                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Shadowfax Corporation,                    :
                Petitioner                    :
                                              :   No. 2121 C.D. 2014
              v.                              :
                                              :   Submitted: May 22, 2015
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: August 4, 2015

              The Shadowfax Corporation (Employer) petitions for review of the
October 27, 2014 order of the Unemployment Compensation Board of Review
(Board) affirming a referee’s decision and holding that Jeanine K. Harris (Claimant)
is not ineligible for unemployment compensation benefits pursuant to section 402(e)
of the Unemployment Compensation Law (Law).1
              Employer provides mental health and mental retardation services for
mentally and physically challenged individuals, as regulated by the Pennsylvania



       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 shall be ineligible for benefits for
any week in which her unemployment is due to her discharge from work for willful misconduct
connected with her work.
Department of Public Welfare (DPW).2 Claimant worked as an activities coordinator
for Employer until her employment was terminated on April 10, 2014. On April 4,
2014, Claimant and another staff member were taking a number of individuals under
Employer’s care from Employer’s facility on a community outing. Claimant and the
other staff member left in two vans to accommodate all of the individuals in the
group. During the course of the outing, Claimant realized that one of the individuals,
“Joe,” was missing and she called her supervisor informing her of the issue. After a
search of Employer’s facility, the supervisor found Joe in the bathroom of the facility,
where he had been for sixty to ninety minutes. Claimant had inadvertently left Joe
behind and was aware that the incident was a violation of Employer’s policy.
(Findings of Fact Nos. 1-3, 7-9, 11.)
              In pertinent part, Employer’s rules and regulations provide that any type
of abusive behavior, physical or psychological (including neglect), upon confirmation
by Employer’s investigation, is grounds for immediate termination. (Finding of Fact
No. 4.) Employer’s policy defines “neglect” as follows:

              Neglect is the failure to obtain or provide the needed
              services and supports for individuals under [Employer’s]
              care, defined as necessary or otherwise required and/or a
              designated right by law or regulation. This includes, but is
              not limited to, the failure to provide needed care such as
              shelter, food, clothing, personal hygiene, medical care,
              protection from health and safety hazards, attention and
              supervision, including leaving individuals unattended and
              other basic treatment and necessities needed for
              development of physical, intellectual and emotional
              capacity and well being [sic]. This includes acts that are

       2
         After the commencement of this action, the Department of Public Welfare changed its
name to the Department of Human Services. Act of June 13, 1967, P.L. 31, amended by the Act of
September 24, 2014, P.L. 2458, 62 P.S. §103 (effective November 24, 2014).



                                              2
             intentional and/or unintentional, regardless of the obvious
             occurrence of harm.

             Neglect shall further include, but is not limited to, ignoring
             or disregarding an individual, failing to sufficiently or
             properly care for an individual, failing to pay attention to
             the needs of an individual, failing to take immediate action
             in regard to individual needs, and leaving an individual by
             themselves [sic] and/or to fend for themselves [sic] for any
             period of time without supervision. . . . Staff are not
             allowed to leave individuals unsupervised or out of their
             sight for any length of time in accordance to the
             Individualized Support Plan (ISP). This is a form of abuse.
             Supervision means the act of managing, directing, or
             overseeing individuals or projects and/or outings involving
             individuals. The only exception to the 24 hours of
             supervision is if it is decided by Management that the
             individual can be unsupervised and documented as such in
             the ISP and/or addressed on the Safety Questionnaire of the
             Individual’s Annual Assessment.

             Staff members shall not disregard an [ISP] nor take it upon
             themselves to expand upon or alter an individual’s plan of
             care without approval from Management.
(Reproduced Record (R.R.) at 9a-10a.)
             The incident was reported to DPW, and DPW conducted an
investigation. Based on the results of DPW’s investigation, Employer determined
that Claimant committed an act of neglect, as defined by Employer’s policy, when
Claimant left Joe unsupervised. Claimant was terminated on grounds of neglect of an
individual in her charge. (Findings of Fact Nos. 5, 12.)
             Claimant applied for unemployment benefits. The local service center
found that Claimant did not work to the best of her ability and had been warned about
her work performance. The local service center further found that Claimant had not
shown good cause for her work performance.            Accordingly, the local service
determined that Claimant’s actions constituted willful misconduct, rendering her


                                           3
ineligible for benefits under section 402(e) of the Law. Claimant appealed, and a
referee held a hearing on August 14, 2014.
             Anna Holland (Holland), Employer’s program manager and Claimant’s
supervisor, testified that staff members are allowed to have no more than five
individuals under their direct supervision. Holland stated that when Claimant and the
other staff member took the nine individuals on an outing on April 4, 2014, the other
staff member took five individuals in her van so Claimant should have taken four
individuals in her van. She testified that Claimant called her forty-five to sixty
minutes after they had left Employer’s building to inform her that Claimant and the
other staff member had forgotten Joe. Holland said that Joe was found sleeping in the
bathroom and that Claimant had immediately returned to the office after the phone
call. (R.R. at 41a-43a.)
             Holland testified that Joe had been in the bathroom before Claimant and
her group left for the outing, came out to join the group, but slipped back into the
bathroom before the group left. Holland further testified that staff must always know
where Joe is because he goes back and forth to the bathroom. Holland said that when
Claimant returned to the office, Claimant told her that Joe was supposed to be in her
van.   Holland acknowledged that employees are not assigned responsibility for
specific individuals; instead, all employees are responsible for all of the individuals,
and Employer does not check before an outing that all individuals are with a
particular supervisor. (R.R. at 43a, 47a, 50a.)
             Holland said that she reported the incident to Jamie Plank (Plank),
Employer’s Quality Assurance Coordinator. Holland noted that Claimant had been
previously written up for failure to adequately supervise individuals under her watch
on October 2, 2012, October 9, 2013, and December 31, 2013, and that she personally



                                           4
had discussed these supervision issues with Claimant on October 10, 2013, and
December 31, 2013. (R.R. at 4a-5a, 43a-46a.)
            Plank testified that she was involved in the investigation of the April 4,
2014 incident and that both Claimant and Holland called her that day to report it.
Plank noted that DPW regulations required Employer to conduct an investigation and
report the incident to the state. She stated that while Joe’s ISP required that he have
line-of-sight supervision every fifteen minutes, he was left alone for an hour and
fifteen minutes on April 4, 2014. Plank testified that Employer’s corrective action
and discharge policy provides for termination of employment if neglect is found.
(R.R. at 52a, 55a-56a.)
            Claimant testified that she told her supervisors that she had safety
concerns about Joe joining the group on the outing and had recommended that he stay
on site to have easy access to the bathroom. Claimant stated that her supervisors
made him join the group over her objection. Claimant testified that there are usually
eight individuals that go on the outings and that she usually has three individuals in
her van for each outing. (R.R. at 60a-61a, 63a.)
            Claimant further testified that she and the other employee on the outing
shared responsibility for Joe. She explained that the individuals were not assigned a
particular van to ride in but could choose for themselves. Claimant stated that Joe
was unintentionally left behind. Claimant testified that she did not know how many
individuals were in the other employee’s van until after the group reached its
destination or that Joe was missing. (R.R. at 61a-63a.)
            By decision and order dated August 19, 2014, the referee found that
Employer failed to meet its burden of proving that Claimant’s conduct constituted an
intentional wrongdoing, a willingness to inflict harm, or a knowing indifference of



                                          5
Employer’s policy against neglect so as to establish a conscious intention to
perpetrate a wrongdoing.            The referee found that Claimant’s conduct was
unintentional and that it was not a reckless disregard of Employer’s interests or her
duties to the individuals.        The referee specifically found Claimant’s testimony
credible that her action was an inadvertent oversight and that she was not the only
party responsible for ensuring that all individuals were properly in the vans.
              The referee also noted that Employer did not require a checklist or roster
to account for all of the individuals attending an outing. The referee added that
DPW’s standards are not dispositive in unemployment cases and that inattention or
inadvertence, even if it rises to the level of ineptness, cannot justify a denial of
benefits under a willful misconduct standard absent a showing of an element of
conscious wrongdoing. Accordingly, the referee reversed the local service center’s
determination and held that Claimant was not ineligible for benefits under section
402(e) of the Law.
              Employer appealed to the Board. By decision and order dated October
27, 2014, the Board adopted the referee’s findings and conclusions, and affirmed the
referee’s decision.
              On appeal to this Court,3 Employer argues that the Board erred in
determining that Claimant’s conduct did not rise to the level of willful misconduct,
because Claimant’s conduct deliberately violated Employer’s policy regarding
neglect of individuals under its care.




       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.



                                                6
             Initially, we note that, although the Law does not define the term willful
misconduct, our courts have defined it as including: “(1) the wanton and willful
disregard of the employer’s interests; (2) the deliberate violation of rules; (3) the
disregard of standards of behavior which an employer can rightfully expect from its
employee; or (4) negligence which manifests culpability, wrongful intent, evil design,
or intentional and substantial disregard for the employer’s interests or the employee’s
duties and obligations.” Guthrie v. Unemployment Compensation Board of Review,
738 A.2d 518, 521 (Pa. Cmwlth. 1999) (citing Kentucky Fried Chicken of Altoona,
Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa.
Cmwlth. 1973)).
             The burden of proving willful misconduct rests with the employer.
Guthrie, 738 A.2d at 521. An employer seeking to prove willful misconduct based
on a violation of a work policy must establish the existence of a reasonable work
policy and its violation by the employee. Id. at 522. The employer must also
establish that the claimant’s actions were intentional or deliberate. Philadelphia
Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968
(Pa. Cmwlth. 2010). Whether an employee’s conduct constitutes willful misconduct
is a question of law subject to this Court’s review. Id.
             Mere negligence or inadvertence on its own does not rise to the level of
willful misconduct. Scott v. Unemployment Compensation Board of Review, 36 A.3d
643, 648 (Pa. Cmwlth. 2012). Rather, willful misconduct requires “the additional
element of an intentional disregard of the employer’s interests.”            Myers v.
Unemployment Compensation Board of Review, 625 A.2d 622, 626 n.3 (Pa. 1993).
However, repeated conduct of an employee in the face of multiple warnings will
support a finding of willful misconduct. Scott, 36 A.3d at 648.



                                           7
            Employer argues that the Board erred in capriciously disregarding
evidence that Claimant had been previously warned concerning issues with her
supervision of individuals under Employer’s care. The Board capriciously disregards
evidence when it “willfully or deliberately ignore[s] evidence that any reasonable
person would have considered to be important.”         Henderson v. Unemployment
Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013). Although
the Board is the ultimate fact-finder when it comes to resolving evidentiary conflicts
and making credibility determinations, the Board may not willfully ignore evidence
when making credibility determinations. Id. Here, the referee’s findings of fact,
which the Board adopted and incorporated, make no mention of the repeated
warnings.   Although the referee found Claimant’s testimony credible that she
inadvertently left Joe at Employer’s facility, neither the Board nor the referee
expressly considered Claimant’s previous warnings regarding supervisory concerns in
analyzing whether her actions constituted willful misconduct.
            Employer asserts that, pursuant to Scott, Claimant’s repeated violations
of Employer’s policy against neglecting individuals under Employer’s care, despite
being previously warned on multiple occasions, constitutes willful misconduct. In
Scott, the employer discharged the claimant for failing to properly inspect a medical
tray with surgical instruments in accordance with his job duties. The employer had a
policy that all medical trays must be carefully examined to ensure cleanliness. Prior
to the claimant’s discharge, the employer had made the claimant aware of the work
policy and had repeatedly warned the claimant regarding his unsuccessful inspections
of the medical trays. Months before his termination, the claimant received a written
warning for processing a dirty tray and was informed that his next infraction could




                                          8
result in termination. The claimant was suspended for three days at the time of his
final warning, and discharged for the subsequent infraction.
             The local service center determined that the claimant was ineligible for
benefits under section 402(e) of the Law. Claimant appealed, and the case was
assigned to a referee.
             After a hearing, the referee concluded that the claimant’s failure to
successfully process the medical tray was not the result of a mistake but of the
claimant’s lack of diligence in performing his job duties. The referee noted that the
claimant was capable of performing his job duties, did not have a plausible reason for
violating the employer’s policy, and had previously received a written warning for a
similar violation. Thus, the referee held that the employer met its burden of proving
that the claimant’s actions constituted willful misconduct and that the claimant was
ineligible for benefits under section 402(e) of the Law. The claimant appealed to the
Board, which adopted the referee’s findings and conclusions and affirmed the
referee’s order.
             On further appeal in Scott, we noted that the claimant was warned or
disciplined at least three times prior to his termination and that the employer
specifically informed the claimant that another violation could result in his discharge
after his last warning. We stated that “[a]t the very least, [the claimant’s] continued
poor work performance demonstrated an intentional disregard of the employer’s
interest or the employee’s obligations and duties. Thus, the Board did not err in
concluding that [the claimant] engaged in willful misconduct.” 36 A.3d at 648.
             In unemployment cases, the Board is the ultimate fact-finder empowered
to make all determinations as to witness credibility and evidentiary weight. Peak v.
Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).



                                          9
However, the Board in this case did not make any findings or determinations based
on Claimant’s prior received warnings and did not make any credibility
determinations concerning Employer’s witnesses.         As reflected in Scott, these
findings are necessary to a determination of whether Claimant’s actions on April 4,
2014, rise to the level of willful misconduct. We reiterate that it is the Board’s duty
and functional purpose to assign credibility and weight determinations to the
evidence presented. See Wardlow v. Unemployment Compensation Board of Review,
387 A.2d 1356, 1357 (Pa. Cmwlth. 1978). The Board’s failure to do so impedes our
ability to conduct meaningful appellate review. As this Court has stated:

            When . . . the burdened party did present sufficient evidence
            as a matter of law and yet failed to prevail below, we then
            must determine whether the reason for the adverse
            determination stems from the factfinder’s opinion that the
            evidence presented was not credible, or, whether instead the
            factfinder committed an error of law in applying the proper
            principle of law to the facts presented. If the latter, we can
            reverse the agency, even if the factfinder has found the
            testimony of the burdened party credible, because in such
            instance the issue is a matter of law for this Court to
            determine. In the former instance, however, the approach is
            different because our scope of review precludes us from
            making factual findings or credibility determinations.
            Moreover, we decline to infer credibility. Thus, we must
            scrutinize the adjudication.        If specific credibility
            determinations appear that support the result of the
            adjudication, then we may affirm the decision below on the
            basis that the burdened party failed in his burden to
            persuade the factfinder. If, however, specific credibility
            determinations do not appear in the factual findings, in the
            discussion or conclusions, and no other specific explanation
            for the adverse determination appears in the adjudication,
            then we have no other alternative but to vacate the order
            below and remand for specific credibility findings and for
            an explanation of the agency’s decision; otherwise we could
            not perform our appellate review function.


                                          10
Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa.
Cmwlth. 1987) (alteration in original).
             Accordingly, we vacate the Board’s order and remand to the Board for a
new decision that addresses all relevant evidence of record and to issue findings
concerning the previous warnings given to Claimant and the credibility of
Employer’s witnesses.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Shadowfax Corporation,               :
                Petitioner               :
                                         :    No. 2121 C.D. 2014
            v.                           :
                                         :
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


                                     ORDER


            AND NOW, this 4th day of August, 2015, the October 27, 2014 order
of the Unemployment Compensation Board of Review (Board) is vacated. The
case is remanded to the Board for further proceedings consistent with this opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
