IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra L. Shade, :

Petitioner :

:

v. : No. 885 C.D. 2020

: SUBMITTED: March 26, 2021

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: May 17, 2021

Sandra L. Shade (Claimant) petitions for review of the August 10, 2020 Order 

of the Unemployment Compensation Board of Review (Board) affirming the decision 

of a Referee to deny Claimant unemployment compensation (UC) benefits. The Board 

concluded that Claimant was ineligible for UC benefits because she was discharged 

from work for willful misconduct under Section 402(e) of the Unemployment 

Compensation Law (Law).1 We affirm.

Background

Claimant worked as a full-time Direct Support Professional for Shadowfax 

Corporation (Employer) from April 5, 2000 through August 14, 2019. Bd.’s Finding 

of Fact (F.F.) No. 1; Record (R.) Item No. 3. Claimant was responsible for providing

services in a group home, known as Program 64, for individuals with intellectual and 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). 

Section 402(e) of the Law states that an employee shall be ineligible for UC benefits for any week 

“[i]n which [her] unemployment is due to [her] discharge or temporary suspension from work for 

willful misconduct connected with [her] work.” 43 P.S. § 802(e).
2

developmental disabilities. Bd.’s F.F. No. 2; Notes of Testimony (N.T.), 12/11/19, at 

5, 10. Employer has a progressive discipline policy, of which Claimant was aware, in 

which an employee will receive a verbal warning, a written warning, and 30-, 60-, and 

90-day probationary periods before being discharged. Bd.’s F.F. No. 3. Under 

Employer’s policy, disciplinary steps may be skipped based on the severity of the 

employee’s infraction. Id.

On December 4, 2017, Claimant received a written warning for unsatisfactory 

work performance and failure to complete assigned tasks after she failed to schedule 

medical appointments for the residents in her care. Id. No. 4. On June 12, 2018, 

Claimant received a 30-day disciplinary probation for failing to perform her essential 

job functions due to recurring performance issues, including: failing to complete shift 

paperwork; failing to consistently check office voicemails and emails; failing to 

transport residents to the day program in a timely fashion; failing to use alarms on the 

cabinets and refrigerators to prevent residents on a restricted diet and residents who 

have hoarding issues from obtaining food that posed a health and safety risk; failing to 

clean the house; and failing to assist the residents with their hygiene. Id. No. 5. 

Employer changed Claimant’s schedule so she could pick up the residents at the day 

program by 3:15 p.m., but she continued to be late even after the time change. Id. No. 

6.

On September 4, 2018, Claimant received a 60-day disciplinary probation for 

failing to perform essential job functions due to her failure to: check the house 

voicemail and email; reschedule a cancelled medical appointment; complete paperwork 

consistently; and ensure the residents’ health and safety. Id. No. 7. 

On January 28, 2019, Claimant received a 90-day disciplinary probation for 

failing to perform her essential job functions based on the following infractions: 
3

leaving perishable food in her car in violation of state health regulations; failing to 

properly store medications and order medication refills; failing to complete requisite 

training in a timely fashion; failing to assist the residents with their hygiene; and failing 

to properly treat, address, and report a live ant infestation in the home’s kitchen. Id.

No. 8. With regard to the ant infestation, Claimant simply sprayed Windex on the ants 

and left them on the counter. Id.

Claimant was aware that her job was in jeopardy. Id. No. 9. After the 90-day 

disciplinary probation, her supervisor conducted several one-on-one coaching sessions

with Claimant. Id. No. 10.

On August 14, 2019, Employer discharged Claimant for unsatisfactory work 

performance and failure to perform her essential job functions based on the following 

infractions: failing to clean the home; failing to complete paperwork; violating privacy 

rules by leaving residents’ paperwork out in the open; being overdue on three training

sessions; and failing to ensure the health and safety of the residents in her care. Id. No. 

11. Claimant’s conduct also placed Employer at risk of violating state health

regulations, which could have jeopardized Employer’s licensure and subjected

Employer to citations. Id. No. 12.

Claimant filed a claim for UC benefits, which the local UC Service Center 

denied. The Service Center found that Claimant was discharged for unsatisfactory 

work performance after receiving progressive discipline. R. Item No. 4. Claimant’s 

only explanation for her conduct was that “she felt accused of things that were 

allegations made by [her] co[-]workers.” Id.; see R. Item No. 2. The Service Center 

determined that Claimant did not establish good cause for her unsatisfactory work 

performance and, thus, she was ineligible for UC benefits under Section 402(e) of the 

Law. R. Item No. 4.
4

Claimant appealed to the Referee, who held an evidentiary hearing on December 

11, 2019. Employer presented the testimony of Robyn Miner, Senior Associate 

Director of Human Resources, and Adam Nimon, Associate Director of Residential 

Services. Claimant testified on her own behalf.

Ms. Miner testified that Claimant had worked for Employer since 2000. N.T., 

12/11/19, at 9. Before 2017, Claimant had been subject to other corrective actions, 

although Ms. Miner could not recall the specifics of those infractions because 

Claimant’s period of employment “spann[ed] 19 years.” Id.

Ms. Miner testified that Claimant reviewed her job description each year during 

her performance evaluation. Id. She testified that Claimant reviewed and signed her

job description most recently on January 14, 2019. Id. at 7, 9. The job description 

Claimant reviewed on that date listed 17 “Essential Functions” of Claimant’s position, 

including:

1. Provide ongoing direct supervision of individuals in the program. This 

includes all aspects of personal care, safety, medication administration, 

housekeeping, yard work, and all duties as assigned. This includes 

ensuring individuals[’] immediate concerns and needs are dealt with in a 

timely, orderly manner, with an emphasis on quality and safety. . . . 

Responsible for awareness of each individual’s health needs, scheduling 

of appointment as necessary, applying knowledge of emergency 

procedures and medication administration as needed. Transport 

individuals to and from necessary appointments . . . .

. . . .

3. Assist[] in the responsibility of program site management [and] 

supervision[,] including upkeep of furnishings (all furniture, walls, 

flooring, vehicle, lawn [and] garden, etc.). Perform other duties as 

assigned, i.e.[,] area maintenance, vehicle maintenance, and cleaning of 

such.

. . . .
5

5. [E]nsure that agency policies and residential [and] fiscal regulations are 

followed within the assigned residential site(s). . . . Comply with 

regulations with respect to health, safety, and paperwork. . . . 

. . . .

8. Prepar[e] . . . required or requested reports, forms, or correspondence. 

Assist in keeping accurate records for maintenance of the residential 

site(s).

. . . .

10. Attend and coordinate trainings[] . . . .

. . . .

14. Must be able to physically perform the duties of the job[,] including

lifting and transferring. . . .

Id., Ex. E-1. Ms. Miner testified that this job description was “substantially the same” 

as the job description Claimant reviewed in 2018. N.T., 12/11/19, at 7.

Ms. Miner further testified that before discharging Claimant, Employer followed 

the steps outlined in its progressive disciplinary policy. Id.; see R. Item No. 3. 

Specifically, “[Claimant] received a written warning, followed by discipline, probation 

of 30 days, followed by 60 days, followed by 90 days, and then discharge.” N.T., 

12/11/19, at 8. Ms. Miner explained that the disciplinary policy allows Employer to

skip steps depending on the severity of the infraction. Id. With regard to Claimant, 

Employer decided to skip the initial verbal warning because “the nature of [Claimant’s] 

infraction . . . warranted” a written warning. Id.

Mr. Nimon testified that he had supervised Claimant since 2016 and performed 

weekly visits to the Program 64 home. Id. at 10-11. According to Mr. Nimon, 

Claimant’s essential job functions included cleaning the home, assisting the residents 
6

with their hygiene, scheduling medical appointments for the residents, and completing 

required paperwork. Id. at 11, 18.

Mr. Nimon testified that “on a consistent basis[,] I would note that there were 

deficiencies in [Claimant’s] performance for not having completed certain tasks,” such 

as scheduling medical appointments for the residents. Id. at 11-13. Mr. Nimon

explained:

These individuals are under our care. They cannot coordinate or schedule 

their own appointments. They depend on us to take care[ of them] and 

address their health needs[,] and I feel that’s an essential job function that 

was not being met.

Id. at 13. Mr. Nimon testified that after Employer issued the initial written warning to 

Claimant for her failure to schedule medical appointments, her performance did not 

improve. Id. at 14.

Mr. Nimon testified that Employer subsequently imposed a 30-day disciplinary 

probation on Claimant due to “recurring” performance issues. Id. Mr. Nimon 

elaborated on those issues as follows:

Not completing each paperwork for her assigned shift. Not completing 

paperwork when you’re running appointments. Not consistently checking 

the program’s mail, interoffice mail, voicemail. Transportation for the 

individuals, it has to be finished by a certain time, 3:15[ p.m.], and we had 

even adjusted the start time for the shift from 3[:00] p.m. to 2:45[ p.m.] to 

help accommodate, I guess to make it more possible. But [Claimant] was 

still consistently picking up the individuals late[.] . . . [W]e also have 

alarms and chimes on the fridge and the cabinets due to an individual that 

has a restricted diet that lives there. I found often during my home visits 

that these [alarms] weren’t being used. [It was] a health and safety risk 

for the individual, who at that time was amassing perishable food items in 

her room. Unsatisfactory cleaning, again the floor not consistently swept 

or mopped, and not sufficiently assisting the individuals with their 

hygiene.
7

Id. at 14-15. 

Mr. Nimon testified that he regularly observed hygiene issues with the residents, 

noting that “[t]hey weren’t always shaved, [and it] appeared questionable if they 

showered or bathed sometimes.” Id. at 20, 25-26. One individual in Claimant’s care 

developed a large rash on her abdomen. Id. at 20.

Mr. Nimon also testified to his personal observations of the home’s condition 

during his weekly visits. He testified that the “[c]leaning was deficient in the house,” 

noting that on several occasions, “there was [fecal matter] smeared on one . . . 

individual’s toilet” and “in the kitchen there were dirty floors” and “[t]he counters were 

unwiped.” Id. at 22-23. As an example of a cleanliness issue, Mr. Nimon testified that 

during one of his unannounced visits, he discovered “ants all over the kitchen counter” 

and testified that Claimant “hadn’t notified anybody” about the ants; instead, “[she] 

had just sprayed Windex all over the ants and left them on the counter.” Id. at 20-21.

Mr. Nimon testified that Claimant often failed to complete required paperwork 

for her shifts. Id. at 26. According to Mr. Nimon, Claimant “frequently . . . missed 

signatures” and “would not complete the specific documentation for the [residents’] 

charts.” Id. at 26-27.

Mr. Nimon testified that prior to Claimant’s discharge, he performed several 

one-on-one coaching sessions with Claimant over the course of a few weeks, wherein 

he “reviewed positives and negatives” with Claimant and discussed with her “[w]hat 

she[] [was] doing correct,” “what she could be doing better,” and “[w]hat she should 

be doing.” Id. at 21. Mr. Nimon further explained that Claimant’s discharge paperwork 

outlined the essential job functions that she failed to perform, including ensuring the 

health and safety needs of the residents are met, scheduling medical appointments, 

assisting the residents with their hygiene, and cleaning the home. Id. at 23-24.
8

However, at the time of her termination from employment, Claimant “refused to sign” 

the discharge paperwork. Id. at 23.

Claimant testified that she was primarily responsible for caring for three 

residents at Program 64. Id. at 34. She described the residents in her care as follows:

One was very high functioning. . . . We have behavior issues with the one, 

so . . . a lot of times you get in the middle of your paperwork and you have 

to go take care of an issue and then you’d forget where you are or . . . you 

thought you had finished it. 

Id. Claimant testified that she cleaned the kitchen “every day” and she swept the floors 

“usually . . . in the evening[s].” Id. at 33. 

With regard to the residents’ hygiene, Claimant testified, “I do the laundry every 

week and . . . two [or] three times a week I do the girls[’] laundry. The one individual

that is high functioning did her own laundry.” Id. She testified that the resident with 

the abdominal rash always “came [home] from [the] day program . . . absolutely 

soaked,” so Claimant applied powder to her body “every morning and every afternoon 

or evening.” Id. at 35.

Claimant admitted that on one occasion, she failed to notify a staff member that 

a resident’s medical appointment had been cancelled. Id. at 34. She testified that she 

wrote the message down on a tablet beside the phone near the garage and hoped that if 

“people c[a]me through the garage . . . [a]nybody that came in after” her would find 

the note. Id. With respect to the allegation that she regularly failed to complete 

paperwork, Claimant stated that she tried to complete her paperwork, but “I think we 

all miss signatures. We get tied up with the girls.” Id.

When asked about the ant infestation, Claimant testified as follows: 

[Claimant’s counsel:] With respect to the allegation that there were ants 

on the kitchen counter, how to do you respond to that?
9

[Claimant:] That is true. I had a doctor appointment right after I got the 

girls up.

[Claimant’s counsel:] Your own personal appointment?

[Claimant:] My own personal appointment. So[] I had to leave on time . 

. . and I came in and they weren’t there before[] . . . when I took the girls 

to work and I said, oh my gosh. So[] I’m looking around to see if we have 

anything on that floor and . . . I thought well I’m just going to have to 

squirt them with Windex, because that will kill them, and of course it 

doesn’t kill them instantly. Then I left the Windex bottle there, so 

somebody would know that’s what I did if they came in after me, because 

I was coming back.

[Claimant’s counsel:] What did you intend to do when you got back?

[Claimant:] Clean it up, because they would be dead by then.

Id. at 35.

With respect to the kitchen cabinets not being locked or alarmed, Claimant 

testified, “Most of the time, I have to say that they were locked.” Id. at 36. She 

explained that sometimes one high-functioning resident would open the cupboards on 

her own and Claimant “discuss[ed] . . . with [the resident] that she has to relock them 

and the refrigerator.” Id. at 36-37.

At the conclusion of her testimony, Claimant testified that she worked to the best 

of her ability, she was able and available for work, and she would “be 78 [years old] in 

January.” Id. at 37.

Following the hearing, the Referee affirmed the Service Center’s decision, 

concluding:

[C]laimant was discharged for unsatisfactory work performance and for 

failing to perform her essential job functions. [E]mployer progressed 

through [its] disciplinary steps[,] and [Claimant] was aware her job was 
10

in jeopardy. Despite repeated warnings and [one-]on[-one] coaching 

sessions, [C]laimant continued to fail to perform her assigned duties. 

The Pennsylvania [c]ourts have consistently held that mere incompetence, 

inexperience or inability to do job is not willful misconduct. However[,] 

a claimant who has demonstrated the skills and abilities to do the job 

properly but is allowing his work performance to deteriorate through 

carelessness or negligence will be disqualified for willful misconduct, as 

it shows a disregard of the claimant’s duties and the employer’s interests. 

Employer credibly testified in regard to [C]laimant’s continued failure to 

perform her basic job functions, including failure to clean the home, 

failure to assist the individuals in her care with hygiene[,] and failing to

ensure the health and safety needs of the individuals in her care. 

[C]laimant failed to provide any credible explanation for failing to 

perform her job duties. [E]mployer has met its burden.

Ref.’s Order, 12/18/19, at 3 (emphasis added). 

Claimant appealed to the Board, which affirmed the Referee’s decision. The 

Board adopted the Referee’s findings of fact and conclusions of law and made the 

following additional findings:

[C]laimant was specifically counseled, on more than one occasion, that 

she needed to clean her assigned home. Therefore, [C]laimant had a 

known obligation to ensure the safety and sanitation of her residents and 

the residents’ home, and given her specific counseling, her neglect to 

ful[l]fil these duties may be inferred to have been both deliberate and 

intentional. [C]laimant is discredited in her testimony that she worked to 

the best of her ability and that she routinely cleaned the floors and 

counters of her assigned home. Lastly, the Board accepts as credible the 

testimony of [Mr. Nimon] regarding his personal observations of the 

assigned home and [C]laimant’s performance.

Bd.’s Order, 8/10/20, at 1 (emphasis added).

With regard to Claimant’s specific claims of error, the Board concluded:

[C]laimant contends the underlying allegations that gave rise to her 

counseling and discipline are hearsay. The Board only relies on 
11

[C]laimant’s past disciplinary counseling for the purposes of showing 

[C]laimant was warned about her duties and that she was on notice that 

her employment may be in jeopardy. [C]laimant also complains that 

[E]mployer could not rely on her history to establish a baseline of her 

performance. However, . . . [C]laimant’s performance deficiencies also 

included a deliberate disregard of her known duties. Therefore, the Board 

sees no reason to disturb the Referee’s findings and conclusions.

Id. (emphasis added). Claimant now petitions for review of the Board’s decision.2

Issues

(1) Was Claimant’s Petition for Review timely filed?

(2) Did the Board err in inferring that Claimant intentionally allowed her job 

performance to deteriorate?

(3) Did the Board err in holding Claimant to a higher standard of conduct due 

to the nature of her job?

Analysis

1. Timeliness

First, we must address the timeliness of this appeal, because Claimant filed her

Petition for Review with this Court on September 14, 2020, more than 30 days after 

the entry of the Board’s August 10, 2020 Order. See Pa. R.A.P. 1512 (requiring the 

filing of a petition for review of a quasi-judicial order within 30 days after entry of the 

order).

On December 1, 2020, this Court entered an Order directing the parties to 

address the timeliness issue in their principal briefs or by appropriate motion. In 

response, on December 23, 2020, Claimant filed with this Court: (1) a copy of a 

postmarked United States Postal Service (USPS) Form 3817 – Certificate of Mailing,

2 Our scope of review is limited to determining whether the necessary factual findings are 

supported by substantial evidence, whether an error of law was committed, or whether constitutional 

rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
12

and (2) a receipt showing that her counsel presented the Petition for Review for mailing 

to the USPS on September 9, 2020. The parties also addressed timeliness in their 

principal briefs as directed.

Pa. R.A.P. 121(c)(2) (emphasis added) provides that “[p]apers required or 

permitted to be filed in an appellate court” may be filed “by first class, express, or 

priority [USPS] mail, which service is complete upon mailing.” Furthermore, Pa. 

R.A.P. 1514(a) states that the date of filing will be the date that deposit in the mail can 

be verified through USPS “Form 3817, Certificate of Mailing, or other similar [USPS]

form from which the date of deposit can be verified.” 

Here, Claimant was required to file her Petition for Review with this Court by 

September 9, 2020, 30 days after the entry of the Board’s Order. Claimant’s submitted 

documentation shows that Claimant’s counsel mailed the Petition for Review via USPS 

certified mail on that date. Therefore, we conclude that Claimant’s Petition for Review 

was timely filed.3

2. Willful Misconduct

Next, Claimant argues that the Board erred in inferring that her failure to 

improve her work performance was intentional. Specifically, she contends that “any 

deterioration in her job performance was not due to intentional and deliberate neglect 

of her duties, but was more reasonably attributable to the difficulty of her job, the length 

of her work day, and—above all—the fact she was [77] years of age when she was 

fired.” Claimant’s Br. at 16. We disagree.

Our Court has defined “willful misconduct” as a wanton or willful disregard of 

the employer’s interests, a deliberate violation of the employer’s rules, a disregard of 

3 On appeal, the Board does not dispute the timeliness of the Petition for Review, stating: “[I]t 

appears that Claimant complied with Pa.[]R.A.P. 1512 . . . by mailing the [P]etition by certified mail 

on September 9, 2020 and [by her] counsel certifying the mailing date.” Bd.’s Br. at 3 n.1.
13

the standards of behavior that the employer has a right to expect of its employees, or 

negligence indicating an intentional disregard of the employer’s interests or of the 

employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Rev., 83 

A.3d 484, 486-87 (Pa. Cmwlth. 2014). “[M]ere incompetence, inexperience, or 

inability to perform a job generally will not support a finding of willful misconduct.” 

Scott v. Unemployment Comp. Bd. of Rev., 36 A.3d 643, 647 (Pa. Cmwlth. 2012). 

However, a claimant who has previously demonstrated the skills and ability to perform

a job but allowed her work performance to deteriorate through carelessness or 

negligence may be disqualified from receiving UC benefits. Id. at 648. Once the 

employer establishes a prima facie case of willful misconduct, the burden shifts to the 

claimant to prove that she had good cause for the behavior. Kelly v. Unemployment 

Comp. Bd. of Rev., 747 A.2d 436, 438-39 (Pa. Cmwlth. 2000). A claimant establishes 

good cause by showing that her actions were “justified and reasonable under the 

circumstances.” Id. at 439.

The evidence of record establishes, and the Board found, that Claimant was 

discharged for poor work performance and for failing to perform her essential job 

functions. Bd.’s F.F. No. 11. Despite repeated warnings and one-on-one coaching 

sessions, Claimant still failed to satisfactorily perform her essential duties of cleaning 

the home, assisting the residents with their hygiene, scheduling medical appointments 

for the residents, and completing required paperwork, and she did so knowing that her 

job was in jeopardy. Ref.’s Order, 12/18/19, at 3. Although Claimant testified that she 

consistently performed all of her required tasks, the Board discredited her testimony

and instead credited the testimony of Employer’s witnesses. Bd.’s Order, 8/10/20, at 

1.
14

We find this Court’s decision in Scott instructive here. In Scott, the claimant 

was a hospital medical technician whose duties included processing trays with 

instruments to be used by physicians in surgery. 36 A.3d at 645. The hospital had a 

cleanliness policy requiring that “all instruments and items on [surgical] trays be 

carefully examined before being processed to ensure that they are clean.” Id. The 

claimant was verbally counseled on several occasions “that he must make sure that the 

instruments and items on the trays were cleaned before the trays were sterilized and 

sent to the operati[ng] room” and also received a written warning “that any further 

infractions of the cleanliness policy would result in further discipline, up to and 

including termination.” Id. at 645-46. The final incident occurred when “the operating 

room returned a tray that had been processed by [the c]laimant on August 12, 2010, 

because the tray contained suture material from a previous surgical operation.” Id. at 

645. 

The hospital discharged the claimant for “continued poor work performance in 

the processing of surgical trays” despite multiple warnings and counseling. Id. at 646. 

The Board determined that the final incident “was not a mistake but was the result of 

[the c]laimant’s failure to diligently perform an important aspect of his job duties.” 

Id. at 647 (emphasis added). Therefore, the Board concluded that the claimant was 

ineligible for UC benefits under Section 402(e) of the Law.

On appeal, this Court explained:

[M]ere incompetence, inexperience, or inability to perform a job generally 

will not support a finding of willful misconduct. However, it is wellestablished that an employee’s failure to work up to his or her full, proven 

ability, especially after multiple warnings regarding poor work 

performance, must be construed as willful misconduct because such 

conduct demonstrates an intentional disregard of the employer’s interest 

or the employee’s obligations and duties.
15

Id. at 647-48 (emphasis added). In affirming the Board’s decision, we emphasized that 

the claimant admitted at the hearing that he was aware of the hospital’s policy, he was 

capable of performing his job duties, and he had been “previously warned regarding 

dirty trays.” Id. at 648. Therefore, we concluded that “[a]t the very least, [the 

c]laimant’s continued poor work performance demonstrated an intentional disregard 

of the employer’s interest or the employee’s obligations and duties.” Id. (emphasis 

added). 

Here, as in Scott, the Board properly inferred willfulness from Claimant’s 

repeated noncompliance with Employer’s directives, in the face of warnings and 

counseling, and discredited her testimony that she performed her job to the best of her 

ability. It is well settled that a “[c]laimant’s conscious indifference to [her] 

employment duties is enough to support a finding of willful misconduct.” Cullison v. 

Unemployment Comp. Bd. of Rev., 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982). 

Moreover, “[p]oor work performance reflecting an unwillingness to work to the best 

of one’s ability is indicative of a disregard for the standard of conduct an employer has 

a right to expect and may rise to the level of willful misconduct.” Gardner v. 

Unemployment Comp. Bd. of Rev., 454 A.2d 1208, 1209 (Pa. Cmwlth. 1983); see also 

McCrea v. Unemployment Comp. Bd. of Rev., 487 A.2d 69, 71 (Pa. Cmwlth. 1985) 

(concluding that the claimant committed willful misconduct, where the evidence 

showed that the claimant previously performed her work satisfactorily, but her recent 

performance had progressively worsened, and she failed to improve despite repeated 

warnings and a suspension). We conclude, based on the credible evidence of record, 

that Employer met its burden of proving that Claimant committed willful misconduct.

We also conclude that Claimant failed to establish good cause for her actions. 

Claimant contends that she could not have acted willfully because her advanced age 
16

prevented her from improving her performance. At the hearing, however, Claimant 

presented no evidence that she was incapable of performing her job duties due to her 

age. The only evidence relating to Claimant’s age was her testimony that she worked 

to the best of her ability and that she “w[ould] be 78 in January.” N.T., 12/11/19, at 

37. However, Claimant offered no explanation as to why her age prevented her from 

improving her performance despite repeated warnings, particularly when she knew that 

her job was in jeopardy. Furthermore, the Board specifically discredited Claimant’s 

testimony that she worked to the best of her ability. Bd.’s Order, 8/10/20, at 1; see

Ref.’s Order, 12/18/19, at 3 (finding that “[C]laimant failed to provide any credible 

explanation for failing to perform her job duties”) (emphasis added).

In addition, Ms. Miner credibly testified that Claimant “reviewed her job 

description every year, [during] her annual evaluation review” and did so “most 

recently on January 14, 2019,” seven months before her discharge. Id. at 9; see id. Ex. 

E-1. Yet there is no evidence that Claimant ever informed Employer that she was 

having difficulty completing her essential job functions because of her age or any agerelated condition. Cf. Phila. Parking Auth. v. Unemployment Comp. Bd. of Rev., 1 A.3d 

965, 968-69 (Pa. Cmwlth. 2010) (finding no willful misconduct following the 

claimant’s discharge for falling asleep on the job, where the claimant previously 

notified the employer that her medical conditions caused drowsiness and she requested 

additional work so that she would not fall asleep, but the employer did not give her 

additional work).

Claimant’s own testimony demonstrates that she understood the importance of 

maintaining a sanitary and safe environment in the home and attending to the medical 

and dietary needs of the residents in her care. Claimant also admitted that she put her 

own interests before Employer’s when she left work to attend a personal appointment 
17

after discovering an ant infestation, without notifying anyone and simply assuming that 

her co-workers would find and take care of the issue. N.T., 12/11/19, at 34-35. 

We conclude that Claimant’s failure to improve her work performance after 

repeated warnings and counseling demonstrated an intentional disregard of Employer’s 

interests and of Claimant’s obligations and duties, thereby disqualifying her from 

receiving UC benefits under Section 402(e) of the Law. 

3. Standard of Conduct

Finally, Claimant asserts that the Board erroneously imposed a higher standard 

of conduct because of the nature of her job, which is prohibited under our case law. 

According to Claimant, the Pennsylvania Supreme Court has held that there can only 

be one standard of willful misconduct and that standard does not carve out an exception 

for claimants in certain professions. Claimant contends that, contrary to this precedent, 

the nature of her job was the ultimate factor in both Employer’s decision to discharge

her and the Board’s finding of willful misconduct.

In Navickas v. Unemployment Compensation Review Board, 787 A.2d 284, 289-

91 (Pa. 2001), our Supreme Court held that a nurse’s inadvertent mistake in not 

properly diluting antibiotics could not be the basis of a willful misconduct finding. In 

Navickas, the Board, relying on a prior line of cases that prohibited certain 

professionals from arguing mere error or negligence as an excuse for their conduct, 

stated: “As a nurse[,] the claimant is held to a higher standard of care and negligence

or inadvertence is not considered good cause for such conduct.” Id. at 287. On appeal, 

however, the Supreme Court rejected this Court’s imposition of a higher standard of 

conduct based on a claimant’s profession and, therefore, reversed the denial of UC 

benefits. The Supreme Court explained its holding as follows:
18

[W]e specifically reject the Commonwealth Court’s adoption of an ad hoc

“higher standard of care” for health care workers, which apparently would 

permit any act of negligence or inadvertence on the part of a health care 

worker, standing alone, to be deemed willful misconduct. In so doing, we 

do not dispute that the needs of certain health care employers are such that 

they might reasonably deem any act of negligence sufficiently serious as 

to warrant termination of employment. Nor do we doubt that there are 

other occupations of sufficient gravity that employers might reasonably 

conclude that even isolated acts of negligence are sufficiently serious as 

to warrant termination. But those are questions of policy that are not 

posed by the . . . Law we are called upon to construe. The [Law] sets forth 

a single governing standard of willful misconduct, one that does not draw 

distinctions based upon the type or nature of the employment involved. 

Id. at 290-91; see also Grieb v. Unemployment Comp. Bd. of Rev., 827 A.2d 422, 427-

28 (Pa. 2003) (rejecting a public safety exception to the willful misconduct standard 

based on a teacher’s inadvertent act of bringing unloaded guns onto school property in 

violation of the school’s weapons policy).

However, the Supreme Court in Navickas also noted: 

This is not to say, of course, that the special needs, interests and 

expectations of employers and occupations are irrelevant to the question 

of willful misconduct. As we have noted above, under our precedent, 

those considerations are certainly germane to determining, among other 

things, what are the legitimate rules and expectations of an employer, 

what constitutes a violation or misconduct under those rules, and when 

conduct is so egregious or repetitive as to warrant a finding that it is 

willful. . . .

787 A.2d at 291 (emphasis added). 

In this case, the Board did not conclude that Claimant’s actions were merely 

negligent or that she inadvertently violated Employer’s policies, as in Navickas and 

Grieb. Rather, the Board concluded that Claimant repeatedly and intentionally failed 

to perform her essential job functions in the face of direct warnings and counseling, 

which was a disregard of Employer’s interests and of Claimant’s known duties. Bd.’s 
19

Order, 8/10/20, at 1; see Scott, 36 A.3d at 648. Contrary to Claimant’s assertion, the 

fact that the Board made factual findings regarding the nature of Claimant’s job duties

in reaching its decision did not violate our Supreme Court’s precedent. Those findings

were relevant to determining Employer’s expectations with regard to Claimant’s 

performance and supported the Board’s conclusion that Claimant’s conduct 

demonstrated an intentional disregard of Employer’s interests. We find no error in the 

Board’s decision.

Conclusion

Based on the credible evidence of record, we conclude that the Board correctly 

determined that Claimant’s failure to improve her work performance demonstrated an 

intentional disregard of Employer’s interests and of Claimant’s job duties. The 

evidence established that, despite repeated warnings and one-on-one counseling, 

Claimant continually failed to perform the essential functions of her job, placing the 

health and safety of the Program 64 residents at risk. Although Claimant testified that 

she consistently performed all of her required tasks and that she worked to the best of 

her ability, the Board rejected her testimony as not credible. Claimant also failed to 

establish good cause for her conduct, as she presented no credible evidence that she 

was incapable of performing her job duties due to her age. Therefore, we conclude that 

Employer met its burden of proving willful misconduct. 

Accordingly, we affirm the Board’s Order.

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra L. Shade, :

Petitioner :

:

v. : No. 885 C.D. 2020

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 17th day of May, 2021, the Order of the Unemployment 

Compensation Board of Review, dated August 10, 2020, is hereby AFFIRMED.

__________________________________

ELLEN CEISLER, Judge