           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

White Rose Credit Union,        :
                  Petitioner    :
                                :
      v.                        : No. 694 C.D. 2019
                                : SUBMITTED: November 8, 2019
Unemployment Compensation Board :
of Review,                      :
               Respondent       :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                   FILED: January 6, 2020

       White Rose Credit Union (Employer) petitions for review of the May 7, 2019
Order of the Unemployment Compensation Board of Review (Board) reversing the
decision of a Referee to deny Jennifer F. Swanner (Claimant) unemployment
compensation (UC) benefits. The Board concluded that Claimant was eligible for
UC benefits under Section 402(e) of the Unemployment Compensation Law (Law)1
because Employer failed to prove that she was discharged for willful misconduct.
We affirm the Board’s Order.
                                        Background
       Claimant worked full time as Vice President of Marketing for Employer from
August 23, 2011 through August 30, 2018. Bd.’s Finding of Fact (F.F.) No. 1;


       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) of the Law states that an employee shall be ineligible for UC benefits for
any week “[i]n which his [or her] unemployment is due to his discharge or temporary suspension
from work for willful misconduct connected with his [or her] work.” 43 P.S. § 802(e).
Record (R.) Item No. 3. Employer has a policy that prohibits its employees from
making false statements about Employer, its employees, or its members. Bd.’s F.F.
No. 2. Employer also has a policy that provides for an employee’s discharge if the
employee demonstrates unsatisfactory work performance. Id. No. 3. Claimant was
aware of Employer’s policies. Id. Nos. 2, 3.
         On August 21, 2018, Claimant and one of her subordinates, Robert Ford, were
expected to represent Employer at a marketing event at Central Market in York,
Pennsylvania, from approximately 11:00 a.m. until 2:00 p.m. Id. No. 4; Notes of
Testimony (N.T.), 10/22/18, at 10, 13. Claimant and Mr. Ford arrived at Central
Market that day at 11:30 a.m., but the outside event had been cancelled due to light
rain. Bd.’s F.F. No. 5. Claimant networked with patrons inside the market and
handed out promotional items displaying Employer’s logo. Id. Around 12:00 p.m.,
Claimant gave Mr. Ford a lunch break. Id. No. 6; N.T., 10/22/18, at 11, 13. Claimant
also took a lunch break at that time and walked to a food vendor just outside of the
market. Bd.’s F.F. No. 6. Claimant returned to Central Market around 1:00 p.m.
and continued to network with patrons and vendors inside the market until 2:00 p.m.
Id. Claimant left promotional materials inside the market before she left the
premises for the day. Id.
         Three other employees of Employer went to Central Market that day for lunch,
arriving around 11:50 a.m. and leaving around 1:00 p.m.          Id. No. 7.    These
employees did not see Claimant or Mr. Ford while they were at Central Market. Id.
No. 8.
         Later that day, Employer’s Vice President of Human Resources, Tamika
Baker, overheard Claimant describing the Central Market event to another co-
worker as “busy” and stating that Claimant handed out Employer’s promotional



                                           2
materials at the market. Id. No. 9; N.T., 10/23/18, at 2, 6. Ms. Baker was one of the
three employees who had gone to Central Market for lunch. Bd.’s F.F. No. 9. Ms.
Baker had concerns about Claimant’s integrity after overhearing this conversation.
Id. No. 10.
       On August 30, 2018, Ms. Baker and Employer’s Chief Executive Officer,
Debra Kauffman, met with Claimant regarding her representation to another co-
worker that she was at Central Market on August 21, 2018. Id. No. 11; N.T.,
10/22/18, at 7-8. Claimant told them that she was present at Central Market that day.
Bd.’s F.F. No. 11; see N.T., 10/22/18, at 8 (Claimant testified that she “absolutely
was present at the [Central Market] event”).
       Employer offered Claimant an opportunity to resign in lieu of discharge.
Bd.’s F.F. No. 12. Employer initiated the termination due to Claimant’s violation of
its policies prohibiting unsatisfactory work performance and false statements and
Claimant’s failure to maintain integrity. Id.
       Claimant filed a claim for UC benefits, which the local UC Service Center
denied. The Service Center noted that the record contained conflicting evidence
regarding whether Claimant voluntarily quit or was discharged from her
employment; however, the Service Center ultimately found that Claimant
voluntarily quit because she “initiated the separation” from employment. Not. of
Determination, 9/27/18, at 1. The Service Center found that “although the Claimant
had a necessitous and compelling reason for quitting, . . . [she] did not exhaust all
alternatives prior to quitting.” Id. Therefore, the Service Center determined that
Claimant was ineligible for UC benefits under Section 402(b) of the Law.2 Id.

       2
         Section 402(b) of the Law provides that an employee shall be ineligible for UC benefits
for any week “[i]n which his [or her] unemployment is due to voluntarily leaving work without
cause of a necessitous and compelling nature.” 43 P.S. § 802(b).


                                               3
       Claimant timely appealed to the Referee, who held a hearing on October 22,
2018. At the hearing, Claimant testified that on August 21, 2018, she and Mr. Ford
were scheduled to attend a lunchtime networking event known as “Box Lunch
Review” at Central Market. N.T., 10/22/18, at 10. The event was organized by York
City Special Events, but Employer is one of the event’s sponsors. Id. at 9. Claimant
testified that “[t]his was the second season that [Employer] had participated in this
event, which happened numerous times throughout the summer.” Id. at 8. Claimant
described the nature of the event as follows:

       Typically, when the event happens outside, my staff and I would set up
       a table with marketing supplies and giveaways. We would spend ou[r]
       time just networking with the people that attend the event. It was more
       important for us to network versus giving items away. We also made
       it a priority to network with local business owners and vendors.

                                        ....

       [However,] the table was not set up [on August 21, 2018] because the
       event was brought inside of the market because of the weather, which
       was typical for that particular event[,] because it’s an outdoor event.
       Numerous times it’s been brought inside.


                                        ....


       [It] was not my call to bring the event inside [that day]. It’s not our
       event that we put on. It’s just an event that we attend.

Id. at 9.
       Claimant testified that she and Mr. Ford arrived at Central Market at 11:30
a.m. that day and had come directly from another marketing event that ended at
11:00 a.m. Id. at 10-11. When they arrived at Central Market, Claimant and her
staff were “exhausted” and “hungry.” Id. at 10. Claimant testified:

                                          4
       I told my staff, if you want to go and get something to eat and take a
       little bit of a break; the event that we were going to be doing over the
       lunch hour was going to be different than what we normally do. So, I
       made the call to let my staff go take a break and then, I also went and
       took a . . . lunch break. I went and got some food from one of the
       vendors inside the market and then, I also went and walked to York
       City Pretzel, which is just outside of the market, to just do some general
       networking with the business owners there, as we were featuring one of
       them in our upcoming newsletter.

Id. at 11; see id. at 13-14. After their lunch breaks, Claimant and Mr. Ford “spent
the last hour . . . networking and mingling” and “talking to a handful of different
business owners that were vendors in the market.” Id. at 11-12. Claimant further
testified that she handed out newsletters and pen cards 3 bearing Employer’s logo to
patrons at Central Market.         Id. at 16-17.     Claimant stated, “I didn’t put any
[promotional materials] on the tables inside of the market. I did have a few pen cards
in my hand and the very few people that were sitting and having lunch, I walked up
to them and offered them a pen card.” Id. at 17. Claimant testified that Mr. Ford
did not hand out promotional materials because Claimant carried the bag containing
the materials, which she brought with her when she went to York City Pretzel. Id.
at 17-18.
       After receiving Claimant’s testimony, the Referee stopped the hearing and
continued it to the next day so that Claimant could attend a scheduled job interview.
Id. at 20.




       3
         Claimant explained that “pen cards” are “little cards that have pens attached to them.”
N.T., 10/22/18, at 9.




                                               5
       Claimant did not appear at the hearing on October 23, 2018.4 Employer
presented the testimony of Ms. Baker, Ms. Kauffman, and Bryan Smith, Employer’s
Vice President of Lending. Mr. Smith testified that he, Ms. Baker, and Tina Shiller
went to Central Market for lunch around 11:50 a.m. on August 21, 2018. N.T.,
10/23/18, at 3; Bd.’s F.F. No. 7. Mr. Smith testified that the three of them walked
around the market looking for a place to eat and “did not see either [Claimant or Mr.
Ford], [and] didn’t see any evidence of [Employer’s promotional materials] at the
entire event.” N.T., 10/23/18, at 3. Mr. Smith testified that he “was looking for
[Claimant and Mr. Ford] because we expected them to be there.” Id. at 4.
       Ms. Baker testified that she went to Central Market for lunch with Mr. Smith
and Ms. Shiller that day and did not see Claimant, Mr. Ford, or any Employer
literature or promotional materials inside the market. Id. at 4-5. When Ms. Baker
returned to the office after lunch, she “overheard [Claimant] saying [to Ms. Shiller]
how busy [Central Market] was, that [Claimant] handed out p[e]n cards and
newsletters inside and out, and she also talked about where she ate.” Id. at 6. Ms.
Baker testified that after overhearing this conversation,

       I was very concerned. I was very shocked, because I felt that
       [Claimant’s] integrity was in question, because we were just at that
       event, and we did not see [Claimant] []or [Mr. Ford]. I was concerned,
       because it sounded like a story. I felt that she wasn’t telling the truth.



       4
           Regarding Claimant’s failure to appear, the Board found:

       [C]laimant did not appear at the continued hearing because her brother with special
       needs had fallen at his day program. [C]laimant had to go to the hospital to fulfill
       the role as legal guardian because her mother was out of the state. [C]laimant
       requested a continuance of the hearing[, which the Referee denied].

Bd.’s F.F. No. 13; see N.T., 2/8/19, at 4-5.


                                                 6
Id. at 6-7. Ms. Baker believed that given Claimant’s senior management position
with Employer, “th[ere] was a huge problem with [Claimant’s] integrity.” Id. at 8.
       Ms. Baker met with Mr. Ford and asked him whether he had attended the Box
Lunch Review event, and he “stat[ed] that [he and Claimant] were there at the Box
Lunch Rev[iew] that day.” Id. at 7. Ms. Baker also met with Claimant, who “stated
that [she and Mr. Ford] were present at the Box Lunch Rev[iew], [and] that they
spoke to a lot of people.” Id. at 10. Employer discharged Claimant for violating its
policies prohibiting “unsatisfactory work performance” and “making false claims or
statements” and for violating Employer’s “core values . . . [of] integrity, . . .
commitment, accountability[,] and respect.” Id. at 15.
       Following the hearings, the Referee concluded that Claimant was ineligible
for UC benefits under Section 402(e) of the Law because she was discharged for
willful misconduct.5 The Referee determined:

       At the hearing, [C]laimant testified that she did not distribute
       [promotional] material[s] and did not provide material[s] for [Mr. Ford]
       to distribute. Even if the Referee would find [C]laimant’s testimony
       credible that she was at the [Central Market] event, [C]laimant
       admittedly did not perform the job responsibilities she was required [to
       perform] by distributing material[s] at the event as she informed
       [E]mployer she had done. Based on the discrepancy in [C]laimant’s
       own testimony, the Referee concludes that [C]laimant’s testimony is
       not credible. The Referee finds [E]mployer’s testimony credible that
       [C]laimant was untruthful regarding her activity at the event and
       untruthful whether or not she even attended the Central Market
       sponsored event [where] she was supposed to promote [E]mployer by
       distributing materials on behalf of the company. As such, [C]laimant’s

       5
         With regard to Claimant’s eligibility for UC benefits under Section 402(b) of the Law,
the Referee concluded, “[B]oth [C]laimant and [E]mployer competently testified that [C]laimant
accepted [the opportunity] to submit her resignation in lieu of a discharge. Since [C]laimant’s
separation was not voluntary, a finding under Section 402(b) of the Law does not apply.” Ref.’s
Order, 10/30/18, at 3. This determination is not at issue in this appeal.


                                              7
      behavior was contrary to the standards of behavior which [E]mployer
      has the right to expect and [UC] benefits are denied.

Ref.’s Order, 10/30/18, at 3-4.
      Claimant timely appealed to the Board, which remanded the matter to the
Referee for a supplemental hearing. Specifically, the Board directed the Referee to
take additional evidence on Claimant’s reason for her non-appearance at the October
23, 2018 hearing, as well as additional testimony and evidence on the merits. Bd.’s
Remand Order, 1/11/19, at 1.
      Following the remand hearing, the Board made its own findings of fact and
conclusions of law and reversed the Referee’s decision. The Board concluded:

      [E]mployer presented credible evidence that it maintains a policy that
      prohibits making false claims or statements about [Employer], [its]
      employees[,] or [its] members. [E]mployer also established that
      [C]laimant was aware of the policy. [E]mployer presented [the]
      testimony of three witnesses that had gone to [Central M]arket on
      August 21, 2018. These witnesses testified that they did not see
      [C]laimant or [Mr. Ford] at the market. Thus, [E]mployer sought to
      prove that [C]laimant made false statements regarding her whereabouts
      that day through circumstantial evidence. It relied upon its witnesses’
      failure to see [C]laimant at the location. However, the Board accepts
      [C]laimant’s testimony as credible that she was at the market on August
      21, 2018, networking with vendors and potential customers, and that
      she handed out [E]mployer’s [promotional] items. The Board also
      accepts that [Claimant] visited a vendor outside of the market while
      [E]mployer’s witnesses were there.           Further, [C]laimant left
      promotional materials for [E]mployer at the market after [E]mployer’s
      witnesses had left. Therefore, the Board does not find that [C]laimant
      made false statements or violated [E]mployer’s policies.




                                        8
Bd.’s Order, 5/7/19, at 3-4. Therefore, the Board concluded that Claimant was not
disqualified from receiving UC benefits under Section 402(e) of the Law. Employer
now petitions for review of that decision.6
                                           Analysis
       Our Court has defined “willful misconduct” as a wanton or willful disregard
of the employer’s interests, a deliberate violation of the employer’s rules, a disregard
of the standards of behavior that the employer has a right to expect of its employees,
or negligence indicating an intentional disregard of the employer’s interests or of the
employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Review,
83 A.3d 484, 486-87 (Pa. Cmwlth. 2014). An employer seeking to prove that a
claimant committed willful misconduct by violating a work policy “must
demonstrate the existence of the policy, its reasonableness, and its violation.”
Klampfer v. Unemployment Comp. Bd. of Review, 182 A.3d 495, 500 (Pa. Cmwlth.
2018). If the employer satisfies its burden of proof, then “the burden shifts to the
claimant to demonstrate good cause for violating the [policy].” Chester Cmty.
Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth.
2016).
       On appeal, Employer asserts that the Board capriciously disregarded
uncontroverted evidence establishing that Claimant left the Box Lunch Review event
while she was required to be present and working for Employer.                        Employer
maintains that Claimant was expected to network at Central Market for the entire




       6
          Our scope of review is limited to determining whether the necessary factual findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.


                                                9
Box Lunch Review event and her failure to do so, as well her misrepresentations
regarding the work she performed, violated its policies. We disagree.
      Our Court has explained:

      Capricious disregard “occurs where the fact finder willfully and
      deliberately disregards competent and relevant evidence that one of
      ordinary intelligence could not possibly have avoided in reaching a
      result.” Wise v. Unemployment Comp[.] B[d.] of Review, 111 A.3d
      1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious
      disregard of evidence occurs “where the factfinder has refused to
      resolve conflicts in the evidence, has not made essential credibility
      determinations or has completely ignored overwhelming evidence
      without comment.” Id. at 1263. It is the responsibility of the factfinder
      to resolve the conflicts in the testimony and explain why it has accepted,
      or rejected, each piece of relevant evidence. Id.

Bertram v. Unemployment Comp. Bd. of Review, 206 A.3d 79, 83 (Pa. Cmwlth.
2019).
      Employer contends that Claimant’s testimony that she was present at Central
Market on the day in question was “false in light of [Claimant’s] admissions at the
[h]earing” and the testimony of Employer’s witnesses that they did not see Claimant
“when they were present for 70 minutes at . . . Central Market.” Employer’s Br. at
15. However, as the Board correctly found, Employer did not discharge Claimant
for falsely stating that she was present at Central Market for a specified period of
time, but for falsely stating that she was present at Central Market at all. Bd.’s F.F.
No. 11; see R. Item No. 5 (Employer’s disciplinary record states that Claimant was
discharged for her “failure to appear at Central Market for the Box Lunch Review[,]
which was a scheduled [m]arketing event”) (emphasis added). Here, Claimant
credibly testified that she was working for Employer inside Central Market from
11:30 a.m. until 12:00 p.m. and again from 1:00 p.m. until 2:00 p.m. during the Box



                                          10
Lunch Review event. Bd.’s F.F. Nos. 5, 6. Simply because Employer’s witnesses
did not see Claimant during their visit to Central Market that day does not render
Claimant’s statement false, because the record shows that Claimant and Employer’s
witnesses were not inside Central Market at the same time. See Bd.’s Order, 5/7/19,
at 4 (finding that Claimant “visited a vendor outside of the market while
[E]mployer’s witnesses were there”).
      Despite its assertion on appeal that Claimant was required to be stationed
inside Central Market during the entire Box Lunch Review event, Employer
presented no evidence that Claimant was prohibited from taking a break during the
event. Indeed, it is entirely reasonable that Claimant would take a lunch break at
some point between 11:30 a.m. and 2:00 p.m., particularly where the record shows
that she had come directly from working at another Employer-sponsored marketing
event, which ran from 7:00 a.m. to 11:00 a.m. Claimant testified:

      We had just come from another event that morning, where we had seen
      approximately . . . 1,200 people. It was a very intense event. I was
      exhausted. My staff was exhausted. We were both hungry. Because
      the [Box Lunch Review] event had been changed [to] inside, it sort of
      goes from, you know, high profile to low profile, when the event is
      changed from outdoors to indoors[,] because we don’t have room to set
      up a table.

N.T., 10/22/18, at 10; see also id., Ex. E-1 (Ms. Baker’s notes state that Employer’s
“Marketing Team ([Claimant and Mr. Ford]) had an event at Central High School
on Tuesday, August 21, 2018, and there was a calendar reminder 7am-11am for
[Claimant and Mr. Ford]”).
      Moreover, although Claimant left Central Market for one hour during the Box
Lunch Review event, she credibly testified that she went to a vendor “just outside”
the market and was still networking for Employer during that timeframe. Claimant


                                         11
testified, “I walked to York City Pretzel, which is just outside of the market, to just
do some general networking with the business owners there, as we were featuring
one of them in our upcoming newsletter” and “[a]fter that, I met up with my staff,
back inside the market.” N.T., 10/22/18, at 11 (emphasis added). Claimant also
testified that while she was at York City Pretzel, “I spoke with one of the business
owners there and a few other people had come in the door, [who] were also having
lunch[,] that I recognized. So, I would say it was kind of a healthy lunch [and] also
networking, which is very typical for me[] whenever I do have lunch . . . at the
market.” Id. at 14 (emphasis added).
       Furthermore, Claimant testified that Mr. Ford reported that he had also
networked for Employer during his lunch break, stating that “he had talked to one of
the vendors down on the other side of the market, who is a credit union member.”
Id. at 15. Claimant testified that Mr. Ford “ended up talking to . . . some business
owners and things like that, which is essentially the exact same thing that I was
doing.” Id. at 14 (emphasis added).7 The Board credited Claimant’s testimony and
found that she did, in fact, perform marketing work for Employer during the Box
Lunch Review event. Bd.’s F.F. Nos. 5, 6; see Guthrie v. Unemployment Comp. Bd.
of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (stating that the Board is the


       7
           Claimant explained:

       [I]t’s such a casual event and we ha[ve] numerous White Rose Credit Union
       members [there], we always have people that want to stop us and talk to us . . . .
       We sort of call it our shaking hands and kissing babies networking time. [W]e have
       members that . . . want to ask us questions about a specific loan. They want to ask
       us questions about . . . their brother, sister, [or] uncle becoming a member. Or, they
       want to sit and tell us their life story, which is perfectly acceptable and very standard
       when you’re doing those kinds of events.

N.T., 10/22/18, at 15.


                                                 12
ultimate factfinder in UC cases and is empowered to resolve conflicts in evidence,
determine the weight to be accorded the evidence, and determine the credibility of
witnesses).
      Employer also contends that Claimant intentionally omitted a material fact by
failing to disclose to Employer that she took a one-hour lunch break during the Box
Lunch Review event. This claim, however, is belied by the record. According to
Ms. Baker’s notes of her conversation with Claimant about the incident, Claimant
told Ms. Baker that she “spent time outside [of Central Market] visiting all [of] their
regulars (the guy with the dog, the guy in the wheelchair, the daycare with kids) . . .
[and] went to York City Pretzel[].” N.T., 10/22/18, Ex. E-2.
      Finally, Employer argues that the Board failed to resolve the conflicts in
Claimant’s testimony regarding whether she distributed Employer’s promotional
materials inside Central Market during the Box Lunch Review event. We disagree.
In its decision, the Board noted the conflicts in Claimant’s testimony regarding this
issue and ultimately determined that she handed out promotional materials to Box
Lunch Review patrons before her lunch break and placed promotional materials on
tables inside Central Market after lunch. Bd.’s F.F. No. 6. The Board observed that
at the remand hearing, Claimant testified that she had placed promotional materials
on tables before lunch, but the Board found that to be “a minor inconsistency” and
irrelevant to the issue of whether Claimant was performing work for Employer at
Central Market on the day in question. We agree with the Board. Claimant
consistently testified at both hearings that she worked for Employer during the Box
Lunch Review event on August 21, 2018, both by networking with patrons and
vendors inside and outside Central Market and by handing out promotional materials
to patrons before and after her lunch break. Claimant also continued to network with



                                          13
nearby vendors and other patrons during her lunch break. Therefore, we conclude
that the Board did not capriciously disregard competent evidence.
                                   Conclusion
      We conclude, based on the credible evidence of record, that Employer failed
to prove that Claimant violated its policies prohibiting false statements and
unsatisfactory work performance. Accordingly, we affirm the Board’s Order.




                                      ________________________________
                                      ELLEN CEISLER, Judge




                                        14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

White Rose Credit Union,        :
                  Petitioner    :
                                :
      v.                        : No. 694 C.D. 2019
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                                ORDER


      AND NOW, this 6th day of January, 2020, the Order of the Unemployment
Compensation Board of Review, dated May 7, 2019, is hereby AFFIRMED.




                                  _________________________________
                                  ELLEN CEISLER, Judge
