              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kristy L. Ickes,                               :
                       Petitioner              :
                                               :
                 v.                            :
                                               :
Unemployment Compensation                      :
Board of Review,                               :   No. 525 C.D. 2019
                 Respondent                    :   Submitted: March 24, 2020



BEFORE:          HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge (P.)
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                            FILED: May 1, 2020


                 Kristy L. Ickes (Claimant) petitions for review of the April 5, 2019
order of the Unemployment Compensation Board of Review (Board) affirming the
decision of the referee to deny Claimant unemployment compensation benefits
(benefits) under Section 402(e) of the Unemployment Compensation Law (Law),1
which provides that a claimant shall be ineligible for benefits in any week in which
her unemployment is due to willful misconduct connected with her work. Upon
review, we affirm.




       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
               Claimant was employed by the County of Lancaster (Employer) as a
full-time family support caseworker from August 20, 2014 through October 4, 2018.
Referee’s Decision & Order, 2/19/19, Finding of Fact (F.F.) 1, Certified Record
(C.R.) at 92.2 Specifically, Claimant worked for a child welfare agency tasked with
investigating all reports of child abuse and neglect, providing support services to
families and furthering child safety. Transcript of Testimony (T.T.), 2/14/19 at 9,
C.R. at 59. On September 24, 2018, Claimant notified her supervisor that she felt
an assigned home visit scheduled for September 27, 2018 could be dangerous, and
she requested that a co-worker accompany her. F.F. 2-3. Claimant’s supervisor
instructed Claimant’s co-worker not to accompany her, but the co-worker disobeyed
the supervisor’s order and accompanied Claimant on the home visit. F.F. 4-5. The
visit resulted in Claimant leaving and calling the police when the child’s mother
pointed a screwdriver at Claimant. F.F. 6.
               Claimant requested a meeting with Employer’s executive director to
discuss a scheduling concern that arose due to an unanticipated housing issue that
Claimant was experiencing. F.F. 7. On October 9, 2018, Claimant met with the
executive director and discussed, inter alia,3 her scheduling concern and her

       2
          Our citations to the Certified Record reference the page numbers of the PDF document,
as the record is not paginated.
       3
         Claimant also discussed at the October 9, 2018 meeting her allegation that her supervisor
was “stalking” her. F.F. 8; T.T. at 27, C.R. at 77. The executive director testified that the
“stalking” allegation concerned Claimant’s complaints that her supervisor was watching her
calendar and asking Claimant about her whereabouts. T.T. at 27, C.R. at 77. The executive
director explained to Claimant at the meeting that her supervisor was not stalking her, but was
simply exercising the normal supervisory function of monitoring her work. T.T. at 28, C.R. at 77.
Claimant does not mention these allegations in her brief before this Court on appeal. See
Claimant’s Brief at 12-14. At the October 9, 2018 meeting, the executive director also discussed
an alleged falsification of time worked by Claimant on October 4, 2018. F.F. 8 & 17. During an
October 22, 2018 meeting with Claimant and a union representative, the executive director warned

                                                2
supervisor’s refusal to permit a co-worker to accompany her on the September 27,
2018 home visit. F.F. 8. During the meeting, Claimant could not provide specific
information about the length of her anticipated leave due to her housing problem.
F.F. 9. The executive director notified Claimant that any time that Claimant took
off to try to resolve her housing issue would be unexcused and unpaid. F.F. 10.
Notably, the executive director informed Claimant that she would speak with
Claimant’s supervisor about her refusal to permit a co-worker to accompany
Claimant on the home visit on September 27, 2018. Id. The executive director
thereafter informed Claimant’s supervisor that she should err on the side of caution
by either allowing a co-worker to accompany Claimant on assignments or assisting
Claimant in potentially unsafe situations herself. F.F. 12.
              Claimant was absent from work from October 5, 2018 through
November 1, 2018, the date of her termination. See T.T., 2/14/19 at 7, C.R. at 57.
On October 10, 2018, the executive director notified Claimant that if she did not
report to work on October 15, 2018 at 8:30 a.m., she could be subject to discipline,
up to and including termination for job abandonment. F.F. 11. Claimant notified
the executive director that she would not return until she had a meeting with union
representation and was assigned to a different supervisor. F.F. 13. The executive
director then provided Claimant with a final warning to report to work for a meeting
with union representation scheduled for October 17, 2018 at 8:30 a.m. F.F. 15; T.T.
at 11, C.R. at 61. However, Claimant did not report to work until October 22, 2018,
at which point Employer held the meeting with Claimant and her union
representative. F.F. 16. At the October 22, 2018 meeting, the executive director


Claimant about lying to her supervisor about her work time on October 4, 2018. See F.F. 16-17;
Board’s Decision & Order at 1, C.R. at 106. The alleged falsification of time information was not
a basis for the discharge of Claimant. See F.F. 19.
                                               3
informed Claimant that she would remain with her current supervisor, as the
executive director had personally addressed Claimant’s concerns with the supervisor
and was confident that the complained-of situation would not recur. F.F. 17.
Nevertheless, Claimant repeatedly refused to return to work until she was reassigned
to a new supervisor. F.F. 18. On November 1, 2018, the executive director
discharged Claimant for job abandonment for her refusal to return to work. F.F. 19.
             Claimant applied for benefits, but the Unemployment Compensation
(UC) Service Center issued a notice of determination finding her ineligible under
Section 402(e) of the Law. F.F. 20; Notice of Determination at 1, C.R. at 26.
Claimant appealed, and a referee held a hearing in which both Claimant and
Employer participated. T.T. at 1, C.R. at 51. The referee issued a decision and order
affirming the UC Service Center’s denial of benefits based on the following findings.
Referee’s Decision & Order, 2/19/19 at 1, C.R. at 92. Claimant felt unsafe working
for her supervisor and refused to return to work unless she was assigned to a different
supervisor. Referee’s Decision & Order, 2/19/19 at 3, C.R. at 94. However,
Employer acted reasonably in addressing Claimant’s concerns and the executive
director gave Claimant a reasonable directive to return to work under her current
supervisor. Referee’s Decision & Order, 2/19/19 at 3-4, C.R. at 94-95. Claimant’s
refusal to return to work without allowing her supervisor a chance to correct the issue
was, therefore, unreasonable. Referee’s Decision & Order, 2/19/19 at 4, C.R. at 95.
The referee thus concluded that Claimant’s actions rose to the level of willful
misconduct in connection with her work, thereby rendering her ineligible for benefits
under Section 402(e) of the Law. Id.
             In affirming the referee’s decision, the Board adopted and incorporated
the referee’s findings and conclusions, but clarified that both parties agreed that


                                          4
Employer discharged Claimant.4 Board’s Decision & Order at 1-2, C.R. at 106-07.
Further, the Board denied Claimant’s remand request for the opportunity to offer
additional evidence, finding that the record sufficed to enable it to render an
appropriate decision. Board’s Decision & Order at 1, C.R. at 106.
               Before this Court,5 Claimant argues that the Board erred in determining
that she committed willful misconduct under Section 402(e) of the Law.6 See
Claimant’s Brief at 12-14. The sole argument presented by Claimant is that she had
good cause to disobey Employer’s order that she report to work, because it was
reasonable to do so in light of her misgivings about her supervisor’s judgment and
her fear for her personal safety. Id. Contending that this Court has recognized that
fear of physical injury may be a legitimate reason for refusing employment,
Claimant asserts that she felt unsafe working for her supervisor and that she made
       4
         The Board clarified this point because, despite finding that “the executive director
discharged the Claimant for job abandonment,” see F.F. 19, the referee subsequently stated that
“both parties established that [Claimant] resigned because she felt unsafe working for her
supervisor . . . .” Referee’s Decision & Order, 2/19/19 at 3, C.R. at 94 (emphasis added).
       5
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed, or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014); see also Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704. Further, where, as here, the petitioner does not dispute the findings of fact, they are
conclusive on appeal. Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492 (Pa. Cmwlth.
2000).
       6
         In her petition for review, Claimant also asserted that the Board erred in failing to find
Claimant’s testimony credible. However, Claimant fails to address this second argument in her
appellate brief. Thus, the issue is waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (internal citations omitted) (stating that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived”). Moreover, we note 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 Comp.
Bd. of Review, 405 A.2d 1034, 1036 (Pa. Cmwlth. 1979).



                                                 5
this reason clear to Employer. Id. at 13-14 (citing Sell v. Unemployment Comp. Bd.
of Review, 424 A.2d 1030, 1031 (Pa. Cmwlth. 1981)).7 Claimant maintains that her
job placed her in “a wide array of dangerous and confrontational situations,” that she
informed the department director that she felt she could not trust her supervisor to
keep her safe, and that it is reasonable to doubt the competency of a supervisor who
fails to recognize the serious nature of certain situations employees face. Id. at 13.
Claimant, therefore, contends that both her safety concerns and her insistence on
reassignment to a new supervisor were reasonable and requests that this Court
reverse the Board’s decision. Id. at 14.
              The Board counters that Claimant lacked good cause to commit willful
misconduct by refusing to return to work, because Employer’s directive to Claimant
to return to work was reasonable. Board’s Brief at 10. The Board contends that
Claimant’s demand for a new supervisor was unreasonable, noting that Employer
addressed Claimant’s concerns with her supervisor and Employer has the exclusive
right to make management decisions. Id. at 6-9.
              Whether an employee’s actions constitute willful misconduct is a
question of law subject to review by this Court. Reading Area Water Auth. v.
Unemployment Comp. Bd. of Review, 137 A.3d 658, 661 (Pa. Cmwlth. 2016). For
purposes of determining a discharged employee’s eligibility for unemployment
compensation, the employer bears the burden of proving that the employee engaged
in willful misconduct connected with her work. See Section 402(e) of the Law, 43
P.S. § 802(e); Adams v. Unemployment Comp. Bd. of Review, 56 A.3d 76, 78-79 (Pa.
Cmwlth. 2012). This Court has defined willful misconduct as:



       7
          Sell involves the question of whether a claimant had a necessitous and compelling cause
to quit under Section 402(b) of the Law, 43 P.S. § 802(b), and is, therefore, inapposite.
                                               6
             (1) wanton and willful disregard of an employer’s
             interests; (2) deliberate violation of rules; (3) disregard of
             the standards of behavior which an employer can
             rightfully expect from an employee; or, (4) negligence
             showing an intentional disregard of the employer’s
             interests or the employee’s duties and obligations.

Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review, 173 A.3d 1224, 1228
(Pa. Cmwlth. 2017) (quoting Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 (Pa. Cmwlth. 2014)). Once the employer establishes a prima facie case
of willful misconduct, the burden shifts to the claimant to prove good cause for her
actions. Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa.
Cmwlth. 2006).
             “[A] determination of what amounts to willful misconduct requires a
consideration of all of the circumstances, including the reasons for the employee’s
noncompliance with the employer’s directives.” Eshbach v. Unemployment Comp.
Bd. of Review, 855 A.2d 943, 947-48 (Pa. Cmwlth. 2004) (internal quotation marks
and citation omitted). Where the employee’s action is justifiable or reasonable under
the circumstances, it cannot be considered willful misconduct. Id. at 948. However,
“[a]n employee’s refusal, without good cause, to follow an employer’s reasonable
directive may . . . constitute willful misconduct.” Gordon Terminal Serv. Co. v.
Unemployment Comp. Bd. of Review, 211 A.3d 893, 898 (Pa. Cmwlth. 2019).
Likewise, “[a]n employee’s refusal to comply with work assignments may constitute
willful misconduct unless the employee establishes good cause for [her] actions.”
New v. Unemployment Comp. Bd. of Review, 558 A.2d 602, 604–05 (Pa. Cmwlth.
1989). “In determining whether an employee’s refusal of an employer’s work
assignment constitutes willful misconduct, we must balance the reasonableness of
the request with the reasonableness of the refusal.” Kelly v. Unemployment Comp.

                                           7
Bd. of Review, 424 A.2d 612, 613 (Pa. Cmwlth. 1981). Further, “good cause requires
an employee to continue working unless and until an employer’s action proves to be
ineffectual where it has promised to alleviate a problem.” W. & S. Life Ins. Co. v.
Unemployment Comp. Bd. of Review, 913 A.2d 331, 337 (Pa. Cmwlth. 2006).
             As the prevailing party below, Employer is entitled to the benefit of all
reasonable inferences drawn from the evidence on review. See Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Here, the executive director testified that she assured Claimant she “would follow
up with the supervisor . . . to make sure that the supervisor, in the future, would allow
any case worker who felt unsafe to be able to take a co-worker with them . . . .” T.T.
at 10, C.R. at 60. As promised, Employer’s executive director communicated
directly with Claimant’s supervisor in order to rectify the alleged safety issues. F.F.
17. In adopting the referee’s determination, the Board concluded that Employer
acted reasonably in addressing Claimant’s concerns and requiring her to return to
work, and we find no error in this determination. See Board’s Decision & Order at
1, C.R. at 106; Referee’s Decision & Order at 4, C.R. at 95.
             Claimant’s belief that Employer’s actions failed to rectify alleged
safety issues does not provide good cause for her misconduct.              See Hart v.
Unemployment Comp. Bd. of Review, 452 A.2d 72, 73 (Pa. Cmwlth. 1982) (holding
that claimant’s belief that relocating her work area would fail to remedy alleged
harassment did not furnish good cause to disobey employer’s reasonable directive).
Further, Claimant failed to present evidence that Employer’s actions were
inadequate. See New, 558 A.2d at 605 (stating that “[t]he refusal to obey an order
to return to work, once the changes had been made in the work site, without further
evidence that these changes would not satisfy the . . . needs of [the employee], does


                                           8
not establish good cause for the refusal to return to work”). Moreover, as Employer
promised to alleviate the problem, Claimant’s failure to return to work obviated any
possibility of evaluating whether Employer’s attempted remedy was in fact
effectual. See W. & S. Life Ins. Co., 913 A.2d at 337. Consequently, we agree with
the Board that Claimant’s refusal to return to work under the circumstances was
unreasonable. See Board’s Decision & Order at 1, C.R. at 106; Referee’s Decision
& Order at 4, C.R. at 95. Therefore, Claimant failed to establish good cause for her
conduct.
            Accordingly, we affirm the Board’s decision that Claimant is ineligible
for benefits under Section 402(e) of the Law.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                         9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kristy L. Ickes,                       :
                   Petitioner          :
                                       :
             v.                        :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 525 C.D. 2019
                 Respondent            :



                                  ORDER


             AND NOW, this 1st day of May, 2020, the April 5, 2019 order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
