           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexia Azogu,                  :
                               :
                    Petitioner :
                               :
                 v.            : No. 192 C.D. 2018
                               : Submitted: October 19, 2018
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: April 24, 2019


              Alexia Azogu (Claimant) petitions for review of the December 8,
2017 order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s determination and held that Claimant was ineligible for
benefits under Section 402(e) of the Unemployment Compensation Law (Law).1
We affirm.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is based on her discharge from work because of willful
misconduct connected to her work.

(Footnote continued on next page…)
               Claimant worked full-time as a customer experience manager at
Amerihealth (Employer) from November 4, 2013, until March 20, 2017. Finding
of Fact (F.F.) No. 1. Employer’s code of conduct requires employees to be honest
and ethical and prohibits the unauthorized disclosure of confidential or proprietary
information, which may include personnel data. F.F. No. 2. Claimant was aware
of Employer’s code of conduct. F.F. No. 3.
               On or about December 12, 2016, Claimant attended a management
meeting to discuss the performance evaluations of employees. F.F. No. 4. At this
meeting, Claimant became aware that an employee (TB), was given a “needs
improvement” performance rating. Id. TB was not one of the employees that
Claimant supervised, but TB and Claimant were friends. F.F. No. 5.
               The day after the meeting, Claimant met with Employer’s senior
human resources business partner, Susan Balle, to express her disagreement with
TB’s performance rating. F.F. No. 6. Ms. Balle directed Claimant to bring her
concerns to TB’s manager, Suzanne Ferry, and also warned Claimant that she was
not permitted to share any confidential information with TB. F.F. Nos. 6-7.

(continued…)

        While the Law does not define the term willful misconduct, our courts have defined it as:
an act of wanton or willful disregard for the employer’s interests; a deliberate violation of the
employer’s rules; disregard for standards of behavior which the employer can rightfully expect
of an employee; or negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 (Pa. Cmwlth. 2014). Where the allegation of willful misconduct is based on a
violation of the employer’s work rule, the employer must show the existence of a reasonable
work rule and the claimant’s violation of the rule. Williams v. Unemployment Compensation
Board of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007). Once the employer meets its burden,
the burden shifts to the claimant to establish good cause for her conduct. Metropolitan Edison
Company v. Unemployment Compensation Board of Review, 606 A.2d 955, 957 (Pa. Cmwlth.
1992).


                                                2
            In March 2017, TB, who was on medical leave from work at the time,
contacted Employer’s senior employee relations partner, Ronald Deabreu. F.F.
No. 8.   TB was in the process of filing a complaint against Ms. Ferry for
discrimination. F.F. No. 8. During their conversation, TB told Mr. Deabreu that
Claimant informed her that Ms. Ferry had inquired about the nature of her medical
leave from work. F.F. No. 9.
            During Employer’s investigation of TB’s complaint, Claimant
admitted that she gave TB a “heads up” that Ms. Ferry had questioned her about
TB’s medical leave, but she denied having any knowledge of TB’s performance
rating. F.F. Nos. 10-11. On March 19, 2017, Claimant was again questioned and
reiterated that she was unaware of TB’s performance rating. F.F. No. 12. On
March 20, 2017, Employer discharged Claimant for violating its code of conduct
by sharing confidential information with TB and being untruthful during
Employer’s investigation. F.F. No. 13.
            The local service center denied Claimant’s application for
unemployment benefits, concluding that Claimant’s actions demonstrated a
disregard of standards of behavior that Employer had the right to expect from its
employees. Claimant appealed, arguing that her actions did not deviate from
Employer’s expected standard of conduct because Employer encouraged
communication between management and employees.
            A referee held a hearing on June 8, 2017. Mr. Deabreu testified that
Claimant was discharged for misconduct, unacceptable behavior, and violating
Employer’s code of conduct. Notes of Testimony (N.T.), June 8, 2017, at 4. He
added that disclosing confidential information and lying during an Employer
investigation each constituted violations of Employer’s code of conduct warranting


                                         3
termination. N.T. at 8. Mr. Deabreu explained that Claimant’s discussion with
Ms. Ferry was deemed confidential because the nature of medical leave is
personal, relevant only to an employee and the employee’s doctor, and should not
be discussed by others at a place of employment. N.T. at 5-6. Mr. Deabreu said
that in the course of his investigation of TB’s discrimination complaint, Ms. Balle
informed him that Claimant was aware of TB’s performance rating. N.T. at 7. Mr.
Deabreu stated that he and Ms. Balle afforded Claimant an opportunity to rectify
her false statement on March 19, 2017; however, Claimant again denied having
knowledge of TB’s performance rating. N.T. at 8.
            Ms. Balle corroborated Mr. Deabreu’s statements that Claimant was
undoubtedly aware of TB’s performance rating. N.T. at 12. She explained that
during the annual management sessions, each manager establishes why a
supervisor is given a particular rating and the other managers are invited to share
their input. N.T. at 11. According to Ms. Balle, Claimant said nothing about TB’s
performance rating but asked to meet with Ms. Balle the next day. N.T. at 11-12.
Ms. Balle stated that during their meeting, Claimant expressed disagreement with
TB’s performance rating and Ms. Balle advised her to speak with TB’s manager.
N.T. at 12-13. Ms. Balle testified that she also reminded Claimant not to discuss
the matter with TB, and Claimant assured Ms. Balle that she would never reveal
confidential information. N.T. at 13.
            Claimant denied having met with Ms. Balle to discuss TB’s
performance rating. N.T. at 16. Claimant acknowledged that she told TB that Ms.
Ferry had asked about TB’s medical leave; however, she denied phoning TB at
home to provide her with this information. N.T. at 14, 16. Instead, Claimant
testified that the conversations in question actually occurred in August 2016, eight


                                         4
or nine months prior to her discharge. N.T. at 14, 15. Claimant said that in August
2016, Ms. Ferry asked Claimant why TB was taking medical leave, to which
Claimant responded that she was unsure. N.T. at 14. Claimant stated that the next
day, TB was in her office discussing an unrelated issue, when Claimant suggested
that TB talk with Ms. Ferry because Ms. Ferry had been inquiring about the reason
for TB’s medical leave.2 N.T. at 14-15.
              Claimant testified that in March 2017, Mr. Deabreu told her that TB
was filing a discrimination complaint against Ms. Ferry, partially based on
information Claimant had shared with TB. N.T. at 14. Claimant stated that when
she was subsequently terminated, she was told it was because she had referred TB
to Ms. Ferry, based on her confidential discussion with Ms. Ferry. N.T. at 15.
Claimant testified that she did not believe that advising TB to meet with her
supervisor involved sharing any confidential or privileged information.3                    Id.


       2
         Claimant testified that she said, “Hey, not sure if you had already spoken with your
manager about it, but you may want to give her a heads-up. She’s not sure about why you’re
going out on leave[,]” but otherwise ended the conversation on this issue. N.T. at 14-15.

       3
          Claimant acknowledged that Employer’s code of conduct prohibited sharing
confidential information with a supervisor, but she testified that Employer’s written policy did
not address conversations pertaining to an employee’s medical leave. N.T. at 15, 16. The policy
provides examples of confidential and proprietary information. It states:

              Examples of confidential and proprietary information may include:
              personnel data, member data, provider data, corporate policies and
              procedures, intellectual property such as trademarks, copyrights,
              and patents (including inventions), financial information, strategic
              plans and/or marketing strategies, vendor information, customer
              information, or other internal communications which may be
              considered part of an internal business decision.

Employer’s Exhibit ES-1 at 23.


                                               5
Claimant believed that she was discharged in retaliation for providing TB with
information that TB used to file her discrimination complaint. Id.
            In a June 13, 2017 decision, the referee determined that by revealing
confidential information to an employee who was on medical leave, Claimant
disregarded a standard of behavior that Employer had a right to expect from its
employees. The referee concluded that Claimant’s conduct rose to the level of
willful misconduct under Section 402(e) of the Law because as a manager,
Claimant should have been aware that she was privy to certain privileged
information that could not be shared with other employees. The referee affirmed
the local service center’s decision to deny Claimant unemployment compensation
benefits. Claimant appealed to the Board, arguing that the referee’s findings were
supported only by testimony from Employer’s witnesses, which contained
inaccuracies and omissions.
            In its December 8, 2017 decision, the Board found that Claimant
shared a confidential management conversation with TB and was untruthful about
her knowledge of TB’s performance rating and that each of these actions
constituted violations of Employer’s code of conduct. The Board did not find
Claimant’s testimony credible, particularly concerning Claimant’s statements that
her relevant conversations with Ms. Ferry and TB occurred eight or nine months
before March 2017, in August 2016.           The Board also rejected Claimant’s
testimony that she never met with Ms. Balle about TB’s performance rating. The
Board affirmed the referee’s determination that Claimant failed to establish good
cause for violating Employer’s policies and held that Claimant was ineligible for
benefits under Section 402(e) of the Law.




                                         6
              On appeal to this Court,4 Claimant does not dispute the
reasonableness of Employer’s policies, but she maintains that her conduct did not
violate them. First, Claimant asserts that she did not disclose any confidential
information to TB. Claimant maintains that she only shared Ms. Ferry’s inquiry
about TB’s medical leave and did not reveal any information concerning the nature
of TB’s medical leave.
              The Board noted Mr. Deabreu’s testimony that “the nature of TB’s
leave was personal information that was relevant only to TB and her medical
practitioner. It was inappropriate for any individual . . . to be discussing the nature
of TB’s medical leave.” Board June 13, 2017 Opinion at 3. However, the Board
made no findings, and there is no evidence, that Claimant discussed the reason for
TB’s medical leave with either TB or Ms. Ferry. To the extent that the Board’s
decision was based on a discussion of the nature of TB’s leave, it is not supported
by the record.


       4
          Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law and whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. §704; Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843-
44 (Pa. Cmwlth. 1987). In unemployment compensation cases, the Board, as factfinder, is
empowered to determine the credibility of witnesses and resolve conflicts in evidence. Curran v.
Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The
Board’s findings are binding and conclusive on appeal if the record, when examined as a whole,
is supported by substantial evidence. Halloran v. Unemployment Compensation Board of
Review, 188 A.3d 592, 597 (Pa. Cmwlth. 2018). “Substantial evidence is such relevant evidence
as a reasonable mind would accept as adequate to support a conclusion.” Guthrie v.
Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). We
view the record in the light most favorable to the party prevailing before the Board and afford
that party the benefit of all reasonable inferences that can be drawn from the evidence to
determine if substantial evidence exists. Big Mountain Imaging v. Unemployment Compensation
Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).


                                               7
             Claimant’s second argument is that she was not untruthful when she
denied knowledge of TB’s performance evaluation. Citing the high volume of
employee evaluations she received at the December 12, 2016 meeting, Claimant
maintains that she was not dishonest during Employer’s investigation, but had
merely forgotten her knowledge of TB’s performance rating when asked.
However, the Board did not credit Claimant’s testimony, a credibility
determination this Court is bound by on appeal. Duquesne Light Company v.
Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa.
Cmwlth. 1994) (holding that “[w]here there is a conflict in testimony, credibility
determinations and the resolution of evidentiary conflicts are within the [Board]’s
discretion and are not subject to reevaluation on judicial review”).
             Claimant’s statements that she was not aware of TB’s performance
evaluation violated Employer’s policy, which expressly requires employees to be
honest and ethical.    Employer’s Exhibit ES-1 at 4.         Additionally, we have
previously held that an employee’s dishonesty can constitute a disregard of the
standards of behavior that an employer can rightfully expect from its employees.
See, e.g., Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169,
1173 (Pa. Cmwlth. 2007).
             Finally, Claimant alleges that she was discharged in retaliation
because TB relied on information Claimant provided to support her complaint of
discrimination against Ms. Ferry. Because the Board’s finding that Claimant was
discharged for being untruthful during an investigation is supported by substantial
evidence and Claimant failed to prove good cause for violating Employer’s policy,




                                          8
the Board properly concluded that Claimant is ineligible for unemployment
compensation benefits under Section 402(e) of the Law.5,6
              Accordingly, we affirm.




                                           MICHAEL H. WOJCIK, Judge




       5
        A claimant who is discharged for multiple reasons is disqualified from receiving
unemployment compensation benefits if even one of those reasons amounts to willful
misconduct. Glenn, 928 A.2d at 1172.

       6
          Claimant also suggests in her brief that the reasons given for her termination were a
pretext for racial bias. However, Claimant has waived this argument by raising it for the first
time on appeal. Pa. R.A.P. 1551(a).


                                              9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexia Azogu,                  :
                               :
                    Petitioner :
                               :
                 v.            : No. 192 C.D. 2018
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


                              ORDER


           AND NOW, this 24th day of April, 2019, the order of the
Unemployment Compensation Board of Review, dated December 8, 2017, is
AFFIRMED.




                                __________________________________
                                MICHAEL H. WOJCIK, Judge
