           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frances Freeman,                              :
                            Petitioner        :
                                              :
                     v.                       :    No. 669 C.D. 2015
                                              :    SUBMITTED: November 13, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: January 8, 2016


              Petitioner, Frances Freeman, petitions for review from the decision of
the Unemployment Compensation Board of Review determining that she was
ineligible for benefits under Section 402(e) of the Unemployment Compensation
Law (Law), 43 P.S. § 802(e).1 We affirm.
              Petitioner was last employed as a full-time dietetic assistant by
Temple University Hospital (Employer) at a final rate of $19.01 per hour.

    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). This section states, in relevant part, that a claimant is ineligible for unemployment
benefits when her “unemployment is due to [her] discharge or temporary suspension from work
for willful misconduct connected with [her] work, irrespective of whether or not such work is
‘employment’ as defined in this act[.]”
Petitioner was employed by Employer from September 8, 1988 through November
7, 2014. Temple had a written policy regarding diet adjustments. The policy
provided that “[h]ostess will adjust trays on the floor as long as the requested item
is within the current diet order.” Certified Record (C.R.), Item 13; Employer’s
Exhibit No. 1. The personalized menu selection policy states that “the dietitian,
patient services supervisor or clinical nutrition manager shall approved (sic) menu
items for patients on special diets.” Id. Item 13; Employer’s Exhibit No. 2. The
trayline operation policy states that a supervisor must approve substitutions made
on the trayline. Id., Item 13; Employer’s Exhibit No. 3. Employer also had a
progressive discipline policy. Id., Item 4.
             On October 24, 2014, a patient asked Petitioner to make him a
seafood salad on a pita. Petitioner went to the catering area and began to assemble
the requested item. The executive chef saw Petitioner making the seafood salad
and questioned her regarding whether she had checked the patient’s diet order.
When Petitioner admitted that she had not done so, the executive chef stopped her
from making the seafood salad. Petitioner’s supervisor interviewed her about the
incident. Petitioner admitted that she did not check the patient’s diet order and did
not confer with the chef or a supervisor before making the seafood salad. The
patient’s diet order contained several restrictions, including not eating shellfish.
Employer terminated Petitioner’s employment for failing to check the patient’s diet
order and for failing to receive permission to use cafeteria items.
             Petitioner applied for unemployment compensation benefits, which
the UC Service Center denied on the basis that her behavior constituted willful
misconduct. Petitioner appealed the notice of determination and the referee held a
hearing at which Petitioner’s supervisor, Meghan Parncutt, and Petitioner testified.



                                          2
Parncutt testified regarding Employer’s diet adjustment policy and other food
service policies. December 16, 2014, Hearing Notes of Testimony at 8-12. She
stated that Petitioner should have checked with a supervisor before making an off-
menu item for the patient. Id. at 10. She testified that upon questioning, Petitioner
stated that she did not talk to a supervisor because she wasn’t thinking. Id. at 11.
She stated that the purpose of the diet adjustment policy was to ensure that patients
did not receive food that could “go against their condition” and any medication the
patient may or may not be taking. Id. at 12. She also testified that Petitioner had
been disciplined previously including an initial discussion, a written warning, a
final written warning and a one-day suspension. Id. at 8-9. Petitioner testified that
checking the patient’s diet order “slipped her mind” and she admitted that she
should have done so. Id. at 14-15. Further, she stated that she assumed the patient
was telling her the truth when he said he could eat seafood salad, she did not check
with a supervisor because she thought it was all right and she used imitation crab
meat. Id. She also testified that she thought that Employer’s motto was patients
come first and that she should accommodate the patient. Id. at 12.
             The referee denied the appeal concluding that she had engaged in
willful misconduct because she knowingly violated Employer’s policies.           The
referee determined that Petitioner’s failure to think about checking the diet order
did not constitute just cause and, therefore, she was ineligible for benefits under
Section 402(e).
             Petitioner appealed to the Board, which found that despite being
aware of Employer’s policies and knowing that her job was in danger, Petitioner
prepared the seafood salad without checking the patient’s diet order and without
obtaining permission. The Board acknowledged Petitioner’s testimony that she



                                         3
thought that the patient could have the seafood salad because he requested it, but
the Board stated that the purpose of Employer’s policies was to ensure that patients
received food compliant with their diet, condition and medication and, therefore
just because a patient requested a food item did not mean that the patient was
allowed to have the item. The Board did not find credible Petitioner’s testimony
that checking the diet order slipped her mind. The Board concluded that Petitioner
had failed to establish good cause for her behavior and was ineligible to receive
benefits under Section 402(e) of the Law. This appeal followed.
             Petitioner concedes that she violated Employer’s policy, but asserts
that her actions do not constitute willful misconduct because her behavior was
negligent rather than intentional or deliberate. She argues that inadvertent rule
violation or poor judgement is not willful misconduct and that the Board did not
find that her behavior was intentional or deliberate.
             Willful misconduct is 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 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 of the employee’s duties and obligations to the employer.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). If a
claimant is discharged for violating a work rule, the employer bears the initial
burden of showing “the existence of a work rule and that the claimant violated the
rule.” ATM Corp. of Am. v. Unemployment Comp. Bd. of Review, 892 A.2d 859,
865 (Pa. Cmwlth. 2006). “Once the employer establishes those elements, the
burden then shifts to the claimant to show that she had good cause to violate the
rule.” Id. Good cause exists “where the action of the employee is justified or



                                          4
reasonable under the circumstances.” Frumento v. Unemployment Comp. Bd. of
Review, 351 A.2d 631, 634 (Pa. 1976).
              Employer demonstrated that it had a policy requiring Petitioner to
check a patient’s diet order and prohibiting the adjustment of a patient’s diet
without prior approval. Accordingly, Employer met its burden. It was Petitioner’s
burden to demonstrate that, in disregarding Employer’s policies, she acted with
good cause, i.e., her behavior was reasonable under the circumstances. The Board
did not credit Petitioner’s testimony that checking the patient’s diet order and
obtaining permission simply slipped her mind. The Board noted that Employer’s
policies are in place to ensure a patient’s compliance with diet, condition and
medication.    While Petitioner’s actions were not malicious, she deliberately
violated the work rule without reasonable cause. Further, her behavior could have
endangered the patient’s health and was in disregard of Employer’s interests and of
her duties and obligations to Employer.
              Accordingly, we affirm.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge




                                          5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frances Freeman,                        :
                        Petitioner      :
                                        :
                   v.                   :     No. 669 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


           AND NOW, this 8th day of January, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
