                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacqueline P. Keita,                               :
                             Petitioner            :
                                                   :
                     v.                            :
                                                   :
Unemployment Compensation                          :
Board of Review,                                   :      No. 1334 C.D. 2018
                    Respondent                     :      Submitted: June 6, 2019


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: June 25, 2019

              Jacqueline P. Keita (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) August 29, 2018
order affirming the Referee’s decision denying UC benefits under Section 402(e) of
the UC Law (Law).1 Essentially, Claimant presents one issue for this Court’s review:
whether the UCBR erred by concluding that Claimant committed willful misconduct.2
After review, we affirm.



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
       2
          Claimant presents two issues in her Statement of Questions Involved: (1) whether the
UCBR erred by determining that Claimant “was deemed to not be credible and also that she
committed willful misconduct by not fully cooperating in her employer’s investigation[;]” and (2)
whether the UCBR erred by concluding that Claimant “is ineligible for benefits under the
provisions of Section 402(e) of the [Law].” Claimant Br. at 6. Because both issues are subsumed in
whether the UCBR erred by concluding that Claimant committed willful misconduct, they will be
addressed therein.
              Claimant was employed by Specialty Retailers, Inc. (Employer) as a
full-time Assistant Manager from May 20, 2017 through December 29, 2017.
Employer’s Work Standards and Expectations recommend discipline up to and
including discharge if employees fail to cooperate in company investigations.
Claimant was aware of Employer’s policy. During an Employer investigation on
December 28, 2017, Claimant failed to cooperate with Employer’s investigator by
failing to answer questions posed to her.              Because Claimant failed to answer
questions, the investigator invited Employer’s District Manager Debra Sweda
(Sweda) to notify Claimant that her lack of cooperation could lead to her discharge.
Sweda twice notified Claimant that her failure to cooperate during an investigation
would lead to employment termination.                 On December 28, 2017, Employer
discharged Claimant for failing to cooperate with Employer during an investigation.
              Claimant applied for UC benefits. On April 5, 2018, the Harrisburg
Overflow Center (UC Service Center) determined that Claimant was eligible for UC
benefits under Section 402(e) of the Law. Employer appealed and a Referee hearing
was held.      On May 18, 2018, the Referee reversed the UC Service Center’s
determination. Claimant appealed to the UCBR. On August 29, 2018, the UCBR
affirmed the Referee’s decision. Claimant appealed to this Court.3
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for [UC] benefits when his unemployment is due
              to discharge from work for willful misconduct connected to
              his work. The employer bears the burden of proving willful
              misconduct in a[] [UC] case. Willful misconduct has been

       3
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).



                                                 2
            defined as (1) an act of wanton or willful disregard of the
            employer’s interest; (2) a deliberate violation of the
            employer’s rules; (3) a disregard of standards of behavior
            which the employer has a right to expect of an employee; or
            (4) negligence indicating an intentional disregard of the
            employer’s interest or a disregard of the employee’s duties
            and obligations to the employer.

Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747
n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added)).

            Where willful misconduct is based upon the violation of a
            work rule, the employer must establish the existence of the
            rule, its reasonableness, and that the employee was aware of
            the rule. Once employer meets this burden, the burden
            shifts to the claimant to prove that the rule was
            unreasonable or that he had good cause for violating the
            rule.

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Review, 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)).
            Claimant argues that the UCBR erred by deeming her not credible and
by determining that she committed willful misconduct by not cooperating in
Employer’s investigation.
            This Court has explained:

            [T]he [UCBR] is the ultimate fact-finder in [UC] matters
            and is empowered to resolve all conflicts in evidence,
            witness credibility, and weight accorded the evidence. 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 evidence to support the
            findings actually made.        Where substantial evidence
            supports the [UCBR’s] findings, they are conclusive on
            appeal.

Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008)). Further,

                                         3
             [s]ubstantial evidence is relevant evidence upon which a
             reasonable mind could base a conclusion. In deciding
             whether there is substantial evidence to support the
             [UCBR’s] findings, this Court must examine the testimony
             in the light most favorable to the prevailing party, . . .
             giving that party the benefit of any inferences which can
             logically and reasonably be drawn from the evidence.

Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment Comp. Bd. of Review, 739
A.2d 616, 618 (Pa. Cmwlth. 1999)).
             At the Referee hearing, Sweda presented Employer’s “Work Standards
and Expectations” which were accepted into evidence. Notes of Testimony May 17,
2018 (N.T.) at 3. They provided, in relevant part:

             All associates share in the responsibility of maintaining an
             environment that is professional, pleasant and productive.
             There are acts that will lead to disciplinary action, up to and
             including termination. Some are listed below:
             ....
             • failure to cooperate in a Company investigation[.]

Certified Record (C.R.) Item 2 at 3 (Ex. 4b). Sweda testified that the Work Standards
and Expectations were included in the “Associate Handbook.” N.T. at 5. Sweda also
presented, and the Referee accepted into evidence, N.T. at 3, Claimant’s signed
acknowledgement that she received the Associate Handbook on May 8, 2017. C.R.
Item 2 at 3 (Ex. 4c).
             Based on the above, the Referee found as a fact, and the UCBR adopted,
that “[C]laimant was aware of [] [E]mployer’s policy” “recommend[ing] discipline
up-to-and-including [employment] termination where employees fail to cooperate in
company investigations.” Referee Dec. at 1.
             Sweda further testified:

             [Sweda] During the investigation [Claimant] had refused to
             cooperate at all, and refused to provide any information to
             the investigation [sic]. This was with our other asset
                                           4
             protection partners. I was brought into the room. I was
             informed that she was failing to cooperate with the
             investigation and was not providing any information, at
             which point I let [Claimant] know that failure to cooperate
             with the investigation would lead to termination. I asked
             her if she understood; she said yes, nodded, and I then
             reminded her that she needed to cooperate and that she
             needed to provide us with information, at which point she
             did not. I reminded her again that if she failed to comply
             with the investigation that she would be terminated, at
             which point she shrugged.
             ....
             [Employer’s Representative] Okay, thank you, and at that
             point was the Claimant[’s employment] immediately
             terminated?
             [Sweda] Yes. After she refused to cooperate for the second
             time, then I terminated her employment.

N.T. at 6-7. This testimony is substantial evidence supporting the Referee’s findings
that “[t]wice, the district manager notified [] [C]laimant that her failure to cooperate
during an investigation would lead to termination[,]” and “[b]ecause [] [C]laimant
failed to cooperate with [] [E]mployer during an investigation, [] [E]mployer
terminated [] [C]laimant.” Referee Dec. at 2. Accordingly, the UCBR properly
determined that Claimant committed willful misconduct.
             Although unartfully stated, Claimant argues in her brief that she had
good cause not to cooperate because she had no knowledge of the information for
which she was being investigated. However, at the hearing, Claimant indicated that
she did not answer because she was being asked about other employees.
Notwithstanding, the Referee determined that Claimant was not credible, and the
UCBR adopted that determination. “The law is clear that the [UCBR] is the ultimate
. . . arbiter of witness credibility.” Killian-McCombie v. Unemployment Comp. Bd. of
Review, 62 A.3d 498, 500 (Pa. Cmwlth. 2013) (quoting Bruce v. Unemployment
Comp. Bd. of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010)).

                                           5
              Concerning the investigation, Employer’s Asset Protection Manager
Stacey Brinig Baker (Baker) testified:

              During the interview with [Claimant] as I said, we were
              asking various questions in regard to what was occurring in
              the store, and [Claimant] would cooperate in where she
              would confirm her name and her address for us but other
              than that she would either shrug her shoulders or refuse to
              answer, or one of the common phrases that she used
              repeatedly is I will not speak to that. After that[,] we
              continued to try to talk to her of, you know, [sic] in regards
              to gathering information when we realized that she was not
              going to cooperate. I think it lasted for probably about 30
              minutes. Ryan Mangin, who is the (inaudible) District
              Manager in the room with me, stepped out of the room to
              inform our Manager and Human Resource [(HR)]
              representative in regards to what was occurring in the
              interview room. When Ryan stepped out that’s when []
              Sweda stepped in, that way there was always two people in
              the room with [Claimant]. Then Ryan came back in and
              [Sweda] stepped out and I think [Sweda] and Brenda
              Peterson, who is the HR Manager, they discussed exactly
              what was happening in regards to failure to cooperate with
              our investigation, and as [Sweda] had testified, she came in
              and verbally confirmed that [Claimant] would understand
              [sic] what would happen is [sic] she continued to refuse to
              answer questions, and [Claimant] said uh-huh first time
              with a nod of the head and then the second time it was as []
              Sweda said, that she shrugged her shoulders, and then they
              made the decision to go ahead and terminate (inaudible).

N.T. at 11.
              The UCBR opined:

              [C]laimant testified that she did not answer the
              investigator’s questions because they pertained to another
              employee. The [UCBR], however, notes that [] [C]laimant
              was an assistant manager. As such, it was not unreasonable
              for her to answer questions about other employees.
              Because she did not, the [UCBR] finds that she lacked just
              cause for not cooperating with the investigator.



                                            6
            On appeal, [] [C]laimant asserted for the first time that she
            did not respond to the investigator’s questions because she
            had no answers for them. [] [C]laimant, however, did not
            testify similarly at the hearing. Accordingly, the [UCBR]
            finds no reason to accept [] [C]laimant’s contention and
            thus will not disturb the Referee’s decision on the merits.

UCBR Dec. at 1. This Court discerns no error in the UCBR’s reasoning.
            For all of the above reasons, the UCBR’s order is affirmed.




                                     ___________________________
                                     ANNE E. COVEY, Judge




                                         7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jacqueline P. Keita,                      :
                        Petitioner        :
                                          :
                   v.                     :
                                          :
Unemployment Compensation                 :
Board of Review,                          :     No. 1334 C.D. 2018
                    Respondent            :


                                     ORDER

            AND NOW, this 25th day of June, 2019, the Unemployment
Compensation Board of Review’s August 29, 2018 order is affirmed.



                                     ___________________________
                                     ANNE E. COVEY, Judge
