton or willful disregard of the
             employer’s interests; (2) the deliberate violation of the
             employer’s rules; (3) the disregard of the standards of behavior
             which an employer can rightfully expect from an employee; and
             (4) negligence demonstrating an intentional disregard of the
             employer’s interests or the employee’s duties and obligations to
             the employer.

Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 439 (Pa.
Cmwlth. 2000) (citation omitted). Whether the conduct for which an employee has
been discharged constitutes willful misconduct is a question of law. Id. at 438. The
employer bears the burden of proving willful misconduct. Where the employer
meets that burden, it then becomes incumbent upon the claimant to prove that his
actions did not constitute willful misconduct or that he had good cause, i.e., his
actions were justified and reasonable under the circumstances. Id. at 439.
             Here, Owner’s credited testimony established that Claimant was
scheduled to work until 10:00 p.m. and that he expected Claimant to work the
entirety of her shift. Owner stated that he informed Claimant of these expectations.
Although Owner had previously allowed Claimant to leave early, Manager
explained that the restaurant’s servers worked on a first-in, first-out basis and that
she instituted a rule prohibiting servers from clocking in more than 15 minutes

                                          7
before the start of their scheduled shift. Ultimately, Manager had discretion to
determine whether an employee was permitted to leave before the end of her shift.
Based on Owner’s and Manager’s testimony, the Referee found that Claimant was
warned about leaving early and was discharged for her insubordinate conduct on her
final day of work. The Board adopted the Referee’s findings that supported the
conclusion she committed disqualifying willful misconduct.
            Once Employer met its burden of proving willful misconduct, the
burden shifted to Claimant to show good cause for her conduct. Claimant argues
that she left early on August 18, 2017, because the altercation with her co-worker
made her feel “unsafe [and] unwelcome.” Claimant Brief at 8. The Referee found
Claimant’s testimony about the incident to be not credible. Even if the Referee had
deemed Claimant’s testimony credible, Manager did not permit Claimant to leave
early that day. Claimant was also not permitted to leave early on August 17, 2017.
Simply, Claimant did not prove that she had good cause for her insubordinate
conduct.
            For all of the foregoing reasons, we affirm the Board’s decision.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                        8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula Yvonne Caruso,                :
                 Petitioner         :
                                    :
           v.                       :   No. 281 C.D. 2018
                                    :
Unemployment Compensation Board     :
of Review,                          :
               Respondent           :


                               ORDER

           AND NOW, this 19th day of September, 2018, the order of the
Unemployment Compensation Board of Review dated February 27, 2018 in the
above-captioned case is AFFIRMED.

                              _____________________________________
                              MARY HANNAH LEAVITT, President Judge
