          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lehigh Valley Hospital,                    :
                           Petitioner      :
                                           :
             v.                            :   No. 398 C.D. 2019
                                           :   Submitted: December 12, 2019
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: January 23, 2020

              Lehigh Valley Hospital (Employer) petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
granting Mandy Vaughan’s (Claimant) claim for benefits under the Unemployment
Compensation Law (Law).1 In doing so, the Board reversed the Referee’s decision
and made its own factual findings. On appeal, Employer argues that the Board’s
findings of fact are not supported by substantial evidence. For the reasons that
follow, we affirm.
             Claimant began working full-time for Employer as a pharmacist on
May 21, 2012, and her last day of work was September 13, 2018. Employer fired
Claimant on September 24, 2018, for the stated reason that she was insubordinate.
Claimant filed a claim for unemployment compensation benefits, which the Service


1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
919.10.
Center denied under Section 402(e) of the Law.2 Claimant appealed, and the Referee
held a hearing on November 30, 2018.
              Employer presented the testimony of Elie Jabbour, Director of Clinical
Pharmacy Services, who supervised Claimant. Jabbour explained that in August
2018, Claimant approached Jabbour with questions and concerns about her
performance evaluation. Jabbour told Claimant she should e-mail her questions to
him. He testified that after more than a month passed and he “didn’t hear anything
from [Claimant] regarding her questions, [he] felt that it was necessary to meet face-
to-face.” Notes of Testimony, 11/30/2018, at 8 (N.T.__); Reproduced Record at 43a
(R.R.__). On September 12, 2018, Jabbour sent Claimant an “e-mail calendar invite
via Outlook to meet on the next day.” Id. at 7; R.R. 42a. Claimant did not respond
to his e-mail.
              On September 13, 2018, at 2:15 p.m., Jabbour called Claimant about
his e-mail calendar invite. Claimant said she had not seen it. Jabbour asked
Claimant to come to his office to discuss her evaluation. Claimant responded that
she was uncomfortable meeting with him alone and requested to have a third party
present. Jabbour told Claimant he would try to reschedule the meeting. Jabbour
contacted Jeanne Hoover in Employer’s Human Resources Department regarding
Claimant’s request to have a third party at the meeting. Hoover advised Jabbour that
Claimant’s request was unacceptable and that Claimant was required to meet with
Jabbour because he is her direct supervisor.
              Jabbour relayed this information to Claimant and offered to reschedule
the meeting for September 14, 2018, with another manager present. Claimant again

2
  Section 402(e) of the Law states, in relevant part, that “[a]n employe shall be ineligible for
compensation for any week ... [i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work....” 43 P.S. §802(e).


                                               2
asked if a third party from outside of the department could attend the meeting.
Jabbour informed her that was not possible, and Claimant responded “okay.” Id. at
10; R.R. 45a.
             Jabbour testified that he “called Ms. Hoover again and explained the
situation, and decided to suspend [Claimant] for insubordination at that point.” Id.;
R.R. 45a. Jabbour then described his subsequent interaction with Claimant, when
he informed her she was suspended. He testified as follows:

             I walked over to the pharmacy, walked across the hall to the
             pharmacy, and I unlocked another manager’s office who wasn’t
             there at the time, and walked up to [Claimant] and I said
             [Claimant], I need to speak to you in the office for a moment, and
             she said I’m sorry, I’m not comfortable speaking with you, and I
             said well, I do need to speak with you. We can either speak out
             here in the pharmacy, or we can step into the office, and she, she
             declined to go into the office, and I told her she was suspended
             for insubordination, for refusing to meet, and I heard back [from
             Hoover], and she was [to leave] the pharmacy.

                                              ***
             [W]hen I advised her of her suspension, she got up and moved
             over to the office and wanted to discuss further, and asked why
             she’s being suspended, and I explained to her that she’s being
             suspended for insubordination for failure to meet. She said I’m
             not refusing to meet, I just want someone else present. I said
             well, that’s refusing to meet, but this is where we argue. You
             need to give me a badge. You need to go. She said you can’t
             just suspend me for, for no reason. I’m here to work. I want to
             finish my shift. I said I, I can, I am. You need to give me your
             badge. You need to leave, and then she asked to speak to
             someone from [Human Resources]. I said you can call them
             from your cell phone, not through the pharmacy. You are
             suspended. You need to give me your badge and you need to
             leave. She, she again asked why. I told her again, and I said
             [Claimant], at this point, you’re suspended. If you don’t leave, I
             am to call security. Either you leave or be terminated. She then

                                          3
            said why are [you] doing this? You can’t do this. I again
            explained it. I said we can talk this out in a separate meeting, but
            for right now, you’re suspended. I believe she asked me why we
            couldn’t run through the, the reasons again. The second time I
            said [Claimant], if you don’t leave, I have to call security and you
            will be terminated, and she said I’m not going unless I talk to
            someone from HR. So, rather than go through the scene of
            having security come in and kick her out, I decided okay, I’m
            just going to have her talk to HR. If she talks to them, they’ll
            confirm that she’s suspended, and kind of resolve the situation.
            So, I left the office and let her use the phone in the office. She
            was on the phone with HR for about 30 minutes or so, and only
            after the phone call got disconnected…she gave me her badge
            and left. That’s over an hour after she was suspended, and that’s
            the – it’s that increase in insubordination that factored into our
            decision to terminate, was not only insubordination for the
            meeting, but over an hour for not leaving the workplace when
            suspended.

Id. at 10-12; R.R. 45a-47a.
            The next day, September 14, 2018, Jabbour and two colleagues met
with Claimant and formally suspended her pending an investigation into her “pattern
of behavior.” Id. at 13; R.R. 48a. After Claimant returned to work on September
24, 2018, Jabbour and Hoover terminated Claimant’s employment for
insubordination.
            Jabbour testified that Claimant’s personnel file included other examples
of Claimant’s lack of cooperation, which factored into the decision to terminate her
employment. One such example was Claimant’s submission of her evaluation three
weeks after it was due. A second example concerned Claimant’s complaint about a
colleague. Jabbour requested a detailed account that he could forward to Human
Resources. Claimant asked Jabbour “not to have Jeanne Hoover discuss the event
with her.” Id. at 14; R.R. 49a. Jabbour informed Claimant that Hoover would do



                                         4
the investigation and asked if she wanted to proceed with the complaint. Claimant
did not respond, which Jabbour thought was inappropriate behavior.           A third
example concerned Jabbour’s request that employees use the employee badge reader
next to the pharmacy entrance to clock in and out. Contrary to Jabbour’s instruction,
Claimant used other badge readers on three occasions during a two-week pay period.
             On cross-examination, Jabbour conceded that the three above-
described incidents were not the bases for Claimant’s discharge, but they factored
into Employer’s decision. Jabbour explained that Employer’s progressive discipline
policy authorized immediate termination for insubordination.           Jabbour also
acknowledged that when he requested to meet with Claimant on September 13, 2018,
she stated: “I’m more than happy to meet with you and have no problem meeting
with you … I would like an unbiased third party there due to past interactions to
make sure the meeting is kind, polite, and respectful.” Id. at 30; R.R. 65a. Finally,
Jabbour conceded that it was not unreasonable for an employee to discuss a
suspension with Human Resources.
             Employer presented the testimony of Jeanne Hoover. Hoover testified
that on September 13, 2018, she told Jabbour that if Claimant refused to meet with
him it would be considered insubordination. In the second phone call, Hoover
advised Jabbour that if Claimant refused to meet with him, she should leave the
premises. Hoover testified that after Claimant refused to leave Employer’s premises
at Jabbour’s direction, Hoover and Claimant spoke on the phone for 45 minutes
regarding the reason for Claimant’s suspension. Claimant then left the premises.
Hoover testified that she later called Claimant at home because she “felt badly that
the phone – the conversation ended the way it did.” Id. at 41; R.R. 76a. The two
then spoke for another 20 minutes about the suspension.



                                         5
             Hoover acknowledged that Claimant had informed her that Claimant
believed Jabbour to be biased against her. Hoover also acknowledged that it was not
inappropriate for Claimant to request that another person from Human Resources
attend her performance evaluation meeting and to postpone the meeting until that
person could attend.
             Claimant testified on her own behalf. She stated that she did not refuse
to meet with Jabbour about her evaluation. She also denied refusing to leave on
September 13, 2018; she simply requested an explanation for her suspension.
Claimant testified that Jabbour did not inform her that her failure to leave
immediately would itself be considered insubordination.
             Claimant explained that she returned to Employer’s premises on
September 14, 2018, to meet with Jabbour and another department manager. She
believed this was the meeting to discuss her performance evaluation. She testified
that Jabbour had called her three times about the evaluation meeting, which she
considered harassment. Claimant stated that she wanted to comply with Jabbour’s
directive.
             Claimant testified that she did not violate any direct instructions from
Jabbour or Employer. She stated that she was trying to preserve her dignity.
Claimant explained that she had previously registered complaints about Jabbour with
Hoover. She explained that during one incident, “I asked [Jabbour] if he was calling
me stupid, and he said yes.” Id. at 56; R.R. 91a. However, Hoover “deflected and
dismissed” these complaints and told Claimant that it was just her perception. Id.;
R.R. 91a. It was for these reasons that Claimant felt uncomfortable meeting with
Jabbour and Hoover.




                                         6
             The Referee determined that Claimant was ineligible for benefits under
Section 402(e) of the Law, 43 P.S. §802(e). The Referee explained that when an
employee is discharged for failing to follow an employer’s directive, there must be
a determination of whether the directive is reasonable. The Referee found that it
was reasonable for Employer to direct Claimant to meet with her supervisor and
leave Employer’s premises upon her refusal to do so. The Referee discredited
Claimant’s testimony that she did not refuse to comply with a directive and found
that her conduct constituted insubordination.      The Referee further found that
Claimant failed to establish good cause for her insubordination. Finally, the Referee
found that, when considered together with the other incidents cited by Employer in
its decision to discharge Claimant, the two incidents on Claimant’s last day of
employment were “the last straw incidents” of insubordination. Referee Decision,
12/7/2018, at 3; R.R. 133a. Claimant appealed to the Board, arguing that the
Referee’s findings of fact were not supported by substantial evidence.
             The Board reversed the Referee’s decision. It acknowledged that it
typically gives greater weight to an employer’s testimony when it conflicts with a
claimant’s testimony. Nevertheless, it credited Claimant’s testimony “that she did
not refuse to meet with her supervisor about her performance evaluation, and
appeared for the scheduled September 14, 2018 meeting,” which she believed was
about her evaluation. Board Adjudication, 3/5/2019, at 4; R.R. 145a.
             The Board rejected Employer’s assertion that Claimant was fired for a
course of conduct, not just the two incidents of September 13, 2018. The Board
concluded that the incidents described by Jabbour did not constitute insubordination.
In fact, the Board stated that “[E]mployer’s case is weakened by its piling on of past
incidents to support its termination of [Claimant] for alleged insubordination.” Id.



                                          7
at 5; R.R. 146a. It stated that the “core” of Employer’s case was Claimant’s “alleged
refusal to meet with her supervisor to discuss her performance evaluation, and her
subsequent refusal to immediately leave the premises when informed she was
suspended.” Id.; R.R. 146a.
             The Board acknowledged that an employee’s refusal to meet with a
supervisor about a performance evaluation could constitute willful misconduct.
However, the Board found Jabbour’s description of his conversations with Claimant
to be unclear. Jabbour did not testify that Claimant expressly refused to meet with
him.    Rather, Jabbour’s testimony was “clothed in broad terms,” and he
acknowledged that Claimant said “okay” when he told her it was a mandatory
meeting. Id.; R.R. 146a. The Board found that Jabbour objected to Claimant’s
expressed desire for the attendance of a third party. Jabbour testified that Claimant
“said I’m not refusing to meet, I just want someone else present. I said well, that’s
refusing to meet, but this is where we argue.” Id.; R.R. 146a. The Board held that
Claimant’s “failure to abandon her concerns is not the equivalent of a refusal to
attend the meeting.” Id.; R.R. 146a.
             Next, the Board determined that Claimant’s questioning of her
suspension on September 13, 2018, and request to call Human Resources did not
demonstrate insubordination. Instead, the Board found Claimant’s behavior in this
regard to be reasonable. Even Jabbour agreed that Claimant’s request to talk to a
Human Resources representative was not unreasonable. The Board stated that this
incident was “portrayed more as an ad[d]-on to the alleged refusal to meet about the
performance evaluation.” Id. at 6; R.R. 147a. The Board concluded that Claimant’s
conduct did not show insubordination. Further concluding that Employer did not




                                         8
prove willful misconduct, the Board awarded benefits to Claimant. Employer now
petitions for this Court’s review.
               On appeal,3 Employer contends that the Board’s factual findings are
contrary to the record and its legal conclusions are erroneous. Employer argues that
it properly suspended and terminated Claimant’s employment because she violated
its policy. It argues that the Referee correctly concluded that Claimant’s refusal to
meet with her supervisor and refusal to leave the premises constituted willful
misconduct.4
               The crux of Employer’s argument is that the evidence of record
supports the Referee’s determination that Claimant committed willful misconduct,
and the Board erred in holding otherwise. As noted, our scope of review requires us
to determine whether the Board’s decision is supported by substantial evidence,
which is such relevant evidence that a reasonable mind might consider adequate to
support a conclusion. Peak v. Unemployment Compensation Board of Review, 501
A.2d 1383, 1387 (Pa. 1985). This Court may not invade the fact-finding province
of the Board. Id. at 1388. “The fact that [the e]mployer may have produced
witnesses who gave a different version of the events, or that [the e]mployer 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

3
  Our review determines “whether constitutional rights were violated, [whether] an error of law
was committed or whether necessary findings of fact are supported by substantial competent
evidence.” Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298
n.2 (Pa. Cmwlth. 1995).
4
  The Board notified this Court that it would not be filing a brief in this matter because Claimant’s
brief adequately addresses the issues. As intervenor in this matter, Claimant asserts that the Board
did not err in holding that she did not commit willful misconduct. She states that the Board is the
ultimate fact-finder and its findings are supported by substantial evidence. Because it has
exclusive authority to resolve conflicts in testimony, this Court must uphold its findings of fact,
which are consistent with its conclusions of law.


                                                 9
Compensation Board 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 Compensation Board of Review,
504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             Employer first focuses on Claimant’s request for the presence of a third
party at the performance evaluation meeting. Employer argues that “Claimant’s
actions in refusing to meet with [Jabbour] unless her demand to have another
individual of her choosing present during the meeting demonstrated a ‘disregard of
the standards of behavior that an employer can rightfully expect from an employee.’”
Employer Brief at 17. The Board agreed that an employee’s refusal to meet with a
supervisor may constitute willful misconduct. However, the Board found the
evidence did not show that Claimant refused to meet with Jabbour. Further, the
Board set forth its reasons for reversing the Referee’s factual findings. The Board
credited Claimant’s testimony that she did not refuse to meet with Jabbour about her
performance evaluation and appeared for the scheduled September 14, 2018,
meeting prepared to discuss the evaluation. The Board noted that Jabbour never
testified that Claimant affirmatively said she would not meet with him. Further, he
testified that Claimant responded “okay” when he advised her that she could not
have a third party present at the meeting.
             Employer also argues that the Board erred in determining that
Claimant’s “actions in initially questioning her supervisor’s attempt to suspend her
and asking to call [Human Resources]” did not rise to the level of misconduct.
Employer Brief at 23. Employer contends that Claimant’s refusal to immediately




                                         10
leave the hospital, after being informed of her suspension, constituted
insubordination.
             The Board’s findings about Claimant’s questioning of her suspension
are supported by substantial evidence. The Board held that it was reasonable for
Claimant to question her supervisor about her suspension. Claimant’s conversation
with Hoover lasted 45 minutes, which accounted for most of the hour that Jabbour
said it took Claimant to leave the premises. The Board found that Employer’s
complaint about Claimant’s refusal to leave the premises was “an ad[d]-on to the
alleged refusal to meet about the performance evaluation.” Board Adjudication,
3/5/2019, at 6; R.R. 147a. Jabbour acknowledged as much when he testified that
Claimant’s delay in leaving was an “increase in insubordination” that factored into
Employer’s decision to discharge her. N.T. 12; R.R. 47a. The Board concluded that
Claimant’s request to speak to Human Resources, upon being informed of a
suspension, did not constitute insubordination or willful misconduct.
             In short, Employer requests this Court to accept Employer’s narrative,
reject Claimant’s credited testimony and, upon these findings, reverse the Board.
This Court is not permitted to do so. The Board’s factual findings and credibility
determinations are supported by substantial evidence. Accordingly, we affirm the
Board’s order.

                                    MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lehigh Valley Hospital,                   :
                          Petitioner      :
                                          :
            v.                            :   No. 398 C.D. 2019
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :

                                       ORDER

            AND NOW, this 23rd day of January, 2020, the order of the
Unemployment Compensation Board of Review dated March 5, 2019, in the above-
captioned matter is AFFIRMED.



                                       MARY HANNAH LEAVITT, President Judge
