          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary R. Powers,                         :
                         Petitioner     :
                                        :
            v.                          :   No. 837 C.D. 2017
                                        :   Submitted: December 8, 2017
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: May 18, 2018


            Petitioner Mary R. Powers (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, denying Claimant
unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law),1 based on willful misconduct. For the
reasons set forth below, we affirm.
            Claimant filed for unemployment compensation benefits subsequent to
her discharge from employment with the School District of Philadelphia (Employer).
The Erie UC Service Center (Service Center) determined that Claimant was not

      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e).
ineligible for unemployment compensation benefits under Section 402(e) of the
Law. (Certified Record (C.R.), Item No. 5.) Employer appealed the Service
Center’s determination, and a Referee conducted a hearing. Employer presented the
testimony of Principal Shauneille Taylor (Principal). Claimant testified on her own
behalf.
             Claimant testified that she worked full-time as a one-on-one
special education assistant from October 5, 2005, to November 5, 2016.
(C.R., Item No. 9 at 4.) She stated that Principal terminated her employment via
email. (Id. at 5.)
             Principal testified that on February 25, 2016, she recommended that
Claimant be discharged. (Id. at 9.) Principal testified to the following events:
             [Principal]: She was on her cell phone. It was in the
             computer lab. Students were in the lab with [Claimant].
             As I approached—as I entered the computer lab I saw
             [Claimant] in the rear of the computer lab on her cell
             phone and I asked if she would please step out of the
             classroom. She refused to. She stated that she was on the
             telephone reporting—contacting the authorities in
             reference to bullying. I asked her to please hang the phone
             up and to leave the room. At that time, she exchanged
             words with myself, refusing to get off the phone. She
             began to elevate her voice. I wanted to contain the
             students to make sure that they were safe, so I asked a
             classroom teacher to please remove the students out of the
             room and I then asked [Claimant] if she could please leave
             the premises. [Claimant] refused multiple times. As she
             was going down the stairs she stated that words that was
             [sic] . . .
             R[eferee]: I want to hear what words . . .
             [Principal]: . . . where I felt threatened.
             R[eferee]: I want to hear the words that led you to feel
             threatened ma’am.


                                          2
[Principal]: The words, the words that she used for me not
to—to meet her outside. She also stated that I was a prima
donna and a princess. So I would have to refer to the
documents. And then she—when I asked her to leave, in
the stairwell up another teacher witnessed it where she was
constantly refusing to leave.
R[eferee]: Where was—was—okay. The Claimant was
moving down the stairs or walking down the stairs?
[Principal]: Yes. Yes. She finally made her way out of
the classroom. Once I removed the students out she finally
made her way out of the classroom and down the stairs.
And I had to make sure for everyone’s safety that she
exited the building. She then ended up on the first floor.
She walked into the main office and she started yelling at
my secretary.
R[eferee]: What was she saying?
[Principal]: She was saying to my secretary and you back
there and you back there I have something for you. And
then that’s [when] I proceeded to call 911.
R[eferee]: Did 911 authorities come?
[Principal]: Yes.
R[eferee]: And what happened when they arrived?
[Principal]: I filed a report.
R[eferee]: Was the Claimant still at the worksite when the
authorities came?
[Principal]: No. She was outside and the police—they just
stayed in the building to make sure that, you know,
eventually [Claimant] would leave.
R[eferee]: Now the Claimant told me that she was alleged
to have used profanity. . . . What, what profanity is being
alleged here? What’s the profanity?
[Principal]: Well . . .
R[eferee]: I need to know if—what was said that was
profane.
[Principal]: I’m referencing my notes.
R[eferee]: Mm-hmm. Was it said to you?

                            3
                [Principal]: Yes. Yes. She stated you’re not going to
                harass me. You’re not going to treat me with disrespect.
                I always get my way. Who do you think you are? I’m not
                leaving this damn school. I don’t care you’re the principal.
                She also stated and you don’t even deserve to be sitting.
                She stated to my secretary you don’t even deserve to be
                sitting in that position and I got something else for you too.
                When I asked her to leave, I’m not leaving this damn
                school. Who do you think you are? I’m not leaving. I
                don’t care you’re the damn principal.
(Id. at 10-11.)
                Principal also testified that, at one point during the incident, Claimant
pointed her fingers in Principal’s face. (Id. at 11.) After this incident, Employer’s
Assistant Superintendent assigned Claimant to Employer’s Central Office.
(Id. at 11-12.) Employer scheduled a conference to review the incident and then
rescheduled it to October 24, 2016, because Claimant went on sick leave. (Id. at 12.)
                Principal testified that the employee handbook contains a policy
prohibiting employees from using cell phones in front of students. (Id. at 17.) She
also stated that Employer’s protocol requires an employee to notify the main office
after discovering bullying. (Id. at 18.) Further, in her capacity as a one-on-one
assistant, Employer’s policy required Claimant to inform the classroom teacher of a
bullying concern so the classroom teacher could address the issue. (Id.) Principal
testified that this procedure is set forth in the employee handbook. (Id. at 19.)
                Claimant testified that she used her cell phone because her student was
being harassed and bullied and felt unsafe. (Id. at 20.) Claimant stated that although
the instances of bullying did not occur in the computer lab, there were other instances
of bullying prior to February 25, 2016. (Id. at 20-21.) Claimant testified that she
called the hotline to determine the necessary procedures to document the prior
events. (Id.)


                                              4
             Claimant stated that Principal called her into the hallway and gave her
a letter indicating that there would be a hearing in the future. (Id. at 21.) Claimant
denied swearing at or threatening Principal. (Id.) Claimant also stated that, when
she went to the main office on the first floor, Principal’s secretary told her to leave
the office and called her crazy. (Id. at 21-22.) Claimant explained that this secretary
previously called her stupid, nosey, and told her to shut up. (Id. at 22.) Claimant
stated that she told the secretary she would see her in court and that the secretary did
not deserve her position because of her unprofessionalism. (Id.) Claimant stated
that she refused to leave the building after the incident, because she was concerned
about her student’s safety and worried that her student would be left without an
assistant. (Id. at 26.) After this date, Claimant went on sick leave. (Id. at 24.)
             Following the hearing, the Referee issued a decision, denying
unemployment compensation benefits pursuant to Section 402(e) of the Law. The
Referee made the following relevant findings:
             1.     The Claimant was employed full-time with the
                    School District of Philadelphia, as a One[-]to[-]One
                    Assistant with Special Education, earning $13.85
                    per hour. The Claimant began employment on
                    October 5, 2005, and was last employed on
                    November 5, 2016.

             2.     On February 25, 2016, the Claimant was with her
                    assigned student in a computer lab.

             3.     The principal, S. [Taylor], observed the Claimant on
                    her personal cell phone while in the computer lab.

             4.     The Principal approached the Claimant, and advised
                    the Claimant that she was to take her phone call
                    outside of the classroom.




                                           5
5.    The Claimant began to become agitated and upset,
      did not get off of her cell phone, and began to raise
      her voice at the Principal.

6.    The Principal requested for the Claimant to not raise
      her voice and take her phone call outside of the
      classroom.

7.    The Claimant continued to raise her voice at the
      Principal and did not end her phone call.

8.    The Principal requested that the computer teacher
      remove the students from the classroom.

9.    Subsequently, the Principal and the Claimant left
      the computer lab.

10.   The Principal requested that the Claimant leave the
      worksite immediately.

11.   The Claimant refused to leave the worksite, and
      stated to the Principal, “I am not leaving this d**n
      school;” “who do you think you are?”

12.   Several times, the Claimant referred to the Principal
      as a “princess.”

13.   The Claimant went to the 1st floor office, and began
      to confront a secretary.

14.   The Claimant was yelling at the secretary, and
      advised the secretary that she would be waiting
      outside for the secretary.

15.   The Claimant told the Principal that she would be
      waiting outside for the Principal.

16.   The Principal called “911”,         and    requested
      assistance from the police.

17.   The Claimant went outside of the building, when
      the police arrived.

                            6
             18.   The police stayed at the worksite, until the Claimant
                   had left the school property.

             19.   The Principal reported the conduct of the Claimant
                   to the School District.

             20.   The School District removed the Claimant from the
                   school, and assigned her to the main District office
                   pending a hearing on the February 25, 2016
                   incident.

             21.   The Claimant went out on a sick leave, and did not
                   return to the school.

             22.   The Employer scheduled an internal hearing to
                   address the February 25, 2016 incident, which was
                   to be held on October 24, 2016.

             23.   The Claimant and the Employer attended the
                   hearing.

             24.   On November 5, 2016, the Employer officially
                   discharged the Claimant for inappropriate conduct,
                   use of profanity, making terroristic threats.
(C.R., Item No. 10.)
             The Referee resolved any conflicts in testimony in Employer’s favor.
(Id.) The Referee expressly credited the Principal’s testimony that the situation
escalated to a point that Principal directed a teacher to remove students from the
classroom due to Claimant’s behavior and contacted 911 to request police assistance.
(Id.) The Referee found that Claimant’s conduct fell below the standards of behavior
that an employer can reasonably expect of its employees. (Id.) The Referee
reasoned that Claimant created a disruption at the worksite when she refused to leave
the worksite, spoke in a loud manner at the school, referred to the Principal as a
“princess,” and told the Principal that she would meet her outside. (Id.) The Referee
further reasoned that Claimant’s conduct disrupted the orderly, efficient operation

                                         7
of the workplace and that Claimant’s statements to Principal were inappropriate,
unnecessary, and uncalled for under the circumstances. (Id.) The Referee concluded
that Claimant did not present any testimony or evidence to establish good cause or
justification for her conduct on February 25, 2016. (Id.) The Referee, therefore,
concluded that Claimant’s actions rose to the level of willful misconduct and denied
her benefits. (Id.)
              Claimant appealed the Referee’s decision to the Board, and the Board
affirmed the Referee’s decision. (C.R., Item No. 15.) The Board adopted and
incorporated the Referee’s findings of fact and conclusions of law, with
modification. (Id.) The Board amended finding of fact 14 to provide: “While
yelling at the secretary, the claimant told the secretary, ‘I have something for you.’”
(Id.) The Board amended finding of fact 15 to provide: “The claimant stated to the
principal, ‘You think you’re the princess, come outside.’” (Id.) The Board credited
Employer’s testimony and discredited Claimant’s testimony to the extent it
contradicted Employer’s. (Id.)
              The Board rejected Claimant’s argument that Employer failed to follow
proper procedures. (Id.) The Board explained that the issue before it was whether
Claimant’s actions constituted willful misconduct, and it was not within the Board’s
purview to determine whether Employer had a right to discharge Claimant or
whether Employer followed proper procedures in doing so. (Id.)
              On appeal,2 Claimant argues that substantial evidence does not exist to
support the Board’s finding that Claimant caused a disruption at the worksite, used


        2
          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.
                                               8
profane language, and made threats. Claimant also argues that the Board erred as a
matter of law in concluding that Claimant was ineligible for benefits under
Section 402(e) of the Law.
             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.
Principal 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).
             First, we address Claimant’s argument that substantial evidence does
not exist to support a finding that she caused a disruption at the worksite, used
profane language, and made threats. Claimant contends that Principal had no proof
regarding the use of profanity or threats and that Principal’s claims are based only
on hearsay. In an unemployment case, the Board is the final finder of fact and arbiter
of credibility. Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817, 820
(Pa. Cmwlth. 2000). The Board is also empowered to resolve conflicts in evidence.
DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa.
Cmwlth. 2004).




                                          9
               The Board credited Principal’s testimony and found that Claimant
created a disruption, used profanity, and made threats. (C.R., Item No. 15.) The
Board based its finding on Principal’s testimony that Claimant used her personal cell
phone during school hours, refused to leave the classroom when Principal asked her
to do so, and then raised her voice at Principal, causing Principal to direct
a teacher to remove students from the classroom.                Principal also testified that
Claimant used profanity when she stated, “I’m not leaving this damn school.” 3
(C.R., Item No. 9 at 10-11.) Based on Principal’s testimony, the Board found that
Claimant refused to end her phone call and that her interaction with Principal
escalated such that it caused a disruption at the school. (Id.) Claimant told Principal
to meet her outside and told Principal’s secretary that she had something for her.
Thus, substantial evidence exists to support the finding that Claimant created a
disruption at the worksite, used profane language, and made threats.
               Next, we address Claimant’s contention that the Board erred in
concluding that Claimant’s actions rose to the level of willful misconduct.
Claimant’s arguments focus on what she considers to be an inadequate termination
procedure and Employer’s alleged gross negligence as to the student assigned to
Claimant. Claimant asserts that there was collusion between Principal, other faculty,
and her union representative, because the union representative came late to meetings
and “clearly had not studied” Claimant’s case. (Claimant’s Br. at 7.) She also asserts
that Employer utilized a biased termination procedure. (Id. at 8.) She further
complains that she did not receive a certified letter of termination. (Id.) Although
she did not raise this issue before the Referee, she also asserts that the government

       3
          Even if the use of “damn” did not constitute profanity, Claimant’s other actions rose to
the level of willful misconduct.


                                               10
failed to address her Right-to-Know Law4 request about Principal’s records in a
timely manner. (Id.) Claimant contends that, after her termination, Employer left
her special education student without an aide, in violation of the student’s
Individualized Education Program (IEP). (Id. at 11.) Based on these events,
Claimant argues she deserves to receive unemployment compensation benefits and
asks this Court to reverse the Board’s order.5 (Id. at 13.) The issue before the Court,
however, is whether Claimant’s actions constituted willful misconduct under
Section 402(e) of the Law. Claimant’s complaints about whether Employer had a
right to discharge Claimant, followed the proper procedures in doing so, or acted in
a negligent manner towards its students, are outside the scope of this matter.
                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 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.

       4
           Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
       5
         Claimant actually requests that the Court reverse the Referee’s decision, which she
describes as biased. Claimant does not develop any argument that the Referee acted in a biased
manner, and the Court perceives no bias in the Referee’s decision.

                                                11
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
             Whether an alleged disregard of standards constitutes willful
misconduct depends on a variety of factors like the employee’s non-compliance with
an employer’s directive, the reasonableness of the employer’s request, and the
employee’s reasons for non-compliance, viewed in light of all of the circumstances.
Rossi v. Pa. Unemployment Comp. Bd. of Review, 676 A.2d 194, 197 (Pa. 1996). An
employee’s behavior does not constitute willful misconduct if her actions were
justifiable or reasonable under the circumstances. McLean v. Unemployment Comp.
Bd. of Review, 383 A.2d 533, 535 (Pa. 1978). “In other words, if there was ‘good
cause’ for the employee’s action, it cannot be charged as willful misconduct,” as the
employee cannot be considered to be in willful disregard of conduct the employer
has a right to expect. Id.
             Here, Claimant did not comply with Principal’s directive to end the
phone call on Claimant’s personal cell phone and leave the classroom. This request
was reasonable based on Principal’s testimony that the employee handbook prohibits
employees from using their cell phones in front of students. (C.R., Item No. 9 at 17.)
Because Claimant failed to comply with Employer’s reasonable directive,
Claimant’s conduct rose to the level of willful misconduct. We must determine,
therefore, whether Claimant met her burden to demonstrate good cause for her
actions.
             Claimant attempts to show good cause by asserting that because she
was responsible for the safety of her special education student, which was the
purpose for the phone call, she had good cause to use her cell phone and ignore
Principal’s directive to end the call. She contends that Employer ignored the
pervasive bullying of this student and failed to provide the student’s parents with the


                                          12
necessary forms needed to make a complaint. She states that the student felt unsafe
at school and informed her teachers, but the school did nothing. Thus, Claimant
argues she had good cause to use her cell phone to protect her student and herself.
Claimant, however, does not argue that she had good cause for causing a disruption
in the workplace, using profanity, and making threats. Claimant states that she was
provoked by Principal and other members of Employer’s staff and did not use
profanity or make threats. She also states that she would never cause any action that
willfully impedes school learning or student safety.
              Employer testified, however, that its protocol directs an employee to
notify the main office when an employee discovers instances of bullying. (Id. at 18.)
Employer’s protocol also requires an employee to first notify other administrators.
(Id.) More specifically, one-to-one assistants must notify the classroom teacher so
that the teacher may handle the situation. (Id.) Even if Employer’s procedures
required Claimant to call the bullying hotline, she did not have good cause for
creating the subsequent disruption, using profane language, and making threats
towards Principal and Principal’s secretary. Because Claimant offers no evidence
showing she had good cause for violating Employer’s policy and acting in the
manner she did, the Board did not err in concluding that Claimant engaged in willful
misconduct.
              For the foregoing reasons, we affirm the Board’s order.




                                          P. KEVIN BROBSON, Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary R. Powers,                       :
                       Petitioner     :
                                      :
           v.                         :   No. 837 C.D. 2017
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


           AND NOW, this 18th day of May, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
