                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Shadowfax Corporation,                  :
                Petitioner                  :
                                            :   No. 2298 C.D. 2015
               v.                           :
                                            :   Submitted: April 22, 2016
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: January 4, 2017


               The Shadowfax Corporation (Employer) petitions for review of the
October 23, 2015 order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s determination that Jeanine K. Harris (Claimant)
was not ineligible for compensation benefits pursuant to section 402(e) of the
Unemployment Compensation Law (Law).1




       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
                              Facts and Procedural History2
              Claimant worked full-time for Employer as an activities coordinator
from January 31, 2012, until her last day of employment on April 10, 2014, and was
responsible for supervising individuals with intellectual disabilities.
              On April 4, 2014, Claimant and another staff member planned to take
eight individuals under Employer’s care on a community outing. However, Claimant
was advised that she must also bring “Joe,” who did not typically go on outings.
Claimant and the other staff member left in two vans and, after arriving at the
destination approximately forty-five minutes later, Claimant discovered that Joe was
missing and immediately called her supervisor and advised her of the same. After
performing a search of Employer’s facility, Joe was found sleeping in a restroom.
Consequently, the incident was reported to the Pennsylvania Department of Public
Welfare (DPW),3 which conducted an investigation. Based on the results of DPW’s
investigation, Employer determined that Claimant committed an act of neglect in
violation of Employer’s policy when she left Joe unsupervised and, consequently,
Claimant was terminated.
              Claimant subsequently applied for unemployment compensation
benefits. The local service center found that: Claimant was discharged as a result of
her unsatisfactory work performance; Claimant did not work to the best of her ability;
Claimant had been warned about her unsatisfactory work performance; and Claimant

       2
         The factual and procedural history is predominantly based on our recitation in Shadowfax
Corporation v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 2121 C.D. 2014,
filed August 4, 2015) (Shadowfax I).

       3
         The Department of Public Welfare subsequently changed its name to the Department of
Human Services, Act of June 13, 1967, P.L. 31, added by the Act of September 24, 2014, P.L. 2458,
62 P.S. §103 (effective November 24, 2014).



                                               2
had not provided a reason for her unsatisfactory work performance. (Reproduced
Record (R.R.) at 29a.)      Accordingly, the local service center determined that
Claimant’s actions constituted willful misconduct, rendering her ineligible for
benefits pursuant to section 402(e) of the Law. Claimant appealed that determination
to a referee, who conducted a hearing on August 14, 2014.
             Anna Holland, Employer’s program manager, testified that she was
Claimant’s supervisor and stated that, on April 4, 2014, Claimant and another staff
member decided to bring nine residents to the Expo Center at the York Fair. Holland
further testified that the mandatory staffing ratio for staff members to residents is one
to five. In other words, no single staff member may supervise more than five
residents at a time.    She explained that Claimant and the other staff member
transported the residents to the Expo Center using two Employer vans; the other staff
member transported five residents in one van and Claimant transported four residents
in the other van. Holland stated that, approximately forty-five minutes later, she
received a phone call from Claimant advising her that she had forgotten a resident at
Employer’s facility and noted that Claimant’s first words to her were “oh my God
I’m fired.” (R.R. at 42a.) Holland further testified that Claimant advised her that she
was responsible for leaving the resident behind. (R.R. at 40a-42a.)
             Holland stated that, after Claimant’s call, Joe was discovered sleeping in
a restroom in Employer’s facility. She explained that she inquired with Employer’s
staff to determine Joe’s whereabouts during the period that he had been missing and
determined that he was last seen exiting the building with staff for the outing.
According to Holland, Joe went outside, returned to the facility, and entered the
restroom. Holland stated that, after Joe was located, she was required to contact
Jamie Plank, Employer’s quality assurance coordinator, because Claimant’s conduct



                                           3
constituted a reportable incident. Holland stated that, after Claimant returned from
the outing, she had a conversation with Claimant and the other staff member to
determine who was responsible for Joe and Claimant confirmed that Joe would have
been in her van. (R.R. at 42a-43a.)
             Holland stated that supervisors keep performance feedback records on
every employee to track an employee’s performance. She explained that, on October
2, 2013, Claimant left two residents unsupervised. Similarly, on October 9, 2013,
Claimant allowed a resident who must be supervised at all times to go outside alone
and unsupervised.     Holland further explained that she had a conversation with
Claimant about the incident the following day and Claimant advised her that she had
no idea why or how the resident ended up outside. Holland also testified that, on
December 31, 2013, a resident under Claimant’s supervision went to the restroom and
never returned. She further testified that the resident eloped and was discovered by a
former employee off of Employer’s property and that she also spoke with Claimant
following this incident. (R.R. at 44a-46a.)
             Holland stated that there is no protocol for specific residents to be
assigned to a particular staff member. She explained that, if there are two staff
members in a room, the staff members are responsible for everyone; in other words,
they share responsibility. Holland further stated that the staff members determine
which residents go on the outings and explained that Joe has issues with frequently
leaving areas to use the restroom and that is the reason why staff members must know
his location at all times. (R.R. at 47a-51a.)
             Plank testified that Employer is obligated to report an issue like that
which occurred on April 4, 2014, to the state and DPW’s regulations mandate that
Employer perform an investigation of the incident. She explained that Employer has



                                            4
a policy related to abuse and neglect that includes leaving residents unattended,
regardless of whether the act was intentional or unintentional. Plank confirmed that
Employer’s policy includes leaving a resident alone for any period of time without
supervision and expressly prohibits staff from leaving residents unsupervised or out
of sight for any length of time in accordance with their individualized support plans
(ISP).    She stated that Employer trains its employees regarding this policy and
employees must sign an acknowledgment form to confirm that they have received the
policy.   Plank also stated that the definition of neglect in Employer’s policy is the
same definition the DPW uses in its regulations. (R.R. at 52a-54a.)
              Plank further testified that she received training from the DPW to be a
certified abuse and neglect investigator and must be recertified every three years. She
stated that she is a member of Employer’s investigation committee, which is
responsible for investigating instances of possible neglect.           Regarding the
investigation of Claimant’s conduct, Plank explained that the investigation committee
concluded that neglect had occurred because Joe was required to have line-of-sight
supervision from staff every fifteen minutes and was left unattended for
approximately one hour and fifteen minutes. She testified that, if an allegation of
neglect is ultimately confirmed, the employee could be subject to termination and
noted that that information is set forth in Employer’s policy. Plank stated that the
investigation committee’s recommendation was to terminate Claimant and explained
that the investigation committee considered whether responsibility for Joe’s absence
could also be attributed to the other staff member. However, she noted that the other
staff member was already responsible for five residents, which is the maximum
amount per the staffing ratio. (R.R. at 54a-57a.)




                                           5
             Plank further explained that the requirement that Joe be seen every
fifteen minutes did not pertain to any particular staff member; rather, he could be
seen by any staff member and his supervision requirement would be met. However,
she clarified that she had interviewed all staff members regarding Joe’s whereabouts
and concluded that the last time Joe had been seen before he was found in the
restroom was when he was with Claimant and the rest of the group that was leaving
for the outing. (R.R. at 57a-58a.)
             Claimant testified that she believed she was terminated because, on the
day of the outing, she expressed concern to management that bringing Joe on the
outing would be problematic because he frequently leaves, without notice, to use the
restroom. She noted that she was advised that there was no room for Joe anywhere
else and that he must go on the outing. Claimant further testified that, when she
called Holland to report that Joe was not with her, she knew that he was in the
restroom because he had never gone on outings with the group before. Claimant
explained that, in the past, there had always been eight residents in the group; three
with Claimant and five with the other staff member. However, she further explained
that the residents were not assigned to a specific staff member because everyone
shared responsibility for supervising them. Claimant also stated that she had received
two bonuses during a three-month period and that she had been used in a book as “the
face of [Employer] . . . .” (R.R. at 62a.)
             Claimant confirmed that she had disagreed with the directive that Joe
must go on the outing, but stated that leaving him behind was not intentional. She
also said that the other staff member shared responsibility for Joe’s elopement
because they were responsible for the same residents. Claimant testified that she did
not notice Joe was missing until she arrived at the Expo Center and only discovered



                                             6
how many residents were in the other staff member’s van when they returned from
the outing to Employer’s facility. She explained that she knew how many people
were in her van because the same amount of people attended every outing, although
she acknowledged that Joe was attending on this particular instance and was left
behind. (R.R. at 62a-63a.)
            By decision mailed August 19, 2014, the referee determined that
Employer failed to meet its burden to establish that Claimant’s conduct constituted an
intentional and conscious wrongdoing because she committed a negligent act. The
referee found Claimant’s testimony credible that she committed an inadvertent
oversight and that she was not the only party responsible for ensuring that all
residents were properly supervised.      Accordingly, the referee reversed the local
service center’s decision and concluded that Claimant was not ineligible for benefits
pursuant to section 402(e) of the Law.
            Employer filed an appeal to the Board, which affirmed the referee.
Employer then appealed to this Court and we vacated the Board’s decision and
ordered a remand for the Board to “issue findings concerning the previous warnings
given to Claimant and the credibility of Employer’s witnesses.” Shadowfax I, slip op.
at 6. On remand, the Board determined, in pertinent part:

            Here, the employer maintains a policy prohibiting the
            neglect of residents, including lack of supervision, and
            specifically requires that employees follow each resident’s
            ISP. Notably the employer’s policy requires progressive
            discipline for acts of neglect before more severe corrective
            action, such as discharge, is taken. The claimant was aware
            of the employer’s policies. The Board accepts as credible
            the employer’s testimony that on three occasions in 2013
            the claimant failed to follow residents’ ISPs and/or lost
            sight of residents. The record shows that the employer
            spoke with the claimant following at least two of these

                                           7
               incidents; however, no testimony or evidence supports a
               finding that the claimant received any discipline as a result
               of these incidents or that the claimant was, or should have
               been, aware that her employment was in jeopardy. In
               immediately terminating the claimant’s employment
               without progressive discipline, the employer did not follow
               its own policy.

               It is undisputed that somehow Joe was left behind at the
               employer’s facility. However, the employer did not
               establish that the claimant intentionally, deliberately, or
               willfully left Joe behind rather than merely believed that he
               was in the other vehicle.
Board’s op. at 3 (emphasis in original). Consequently, the Board again affirmed the
referee’s decision and Employer filed a timely petition for review to this Court.
               On appeal,4 Employer asserts that the Board erred when it determined
that Claimant’s conduct did not rise to the level of willful misconduct because her
poor work performance following repeated warnings is sufficient to constitute willful
misconduct. Employer also argues that Claimant deliberately violated Employer’s
work rules and failed to establish good cause for the same.
               Conversely, the Board argues that Employer failed to meet its burden to
establish that Claimant committed willful misconduct. The Board also argues that



       4
          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. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015). “In reviewing the record to determine whether there is substantial
evidence to support the Board’s findings of fact, this court must view the record in a light most
favorable to the party which prevailed before the Board, giving that party the benefit of all logical
and reasonable inferences deducible from the evidence.” Stringent v. Unemployment Compensation
Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). If a claimant fails to challenge any
specific findings of fact, the Board’s findings are conclusive on appeal. Campbell v. Unemployment
Compensation Board of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).



                                                 8
Employer failed to follow its progressive discipline policy in terminating Claimant
and, therefore, unemployment benefits cannot be denied.


                                     Discussion
             Initially, we note that the employer bears the burden of proving the
employee was discharged for willful misconduct.             Sacks v. Unemployment
Compensation Board of Review, 459 A.2d 461, 462 (Pa. Cmwlth. 1983). The Law
does not define willful misconduct; however, our Court has defined it as: 1) the
wanton or willful disregard of the employer’s interests; 2) the deliberate violation of
the employer’s rules; 3) the disregard of the standards of behavior which an employer
can rightfully expect from an employee; and 4) negligence demonstrating an
intentional disregard of the employer’s interests or the employee’s duties and
obligations to the employer. Kelly v. Unemployment Compensation Board of Review,
747 A.2d 436, 439 (Pa. Cmwlth. 2000).         Our Supreme Court has stated that “the
conduct that rises to the level of willful misconduct may vary depending upon an
individual employee’s specific occupation or work situation.”             Navickas v.
Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001).
Whether a claimant’s conduct rises to the level of willful misconduct is a question of
law subject to this Court’s review. Lee Hospital v. Unemployment Compensation
Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991).
             Generally, mere incompetence, inexperience, or inability to perform a
job will not support a finding of willful misconduct.         Scott v. Unemployment
Compensation Board of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012). However, “it
is well-established that an employee’s failure to work up to his or her full, proven
ability, especially after multiple warnings regarding poor work performance, must be



                                          9
construed as willful misconduct because such conduct demonstrates an intentional
disregard of the employer’s interest or the employee’s obligations and duties.” Id. at
648. An employer cannot establish willful misconduct by “merely showing that an
employee committed a negligent act, but instead must present evidence indicating
that the conduct was of an intentional and deliberate nature.”              Myers v.
Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa. 1993)
(internal quotation omitted).


                                Poor Work Performance
             Employer argues that the Board erred in determining that Claimant’s
conduct did not constitute willful misconduct. More specifically, Employer argues
that Claimant displayed a decline in job performance during the last six months of her
employment because she failed to adequately supervise individuals on four separate
occasions. Employer cites this Court’s decision in Scott for support.
             In Scott, the claimant worked at a hospital and was responsible for
processing trays with instruments and items used by doctors performing surgeries.
The employer’s policy required all instruments and items to be carefully examined to
ensure that they are clean before their next use. On several occasions, the claimant
was verbally counseled that he must certify that the instruments and items on the
trays were cleaned before they were sent to the operating room for use during
surgery. Additionally, the claimant was issued a written warning when trays that he
processed contained instruments that still had material from a previous surgery and
was warned that any additional infractions would result in further discipline, up to
and including termination. Nevertheless, the operating room returned a tray that the
claimant had processed because it contained suture material from a previous surgery.



                                          10
The claimant was suspended for violating the employer’s policy, which was
ultimately converted to a discharge.
             The claimant filed a claim for benefits with the local service center,
which determined that he was ineligible for benefits pursuant to section 402(e) of the
Law. Claimant appealed that determination to a referee, who affirmed the service
center’s decision and concluded that the “dirty tray” was not a mistake but, instead,
was the result of his failure to diligently perform an important aspect of his job duties.
The claimant appealed the referee’s decision to the Board, which affirmed the referee.
The claimant then appealed to this Court.
             On appeal, we noted that the claimant had been repeatedly warned
and/or disciplined regarding his poor work performance on at least three occasions.
We further noted that, following the last incident, the claimant was advised that any
further infractions would result in discipline, up to and including termination.
Accordingly, we affirmed the Board and held that “[a]t the very least, Claimant’s
continued poor work performance demonstrated an intentional disregard of the
employer’s interest or the employee’s obligations and duties.” Id. at 648.
             Employer also relies on this Court’s decision in Sacks for support. In
Sacks, the claimant was employed as a cutter of men’s suits and was discharged for
“a decline in work performance culminating in an incident of miscutting sleeves
made of expensive camel hair.” Id. at 462. On appeal to this Court, we held that the
claimant’s deliberate violations of the employer’s directives and negligence
constituted conduct showing intentional and substantial disregard of the employer’s
interests or of the claimant’s duties and obligations. Specifically, we determined that
“[t]he many warnings Claimant had been given regarding the poor quality of his




                                            11
work, and his failure to improve after such warnings, reflects on his attitude toward
his employment and thus adds to the willfulness of the misconduct.” Id. at 463.
             According to Employer, Scott and Sacks instruct that Claimant’s conduct
constituted willful misconduct because her position required her to supervise
individuals with intellectual disabilities and, over the last six months of her
employment, she failed to adequately supervise individuals on four separate
occasions and was provided with at least two verbal counselings after these incidents.
             In Shadowfax I, we vacated the Board’s order and issued a remand for it
to “issue findings concerning the previous warnings given to Claimant and the
credibility of Employer’s witnesses.” Id., slip op. at 6 (emphasis added). On remand,
the Board found credible Employer’s witnesses’ testimony that:

             [O]n three occasions in 2013 the claimant failed to follow
             residents’ ISPs and/or lost sight of residents. The record
             shows that the employer spoke with the claimant following
             at least two of these incidents; however, no testimony or
             evidence supports a finding that the claimant received any
             discipline as a result of these incidents or that the claimant
             was, or should have been, aware that her employment was
             in jeopardy.
Board’s op. at 3.
             The Board expressly found that Claimant failed to supervise residents on
three occasions and Employer “spoke to” Claimant following at least two of these
incidents. However, the Board did not find that Employer’s conversations with
Claimant constituted warnings. It is well settled that the Board is the ultimate fact-
finder and is empowered to make determinations regarding evidentiary weight and its
findings are binding when supported by substantial evidence, even if the record
contains contrary evidence. Chester Community Charter School v. Unemployment
Compensation Board of Review, 138 A.3d 50, 54 n.3 (Pa. Cmwlth. 2016); Ryan v.


                                          12
Unemployment Compensation Board of Review, 547 A.2d 1283, 1286 (Pa. Cmwlth.
1988).
             Here, the Board did not find that Employer’s conversations with
Claimant constituted warnings and the record contains evidence supporting the
Board’s conclusion that Employer only “spoke to” Claimant following the prior
incidents of inadequate supervision. Additionally, the Board found that the prior
incidents were not identical to the April 4, 2014 incident because, there, two staff
members were responsible for supervising Joe, the staff members used separate
vehicles to transport the residents, and Employer had no procedure in place to
determine which staff member was responsible for which residents during outing
transit. Because the record contains substantial evidence supporting the Board’s
findings, we are precluded from revisiting the same on appeal, even if the record
contains contrary evidence. Consequently, Employer failed to meet its burden to
prove that Claimant was discharged for willful misconduct because it failed to
establish that it had previously warned Claimant regarding her poor work
performance sufficient to demonstrate an intentional disregard of Employer’s
interests.


                  Deliberate Violation of Employer’s Work Rule
             Employer also asserts that the Board erred in failing to conclude that
Claimant’s conduct rose to the level of willful misconduct because Employer
established the existence of a reasonable work rule and Claimant’s violation of the
same. According to Employer, Claimant’s failure to establish good cause for her
work-rule violation renders her ineligible for benefits.
             This Court has stated that:



                                           13
             An employer alleging willful misconduct bears the burden
             of proving the existence of a reasonable work rule and its
             violation. The employer must also show that the employee
             intentionally or deliberately violated the work rule. An
             inadvertent or negligent violation of an employer’s rule may
             not constitute willful misconduct.              Therefore, a
             determination of what constitutes willful misconduct
             requires consideration of all the relevant circumstances.

             If an employer meets its initial burden to establish the
             existence of a reasonable work rule and its deliberate
             violation, the burden shifts to the claimant to demonstrate
             good cause for violating the rule. However, where an
             employer fails to carry its initial burden of proving a
             deliberate violation, it is unnecessary to consider whether
             the claimant’s conduct constitutes good cause.

Chester Community, 138 A.3d at 54-55 (citations omitted).
             Here, the record indicates that Employer had no protocol or procedure
for determining which residents would go in which staff member’s vehicle, nor did
Employer have a protocol to account for residents when going on an outing.
Moreover, the record contains evidence that Joe was not specifically assigned to
Claimant’s supervision; rather, Joe was purportedly under the supervision of both
Claimant and the other staff member. The Board credited Claimant’s testimony that
she did not discover which residents were in the other staff member’s vehicle until
after they returned from the outing. As such, the Board concluded that Claimant’s
conduct was negligent, not intentional. It is well settled that the Board is the ultimate
fact-finder and is empowered to make determinations regarding evidentiary weight
and its findings are binding when supported by substantial evidence. Id. at 54 n.3.
Because the Board’s finding that Claimant’s conduct was negligent is supported by
substantial evidence, we are bound by its determination. Therefore, Employer failed




                                           14
to meet its burden to establish that Claimant deliberately violated its work rule and
the burden never shifted to Claimant to establish good cause for violating the same.
             Accordingly, the Board’s order is affirmed.5




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




      5
        Based on the foregoing disposition, we need not address Claimant’s argument that
Employer failed to follow its disciplinary policy.



                                          15
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Shadowfax Corporation,           :
                Petitioner           :
                                     :    No. 2298 C.D. 2015
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                  ORDER


           AND NOW, this 4th day of January, 2017, the October 23, 2015 order
of the Unemployment Compensation Board of Review is affirmed.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
