               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Williams,                               :
                              Petitioner       :
                                               :
                 v.                            :   No. 197 C.D. 2017
                                               :   Submitted: August 18, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: October 2, 2017

                 Petitioner Pamela Williams (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board), which
affirmed a Referee’s decision, denying Claimant benefits under Section 402(e) of
the Unemployment Compensation Law (Law),1 relating to willful misconduct. For
the reasons set forth below, we affirm.
                 Claimant filed for unemployment compensation benefits after being
discharged from her employment as a certified nursing assistant for Ann’s Choice
(Employer). (Certified Record (C.R.), Item No. 2.) The Erie UC Service Center
(Service Center) determined that Claimant was ineligible for unemployment
compensation benefits under Section 402(e) of the Law. (C.R., Item No. 6.)

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Claimant appealed the Service Center’s determination, and a Referee conducted a
hearing.2 (C.R., Item No. 7.)
              Employer presented the testimony of its human resources manager,
Jeannette Collins (HR Manager), its assistant director of nursing, Denise Cattalo
(ADON), and its director of nursing, Terri Costa (DON). (C.R., Item No. 17.) The
Claimant testified on her own behalf. (Id.)
              The HR Manager testified that Employer has an attendance policy that
provides that employees who “walk off the job without authorization” are subject
to termination for job abandonment. (Id. at 7-8.) Employer also has a policy
prohibiting the falsification of documents. (Id.) Further, the HR Manager testified
that Employer provided Claimant a handbook containing these policies, and
Claimant signed an acknowledgment that she had received and read the policies.
(Id. at 7.)
              The ADON testified that she has an office with a window overlooking
the parking lot, and on June 2, 2016, at approximately 3:05 p.m., she observed
Claimant walk out to her car and leave the premises. (Id. at 9.) The ADON then
testified that she inquired as to when Claimant punched out, as the ADON knew
Claimant’s shift was not over until 3:30 p.m. (Id. at 9-10.) The ADON discovered
that Claimant submitted a “missed punch” form, indicating her punch out time


       2
          In this case, the Referee conducted a hearing on September 14, 2016. (C.R., Item
No. 11.) After Claimant’s appeal of the Referee’s decision, it was discovered that the audio
recording of the hearing had been accidentally deleted and was irretrievable. (C.R., Item
No. 13.) Accordingly, the Board remanded to the Referee to recreate a record. (C.R., Item
No. 14.) The Referee conducted a second hearing on November 16, 2016, and the Board
thereafter issued its decision and order based on the record created at the November 16, 2016
hearing.



                                             2
as 3:30 p.m., in violation of Employer’s policy regarding falsification of
documents. (Id. at 10.)3 The ADON then testified that she confronted Claimant
regarding her early departure and inaccurate missed punch form, and Claimant
admitted to leaving early and apologized for it. (Id. at 11-12.)
              The DON testified to calling Claimant on June 15, 2016, to inform her
of her termination. (Id. at 15, Employer’s Ex. 11.) The DON testified that she told
Claimant that her termination was due, in part, to her early departure on
June 2, 2016, and her submission of a missed punch form that did not accurately
portray the time she left, which constituted violations of the Employer’s attendance
and falsification policies. (C.R., Item No. 17 at 15.)
              Claimant, on her own behalf, testified to receiving and reading the
handbook containing Employer’s policies on attendance and falsification. (Id.
at 17.) Claimant also testified that on June 2, 2016, she had started her shift
at 6:30 a.m., thirty minutes early. (Id.) This, Claimant testified, was the reason
she left at 3:00 p.m., instead of her scheduled time of 3:30 p.m. (Id.) Regarding
the missed punch form, Claimant testified that she did not fill out the form until
approximately a week later, and she was not thinking when she filled it out. (Id.
at 18.) Claimant testified that when she “admitted” to the ADON that she had left
work early on June 2, 2016, she thought the ADON was asking her about a
different date. (Id. at 19.) Claimant testified that she thought the ADON was

       3
          In order to facilitate the recording of the time worked by its employees, Employer
provides its employees with a badge, which is to be used in order to “punch in” and “punch out”
from work. (C.R., Item No. 17 at 20.) If the employee does not have her badge with her when
she arrives to work, she is to report her time using a “missed punch” form. (Id.) Claimant did
not have her badge on June 2, 2016, and she used a missed punch form in order to report her
time. (Id.)



                                              3
referring to a different date in which Claimant left work at approximately the same
time to move her car and returned to work immediately thereafter. (Id.)
            Following the hearing, the Referee issued a decision, in which she
found Claimant to be ineligible for unemployment compensation benefits and
affirmed the Service Center’s determination. (C.R., Item No. 11.)
            Claimant appealed the Referee’s order to the Board, which affirmed
the Referee’s decision. (C.R., Item Nos. 12, 18.) The Board specifically resolved
evidentiary disputes, in relevant part, in favor of Employer. (C.R., Item No. 18.)
In doing so, the Board issued its own findings of fact and conclusions of law. The
Board made the following relevant findings:
            1.      The claimant was last employed as a full-time
            certified nursing assistant, household associate, by the
            employer, Ann’s Choice, from February 13, 2012, until
            June 15, 2016, at a final rate of $18.81 per hour and her
            last day of work was June 14, 2016.
            2.      The employer has an attendance policy that states
            that employees who walk off the job are subject to
            termination for job abandonment.
            3.      The employer also has a policy that prohibits
            falsification of documentation.
            4.      The claimant knew or should have known about
            the employer’s policies.
            5.      On June 2, 2016, the claimant was scheduled for
            work until 3:30 p.m.
            6.      On June 2, 2016, the assistant director of nursing
            [(ADON)] looked out her window and observed the
            claimant leaving the premises at 3:05 p.m.
            7.      The claimant did not punch out on June 2, 2016.
            8.      Instead, the claimant filled out a missed punch
            form that indicated that she left at 3:30 p.m.




                                        4
            9.      The first time the [ADON] saw the claimant again,
            the ADON asked the claimant about leaving work early,
            and the claimant lied about her whereabouts.
            10. Later, the claimant admitted to falsely filling out
            the missed punch form.
            11. The employer uniformly enforced its policies.
            12. The employer terminated the claimant because she
            violated the employer’s attendance policy and
            falsification policy.
            13. The original audio recording was unable to be
            transcribed.
            14. The employer’s representative passed away shortly
            before the scheduled remand hearing.

(Id.)

            The Board, in concluding that Employer discharged Claimant for
willful misconduct, reasoned:
            Here, the employer credibly testified that it had a policy
            that prohibited falsification of documents and that
            employees were required to work throughout the duration
            of their scheduled work hours. The employer’s policies
            were reasonable. The claimant knew or should have
            known about the employer’s policies.
            However, on June 2, 2016, the claimant was scheduled to
            leave work at 3:30 p.m. She left work at 3:05 p.m. She
            then submitted a missed punch form indicating that she
            did not leave work until 3:30 p.m. The claimant violated
            the employer’s policies regarding attendance and
            falsification of documents. The claimant admitted her
            actions. The claimant also lied to the employer about
            leaving early.
            Not only did the claimant’s actions constitute a violation
            of the employer’s policies, but her dishonesty falls below
            the standard of behavior an employer can expect from an
            employee, and constitutes misconduct even without a
            policy.

(Id.)
                                        5
               Claimant now petitions this Court for review. On appeal,4 Claimant
first appears to argue that substantial evidence of record does not exist to support
the Board’s finding that Employer discharged Claimant because she violated
Employer’s attendance policy and falsification policy. Claimant also argues that
the Board erred in concluding that Employer discharged Claimant for willful
misconduct.5 Alternatively, Claimant argues that, if her actions did rise to the level
of willful misconduct, she had good cause for her conduct.
               First, we will address Claimant’s argument that substantial evidence
does not exist to support the Board’s finding that Employer discharged Claimant
because she violated Employer’s attendance policy and falsification policy. In
doing so, we initially note that Claimant does not identify with specificity which of
the Board’s findings of fact that she challenges. In Claimant’s brief, however, it is
argued that Claimant was terminated for submitting too many missed punch cards.
(Pet’r Br. at 10.) Accordingly, we will construe this argument to be that Claimant
is challenging the Board’s finding that Employer terminated Claimant because she
violated Employer’s attendance policy and falsification policy. (C.R., Item No. 18,
Finding of Fact (F.F.) No. 12.)

       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       5
          In her brief, Claimant mistakenly refers to Section 402 of the Law as “43 P.S. § 402”
and contends that the General Assembly repealed Section 402 of the Law on January 20, 2017.
(Pet’r Br. at 11 (emphasis added).) This, however, is not correct, as Section 402 of the Law may
be found at “43 P.S. § 802.” See footnote 1, supra. Section 402 of the Law is still in effect. The
Act of May 22, 1933, P.L. 654, and the Act of May 18, 1937, P.L. 654, repealed statutory
provisions previously set forth at 43 P.S. §§ 381-402.



                                                6
            Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’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 that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The
Board’s findings of fact are conclusive on appeal only so long as the record taken
as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984). Further, even if evidence exists in the record that
could reasonably support a contrary conclusion, it does not follow that the findings
of fact are not supported by substantial evidence. Johnson v. Unemployment
Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
            Claimant contends that Employer informed her that she was
terminated due to the fact that she had submitted a multitude of missed punch
forms, and Employer did not mention her leaving early on June 2, 2016. A review
of the transcript from the Referee’s hearing establishes that substantial evidence
exists for the Board’s finding that Employer terminated Claimant’s employment
because she violated Employer’s attendance policy and falsification policy. The
DON testified at the hearing to calling Claimant to inform her of her termination.
(C.R., Item No. 17 at 15.)     At the Referee’s hearing, the DON recalled the
conversation as follows:
            I was trying to tell her that [her termination] was for . . .
            nine days of filling out missed punches in one pay period,

                                         7
              which was fourteen days. And she had already been
              verbally counseled for that, so we had already talked to
              her about not punching in and out and continuously just
              handing in forms. And then I did explain to her that
              because she had left the building early and then had put
              in her [missed punch form] that she actually left at 3:30,
              that that was why she’s being terminated.

(Id.) Further, Employer introduced into evidence a statement authored and signed
by the DON that detailed Claimant’s termination. (Id. at Employer’s Ex. 11.) The
statement identified the reasons that Claimant was terminated as both the number
of missed punch forms that Claimant submitted and Claimant leaving work early
and submitting a falsified missed punch form. (Id.) Looking at the evidence of
record in the light most favorable to the prevailing party, we hold that the Board’s
finding that Employer terminated Claimant’s employment due to violations of
Employer’s attendance policy and falsification policy is supported by substantial
evidence.
              We now turn to Claimant’s argument that the Board erred in
determining that Employer discharged Claimant for willful misconduct, and,
alternatively, that the Board erred in failing to conclude that she had good cause for
her conduct.6 Whether or not an employee’s actions amount to willful misconduct


       6
          In her brief, Claimant argues that she had a “necessitous and compelling” reason for
leaving work before her scheduled shift was over. (Pet’r Br. at 7-8.) Claimant misapprehends
the law insofar as whether a claimant has a necessitous and compelling reason for leaving
employment is the analysis applied when an employee voluntarily quits her employment. See
generally Pa. Gaming Control Bd. v. Unemployment Comp. Bd. of Review, 47 A.3d 1262, 1265
(Pa. Cmwlth.) (holding claimant who voluntarily quits her employment bears burden of proving
that necessitous and compelling reasons motivated decision), appeal denied, 62 A.3d 381
(Pa. 2012). As Claimant did not voluntarily quit her position, we will construe her argument to
be that she had good cause for voluntarily leaving work early on June 2, 2016.



                                              8
is a question of law subject to review by this Court. Nolan v. Unemployment
Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
            Section 402(e) of the Law provides, in part, that an employee shall be
ineligible for compensation for any week in which “his unemployment is due to his
discharge or temporary suspension from work for willful misconduct connected
with his work.” The employer bears the burden of proving that the claimant’s
unemployment is due to the claimant’s willful misconduct.               Walsh v.
Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The
term “willful misconduct” is not defined by statute. The courts, however, have
defined “willful misconduct” as:
            (a) wanton or willful disregard of employer’s interests,
            (b) deliberate violation of the employer’s rules,
            (c) disregard of standards of behavior which an employer
            can rightfully expect of an employee, or (d) negligence
            indicating an intentional disregard of the employer’s
            interest or an employee’s duties and obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Willful misconduct includes an employee’s deliberate violation of an employer’s
rule and an employee’s disregard of the standard of behavior expected by an
employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Comp. Bd.
of Review, 309 A.2d 165, 168 (Pa. Cmwlth. 1973). An employer, seeking to prove
willful misconduct by showing that the claimant violated the employer’s rules or
policies, must prove the existence of the rule or policy and that the claimant
violated it. Walsh, 943 A.2d at 369. If, however, the claimant can show good
cause for the violation, then there should be no finding of willful misconduct. Id.
A single incident of misconduct may support a denial of benefits.         Jones v.
Unemployment Comp. Bd. of Review, 373 A.2d 791, 792 (Pa. Cmwlth. 1977).


                                        9
             First, we must determine whether Employer sustained its burden and
established a prima facie case of willful misconduct. In doing so, Employer must
initially establish the existence of a policy or rule. The HR Manager testified that a
handbook containing the company policies is provided to new employees upon
their hiring, and it is also available through an Internet portal. (C.R., Item No. 17
at 7.) Among the policies provided to new employees are policies regarding
attendance and standards of conduct. (Id. at 7-8.) The HR Manager testified that
the attendance policy provides that employees who walk off the job without
authorization are subject to termination for job abandonment, and the standards of
conduct policy prohibits the falsification of documents. (Id.) Based upon this
testimony, Employer sustained its burden to establish that it maintains policies
regarding attendance and falsification of documents.
             The second requirement of Employer’s prima facie case is to show
that Claimant was or should have been aware of this policy. The HR Manager
testified that Claimant received copies of these policies, in addition to signing an
acknowledgement form signifying her receipt and agreed compliance with the
policies.   (Id. at 7.)   Employer introduced into evidence Claimant’s signed
acknowledgement form. (Id. at Employer’s Exhibit 3.) Claimant herself also
testified to receiving and reading the policies. (Id. at 16-17.) Based upon this
evidence, the Board found that Claimant knew or should have known about
Employer’s policies. (C.R., Item No. 18, F.F. No. 4.) Employer, therefore, met its
burden to establish that Claimant was or should have been aware of Employer’s
policy.
             Additionally, Employer must establish the third requirement of its
prima facie case by showing that Claimant violated Employer’s policy.            The


                                         10
ADON testified that Claimant was scheduled to work from 7:00 a.m. to 3:30 p.m.
on June 2, 2016. (C.R., Item No. 17 at 9.) Although Claimant’s shift was not to
end until 3:30 p.m., the ADON observed Claimant leaving work at
approximately 3:05 p.m. (Id.) The ADON testified that when Claimant submitted
a missed punch form for June 2, 2016, the form listed Claimant’s clock-out time to
be 3:30 p.m. (Id. at 10.) As the Board found this testimony credible, Employer
satisfied its burden to prove Claimant violated the policy.
             Once an employer has satisfied its burden, the burden then shifts to
the claimant to show good cause as justification for the conduct considered willful.
McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa.
Cmwlth. 1993).     The employee establishes good cause where his actions are
justified or reasonable under the circumstances.         Chapman v. Unemployment
Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
             Here, Claimant failed to establish good cause for leaving the
workplace prior to her shift ending.         At the hearing in front of the Referee,
Claimant testified to being aware that walking off the job early could result in
termination. (C.R., Item No. 17 at 17.) Claimant also testified that she was aware
that falsifying documentation could result in termination. (Id.) Claimant claimed
that she did not leave work early that day; rather, she merely started her shift thirty
minutes early and, therefore, was leaving on time. (Id. at 18-19.) Claimant
testified regarding the events as follows:
             R      So why didn’t you punch in when you came in on
                    the 2nd?
             C      I didn’t have a badge, ma’am. That’s why I filled
                    the paper out. I didn’t have a badge and I didn’t
                    start – I’m sorry, go ahead.



                                             11
            R      Oh, no, that’s fine. So if you started at 6:30 [a.m.],
                   why did you fill out [your missed punch form] to
                   say 7:00 a.m.?
            C      I didn’t think, because I filled that paper out the
                   following week. And I didn’t realize that I had
                   even – I – I didn’t have a break as well.
            R      Did you fill out [your missed punch form] on June
                   the 2nd?
            C      I did not. I did that . . .
            R      So then why did you say date signed, June 2nd?
            C      Because I have problems with the paper, when I –
                   the missed[]punch form, when I was filling them
                   out, I was getting shorted on my check because I
                   wasn’t filling them out correctly. So when I
                   started getting them – even though I wasn’t doing
                   them until the following week or a couple days
                   later, I still would put it as I would that day,
                   because I was messing up the time where I was
                   short on my – shorting myself on my paychecks on
                   this missed[]punch forms.

(Id.)
            Claimant’s argument that she showed up early and, thus, was justified
in leaving early essentially asks this Court to adopt her preferred version of the
facts over the Board’s findings.     But, as noted above, the Board specifically
resolved the evidentiary conflicts in favor of Employer.        It is, therefore, the
Board’s findings and not Claimant’s contentions that determine whether Claimant
showed good cause for her conduct.         Bruce v. Unemployment Comp. Bd. of
Review, 2 A.3d 667, 671-72 (Pa. Cmwlth.), appeal denied, 12 A.3d 753 (Pa. 2010).
In resolving the evidentiary conflicts in favor of Employer, the Board credited
Employer’s testimony that it had a policy that prohibited falsification of documents
and that employees were required to work throughout the duration of their
scheduled work hours. (C.R., Item No. 18 at 3.) Further, the Board determined

                                         12
that, although Claimant was scheduled to leave work at 3:30 p.m., she left at
approximately 3:05 p.m., and submitted a missed punch form that reflected that she
had worked until 3:30 p.m. (Id.) Given that the Board did not credit Claimant’s
testimony, the Board did not accept Claimant’s rationale for leaving at 3:05 p.m.
Moreover, that rationale still would not establish good cause for why she did not
complete her missed punch form accurately by setting forth her early start and
departure times. Claimant, therefore, did not establish good cause for the willful
misconduct. Accordingly, the Board did not err in concluding that Claimant’s
actions constituted willful misconduct.
            Accordingly, the order of the Board is affirmed.




                                P. KEVIN BROBSON, Judge




                                          13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Williams,                    :
                     Petitioner     :
                                    :
           v.                       :   No. 197 C.D. 2017
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 2nd day of October, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
