           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kathy S. Sibble,                              :
                             Petitioner       :
                                              :
                v.                            :   No. 1241 C.D. 2016
                                              :   Submitted: December 16, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: March 17, 2017

                Kathy S. Sibble (Claimant), representing herself, petitions for review
from an order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s decision and denied her unemployment compensation (UC)
benefits under Section 402(e) of the Unemployment Compensation Law1 (Law)
(relating to willful misconduct). Claimant contends that her negligent conduct did
not rise to the level of willful misconduct. Discerning no error below, we affirm.


                                      I. Background
                Claimant worked for Trinity Services Group (Employer) as a full-time
food supervisor earning $10.66 per hour. Claimant worked from December 7,
2011 through October 1, 2015, when Employer discharged her. Claimant applied

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
for UC benefits, which the local service center denied under Section 402(e) of the
Law. Claimant appealed, and a referee held a hearing.


            At the hearing, the referee heard testimony from Claimant, and Jack
Musiol, Employer’s Food Service Director at Butler County Prison (Director).
Based on the evidence presented, the referee determined Claimant was ineligible
for UC benefits under Section 402(e) of the Law, and affirmed the service center’s
decision.


            Claimant appealed to the Board.       The Board made the following
findings.


            On September 30, 2015, dinner for inmates at the prison included
cake with peanut butter frosting. Employer informed Claimant that a new inmate
arrived at the prison, and he had a peanut allergy. Therefore, Employer directed
Claimant to serve the inmate fruit rather than the peanut butter frosted cake.
Claimant served the peanut-allergic inmate the peanut butter frosted cake,
notwithstanding Employer’s directive. Bd. Op., 5/31/16, Findings of Fact (F.F.)
Nos. 2-5.


            The Board noted a conflict in the testimony. The employer’s witness
testified that prior to serving dinner there was a specific directive given to the
Claimant to serve the inmate fruit rather than cake; however, the Claimant testified
that she was unaware of the newly admitted inmate and his peanut allergy. The
Board expressly resolved the conflict in favor of the Employer, finding its



                                         2
testimony credible and discrediting the Claimant’s contradicting testimony. Bd.
Op. at 2.


             Ultimately, the Board found Claimant did not present good cause for
her failure to comply with Employer’s reasonable directive.             Id.   The Board
concluded Claimant was ineligible for benefits under Section 402(e) of the Law.
Claimant’s appeal to this Court followed.


                                       II. Issues
             On appeal,2 Claimant contends the Board’s findings regarding her
termination from employment are not supported by substantial evidence.
Specifically, Claimant argues the reason for her termination does not constitute
willful misconduct. Claimant maintains she did not disobey a direct order; rather,
she made an honest mistake and did not deliberately give the peanut-allergic
inmate peanut butter frosted cake. For these reasons, Claimant alleges her actions
do not amount to willful misconduct.


             The Board counters that although Claimant challenged the Board’s
findings of fact in her petition for review, she failed to develop such a challenge in
her brief, and therefore, this Court should affirm the Board’s adjudication. In the
alternative, the Board argues its findings of fact are binding on appeal because they
are supported by substantial evidence.

      2
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).



                                            3
                                   III. Discussion
             At the outset, the Board argues Claimant challenged the Board’s
findings of fact in her petition for review, but failed to develop such issues in her
brief to this Court.    Consequently, the Board asserts Claimant waived those
arguments. Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636
(Pa. Cmwlth.1998) (arguments not properly developed in a brief are waived).


             Despite defects in Claimant’s brief, we are able to discern her
arguments; accordingly, we decline to deem them waived. See Woods v. Office of
Open Records, 998 A.2d 665 (Pa. Cmwlth. 2010) (meaningful review possible
when court able to discern arguments of a pro se appellant).


             In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in the evidence, witness credibility and weight accorded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence
to support findings other than those made by the fact-finder; the critical inquiry is
whether there is substantial evidence to support the findings actually made. Id.
Where substantial evidence supports the Board’s findings, they are conclusive on
appeal. Id. In addition, we must examine the testimony in the light most favorable
to the party in whose favor the fact-finder ruled, giving that party the benefit of all
logical and reasonable inferences from the testimony. Id.


             Substantial evidence is such relevant evidence upon which a
reasonable mind could base a conclusion. Umedman v. Unemployment Comp. Bd.
of Review, 52 A.3d 558 (Pa. Cmwlth. 2012). “The fact that [a party] may have


                                          4
produced witnesses who gave a different version of the events, or that [the party]
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
Comp. Bd. of Review, 650 A.2d 1106, 1108–09 (Pa. Cmwlth. 1994).


             Section 402(e) of the Law provides, “[a]n employe shall be ineligible
for compensation for any week … [i]n which [her] employment is due to [her]
discharge … from work for willful misconduct connected with [her] work….” 43
P.S. §802(e). “Willful misconduct” is “behavior evidencing a wanton or willful
disregard of the employer’s interest; a deliberate violation of the employer’s work
rules; a disregard of standards of behavior the employer can rightfully expect from
its employee; [or], negligence indicating an intentional disregard of the employer’s
interest or an employee’s duties or obligations.” Dep’t of Corr. v. Unemployment
Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).


             A failure to comply with an employer’s reasonable directive can
constitute willful misconduct. Klapec Trucking Co. v. Unemployment Comp. Bd.
of Review, 503 A.2d 1122 (Pa. Cmwlth. 1986). The employer bears the burden of
establishing the claimant failed to comply with its reasonable directive. Connelly
v. Unemployment Comp. Bd. of Review, 450 A.2d 245, (Pa. Cmwlth. 1982). Then
the burden shifts to the claimant to assert an affirmative defense, such as good
cause for her inaction. Id.


             Here, the Board found Employer directed Claimant to serve fruit to
the new inmate who had a peanut allergy, rather than peanut butter frosted cake.



                                         5
The Board found Claimant served the peanut-allergic inmate the peanut butter
frosted cake, notwithstanding Employer’s directive.                  The Board’s findings
regarding Claimant’s willful misconduct are supported by substantial, competent
evidence. In particular, Director testified he had a discussion with Claimant about
a new inmate who arrived at the prison with a peanut allergy. Referee’s Hr’g,
11/18/15, Notes of Testimony (N.T.) at 5-6. Director testified there were now two
inmates with peanut allergies. Id. at 6. Director testified Claimant indicated to
him that she understood the information regarding the two inmates and their peanut
allergies. Id. at 8. Claimant indicated she would serve fruit to those inmates
instead of frosted cake. Id. at 6.


              Director further testified that when he arrived at work the next
morning, he was notified by the medical department that an inmate was taken to
the medical department with an allergic reaction to the peanut butter. Id. at 7.
Director was told the inmate was one of the two inmates who had a peanut allergy.3
Id.

          3
              At the hearing, Claimant testified she understood what her responsibilities were
regarding inmate diet sheets. Referee’s Hr’g, 11/18/15, Notes of Testimony at 8. Claimant
testified Employer fired her for gross negligence for serving cake with peanut butter frosting to
an inmate who had a peanut allergy. N.T. at 5. Claimant testified she did not remember any
discussion regarding the admission of a new inmate who had a peanut allergy. Id. at 8. Claimant
testified that inmates with special dietary needs receive notations on diet sheets. Id. at 9.
Claimant testified her responsibility is to check the diet sheets at “every meal.” Id. Claimant
testified she checked the diet sheets for the dinner meal for September 30, 2015, the meal
containing peanut butter frosted cake. Id. at 9-10. Claimant testified that she missed the new
inmate’s name on the special diet sheet, which was “probably an oversight on my part.” Id. at 8,
10. Claimant testified she did not know the prison admitted a new inmate with a peanut allergy.
Id. at 5, 8, 10-12.
                 However, Claimant testified she did not question the reason for her termination.
Id. at 10. Claimant further testified she did not question Director’s testimony about the new
(Footnote continued on next page…)

                                               6
               Upon review, we conclude the Board’s findings are supported by
substantial, competent evidence.            In turn, the Board’s findings support the
conclusion that Claimant committed willful misconduct by failing to follow
Employer’s reasonable directive not to serve peanut butter frosted cake to an
inmate with a peanut allergy. Thus, we are satisfied the Board did not err in
concluding Employer terminated Claimant for willful misconduct.


               Claimant next argues she did not intentionally violate Employer’s
directive.    She attaches Navickas v. Unemployment Compensation Board of
Review, 787 A.2d 284 (Pa. 2001) (mere negligence does not constitute willful
misconduct) to her brief. However, the decision in Navickas is not helpful here.
That case did not involve the failure to follow a specific directive. Instead, it
involved neglect by a recently-graduated nurse to carefully read a reference book
on medication, resulting in a medication error.


               Claimant’s position during the hearing was that she did not remember
a specific directive, and she just failed to read the inmate diet sheets carefully.
However, this testimony was not accepted by the Board.                     Instead, the Board
accepted the Director’s testimony that Claimant was given a directive, with which


(continued…)

inmate, nor did she ask to see, or offer into evidence, the diet sheet containing the names of the
peanut allergy inmates of September 30, 2015. Id. at 10-11. In response to Claimant’s
termination from Employer, Claimant wrote, “I didn’t realize [the new inmate] couldn’t have
peanut butter because of his allergy to peanuts and yes he was sent a slice of cake with peanut
butter in the icing. Will check list better from now on.” C.R., Item No. 4 at Ex. No. 8.




                                                7
she failed to comply. There can be no doubt that the failure to follow an express
directive involving inmate health without justification constitutes willful
misconduct.


              Claimant does not offer any justification for the failure to follow
Director’s instruction. Moreover, to the extent Claimant contends the Board erred
in accepting Employer’s evidence over her evidence, such credibility
determinations are within the sole province of the Board and will not be disturbed
on appeal. See Ductmate; Tapco, Inc.


              Upon review, we conclude the Board’s findings are supported by
substantial, competent evidence.     In turn, the Board’s findings support the
conclusion that Claimant did not present good cause for her failure to comply with
Employer’s reasonable directive. Thus we are satisfied the Board did not err in
concluding Claimant’s action rose to the level of willful misconduct. Accordingly,
we affirm.




                                       ROBERT SIMPSON, Judge




                                        8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kathy S. Sibble,                     :
                      Petitioner     :
                                     :
            v.                       :   No. 1241 C.D. 2016
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER

            AND NOW, this 17th day of March, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    ROBERT SIMPSON, Judge
