               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson,                             :
                              Petitioner       :
                                               :
                 v.                            :   No. 2244 C.D. 2014
                                               :   Submitted: July 24, 2015
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: September 11, 2015

                 Petitioner Catherine Johnson, pro se, petitions for review of an order
of the Unemployment Compensation Board of Review (Board).                      The Board
affirmed an Unemployment Compensation Referee’s (Referee) decision denying
Claimant unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law),1 because Claimant engaged in willful
misconduct. We now affirm.
                 Claimant was employed by NHA-TAIG (Employer) as a full-time
direct support professional.        Employer terminated Claimant’s employment on
June 4, 2014, and Claimant filed for unemployment compensation benefits. The


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Erie UC Service Center (Service Center) issued a determination denying Claimant
benefits, because it determined that Claimant had engaged in willful misconduct.
(Certified Record (C.R., Item No. 5 at 1.)) Claimant appealed the Service Center’s
determination, and a Referee conducted an evidentiary hearing.
            During the hearing before the Referee, four witnesses testified on
behalf of Employer.      Regina Parker, Employer’s community team manager,
testified that Claimant had been an employee of Employer and that Claimant’s
employment was terminated on June 4, 2014. (C.R., Item No. 9 at 6.) Ms. Parker
testified that on May 6, 2014, she received a call from Danielle Williams, an
employee of Employer. (Id. at 7.) Ms. Williams told Ms. Parker that Claimant
was verbally abusive to both Ms. Williams and a consumer, which violated
Employer’s policy against verbal abuse. (Id. at 6-7.) Further, Claimant left the
facility in which she was working “out of ratio.” Employer requires one of its
employees to be present for every consumer. Prior to the incident, Claimant and
Ms. Williams were caring for two consumers in the facility. After the incident
between Claimant and Ms. Williams occurred, Claimant locked Ms. Williams out
of the facility, which left only Claimant to care for two consumers. (Id. at 8.)
Ms. Parker explained that the facility door does not lock automatically. (Id. at 9.)
Ms. Parker instructed Ms. Williams to call the on-call supervisor, Claudia
Dominguez. (Id. at 8.)
            Ms. Dominguez testified that she received a call from Ms. Williams,
who stated that Claimant was yelling and threatening her.             (Id. at 10.)
Ms. Dominguez instructed Ms. Williams to wait outside for Ms. Dominguez to
arrive. (Id. at 12.) Ms. Dominguez did not hear Claimant in the background
during the phone call. (Id. at 28.) When Ms. Dominguez arrived at the facility,


                                         2
Ms. Williams was locked out. (Id. at 11.) Ms. Dominguez explained that the
facility door must be locked from the inside.        (Id.) Claimant did not call a
supervisor regarding the incident. (Id. at 11-12.)
             Christina Holmes testified that Employer initiated an investigation
regarding the May 6, 2014 incident between Claimant and Ms. Williams. (Id. at
15.) The investigation revealed that Claimant had used profanity, and Ms. Holmes
decided to terminate Claimant’s employment. (Id.) Ms. Holmes testified that
Employer could not have facilities with automatic door locks, because some
consumers use wheelchairs.       (Id. at 16.)   Automatically locking doors would
constitute a “rights violation.” (Id.)
             Ms. Williams testified that Claimant used profanity towards
Ms. Williams and a consumer. (Id. at 17.) Claimant also threatened Ms. Williams.
(Id. at 18.) Ms. Williams called her supervisor, Ms. Dominguez, who told her to
wait outside.    (Id.)   Ms. Williams testified that Ms. Dominguez could hear
Claimant screaming in the background during the phone call. (Id.) Ms. Williams
explained that when she went outside, she left the door open so that she could still
see the consumer to whom she was assigned. (Id.) Claimant then closed the door,
which had to be manually locked from the inside. (Id. at 18-19.)
             Claimant also testified during the hearing before the Referee.
Claimant testified that she had not used profanity towards Ms. Williams and the
consumer, nor had she threatened Ms. Williams. (Id. at 22-23.) Claimant was
aware of Employer’s policy regarding verbal abuse.          (Id. at 22.)   Claimant
observed Ms. Williams on the phone outside the facility, but Claimant explained
that the door slammed and locked behind Ms. Williams. (Id. at 25.) Claimant
denied locking Ms. Williams out of the facility. (Id. at 26.)


                                          3
             The Referee denied Claimant benefits, concluding that Claimant’s
conduct amounted to willful misconduct. The Referee made the following findings
of fact:
             1. The Claimant was last employed by NHA-TAIG as a
                Direct Support Professional full-time from
                January 22, 2008 through May 6, 2014, at a final rate
                of $9.54 per hour.
             2. This Employer has an abuse of Consumer Policy,
                Verbal Abuse Rights Policy, Standards of Conduct
                Policy and the use of profanity of which violation
                results in discipline up to and including discharge.
             3. The Claimant was, or should have been, aware of the
                Employer’s aforestated policy.
             4. On May 6, 2014, the Employer received a call from
                an employee reporting verbal abuse toward a
                Consumer and the Co-Worker and the use of
                profanity.
             5. The Employer initiated an investigation.
             6. The investigation revealed that Claimant violated the
                aforestated policies and, therefore, the Claimant’s
                suspension on May 6, 2014 was converted to a
                discharge on June 4, 2014.
(C.R., Item No. 10 at 1.) The Referee noted the conflict between the testimony of
Claimant and that of Employer’s witnesses, but she resolved the conflict in favor
of Employer. (Id. at 2.) The Referee concluded that Employer had a policy
regarding verbal abuse, which Claimant violated. (Id.) This violation constituted
willful misconduct without good cause and rendered Claimant ineligible to receive
unemployment compensation benefits. (Id.)
             Claimant appealed to the Board, which affirmed the Referee’s
decision. The Board, however, modified findings of fact numbers 4 and 5 to read
“[C]laimant used profanity toward a consumer and a coworker,” and “[a]fter the
coworker stepped outside of the facility to avoid conflict, she left the door open to
                                         4
observe inside, until the claimant closed and locked the door,” respectively.
(C.R., Item No. 14 at 1.) The Board adopted the rest of the Referee’s findings and
conclusions. Claimant now petitions this Court for review.
              On appeal,2 Claimant first contends that the testimony of three of
Employer’s witnesses—Ms. Dominguez, Ms. Parker, and Ms. Holmes—
constituted inadmissible hearsay. Claimant also argues that substantial evidence
did not exist to support the Board’s findings that Claimant used profanity toward a
consumer and coworker and that Claimant locked her coworker out of the facility.
              We first address Claimant’s argument that Ms. Dominguez’s,
Ms. Parker’s, and Ms. Holmes’ testimony constituted hearsay and should not have
been admitted. Specifically, Claimant contends that none of these witnesses were
present during the incident that occurred between Claimant and Ms. Williams, and,
thus, their testimony is based solely on what Ms. Williams told them. Hearsay is
defined as “a statement that the declarant does not make while testifying at the
current trial or hearing,” and that “a party offers in evidence to prove the truth of
the matter asserted in the statement.”             Pa. R.E. 801(c).      “Although hearsay
evidence admitted into evidence without objection will be given its natural
probative effect and may support a finding of the Board if it is corroborated by any
competent evidence in the record, a finding of fact based solely on hearsay will not
stand.”    Bailey v. Unemployment Comp. Bd. of Review, 597 A.2d 241, 243
(Pa. Cmwlth. 1991).


       2
         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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                               5
            The testimony of employer’s witnesses does not constitute hearsay.
Ms. Parker testified regarding Claimant’s employment background, Employer’s
policies, and her phone call with Ms. Williams. Ms. Parker also explained that the
door of the facility does not lock automatically.        Ms. Dominguez testified
regarding her phone call with Ms. Williams and her subsequent arrival at the scene
of the incident that occurred between Claimant and Ms. Williams. Ms. Holmes
testified regarding Employer’s policies. Ms. Holmes also noted that the facility
door did not lock automatically. The only testimony that could be considered
hearsay in the instant matter is Ms. Dominguez’s and Ms. Parker’s testimony
concerning what Ms. Williams stated on the phone. During the hearing, however,
Claimant did not object to this testimony.            Further, Ms. Parker’s and
Ms. Dominguez’s testimony is corroborated by Ms. Williams’ testimony
concerning her phone calls to both witnesses. Because the testimony was admitted
without objection and was corroborated by Ms. Williams’ testimony, the Board did
not err in considering it. Accordingly, we reject Claimant’s argument that the
testimony of Employer’s witnesses constitutes inadmissible hearsay.
            We next address Claimant’s argument that substantial evidence of
record does not support the Board’s findings that Claimant used profanity toward a
consumer and coworker and that Claimant locked her coworker out of the facility.
Substantial evidence is defined as 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).           In determining whether there is
substantial evidence to support the Board’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 that can logically and reasonably be drawn from the


                                         6
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The
Board’s findings of fact are conclusive on appeal only so long as the record, taken
as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have produced
witnesses who gave a different version of the events, or that [the party] might view
the testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).            Similarly, even if
evidence exists in the record that could support a contrary conclusion, it does not
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             Substantial evidence exists to support the Board’s finding that
Claimant used profanity toward a consumer and a coworker.            Ms. Williams
testified:
             [Claimant] called [the consumer] a b***h. She told her
             I’m not, I don’t want your dirty f***ing clothes. I don’t
             have to steal your dirty f***ing clothes. You’re filthy.
             You’re a b***h. [Claimant] told me only reason why
             you got this f***ing job, come out the room and f***ing
             fight me. It was just basically the f*** word and the
             b***h word she kept using.
(C.R., Item No. 9 at 17-18.) Although Claimant testified that she had never used
profanity, it was within the Board’s purview to resolve the conflicting testimony of




                                         7
Claimant and Ms. Williams.3 See Duquesne Light Co. v. Unemployment Comp.
Bd. of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Ms. Williams’ testimony
constitutes substantial evidence to support the Board’s finding that Claimant used
profanity. Accordingly, we reject Claimant’s argument that the Board’s finding
was not supported by substantial evidence.
              Substantial evidence also supports the Board’s finding that Claimant
locked her coworker out of the facility. There is no dispute that the facility door
locked when Ms. Williams left. Claimant testified that when Ms. Williams left the
facility, the door slammed and automatically locked behind her.                    (Id. at 26.)
Ms. Williams, however, testified that Claimant closed the door and that the door
must be locked manually. (Id. at 18.) Ms. Holmes testified that Employer could
not have doors that automatically lock because it would “be considered a rights
violation.” (Id. at 16.) Ms. Parker and Ms. Dominguez both testified that the door
did not lock automatically. As noted above, it is the Board’s prerogative to resolve
conflicting testimony.         The testimony of Employer’s witnesses constitutes
substantial evidence to support the Board’s finding that Claimant locked
Ms. Williams out of the facility. Accordingly, we reject Claimant’s argument that
the Board’s finding was not supported by substantial evidence.



       3
          Claimant also appears to argue that the Board erred in determining that Claimant was
not credible. Specifically, Claimant contends that the Referee did not understand Claimant’s
testimony and that Employer’s witnesses offered inconsistent testimony. In an unemployment
compensation case, however, it is well-settled that the Board is the ultimate fact finder and is,
therefore, entitled to make its own determinations as to witness credibility and evidentiary
weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1386 (Pa. 1985).
Questions of credibility are not subject to re-evaluation on judicial review. Id. We, therefore,
reject Claimant’s argument that the Board erred in determining that Claimant was not credible.



                                               8
Accordingly, we affirm the Board’s order.




                  P. KEVIN BROBSON, Judge




                           9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson,                   :
                      Petitioner     :
                                     :
            v.                       :   No. 2244 C.D. 2014
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER


            AND NOW, this 11th day of September, 2015, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                            P. KEVIN BROBSON, Judge
