                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maria J. Daniels Fusco,                         :
                              Petitioner        :
                                                :
               v.                               :
                                                :
Unemployment Compensation                       :
Board of Review,                                :    No. 2119 C.D. 2016
                    Respondent                  :    Submitted: November 3, 2017


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: January 3, 2018

               Maria J. Daniels Fusco (Claimant) petitions this Court, pro se, for review
of the Unemployment Compensation (UC) Board of Review’s (UCBR) November 17,
2016 order affirming the Referee’s decision denying her UC benefits under Section
402(e) of the UC Law (Law).1 The issue before the Court is whether substantial
evidence supported the UCBR’s determination that Claimant committed willful
misconduct.2 After review, we affirm.




       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e)
(referring to willful misconduct).
        2
          Claimant’s Statement of Questions Involved lists four issues: (1) whether willful misconduct
led to Claimant’s discharge; (2) whether Claimant was aware of any misconduct; (3) whether
accusations against Claimant were true and accurate; and, (4) whether the Referee’s findings were
true and accurate. See Claimant Br. at 7. Because Claimant’s issues relate to whether the UCBR’s
decision was supported by substantial evidence, we have combined them herein.
               Claimant was employed as a part-time Brand Ambassador/Premium Pet
Food Specialist by Advantage Sales & Marketing LLC (Employer) from October 2015
to August 7, 2016.3 Her duties involved promoting a particular dog food brand to
customers in local PetSmart stores. Employer trained Claimant and instructed her not
to speak with customers regarding other products, and to direct customers with
questions about such products to PetSmart employees. On July 24, 2016, when a
customer asked if PetSmart carried a particular flea medication, Claimant responded
that PetSmart does not carry the brand because it is known to harm animals. On August
7, 2016, Employer discharged Claimant for willful misconduct.
               Claimant applied for UC benefits. On August 31, 2016, the Altoona UC
Service Center determined that Claimant was ineligible for UC benefits under Section
402(e) of the Law. Claimant appealed, and a Referee hearing was held on October 7,
2016.       On October 13, 2016, the Referee affirmed the UC Service Center’s
determination, thereby denying Claimant UC benefits due to her willful misconduct.
Claimant appealed to the UCBR. On November 17, 2016, the UCBR adopted the
Referee’s findings and conclusions, and affirmed the Referee’s decision. Claimant
appealed to this Court.4
               Initially,

               Section 402(e) of the Law provides that an employee is
               ineligible for [UC] benefits when his unemployment is due
               to discharge from work for willful misconduct connected to
               his work. The employer bears the burden of proving willful
               misconduct in an unemployment compensation case. Willful
               misconduct has been defined as (1) an act of wanton or
               willful disregard of the employer’s interest; (2) a deliberate
               violation of the employer’s rules; (3) a disregard of standards

        3
         Claimant worked 8 to 12 hours on weekends.
        4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
                                                 2
               of behavior which the employer has a right to expect of an
               employee; or (4) negligence indicating an intentional
               disregard of the employer’s interest or a disregard of the
               employee’s duties and obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted). “If the employer satisfies its burden, the burden
shifts to the employee to show that . . . she had good cause for . . . her conduct. ‘A
claimant has good cause if . . . her actions are justifiable and reasonable under the
circumstances.’” Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55
A.3d 186, 190 (Pa. Cmwlth. 2012) (citation omitted) (quoting Docherty v.
Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
Ultimately, “[t]he question of whether conduct rises to the level of willful misconduct
is a question of law to be determined by this Court.” Scott v. Unemployment Comp.
Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).
               The law is well-established that:

               [T]he [UCBR] is the ultimate fact-finder in [UC] matters and
               is empowered to resolve all conflicts in evidence, witness
               credibility, and weight accorded the evidence. 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 evidence to support the findings actually
               made. Where substantial evidence supports the [UCBR’s]
               findings, they are conclusive on appeal.[5]



      5
          This Court has explained:

               Substantial evidence is relevant evidence upon which a reasonable
               mind could base a conclusion. In deciding whether there is substantial
               evidence to support the [UCBR’s] findings, this Court must examine
               the testimony in the light most favorable to the prevailing party, . . .
               giving that party the benefit of any inferences which can logically and
               reasonably be drawn from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999).
                                                  3
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted).
             In the instant case, the basis of Claimant’s argument is that substantial
evidence did not support the UCBR’s decision. Claimant specifically contends that
she was not aware of any misconduct, and that the allegations against her and the
Referee’s findings based thereon, were not true and accurate. This Court disagrees.
             Employer’s Associate Conduct and Work Rules Policy (Policy), which is
part of its larger Associate Handbook and Code of Business Conduct and Ethics
(Handbook), specifies that unacceptable employee conduct that could result in
discharge includes “job-related conduct reasonably determined by [Employer] to be
unacceptable, unprofessional, [or] a reflection of poor judgment . . . .” Certified Record
Item 13, Notes of Testimony, October 7, 2016 (N.T.) Ex. E-10. On October 5, 2015,
Claimant acknowledged that she received, read and understood Employer’s policies.
See N.T. Ex. 5. Employer’s Policy and Claimant’s acknowledgement were admitted
into the record without objection.
             Employer’s District Manager Christina Weidner (Weidner), Claimant’s
immediate supervisor, testified that she trained Claimant after she was hired. Weidner
related that Claimant received extensive training on the dog food product she promoted,
and on how to engage, qualify, demonstrate and close her discussions regarding that
product with PetSmart customers. Weidner specifically recalled instructing Claimant
not to speak to customers about any other products, but rather should such an inquiry
be made to direct the customers to PetSmart employees. See N.T. at 13, 20.
             Weidner described that, on June 11, 2016, PetSmart management reported
to her that Claimant was being unprofessional in her interactions with customers (i.e.,
harassing customers by trying to convert them to Employer’s product after they had
made their selections, and engaging them for too long). See N.T. at 15; see also N.T.
Exs. E-4 at 4, E-8. On June 17, 2016, Weidner conducted in-person coaching with
                                            4
Claimant on remaining professional at work. See N.T. at 15; see also N.T. Ex. E-4 at
4. On July 24, 2016, PetSmart management again reported to Weidner that Claimant
was being unprofessional, not only by engaging PetSmart employees regarding
neutering policies, but by informing a customer that the product he/she was looking for
would harm his/her pet. See N.T. at 10, 15; see also N.T. Ex. E-4 at 4. The PetSmart
manager did not want Claimant back in the store. See N.T. at 10. Weidner notified
Claimant that she would be removed from the schedule pending Employer’s
investigation.      Thereafter, Employer notified Claimant that her employment was
terminated for willful misconduct.
             Claimant confirmed that she had been trained and re-coached by Weidner
regarding her Brand Associate duties. She also admitted that, after her June 17, 2016
re-training, she informed a customer that the particular flea product he/she was looking
for was known to harm cats. See N.T. at 16, 21. Claimant recalled being told during
her training not to “bad[-]mouth” other dog food brands, but did not specifically
recollect being told not to discuss other products at all. See N.T. at 16, 18-19. Claimant
explained that she was simply relaying knowledge she gained from her veterinarian.
See N.T. at 21.
             Based upon the evidence, the Referee made the following relevant
findings of fact:

             3. [Employer] trains its ambassadors not to comment on other
             companies’ products.
             4. If a customer has a question about products other than the
             ones being promoted an ambassador is to direct the customer
             to a PetSmart employee.
             5. [Claimant] was previously counseled for improper
             communication with customers.
             6. On July 24, 2016, a customer asked if the store carried a
             particular brand of flea medication.

                                            5
             7. [Claimant] responded that the store does not carry the
             brand because it is known to harm animals.
             8. [Employer] discharged [Claimant] for commenting on
             other products.

Referee Dec. at 1-2. The Referee concluded:

             In the present case, the credible testimony of [Employer]
             establishes that it has a policy which prohibits employees
             from commenting on products other than the ones they are
             promoting. [Claimant] acknowledges that [] she told a
             customer that a particular brand of flea medication is known
             to harm animals. [Claimant] does not explain why she did
             not refer the question to an employee of PetSmart or at least
             limit her answer to ‘yes’ or ‘no.’ Therefore, [Employer] has
             established that it discharged [Claimant] for actions that
             constitute willful misconduct connected with the work and
             benefits will be disallowed under Section 402(e) of the Law.

Referee Dec. at 2.

             The issue of whether good cause exists is a factual one for
             the [UCBR] to resolve. Wideman v. Unemployment Comp[.]
             B[d.] of Review, . . . 505 A.2d 364, 368 ([Pa. Cmwlth.] 1986).
             ‘The [UCBR], as ultimate fact finder, determines the weight
             and credibility of the evidence and is free to reject even
             uncontradicted testimony.’ Id. Here, the [UCBR] adopted
             the [R]eferee’s finding that [Employer’s evidence was
             credible, and] Claimant’s testimony . . . was insufficient to
             establish good cause. It was within the exclusive province of
             the [UCBR] to make this finding and Claimant cannot
             impugn it on appeal.
Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1164 (Pa. Cmwlth. 2013).
             Viewing the evidence in the light most favorable to Employer, as we must,
we hold that because substantial evidence supported the UCBR’s findings and
conclusions, the UCBR properly determined that Claimant committed willful
misconduct and, thus, she is ineligible for UC benefits under Section 402(e) of the Law.




                                           6
For all of the above reasons, the UCBR’s order is affirmed.


                         ___________________________
                         ANNE E. COVEY, Judge




                             7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maria J. Daniels Fusco,                  :
                          Petitioner     :
                                         :
            v.                           :
                                         :
Unemployment Compensation                :
Board of Review,                         :   No. 2119 C.D. 2016
                    Respondent           :


                                       ORDER

            AND NOW, this 3rd day of January, 2018, the Unemployment
Compensation Board of Review’s November 17, 2016 order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
