           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kim M. Stevenson,                             :
                                              : No. 909 C.D. 2016
                            Petitioner        : Submitted: November 10, 2016
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: April 19, 2017



              Kim M. Stevenson (Claimant) petitions pro se for review of the April
29, 2016 order of the Unemployment Compensation Board of Review (Board)
denying unemployment compensation benefits under Section 402(e) of the
Unemployment Compensation Law (Law).1 We affirm.
              Claimant was employed by Reliant Prospect Park, LLC (Employer)
from August 2013 through January 18, 2016. At the time of her separation from
employment, Claimant’s rate of pay was $13.00 per hour.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to her discharge from work for willful misconduct
connected with her work.
             In October 2015, Claimant was promoted from her position as a
certified nursing assistant (CNA) to Unit Clerk. However, after a probationary
period, Employer determined that Claimant was not a good fit for that position.
Employer had a meeting with Claimant on January 18, 2016, informed her of the
decision, and offered her several CNA shifts. Following the meeting, Claimant
was sent to pack up her things from the Unit Clerk station. Although Employer
initially offered to keep Claimant on as a CNA, she was ultimately discharged,
before accepting that position, for placing facility documents in a shredding
container. Findings of Fact (F.F.) Nos. 1-4, 8.
             Claimant filed for unemployment compensation benefits on February
9, 2016, and cited her attitude and a disagreement with her supervisor as the reason
for her discharge. Certified Record (C.R.) Item No. 2. The local service center
determined that Claimant was not ineligible for benefits under Section 402(e) of
the Law, and Employer appealed.
             The referee held a hearing on March 24, 2016. Claimant attended, as
well as Kathy Baker, Employer’s Director of Human Resources, Patty Burke,
Employer’s Director of Medical Records, and Christy Lane, Employer’s Building
Administrator. Burke testified that she received a report that while Claimant was
cleaning out her things from the Unit Clerk office, she had placed items in the Iron
Mountain shredding bin. Notes of Testimony (N.T.) at 10. Burke found four
binders in the shredding bin that contained residents’ lab reports, sign-in forms,
and patient information for Claimant’s job duties, in addition to Claimant’s emails
and login information. N.T. at 11-12.
             Baker testified that she, Burke, and the Assistant Director of Nursing
reviewed the materials that Burke retrieved from the shredding bin. N.T. at 8-9.


                                         2
Baker stated that loss of the information Claimant placed in the shredding bin
would have been detrimental to Employer’s operation. N.T. at 15.
              Baker testified that on January 22, 2016, following the materials
review, she and Lane called Claimant regarding what was placed in the shredding
bin and Claimant stated that she “may have done that.” N.T. at 9. At that point,
Baker testified, she and Lane informed Claimant that they were no longer offering
her the CNA position and were, instead, terminating her employment. Id. Baker
also testified that Employer had no formal policy regarding materials that go in the
shredding bin, but it did have a formal policy regarding resident records. N.T. at 9-
10.   At no point during the hearing did Claimant object to the testimony of
Employer’s witnesses.2
              Claimant testified that after her meeting with Employer on January
18, 2016, she went directly to her office to collect her things. N.T. at 13. She
stated that she had purchased many things for the unit to make it more presentable,
including binders and bins. Id.          She testified that while she was gathering her
things, she disposed of several binders into the Iron Mountain shredding bin, which
contained emails, job description paperwork, and her own notes regarding job
duties such as appointments. Id. Claimant stated that she disposed of things that
had her name on it for the purposes of preventing identity theft. Id. Claimant
testified that she was not aware that the information in the binders was Employer’s
property. N.T. at 14.


       2
        Hearsay evidence, admitted without objection, will be given its natural probative effect
and may support a finding of the Board if it is corroborated by any competent evidence in the
record. Ford v. Unemployment Compensation Board of Review, 498 A.2d 449, 450 (Pa.
Cmwlth. 1985); Orloski v. Unemployment Compensation Board of Review, 415 A.2d 720, 721
(Pa. Cmwlth. 1980).


                                               3
             The referee determined that Claimant had committed willful
misconduct and was ineligible for benefits under Section 402(e) of the Law. In
reaching her decision, the referee resolved conflicts in the evidence in Employer’s
favor and found that Claimant threw out four binders containing residents’ lab
reports and appointments for follow-up, as well as information on Claimant’s job
duties, and was discharged for attempting to destroy company property. F.F. Nos.
7-8.
             Claimant appealed to the Board, challenging the referee’s findings
that she committed willful misconduct by attempting to destroy company property.
Specifically, Claimant asserted that Employer failed to provide substantial
evidence that she placed the binders in question in the shredding bin. Moreover,
she argued that any documents that she placed in the bin were of a personal nature
and not company property. The Board affirmed the referee’s decision, adopting
and incorporating the referee’s findings and conclusions.
             On appeal to this Court,3 Claimant argues that the Board erred in
finding her ineligible for benefits as the result of willful misconduct. 4 She argues

       3
          Our scope 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. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843-44 (Pa. Cmwlth. 1987).

       4
        Claimant’s arguments have been edited for clarity. Her Pa. R.A.P. 2116 Statement of
Questions Involved portion of her appellate brief reads as follows:

             1. Who physically witnessed Ms. Stevenson throw [the] alleged
                items in the shred bin?
             2. By what means [were] the alleged items held for review of
                evidence besides [by] the people in question?
             3. Who told Ms. McCray that Ms. Stevenson discarded the items
                belonging to [the] facility in[to] the shred bin?
(Footnote continued on next page…)
                                            4
that the Board’s findings are not supported by substantial evidence and again
asserts that any materials she placed in the shredding bin were personal and not
company property. 5 We disagree.
               Preliminarily, we note that although not defined in the Law, willful
misconduct has been defined by the courts as: an act of wanton and willful
disregard of the employer’s interests; a deliberate violation of the employer’s rules;
a disregard of a standard of behavior which the employer has the right to expect; or
negligence rising to the level of an intentional disregard of the employer’s interests
or the employee's duties and obligations. Johns v. Unemployment Compensation
Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied, 97 A.3d 746
(Pa. 2014). An employer bears the burden of proving willful misconduct. Id. at
1010. Once the employer meets its burden, the burden then shifts to the claimant
to demonstrate good cause for her actions. Id.


(continued…)

               4. Why did it take four (4) days to notify Ms. Stevenson that she
                  was being terminated when the items that Ms. Stevenson
                  allegedly placed in the shred bin were found immediately upon
                  her departure?
               5. When did [Ms. Stevenson’s] personal property become the
                  property of Reliant Prospect Park, LLC?
               6. Why was there no physical evidence brought to [Ms.
                  Stevenson’s] attention of at the hearing for [her] review?

       5
         Claimant additionally argues that her discharge was too remote from her alleged actions
to have been the real reason she was discharged. However, Claimant failed to raise this
argument before the Board and, therefore, it is waived. Section 703(a) of the Administrative
Agency Law, 2 Pa. C.S. §703(a); Pa. R.A.P. 1551(a); Lewis v. Unemployment Compensation
Board of Review, 42 A.3d 375, 379 n.8 (Pa. Cmwlth. 2012) (holding that a claimant waived
issues regarding his employer's disciplinary procedures where he failed to raise the issues in his
appeal to the Board).


                                                5
             Additionally, the Board is the factfinder in unemployment
compensation cases, empowered to determine credibility of witnesses and resolve
conflicts in evidence. Curran v. Unemployment Compensation Board of Review,
752 A.2d 938, 940 (Pa. Cmwlth. 2000). While willful misconduct is a legal
determination fully reviewable by this Court, we are bound by the Board’s findings
so long as there is substantial evidence in the record, taken as a whole, supporting
those findings. Guthrie v. Unemployment Compensation Board of Review, 738
A.2d 518, 521 (Pa. Cmwlth. 1999). We view the record in the light most favorable
to the party prevailing before the Board and afford that party the benefit of all
reasonable inferences that can be drawn from the evidence to determine if
substantial evidence exists.        Big Mountain Imaging v. Unemployment
Compensation Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012). The
fact that a witness has presented a version of the facts different from that accepted
by the Board is not a basis for reversal if substantial evidence supports the Board’s
findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d
1106, 1108-09 (Pa. Cmwlth. 1994). “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.”
Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949
A.2d 338, 342 (Pa. Cmwlth. 2008) (citation omitted).
             Here, Claimant asserts that any items that she put in the shredding bin
were personal property and Employer did not produce any evidence to demonstrate
otherwise. However, the Board credited Burke’s testimony as to what she found in
the shredding bin and Baker’s testimony that, when questioned about placing
residents’ lab reports and appointment information into the bin, Claimant admitted


                                         6
that she “may have done that.”6 Based on those credibility determinations, the
Board concluded that Claimant’s actions were injurious to Employer’s interests
and that Claimant did not establish good cause for her actions.                        Claimant’s
argument is based on facts that are different from those found by the Board. Our
review of the record confirms that the Board’s findings are supported by
substantial evidence. Consequently, those findings are binding on appeal. Owoc v.
Unemployment Compensation Board of Review, 809 A.2d 441, 443 (Pa. Cmwlth.
2002). Based on the facts as found by the Board, Claimant’s actions constituted
willful misconduct, and Claimant failed to establish good cause for her conduct.
               Accordingly, we affirm the order of the Board.




                                              MICHAEL H. WOJCIK, Judge




Judge Brobson dissents.




       6
          In addition to Claimant failing to object to possible hearsay at the referee’s hearing, the
Board found that Claimant’s statement of “Yeah, I may have done that” was a statement against
interest and, therefore, admissible under the Pennsylvania Rules of Evidence Rule 804(b)(3). Pa.
R.E. 804(b)(3).


                                                 7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kim M. Stevenson,                    :
                                     : No. 909 C.D. 2016
                     Petitioner      :
                                     :
                v.                   :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                     Respondent      :


                                  ORDER


           AND NOW, this 19th day of April, 2017, the order of the
Unemployment Compensation Board of Review, dated April 29, 2016, is
AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
