           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arcenia L. Easley,              :
               Petitioner       :
                                :
      v.                        : No. 1225 C.D. 2018
                                : SUBMITTED: April 18, 2019
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                   FILED: July 26, 2019

       Arcenia Easley (Claimant) petitions this Court for review of a July 9, 2018
order of the Unemployment Compensation (UC) Board of Review (Board) which
affirmed the decision of a referee finding her ineligible for UC benefits under Section
402(e) of the UC Law (Law)1 (relating to willful misconduct). Claimant argues on
appeal that she did not intentionally violate company policy and therefore did not
commit willful misconduct. Claimant further argues she is entitled to a remand
hearing because the record from the referee’s hearing is incomplete. After review,
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) of the Law provides that an employee is ineligible for UC benefits for any
week “[i]n which [her] employment is due to [her] discharge . . . from work for willful misconduct
connected with [her] work.”
                                    Background
      Claimant worked as a caregiver with Community Living and Support Services
(Employer) from January 30, 2014 through January 31, 2018. Certified Record
(C.R.), Item No. 2, Internet Initial Claims; Notes of Testimony (N.T.), 5/11/18, at 5.
Claimant’s work responsibilities, as set forth in her job description, include taking
Employer’s clients to “appropriate medical, vocation and miscellaneous
appointments when necessary.” N.T., 5/11/18, Ex. No. 2. Claimant signed a copy
of her job description on January 30, 2014. Id. Employer has a “Staff Expectations”
policy which provides in relevant part that employees are not to engage in negative
conversations regarding other staff in front of Employer’s clients. Id., Ex. No. 1.
This document was also signed by Claimant on January 30, 2014. Employer’s
employee handbook separately provides that violence is not tolerated in the
workplace.    C.R., Item No. 3, Employer Separation Information.             Threats,
threatening conduct, or any other physical or verbal acts of aggression will not be
permitted. Id. Employees determined to have violated this policy will be terminated.
Id. Insubordination by staff is likewise grounds for immediate termination. Id.
Insubordination includes a refusal to carry out a reasonable work request or
instruction of a supervisor. Id. Claimant signed an acknowledgment of her receipt
of the Employee Handbook on February 11, 2014. Id.
      On January 31, 2018, Claimant was terminated from her position for using
profanity, refusing to carry out a reasonable work request from her supervisor, and
physically threatening her supervisor. C.R., Item No. 3. Claimant filed for UC
benefits March 27, 2018. C.R., Item No. 2. Claimant acknowledged she was
discharged from employment due to a disagreement with her supervisor. Id. During
an April 9, 2018 oral interview with Alice Wallace, a representative of the UC



                                          2
Service Center (Service Center), Claimant asserted she was asked by Beth Dotson,
her supervisor, to take a client to a medical appointment. C.R., Item No. 4, Record
of Oral Interview. Claimant stated that it was not in her job description to take clients
to medical appointments. Id. Claimant admitted she refused to take the client to the
appointment because she was not feeling well and “it wasn’t [her] job.” Id. Claimant
denied using profanity or threatening her supervisor. Id. In the four years Claimant
worked for Employer, she had never taken a client to a medical appointment. Id.
      The Service Center issued its determination on April 13, 2018, finding that
Claimant was discharged for using profanity, refusing reasonable requests of her
employer, and threatening violence in the workplace. C.R., Item No. 5, Notice of
Determination.    Claimant’s actions showed a willful disregard of Employer’s
interests. As such, Claimant committed willful misconduct and was ineligible for
UC benefits under Section 402(e) of the Law. Claimant appealed this determination.
      A hearing before the Referee was held on May 11, 2018. The hearing notice
mailed to Claimant indicated the hearing would take place at the Pittsburgh Referee
Office located in Pittsburgh, Pennsylvania. C.R., Item No. 8. Claimant did not
appear at the hearing. The Referee noted for the record that the hearing notice was
mailed to Claimant at her last known address, which was the same address Claimant
provided on her appeal petition. N.T., 5/11/18, at 2. The hearing notice was not
returned as undeliverable by the postal authorities and no continuance request had
been received. Id. The hearing commenced in Claimant’s absence. Employer
presented the testimony of Ms. Dotson, Employer’s Residential Homes Manager and
Claimant’s immediate supervisor.
      Ms. Dotson testified that during Claimant’s shift on January 31, 2018,
Claimant was directed to take a client to a medical appointment. N.T., 5/11/18, at



                                           3
7. Claimant indicated she was not feeling well and taking clients to medical
appointments was not one of her job duties. Id. Ms. Dotson traveled to the home in
which Claimant provided care to check on her welfare. Id. Claimant asserted she
was still feeling ill. Id. Ms. Dotson reiterated the need for Claimant to take the client
to his medical appointment. Id. Claimant responded that it was “not her fucking
job” to take clients to appointments and Ms. Dotson “needed to do [her] fucking job”
and take the client to the appointment. Id. at 8. Ms. Dotson told Claimant she would
stop by later and see if she was feeling better. Id.
      Claimant was still unwell when Ms. Dotson returned. Id. Ms. Dotson told
Claimant that if she was too ill to work, she should go home. Id. Claimant asked if
she could just stay and work at her own pace. Id. Ms. Dotson reiterated that if
Claimant was too ill to work, she should go home. Id. Claimant left the room,
cursing. Id. At that point, Ms. Dotson instructed Claimant to leave, as Employer’s
clients could hear what she was saying.         Id. While gathering her belongings,
Claimant continued to swear, stating “this is fucking ridiculous,” and argued no one
else in the house did any work. Id. The daughter of another staff member was also
present at the time and could hear Claimant. Id. Ms. Dotson testified that Claimant
called her a troll, and stated that Ms. Dotson got “on her nerves,” and Claimant
“should punch her in the fucking face.” Id. Subsequently, Claimant was terminated
from her employment on the basis of insubordination and making threats of violence
against a co-worker. Id. at 6.
      The Referee issued his decision on May 17, 2018. The Referee found that
Claimant’s job duties included taking clients to appropriate medical appointments.
C.R., Item No. 10, Referee’s Decision, Finding of Fact (F.F.) No. 2. Employer had
a workplace policy that prohibited employees from making threatening remarks and



                                           4
provided for the immediate termination of an employee who refused to carry out a
reasonable work request or instruction of a supervisor. F.F. Nos. 3-4. On January
31, 2018, Claimant was asked to take a client to a medical appointment but she
refused, stating she did not feel well and it was not her job. F.F. Nos. 5-6. When
Ms. Dotson checked on Claimant, Claimant reasserted it was not her “fucking job”
to take clients to medical appointments and Ms. Dotson needed to “do [her] fucking
job.” F.F. Nos. 8-9. Claimant called Ms. Dotson a troll and told a co-worker2 “I
should punch her in the fucking face.” F.F. No. 13. Employer subsequently
terminated Claimant for insubordination and making threats of violence against a
co-worker. F.F. No. 14.
       The Referee noted that Claimant failed to show for the hearing despite having
been duly notified of its date, time, and location. Referee Decision at 2. The Referee
found credible Ms. Dotson’s testimony that Claimant refused a clear and specific
directive and used offensive and threatening language to and about her supervisor.
Id. at 3. Ms. Dotson’s request that Claimant take a client to a medical appointment
was not unreasonable. Id. Therefore, Claimant’s actions demonstrated a willful
disregard of Employer’s interests rising to the level of willful misconduct. Id. The
Referee affirmed the determination of the Service Center that Claimant was
ineligible for benefits pursuant to Section 402(e) of the Law. Id.
       Claimant appealed to the Board. She asserted that she went to the wrong
location, believing the hearing was scheduled to take place in McKeesport,
Pennsylvania. C.R., Item No. 11. By the time she realized her error, it was too late.
Id. Claimant requested another hearing so she could provide testimony about what
occurred the day she was terminated. Id. The Board denied Claimant’s request for

       2
        Presumably, this is a reference to the daughter of a staff member who was present during
Claimant’s diatribe. N.T., 5/11/18, at 8.


                                               5
a remand hearing on the basis she was responsible for arriving at the correct hearing
location. C.R., Item No. 13. The Board adopted the Referee’s findings of fact and
conclusions of law and affirmed his decision. Id. This appeal followed.
                                               Issues
       On appeal,3 Claimant argues the Board erred when it denied her request for a
remand hearing and affirmed the Referee’s decision finding her ineligible for UC
benefits.
                                            Discussion
       First, we address Claimant’s argument that her request for a remand should
be granted as she was unrepresented by counsel at the time of the original hearing.4
Claimant asserts her mistake in traveling to the incorrect hearing location was
reasonable as she had participated in prior UC hearings in McKeesport. As only
Employer presented testimony at the May 11, 2018 hearing, Claimant asserts that a
remand was required to create an accurate record.
       The Board noted that Claimant did not deny receiving the hearing notice
which directed her to appear for a hearing in Pittsburgh, Pennsylvania. As such, her
failure to appear was based on her own negligence.
       We agree with the Board. A party’s own negligence is not sufficient good
cause for failing to appear at a referee’s hearing. Eat’N Park Hosp. Grp., Inc. v.
Unemployment Comp. Bd. of Review, 970 A.2d 492, 494 (Pa. Cmwlth. 2008). The
hearing notice received by Claimant clearly indicated the hearing was to take place
in Pittsburgh, Pennsylvania. Claimant’s failure to carefully read the hearing notice

       3
        Our review is limited to determining whether the necessary findings of fact are supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).

       4
           Claimant is represented by counsel for this appeal.


                                                  6
was the cause of her absence at the May 11, 2018 hearing. As Claimant failed to
appear at the hearing through her own negligence, we cannot conclude the Board
erred in denying her request for a remand hearing.
      Next, we address whether the Board erred in determining that Claimant
committed willful misconduct. Claimant argues her conduct was not intentional and
deliberate, and thus it cannot be said that she committed willful misconduct.
Claimant maintains she did not believe her job description included taking
Employer’s clients to medical appointments as she had never performed that
function in the four years she worked for Employer.
      The Board dismissed Claimant’s assertion that she did not realize her job
duties included taking clients to medical appointments. Claimant’s job description,
signed by Claimant when she first began working for Employer, expressly states that
she may be required to take clients to medical appointments when necessary. As
such, Ms. Dotson’s request was reasonable and Claimant’s refusal to cooperate with
that request constituted willful misconduct.      Furthermore, Claimant’s abusive
language directed at Ms. Dotson evidenced a disregard of the standards of behavior
an employer expects of an employee.
      Willful misconduct, as defined by the courts, relevantly includes a deliberate
violation of an employer’s rules or a disregard of the standards of behavior which an
employer can rightfully expect from an employee. Johnson v. Unemployment Comp.
Bd. of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). The employer bears the
burden of establishing an employee engaged in willful misconduct. Id. With regard
to a deliberate violation of an employer’s rules, if the employer proves the existence
of the rule, the reasonableness of the rule, and the fact of its violation, the burden




                                          7
then shifts to the claimant to prove she had good cause for her actions. Guthrie v.
Unemployment Comp. Bd. of Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999).
      An employee's refusal to comply with a reasonable request of her employer
also constitutes willful misconduct. Devine v. Unemployment Comp. Bd. of Review,
429 A.2d 1243, 1244 (Pa. Cmwlth 1981). Whether or not an employee's refusal
constitutes willful misconduct depends upon the reasonableness of the request and
the reasonableness of the refusal. Id. Where an employee’s action is justifiable or
reasonable under the circumstances, it cannot be considered willful misconduct.
Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. Cmwlth.
1976). If the employer satisfies its burden, the burden shifts to the employee to show
she had good cause for her conduct. McKeesport Hosp. v. Unemployment Comp.
Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993).
      The record demonstrates that Employer had a policy which prohibited
employees from engaging in negative conversations about other staff in front of its
clients. Claimant signed this document at the outset of her employment. Employer’s
employee handbook, signed by Claimant on February 11, 2014, provided that
threats, threatening conduct, or any other physical or verbal acts of aggression were
not permitted and employees who violated the policy were subject to termination. It
cannot be seriously argued that such policies are unreasonable.
      The Referee accepted as credible the testimony of Ms. Dotson that Claimant
became verbally abusive when asked to take one of Employer’s clients to a medical
appointment. While in the presence of Employer’s clients, Claimant called Ms.
Dotson, her direct supervisor, a troll, stated that Ms. Dotson got “on her nerves,” and
threatened violence against her. N.T., 5/11/18, at 8. The Board expressly credited
this testimony when it adopted and incorporated the Referee’s findings and



                                          8
conclusions. It is well settled that the Board is the ultimate factfinder in UC cases
and empowered to determine the credibility of witnesses. Curran v. Unemployment
Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).
      Based on Ms. Dotson’s testimony, we conclude the record contains substantial
evidence to support a finding that Claimant committed willful misconduct when she
violated Employer’s employment policies.
      As to Claimant’s refusal to comply with Ms. Dotson’s reasonable request, the
record demonstrates that Claimant’s work responsibilities, as set forth in her job
description, included taking Employer’s clients to “appropriate medical, vocation
and miscellaneous appointments when necessary.”           N.T., 5/11/18, Ex. No. 2.
Claimant’s awareness of this responsibility is evidenced by her signature on the job
description.    Furthermore, Employer’s employee handbook provided that
insubordination by staff, which definition included a refusal to carry out a reasonable
work request or instruction of a supervisor, was grounds for immediate termination.
As discussed herein, Claimant acknowledged her receipt of this document on
February 11, 2014. Ms. Dotson’s request that Claimant fulfill one of her enumerated
work responsibilities was entirely reasonable.          Claimant was provided an
opportunity to go home if she was too ill to work and she declined, saying she wanted
to stay and work at her own pace. Claimant’s belief, as stated in her April 9, 2018
oral interview, that transporting clients to medical appointments was not part of her
job description, is not sufficient justification for refusing to comply with Ms.
Dotson’s request. Consequently, we agree with the Board that Claimant committed
willful misconduct.




                                          9
For these reasons, we affirm the order of the Board.



                                __________________________________
                                ELLEN CEISLER, Judge




                                  10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arcenia L. Easley,              :
               Petitioner       :
                                :
      v.                        : No. 1225 C.D. 2018
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                                ORDER


      AND NOW, this 26th day of July, 2019, the July 9, 2018 order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                  __________________________________
                                  ELLEN CEISLER, Judge
