           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tonya R. King,                                 :
                             Petitioner        :
                                               :
                      v.                       :   No. 2154 C.D. 2015
                                               :   Submitted: March 24, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                            FILED: June 1, 2016


       Tonya R. King (Claimant), proceeding pro se, petitions for review of the
Order of the Unemployment Compensation (UC) Board of Review (Board) that
affirmed the UC Referee’s (Referee) Decision finding Claimant ineligible for UC
benefits pursuant to Section 402(e) of the UC Law1 (Law) because she engaged in
willful misconduct related to her work. On appeal, Claimant argues that the Board
erred and/or abused its discretion in finding her ineligible because there was


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week
the employee’s “unemployment is due to h[er] discharge or temporary suspension from work for
willful misconduct connected with h[er] work”).
insufficient credible evidence to establish why she was discharged, Claimant’s
evidence was not taken into consideration, and Claimant was not permitted to
subpoena witnesses to testify on her behalf. Discerning no error or abuse of
discretion, we affirm.
        Claimant worked full-time as a teacher’s aide for God’s Little Angels
Daycare (Employer) until she was discharged on July 8, 2015 for insubordination
and creating a hostile environment. Claimant filed a claim for UC benefits, which
a local service center denied pursuant to Section 402(e) of the Law. Claimant
appealed, and the matter was assigned to the Referee for a hearing. At the hearing,
Employer presented the testimony of its Owner/Director (Director), and Claimant
testified on her own behalf. Claimant also offered a written statement of her co-
worker of the events on the day in question and a text message from a parent as
character evidence, which were excluded, respectively, as objected-to hearsay and
irrelevant to the proceedings. (Hr’g Tr. at 20-23, R. Item 8.)
        Based on the evidence presented, the Referee made the following findings of
fact:
        1. The Claimant was last employed as a full-time Teacher’s Aide
           with [Employer] from May 3, 2010 until July 8, 2015, at a final
           rate of pay of $7.62 per hour.

        2. On July 8, 2015, the Claimant and a coworker took a group of two
           and three year old children on a field trip.

        3. The Director sent a text message to the Claimant telling her to
           bring the children back to the Daycare by Noon.

        4. The Claimant did not receive the text message.

        5. The Director asked the Supervisor to call the Claimant to tell her
           to return the children back to the Daycare because they had been
           out too long.


                                          2
      6. When the Claimant and the coworker returned to the Daycare, the
         Director said they could not take the children on any more field
         trips.

      7. The Claimant became very upset, raised her voice and was
         upsetting the children.

      8. The Director told the Claimant to punch out and leave.

      9. The Claimant refused to leave and said she wanted money owed to
         her.

      10. The Director called 911 because the Claimant refused to leave.

      11. The Claimant yelled up the stairs to the Supervisor, who is a
          personal friend, that the Director was calling the police.

      12. The Claimant had an outstanding warrant for a traffic violation
          and left to pay the ticket because the Director had called the
          police.

      13. The Claimant was gone by the time five police officers arrived at
          the Daycare.

      14. The Director told the Supervisor to contact the Claimant to state
          she was not to return or come back on the premises.

      15. The Employer terminated the Claimant for being insubordinate
          and creating a hostile environment.

(Referee Decision, Findings of Fact (FOF) ¶¶ 1-15.) The Referee did not credit
Claimant’s testimony that she did not use inappropriate language or raise her voice.
Accepting Director’s testimony, the Referee held that Employer’s directive to
Claimant to leave the premises was reasonable under the circumstances. Because
Claimant refused to leave as directed and did not establish good cause for her
refusal, the Referee concluded that Employer met its burden of proving that it
discharged Claimant for willful misconduct in connection with her work. Thus,


                                         3
the Referee found Claimant ineligible for UC benefits under Section 402(e) of the
Law. Claimant appealed to the Board, and she requested that a remand hearing be
held for which she could subpoena character witnesses to testify in support of her
claim for benefits.
       The Board determined that the Referee’s decision was proper under the Law
and adopted and incorporated the Referee’s findings into its Order. Like the
Referee, the Board “[did] not credit the claimant’s testimony that she did not raise
her voice or use profanity [i]n her argument with the employer’s owner.” (Order.)
The Board concluded that the directive that Claimant leave the property was
reasonable considering Claimant’s behavior and that “[C]laimant did not have
good cause for” her refusal to do so. (Id.) Finally, the Board indicated that it did
not consider any of the extra-record statements submitted with Claimant’s appeal
and denied Claimant’s request for a remand to present additional testimony
because “[C]laimant had a full and fair opportunity to present witnesses” at the
hearing. (Id.) Claimant now petitions this Court for review.2



       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.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
“The Board’s findings are conclusive on appeal so long as the record, when viewed in its
entirety, contains substantial evidence to support the findings.” Western and Southern Life Ins.
Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Substantial evidence is “such relevant evidence which a reasonable mind would accept as
adequate to support a conclusion.” Id. This Court is bound “‘to examine the testimony in the
light most favorable to the party in whose favor the Board has found, giving that party the benefit
of all inferences that can logically and reasonably be drawn from the testimony’” to determine if
substantial evidence exists for the Board’s findings. United States Banknote Co. v.
Unemployment Comp. Bd. of Review, 575 A.2d 673, 674 (Pa. Cmwlth. 1990) (quoting Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977)).

                                                4
      On appeal, Claimant sets forth her version of what happened on the day in
question and argues that Director did not testify truthfully about those events.
Claimant contends that she did not have any problem with being sent home and
was not “flipping out about it.” (Claimant’s Br. at 9.) Claimant asserts that she did
not leave immediately because she wanted the money that she claims the Director
stole from Claimant’s paycheck and that this was reasonable.
      The Board responds that its findings of fact are supported by the credible
testimony of Employer’s witness and Claimant is attempting to have this Court
reweigh the evidence in her favor, which the Court may not do. The Board further
asserts that Claimant’s behavior constitutes willful misconduct for which Claimant
does not have good cause.
      We first consider whether the Board’s findings are supported by substantial
evidence. Here, Claimant essentially challenges the findings that she “became
very upset, raised her voice and was upsetting the children” and was discharged for
“insubordinat[ion] and creating a hostile environment.” (FOF ¶¶ 7, 15.) Claimant
does not challenge the findings that Director asked her to leave or that Claimant
refused to do so because Director owed her money.
      Director testified that, after she advised Claimant that Claimant could not
take the children on any more field trips,

      [Claimant became] very irate with me and started screaming and
      hollering and talking loud. And at that point, I didn’t want to get the
      kids upset. She was scaring the kids. And so, I asked her to calm her
      voice down. I asked her -- you need to leave the building. And she
      refused to leave. So, I called 911 because at that point she was
      unbearable to handle.

(Hr’g Tr. at 5.) Director further testified that as she “asked [Claimant] to calm
down . . . [and] reason[] it out . . . [but Claimant] started cussing at me and . . . it
                                             5
was just unbearable” and agreed that “the children [were] around [and] they could
hear this going on.” (Id. at 7-8.) Director explained that “the kids [were] upset and
[she] really need[ed] to get [Claimant] out of the building.” (Id. at 6.) This
testimony supports the Board’s finding that “Claimant became very upset, raised
her voice and was upsetting the children.” (FOF ¶ 7.) Moreover, this evidence,
along with Claimant’s admission that Director told her to leave the premises and
she refused to do so, also supports the Board’s finding that Director discharged
Claimant for insubordination and creating a hostile environment. (FOF ¶ 15.)
Although we understand Claimant’s frustration in not having her testimony
believed, it is the Board, not this Court that “determines the credibility of witnesses
and the weight to be assigned to the evidence.” Tapco, Inc. v. Unemployment
Comp. Bd. of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994).                    Those
determinations “are not subject to re-evaluation on judicial review.”         Peak v.
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985) (internal
quotation omitted). Here, the Board credited Director’s testimony, and we may not
re-evaluate the testimony. Id.
      Next, we consider whether Claimant’s actions rose to the level of willful
misconduct and, if so, whether she established good cause for her behavior under
the circumstances. Section 402(e) of the Law states that an employee is ineligible
for UC benefits for any week where her discharge is “for willful misconduct
connected with h[er] work . . . .” 43 P.S. § 802(e). This Court has defined willful
misconduct, in relevant part, as “the deliberate violation of [an employer’s] rules”
or “the disregard of standards of behavior which an employer can rightfully expect
from his employee.” Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d
518, 521 (Pa. Cmwlth. 1999). Where an individual is discharged for not following


                                          6
an employer’s directive, we consider the reasonableness of the directive and of the
claimant’s actions. Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d
631, 634 (Pa. 1976). Moreover, we have held that willful misconduct occurs
where “the standard of behavior is obvious and the employee’s conduct is so
inimical to the employer’s interests that discharge is a natural result.” Orend v.
Unemployment Comp. Bd. of Review, 821 A.2d 659, 663 (Pa. Cmwlth. 2003). If
the employer satisfies its burden, the burden shifts to the claimant to show that he
or she had good cause for the conduct. McKeesport Hospital v. Unemployment
Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). “A claimant has
good cause if his or her actions are justifiable and reasonable under the
circumstances.” Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d
1205, 1208-09 (Pa. Cmwlth. 2006). If a claimant had “good cause for the conduct,
it was not willful misconduct.” Rossi v. Unemployment Comp. Bd. of Review,
676 A.2d 194, 198 (Pa. 1996). Whether a claimant’s conduct rose to the level of
willful misconduct is a question of law reviewable by this Court. Docherty, 898
A.2d at 1209.
      We agree with the Board that Employer’s directive that Claimant leave the
premises was reasonable where the credited testimony was that Claimant was very
upset, yelling, and upsetting the children. Claimant refused to comply with that
request until Director called the police to have Claimant removed. Moreover,
Claimant’s behavior in response to being told that she could no longer take
children on field trips and that she had to leave fell below that which Employer
could expect from its employees and was inimical to Employer’s interests to the
point “that discharge [was] a natural result.” Orend, 821 A.2d at 663. Thus,
Employer met its burden of proof, and the burden shifted to Claimant to establish


                                         7
that “her actions are justifiable and reasonable under the circumstances.”
Docherty, 898 A.2d at 1208-09.
      Initially we observe that, other than asserting that she did not act in the
manner Director described, Claimant does not justify her actions in becoming so
upset that she was yelling and upsetting the children. Claimant does attempt to
justify her refusal to comply with Employer’s directive to leave because she
wanted the money Director owed her before she left. However, as evidenced by
Claimant’s testimony that she subsequently recovered the money by other means,
(Hr’g Tr. at 21-22), there were other, reasonable ways that Claimant could have
obtained this money other than by refusing to leave Employer’s premises and
acting in this fashion. Accordingly, Claimant did not establish good cause for her
conduct, and as such, she is ineligible for benefits under Section 402(e) of the Law.
      Finally, Claimant maintains she had wanted to present testimony from her
immediate supervisor and her co-worker and, rather than subpoenaing them, she,
on the advice of an unnamed UC official, obtained written statements and
presented those statements at the hearing. However, the Referee did not consider
those statements and Claimant asserts that, had they been considered, she would
have prevailed. We view Claimant’s assertions as an argument that the Board
abused its discretion in denying her request for a remand hearing in order to
subpoena additional witnesses and present that testimony.
      “The Board has the discretion to decide when a remand hearing is necessary
and what issues will be addressed at said hearing.” Flores v. Unemployment
Comp. Bd. of Review, 686 A.2d 66, 75 (Pa. Cmwlth. 1996). “A rehearing is
normally given to afford a party an opportunity to adduce evidence not offered at
the original hearing because it was not then available.” Brady v. Unemployment


                                         8
Comp. Bd. of Review, 539 A.2d 936, 939 (Pa. Cmwlth. 1988). The Board’s denial
of a remand request “will be reversed only for a clear abuse of discretion.” Flores,
686 A.2d at 75.
       A review of the record reveals that Claimant did attempt to introduce a
written statement of her co-worker and a text message from a parent, but this
evidence was excluded as hearsay and irrelevant, respectively. (Hr’g Tr. at 20-23.)
Claimant did not attempt to present any written statement from her immediate
supervisor, and she made no mention at the hearing of any alleged contact she had
with a UC official about obtaining subpoenas. Claimant admits to having received
the hearing notice, which twice describes the manner in which a party can request
and obtain subpoenas from the Referee in order to compel a witness to appear and
testify at the scheduled hearing. (Hr’g Tr. at 1; Notice of Hearing at 2-3, R. Item
7.) Nevertheless, Claimant’s first request for subpoenas was in her appeal to the
Board. There, Claimant requested another hearing to present additional evidence:
character witnesses who would testify on her behalf but only if they were
subpoenaed because they still worked for Employer. (Claimant’s Petition for
Appeal at 1-2, R. Item 10.) The Board denied Claimant’s request for a remand
hearing because she already “had a full and fair opportunity to present witnesses on
her behalf.” (Order.) We find no abuse of discretion in the Board’s denying
Claimant a second opportunity to present evidence that she could have presented at
the initial hearing.
       Accordingly, the Board’s Order is affirmed.



                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge

                                         9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tonya R. King,                        :
                       Petitioner     :
                                      :
                 v.                   :   No. 2154 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER

     NOW, June 1, 2016, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                      _____________________________
                                      RENÉE COHN JUBELIRER, Judge
