                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Emanuela Harting,                             :
                      Petitioner              :
                                              :
                v.                            :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 101 C.D. 2014
                 Respondent                   :   Submitted: July 25, 2014

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE MARY HANNAH LEAVITT, Judge
                HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: August 12, 2014
                Emanuela     Harting    (Claimant)    challenges    the   order   of   the
Unemployment Compensation Board of Review (Board) that affirmed the referee’s
denial of benefits under Section 402(e) of the Unemployment Compensation Law
(Law).1


                The facts, as found by the Board, are as follows:

                1. The claimant was last employed as a nursing
                supervisor by Home Health Specialists, Inc. from
                November 27, 2012, at a final rate of $29.92 per hour and
                her last day of work was August 16, 2013.

                2. In April of 2013, the director met with the claimant
                regarding the claimant’s annual performance evaluation
                and counseled the claimant about her negativity in the
                workplace.
       1
                Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43
P.S. §802(e).
            3. On August 14, 2013, the director issued a written
            warning to the claimant for disruptive and negative
            behavior in the workplace, and the claimant refused to
            sign the warning.

            4. On August 16, 2013, the director met with the
            claimant in the director’s office, and the claimant stated,
            ‘If this is another one of your counseling sessions I’m not
            sitting through it.’

            5. The director told the claimant that she needed to speak
            to the claimant about her behavior in the workplace, and
            the claimant stated, ‘I don’t have to listen to you, if you
            have a problem with it, fire me.’

            6. The claimant then left the director’s office, at which
            time the director called the controller to the office to
            discuss the incident.

            7. As the director was speaking to the controller, the
            claimant came into the director’s office and said, ‘So, are
            you firing me now?’

            8. When the director requested once again to speak with
            the claimant in her office, the claimant said, ‘No, I am
            not listening to you. So, are you firing me?’

            9. The director told the claimant to excuse herself from
            the office, and the claimant complied.

            10. Subsequently, the director went to the claimant’s
            work area and asked the claimant if she was willing to
            talk to the director.

            11. The claimant once again refused to talk to the
            director, and the director discharged the claimant on
            August 16, 2013, for insubordination.
Board Opinion, January 8, 2014, (Opinion), Findings of Fact Nos. 1-11 at 1-2.


            The Board determined:


                                        2
              The director credibly established that she attempted to
              speak to the claimant several times on August 16, 2013,
              regarding the claimant’s behavior in the workplace, and
              the claimant refused to speak to her. The claimant told
              the director she did not have to listen to her and requested
              to be fired. The director’s request to speak with the
              claimant was reasonable.

              The claimant denies refusing the director’s request to
              speak with her on August 16, 2013, and testified that the
              director told her she was discharged for interfering with
              the director’s job description. The Board does not find
              the claimant’s testimony to be credible. The claimant has
              failed to credibly establish good cause for refusing to
              speak to the director on August 16, 2013. . . .
Opinion at 2.


              Claimant contends that the Board’s findings of fact were unsupported
by substantial evidence and that the Board erred when it determined that she
engaged in willful misconduct.2


              Initially, Claimant contends that Finding of Fact No. 2 is unsupported
by substantial evidence.3 In Finding of Fact No. 2, the Board found that Elizabeth
Raiburn (Raiburn), director of professional services for Home Health Specialists,
Inc. (Employer), met with Claimant in April, 2013, and counseled her about her
“negativity in the workplace” in her annual performance review. Opinion, Finding

      2
               This Court’s review in an unemployment compensation case is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
essential findings of fact were not supported by substantial evidence. Lee Hospital v.
Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
        3
               Substantial evidence is such evidence that a reasonable mind might accept as
adequate to support a conclusion. Beverly Enterprises v. Unemployment Compensation Board
of Review, 702 A.2d 1148, 1150 n.1 (Pa. Cmwlth. 1997).



                                              3
of Fact No. 2 at 1. Claimant argues that the Board relied on impermissible and
irrelevant character evidence when it made this finding based on a letter from
Raiburn to the Unemployment Compensation authorities.                        Claimant’s counsel
objected on both of these grounds. The referee did not appear to sustain this
objection.4 The referee did sustain Claimant’s counsel’s objection when Raiburn

       4
               It is somewhat difficult to glean from the record the referee’s evidentiary rulings.
The referee clearly sustained objections to Exhibit 8, the August 14, 2013, counseling form, and
Exhibits 9-9a, the summary of an October 21, 2011, office meeting. At approximately the same
point in hearing, the referee did not precisely rule on the objections to Exhibits 7-7a, a letter from
Raiburn to the Unemployment Compensation authorities which referred to Claimant’s annual
performance evaluation and the August 14, 2013, counseling session:

               R (Referee): And 7 is a copy of a letter addressed To Whom It
               May Concern regarding the Claimant dated August 22nd, 2013.
               And it continues on to 7A authored by you, Ms. Raiburn. Is that
               correct?

               EW1 (Raiburn): Yes.
               ....
               CL (Claimant’s counsel): I have some objections.
               ....
               CL: First with the 7 to 7A – the letter. There’s [sic] references to
               an annual evaluation in April of 2013 and an August 4th [sic]
               counseling session.
               ....
               CL: I would object to any of that coming in on the grounds of both
               relevancy and improper character evidence.

               R: Okay.

              CL: I also would object to the counseling form, Exhibit 8. Once
              again, relevancy and improper character evidence. And the office
              meeting, 9 to 9A as it was written by Edward Raiburn who’s not
              here to testify today and the matter is hearsay.
              ....
              R: All right. I’ll sustain objections on the ground of hearsay.
Notes of Testimony, October 1, 2013, (N.T.) at 2-3; Reproduced Record (R.R.) at 61a-62a.



                                                  4
testified regarding the April 2013, performance evaluation on the basis that it was
not relevant.     However, the August 22, 2013, letter from Raiburn to the
Unemployment Compensation authorities remained part of the evidentiary record.
This document supports Finding of Fact No. 2.


              Claimant argues that the evidence should not have been admitted
pursuant to Pennsylvania Rule of Evidence 404 which provides, “evidence of a
person’s character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait.”


              First, this Court notes that it is well-established law that technical
rules of evidence do not apply in unemployment proceedings.                   Harkness v.
Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007). The
comment to Pa.R.E. 404(a)(1) provides, “[t]he rationale is that the relevance of
such evidence is usually outweighed by its tendency to create unfair prejudice,
particularly with a jury.” It appears that Pa.R.E. 404 is a technical rule of evidence
designed to protect parties in civil or criminal proceedings. Second, the reference
to the performance evaluation was likely not intended to demonstrate Claimant’s
character but to show that Employer disapproved of negativity in the workplace by
its employees and that Claimant was aware of Employer’s disapproval. This Court
does not agree that Finding of Fact No. 2 was unsupported by substantial
evidence.5


       5
               Assuming arguendo that Finding of Fact No. 2 was unsupported by substantial
evidence, this finding did not detract from the Board’s determination that Claimant committed
willful misconduct.



                                             5
             Claimant next asserts that Findings of Fact Nos. 4, 5, 7, and 10-11 are
unsupported by substantial evidence. In these findings, the Board found that 1)
Claimant refused to talk to Raiburn concerning her performance, 2) asked if she
was getting fired, and 3) Claimant was fired for insubordination on August 16,
2013, after she refused to discuss the situation with Raiburn. Claimant argues that
these findings are based on inadmissible hearsay testimony and not on substantial
evidence. Claimant asserts that these findings are only supported by the letter from
Raiburn to the Unemployment Compensation authorities. Claimant admits that the
letter was not objected to on the basis of hearsay.


             Hearsay is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing offered in evidence to prove the
truth of the matter asserted.” Pa.R.E. 801(c). A “statement” is defined in the
Pa.R.E. as “(1) an oral or written assertion or (2) nonverbal conduct of a person if
it is intended by the person as an assertion.” Pa.R.E. 801(a).


             An unobjected to hearsay statement will be given its probative effect
and may support a finding of fact if corroborated by any competent evidence in the
record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366
(Pa. Cmwlth. 1976).


             In the letter to the Unemployment Compensation authorities, Raiburn
stated:
             On August 16, 2013, I asked Emanuela Harting to come
             into my office. While I was speaking with her she
             interrupted me and said, ‘If this is another one of your
             counseling sessions I’m not sitting through it.’ I


                                          6
             informed her that her behavior had not changed and I
             needed to speak to her about it. She stood up and walked
             towards the door and stated ‘I don’t have to listen to
             you.’ I asked Emanuela Harting to please sit down. She
             again stated ‘I don’t have to listen to you, if you have a
             problem with it, fire me.’ Emanuela Harting then walked
             out of my office despite asking her to stay. I then called
             Elizabeth Salerno . . . down to my office to speak with
             her about the situation. While speaking with Elizabeth
             Salerno, Emanuela Harting walked into my office and
             with a smile and asked ‘So, are you firing me now?’
             With Elizabeth Salerno as a witness I again asked
             Emanuela Harting if she would allow me to counsel her.
             Emanuela Harting again stated ‘No, I am not listening to
             you. So, are you firing me.’ I asked Emanuela Harting
             to excuse Elizabeth Salerno and I [sic] as we discussed
             the matter.

             After discussing the matter with Elizabeth Salerno, I
             walked into Emanuela Harting’s office and again asked if
             she was willing to talk to me. Emanuela again stated
             ‘No, I don’t want to talk to you about anything.’ I then
             informed her that if she is not willing to talk to me I am
             left with no choice and will have to discharge her. She
             said ‘So, I’m fired right?’ I told her that I had no choice
             but to let her go. She smiled and said ‘Fine.’
Letter from Elizabeth Raiburn, August 22, 2013, at 1; R.R. at 26a.


             While the Board concedes that the document is hearsay, Raiburn
testified:
             I made several attempts to speak to the Claimant
             regarding her actions in the office and the disruption it
             was causing and she refused my counseling and told me
             she did not need to listen to me. She then made a scene
             in the office requesting I fire her and asking if she was
             fired at that time and then I had no other choice. . . .
             . . . On August 14th, I counseled her in my office due to
             her negative behavior that was disrupting the office. She,
             again, became very argumentative, would not sign the
             form. Elizabeth Salerno was also present on August 16 th


                                         7
             when she refused to be counseled and told me she was
             not going to listen to me and repeatedly asked am I fired
             now.
N.T. at 4; R.R. at 64a.


             Furthermore, Elizabeth Salerno, controller for Employer, testified that
she was present on August 16, 2013, when Claimant refused to sign the counseling
form, then left Raiburn’s office, shortly thereafter returned and asked, “am I fired
now. Am I fired now?” N.T. at 6; R.R. at 66a.


             The testimony of Raiburn and Salerno corroborates the letter and they
were both available for cross-examination. This Court determines that the Board’s
findings were supported by substantial evidence.


             Claimant next contends that the Board erred when it determined that
she committed willful misconduct.


             Whether a Claimant’s conduct rises to the level of willful misconduct
is a question of law subject to this Court’s review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991).              Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
an Employer’s interest, deliberate violation of rules, disregard of standards of
behavior which an Employer can rightfully expect from the employee, or
negligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard for the Employer’s interest or employee’s duties and
obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d
879 (Pa. Cmwlth. 1977).      The Employer bears the burden of proving that it

                                         8
discharged an employee for willful misconduct.                  City of Beaver Falls v.
Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth.
1982). The Employer bears the burden of proving the existence of the work rule
and its violation. Once the Employer establishes that, the burden then shifts to the
Claimant to prove that the violation was for good cause. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).6


               Claimant also argues that Employer failed to meet its burden to prove
that Claimant was insubordinate. This Court disagrees. Employer established that
Claimant received a written warning which she refused to sign. Subsequently,
Claimant refused to discuss the matter with Employer, a totally unacceptable
response to a reasonable request. Claimant challenged Raiburn’s authority when
she stated that she did not have to listen to her. Claimant further appeared to
attempt to goad Raiburn into terminating her.


               Claimant testified that she never yelled “are you firing me,” and that
Raiburn told her, “I need to let you go. You’ve been interfering in my job
description.” N.T. at 11-12; R.R. at 71a-72a. The Board specifically accepted
Employer’s testimony on this issue as credible and rejected Claimant’s
explanation.




       6
               Claimant argues that the record does not support a determination that Claimant
was insubordinate. Claimant again argues that the Board’s findings do not support that Claimant
was insubordinate and were based on impermissible hearsay and character evidence. This Court
already disposed of this argument.



                                              9
              In unemployment compensation proceedings, the Board is the
ultimate fact-finding body empowered to resolve conflicts in evidence, to
determine the credibility of witnesses, and to determine the weight to be accorded
evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d
328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided
that the record, taken as a whole, provides substantial evidence to support the
findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829
(Pa. 1977).


              Employer established that Claimant engaged in a disregard of the
standards of behavior which an employer may reasonably expect from an
employee. Claimant failed to provide good cause for her actions. The Board did
not err when it determined that Claimant committed willful misconduct.


              Accordingly, this Court affirms.


                                       ____________________________
                                       BERNARD L. McGINLEY, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Emanuela Harting,                   :
                    Petitioner      :
                                    :
             v.                     :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 101 C.D. 2014
                 Respondent         :

                                 ORDER

             AND NOW, this 12th day of August, 2014, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.




                                    ____________________________
                                    BERNARD L. McGINLEY, Judge
