            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lynn T. Chadwick,                              :
                              Petitioner       :
                                               :
                 v.                            :   No. 290 C.D. 2018
                                               :   Argued: November 15, 2018
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: January 31, 2019



                 Petitioner Lynn T. Chadwick (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed an Unemployment Compensation Referee’s (Referee) decision, which
determined Claimant ineligible for unemployment compensation benefits pursuant
to Section 402(e) of the Unemployment Compensation Law (Law).1 For the reasons
set forth below, we affirm.
                 Claimant applied for unemployment compensation benefits after being
discharged from her employment as an Accounts Receivable Clerk for FEA

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Industries Incorporated (Employer). On October 2, 2017, the Erie Unemployment
Compensation Service Center (Service Center) issued a notice of determination,
finding Claimant ineligible for benefits under the Law. Claimant appealed the notice
of determination, and the Referee conducted a hearing.
             Chrystal Colflesh, General Manager for Employer, testified that around
the second week of June 2017, she became aware, through Sherry Berry, Employer’s
Customer Service Manager, that Claimant had divulged other employees’ pay rates.
(Certified Record (C.R.), Item No. 11 at 6.) Thereafter, Ms. Colflesh started an
investigation. (Id. at 7.) The investigation entailed speaking with several employees
throughout the entire facility to find out how many times Claimant broke Employer’s
confidentiality rule by disclosing pay rates of employees to other employees. (Id.)
Ms. Colflesh’s investigation took six to eight weeks due to her other job duties. (Id.)
Employer did not make Claimant aware of the investigation. (Id.) Claimant
continued her employment during the investigation. (Id.) At the conclusion of the
investigation, Ms. Colflesh determined that Claimant had disclosed confidential
payroll information to several people. (Id.) Ms. Colflesh discussed the findings of
her investigation with Claimant. (Id. at 8.) Ms. Colflesh testified that Claimant, at
first, said nothing. (Id.) Later, Claimant said she thought she could disclose this
information to Ms. Berry. (Id.) Claimant then stormed out when Ms. Colflesh
explained that Claimant could not disclose the information to anyone but Employer’s
owner, William Heffner, and herself. (Id.) Ms. Colflesh next notified Mr. Heffner
of her findings, after which Mr. Heffner terminated Claimant’s employment. (Id.)
             Ms. Colflesh further testified that Employer has a progressive
disciplinary policy, and discipline varies based on the offense. (Id. at 11.) Ms.
Colflesh explained that Employer could ask employees to leave at any time for


                                          2
serious infractions, and, while breach of confidentiality is not listed as a serious
infraction, the list is not a limited list. (Id. at 11.)
              Mr. Heffner testified that he fired Claimant for divulging employees’
pay rates to other employees. (Id.) He became aware of Claimant’s conduct when
Ms. Colflesh brought it to his attention. (Id.) Mr. Heffner further testified that
Employer has a policy in its handbook prohibiting employees from divulging payroll
information to other employees. (Id.) Mr. Heffner further testified that he did talk
to Claimant about the allegation, and she responded by asking if she still had a job.
(Id.) He acknowledged that Claimant never expressly admitted to divulging payroll
information, but he told her that she no longer had a job with Employer. (Id. at 5-6.)
Mr. Heffner further testified that he learned of Claimant’s conduct after Ms.
Colflesh’s investigation. Mr. Heffner further testified that he did not give Claimant
a written notice of termination, only a verbal notice. (Id. at 9.)
              Ms. Berry testified that Claimant approached her and started
volunteering other employees’ salaries. (Id. at 16.) More specifically, Ms. Berry
testified that Claimant was doing payroll, became flustered, divulged a particular
employee’s wage, and stated that “[s]he should make more money than [the other
employee] did.” (Id. at 17.) Ms. Berry further testified that Claimant revealed
similar information about two other employees. (Id.) Ms. Berry added that Claimant
initiated this conversation and that this was the only conversation they had regarding
salaries. (Id.) Ms. Berry testified that she immediately disclosed to Ms. Colflesh
her conversation with Claimant. (Id. at 19.)
              Catherine Smith, Employer’s Customer Service Supervisor, testified
that Claimant disclosed the payroll information of another employee to her. (Id.
at 20.) Ms. Smith further testified that Claimant divulged to her the hourly wage of


                                              3
one of the lab managers. (Id. at 21.) Ms. Smith did not remember the specifics of
this encounter, but she did remember that she did not solicit the information. (Id.)
Ms. Smith further testified that she did not disclose this interaction with Claimant to
Employer until after Employer terminated Claimant’s employment. (Id. at 21-22.)
             Claimant testified that she does not recall the conversation with Ms.
Smith, but she does recall the conversation with Ms. Berry. (Id. at 22.) Claimant
testified that Ms. Berry came into her office asking about her female employees and
whether they were being paid fairly. (Id. at 23.) Claimant denied disclosing
employees’ specific salaries. (Id.) She testified that she told Ms. Berry that Ms.
Colflesh looked at the industry standard when setting salaries. (Id.) Claimant heard
nothing about her conversation with Ms. Berry until after Ms. Colflesh’s vacation in
July, when Claimant asked Ms. Colflesh why she had been distant. (Id.) According
to Claimant, Ms. Colflesh said that she was disappointed in Claimant because
Claimant disclosed confidential information. (Id.) Claimant further testified that
another employee approached her on August 28, 2017, regarding a conversation the
other employee had with Ms. Colflesh about Claimant’s possible termination. (Id.
at 24.) Claimant went to Ms. Colflesh’s office, which is when she realized that she
was in trouble. (Id.) Claimant testified that her conversation with Ms. Berry did not
disclose payroll information, and she believed it was appropriate to talk generally to
Ms. Berry about how salaries were set, because Ms. Berry was Ms. Colflesh’s
“right-hand person in charge.” (Id. at 25.) Furthermore, while she had access to
employees’ salaries, Claimant did not memorize them, as she was busy learning her
new job tasks. (Id. at 27.) Finally, Claimant testified that Ms. Colflesh never
expressed to her that she was dissatisfied with her job performance. (Id.)




                                          4
             Following the hearing, the Referee issued a decision, in which she
affirmed the determination of the Service Center, concluding that Claimant was
ineligible for unemployment compensation benefits. In doing so, the Referee made
the following findings of fact:
             1. The claimant was employed by FEA Industries
             Incorporated as an Accounts Receivable Clerk at a rate
             of $17.00 per hour that began October 22, 2013 and last
             worked on August 28, 2017.
             2. The claimant was promoted to the position of
             Accounts Receivable Clerk in March 2017 at which time
             she was explained [sic] that this was a job in which she
             was required to maintain confidentiality and not discuss
             payroll or other personal [sic] related matters concerning
             company employees.
             3. In or about mid[-]June 2017, the employer received
             information from a Manager that claimant disclosed
             confidential information about employees’ payroll
             information with others following which an investigation
             ensued spanning over a 6[-] to 8[-]week period.
             4. The employer’s investigation entailed speaking with
             multiple employees and after doing so concluded the
             claimant violated the confidentiality of [sic] policy.
             5. The claimant when confronted about the disclosure
             asked the employer if she still had a job and requested to
             move back to customer service which was denied.
             6. On or about August 28, 2017, the claimant was
             discharged following the investigation of a breach in the
             confidentiality policy.
(Referee’s Decision and Order at 1-2.) In concluding that Claimant engaged in
disqualifying willful misconduct, the Referee reasoned:
             [T]he claimant breached the employer’s confidentiality
             policy when she chose to discuss hourly rates with another
             employee who did not solicit the conversation. The record
             is clear that claimant initiated the conversation between
             herself and another employee and has failed to establish
             good cause for so doing.
                                          5
(Id. at 2.)
              Claimant appealed the Referee’s decision to the Board, and the Board
affirmed the Referee’s decision. In so doing, the Board adopted and incorporated
the Referee’s findings of fact and conclusions of law, while adding two additional
findings of its own. First, the Board added the following finding: “In April 2017,
the claimant informed a customer service supervisor that one of the lab managers
made [a specific amount per] hour.” (Board’s Decision and Order at 1.) Next, the
Board found: “On the day of the incident, the claimant was doing payroll and was
flustered and said to the customer service manager that she should make more money
and then proceeded to disclose how much money certain employees made.” (Id.)
              Based on the above findings, the Board concluded that Claimant’s
conduct was not too remote in time from the date of her termination to form the basis
for a denial of benefits and that Employer terminated her employment due to willful
misconduct. The Board reasoned:
              The claimant was fired on August 28, 2017, when the
              employer had a full understanding of the situation. The
              situation happened the second week of June[,] and the
              investigation was complete on August 28, 2017. A delay
              between an incident of alleged misconduct and discharge
              that is not substantial, unexplained or unreasonable will
              not bar a holding of willful misconduct that would render
              a claimant ineligible for benefits where management was
              investigating and undertaking steps necessary to remove
              the claimant. The employer’s witness explained he [2] had
              to talk to other employees and conduct an investigation
              while doing his own work at the same time. The Board
              finds this reasonable.
(Id.)


        2
         The witness to whom the Board is referring is Ms. Colflesh. Although the Board refers
to the witness here as a male, the record reflects that she is a female.


                                              6
              On appeal to this Court,3 Claimant does not dispute any of the findings
as to her conduct or any of the specific factual findings regarding the timing of the
events–i.e., finding of fact numbers 3, 4, or 6. Rather, Claimant appears to challenge
the Board’s finding that the length of Employer’s delay between her conduct and the
termination of her employment was not substantial, unexplained, or unreasonable.4
(Petitioner’s Br. at 11.) Claimant takes the position that, under the remoteness
doctrine,5 the amount of time between her conduct and the termination of her
employment was too great for her conduct to constitute disqualifying willful
misconduct.
              First, we will address whether the Board’s findings of fact are supported
by substantial evidence. Claimant contends that substantial evidence does not exist
to support the Board’s finding that the delay between Claimant’s conduct and her
discharge was not substantial, unexplained, or unreasonable, as it took Employer
approximately 10 weeks to fire Claimant and Employer did not provide an adequate
reason for the length of time that passed between Claimant’s conduct of divulging
confidential payroll information and the termination of her employment. Claimant
further contends that Employer’s position that it was undertaking steps necessary to
determine appropriate disciplinary action for Claimant is not supported by the
evidence, because Employer did not need to conduct an investigation to fire

       3
         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.
       4
        We have paraphrased Claimant’s issues on appeal based upon our review of Claimant’s
statement of questions involved and the arguments contained in her brief.
       5
         Under the remoteness doctrine, “[a]n incident of willful misconduct cannot be so
temporally remote from the ultimate dismissal and still be the basis for a denial of benefits.”
Tundel v. Unemployment Comp. Bd. of Review, 404 A.2d 434, 436 (Pa. Cmwlth. 1979).

                                               7
Claimant given that her conduct was reported immediately and was severe enough
to justify immediate termination.
             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).
             In an unemployment compensation case, the Board is the ultimate fact
finder and is, therefore, entitled to make its own determinations as to witness
credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review,
501 A.2d 1383, 1386 (Pa. 1985). The Board is also empowered to resolve conflicts
in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255
(Pa. Cmwlth. 2004). “The fact that [a party] may have 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). Similarly, even if evidence exists in
the record that could support a contrary conclusion, it does not follow that the


                                          8
findings of fact are not supported by substantial evidence.                           Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
               Here, the testimony of Employer’s witness, Ms. Colflesh, that
Employer had a progressive disciplinary policy, which set forth a nonexclusive list
of infractions that justified immediate termination, supports the Board’s finding that
Claimant’s conduct was not too remote from her termination, as Employer needed
to investigate to discern the appropriate discipline for Claimant’s conduct. (C.R.,
Item No. 11 at 11.) Furthermore, the testimony of Ms. Colflesh that the situation
happened the second week of June and she completed the investigation on
August 28, 2017, because she had to talk to other employees and conduct an
investigation while attending to her other responsibilities, supports the Board’s
findings that the delay in termination was reasonable, explained, and not substantial.
(Id. at 7.) When viewed in a light most favorable to Employer, the record in this
case demonstrates that there is substantial evidence to support the Board’s findings.6



       6
          Claimant, in her brief, describes the time period between when Employer learned of her
violation of the confidentiality policy in mid-June 2017 to the date of her firing (August 28, 2017)
as a 10-week period. To the extent that Claimant’s argument could be interpreted as challenging
the portion of finding of fact number 3 that found “an investigation ensued spanning over
a 6[-] to 8[-]week period,” we would still conclude that substantial evidence exists to support that
portion of finding of fact number 3. Ms. Colflesh testified that her investigation took six to eight
weeks, and she did not specify the manner in which she calculated that time period. Moreover,
Claimant testified that Ms. Colflesh was on vacation at some point in July 2017, suggesting that
Ms. Colflesh was not investigating the matter during that time period. Thus, we conclude that
substantial evidence exists to support that portion of finding of fact number 3. Furthermore, we
note that even if that portion of finding of fact number 3 is based on Ms. Colflesh’s underestimation
of the time period of her investigation, it is apparent that the Board was clearly aware of the dates
at issue, given that the Board found that Employer learned of the conduct in mid-June 2017 and
fired Claimant on August 28, 2017. Thus, this potential discrepancy in the time period does not
affect the Board’s rationale.


                                                 9
              We next address Claimant’s contention that the Board erred in
concluding that the remoteness doctrine barred Employer, as a matter of law, from
relying on Claimant’s violation of its confidentiality policy as a basis for
disqualifying     willful    misconduct      under     Section 402(e)      of    the    Law.7
Section 402(e) of the Law provides, in part, that “[a]n employe shall be ineligible
for compensation for any week . . . [i]n which his employment 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 have defined “willful misconduct” as follows:
              (a) wanton or willful disregard for an employer’s
              interests; (b) deliberate violation of an employer’s
              rules; (c) disregard for 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 or obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). 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. An employer must additionally
prove that the act in question was the actual reason for the claimant’s discharge.
Tundel, 404 A.2d at 436. All pertinent circumstances are considered in determining
whether an employee’s actions constituted willful misconduct.                       Rebel v.
Unemployment Comp. Bd. of Review, 723 A.2d 156, 158 (Pa. 1998). A single

       7
         Whether or not an employee’s actions amount to willful misconduct 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).

                                              10
incident of misconduct may support the denial of benefits. Jones v. Unemployment
Comp. Bd. of Review, 373 A.2d 791, 792 (Pa. Cmwlth. 1997). While the employer
bears the burden of proving that a claimant’s behavior constitutes willful
misconduct, the claimant may be eligible for unemployment compensation benefits
if he can prove good cause for his actions. Walsh, 943 A.2d at 369.
               Here, it is clear that Claimant’s actions of disclosing confidential
payroll information constituted willful misconduct, as Employer had a policy in its
handbook, admitted into the record as Exhibit 11, which prohibited the disclosure of
confidential information. (C.R., Item No. 11 at 10.) Claimant violated this policy
when she disclosed specific salaries of other employees to Ms. Berry and Ms. Smith.
(C.R., Item No. 11 at 17, 20.) Claimant has provided no testimony or evidence that
would support that she had “good cause”8 for her actions. Thus, in the absence of
the remoteness doctrine, Claimant’s conduct of sharing confidential payroll
information clearly would constitute willful misconduct that could support a denial
of benefits.     Claimant contends, however, that her infractions discovered by
Employer in June 2017 were too remote in time from her August 28, 2017 discharge
from Employer to constitute disqualifying willful misconduct.
               When applying the remoteness doctrine to negate a conclusion of
willful misconduct, this Court explained:
               Considering the time span, it is unlikely that [the]
               employer would consider the specific incident to be of
               such grave consequence as to constitute willful
               misconduct. An incident of willful misconduct cannot be
               so temporally remote from the ultimate dismissal and still
               be the basis for a denial of benefits.


       8
        To prove good cause, Claimant must demonstrate that her actions were justifiable and
reasonable under the circumstances. Walsh, 943 A.2d at 369.

                                            11
Tundel, 404 A.2d at 436. Case law, however, suggests that there are exceptions to
the remoteness doctrine. In Raimondi v. Unemployment Compensation Board of
Review, 863 A.2d 1242 (Pa. Cmwlth. 2004), this Court held that although there was
a 74-day delay between a claimant’s alleged misconduct and his discharge, the
remoteness doctrine was not applicable so as to preclude a denial of benefits where
the record established an explanation for the delay and there was no action on the
part of the employer indicating that it condoned the claimant’s conduct. Raimondi,
863 A.2d at 1247. In Wideman v. Unemployment Compensation Board of Review,
505 A.2d 364 (Pa. Cmwlth. 1986), this Court held that an employer’s administrative
review is a valid reason for a delay in terminating a claimant.           Wideman,
505 A.2d at 367.
             Claimant contends that the exception to the remoteness doctrine should
not apply, because there was no need to conduct an investigation in this case given
that the person who heard Claimant reveal personal wage information immediately
reported it to the individual who had the authority to terminate Claimant’s
employment. Claimant asserts that no further investigation was required. Here,
Employer has a progressive discipline policy under which it can terminate an
employee’s employment immediately if the employee commits a serious infraction.
(C.R., Item No. 11 at 11.) Because breach of confidentiality is not listed in the
progressive disciplinary policy as an immediately terminable offense, it was
reasonable for Employer to perform an investigation into the frequency and extent
of Claimant’s disclosures to determine the severity of the violation before it issued
a disciplinary action. (Id.) Additionally, even though Ms. Berry reported the
conduct to Ms. Colflesh immediately, Ms. Colflesh testified to the reason for the
delay when she explained that her investigation took six to eight weeks because she


                                         12
was conducting the investigation alongside of her other job duties. (Id. at 7.)
Furthermore, there are no additional facts in the record to suggest that Employer
condoned Claimant’s conduct. Thus, Claimant’s conduct of divulging confidential
payroll information was not too remote in time to establish disqualifying willful
misconduct, because Employer’s investigation constituted a valid delay in
terminating Claimant’s employment. For these reasons, the Board did not err.
            Accordingly, we affirm the decision of the Board.




                                       P. KEVIN BROBSON, Judge




                                       13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lynn T. Chadwick,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 290 C.D. 2018
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 31st day of January, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
