IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laymen’s Retreat League

, : Petitioner :

:

v. :

: Unemployment Compensation : Board of Review

, : No. 777 C.D. 2014 Respondent : Submitted: March 27 , 2015

BEFORE: HONORABLE BONNIE BRIGAN CE LEADBETTER , Judge

HONORABLE P. KEVIN BROBSON , Judge HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: July 31, 2015

Laymen’s Retreat League (Employer) petitions this C ourt for review of
the Unemploy ment Compensation (UC) Board of Review’s (UCBR) April 8, 2014
order reversing the Referee’s decision denying UC benefits under Section 40 2(e) of

the UC Law (Law). 1 Employer presents two issues for this Court’s review: (1)
whether the UCBR’s credibility de terminations were against the weight of the
evidence; and (2) whether the UCBR’s finding of animosity b etween Sally J. Tygh

( Claimant ) and two of her co

- workers was against the weight of the evidence. After

review, we affirm.

C laimant was employed full

- t ime as a dining room supervisor with
Employer from January 1, 1991 until September 15, 2012

. On Septe mber 1 5, 2012,

1 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(e) (relating to discharge for willful misconduct).2

Claimant’s c o

- workers, Monica and Alexis Luminella ( Luminella sister s) , claim ed
they saw C laimant in the break ro om with her hands in one o f their purses

. When the

Luminella sisters walked into the break room, C laimant heard the door open, turned

to look, and asked them i f they had seen a busboy named Cole Fanelli (Cole)

. Neither of the Luminella sisters said anything to C laimant about the purse, nor did
they respond to Claimant’s query as to Cole’ s whereabouts. Nothing was taken from
the purse. Alexis Luminella reported the alleged incident to the manager on duty,
who reported it to her supervisor, and it went up the chain of command to E mployer’s

President James A. Fitzsimmons (Fitzsimmons)

. When confronted by E mployer

, C laimant denied having her hands in the purse. C laimant explained that she w as in

the break room look ing for Cole because she was going to ask him to put the j ellies

out

. The police were called, and an investigation was conducted, but C laimant was
not charged with any criminal offense. Notwithstanding, Fitzsimmons notified

Claimant that she was suspended with pay pending a further investigation

. On
September 22, 2012, Fitzsimmons advised C laimant that her employment was

terminated and C laimant expressed that Employer’s action was unfair. Employer

notified Claimant by registered letter that her employment was ended because

E mployer believed that she was in another emplo yee’ s purse.

Claimant applied for UC benefits. On December 20, 2012, the
Harrisburg Overflow UC Service Center determined that Claimant was eligible for
UC benefits under Section 402(e) of the Law. Employer appealed and a Referee
hearing was held on Feb ruary 21, 2013. Claimant did not attend . On February 22,
2013, the Referee reversed the UC Service Center’s determination. Claimant
appealed to the UCBR

. The UCBR remanded the case to the Referee for another
hearing to determine whether Claimant had goo d cause for her non

- appearance at the
first hearing, and to take evidence on the merits. On June 4, 2013, the UCBR3

determined that Claimant did not have good cause for her absence from the first
hearing and , based solely on the first hearing

, affirmed the Referee’s decision.

On June 19, 2013, Claimant made a request for reconsideration. On July
15, 2013, the UCBR denied Claimant’s reconsideration request because she had filed
an appeal in Commonwealth Court. On November 19, 2013, the UCBR applied to

t his Court for remission of the appeal. On November 22, 2013, this Court granted the
UCBR’s request and remanded the matter to the UCBR to reconsider its June 4, 2013

decision based on the entire record. 2 On April 8, 2014, the UCBR reversed the

Referee’s decision and determined that Claimant was eligible for UC benefits under

Section 402(e) of the Law. Employer appealed to this Court. 3

Initially,

Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer’s interest; (2) a deliberate violation of the employer’s rules; (3 ) a disregard of standards of behavior which the employer has a right to expect of an employee ; or (4) negligence indicating an intentional disregard of th e employer’s

2 Upon further review, the [UCBR] determined that, although [C] laimant had not asked for a cont inuance in the proper manner due to her lack of legal training, she did not intentionally refuse to attend
the Referee’ s hearing, b ut rather was merely exercising her due process right to counsel at the hearing, albeit inartfully so, such that
she did have proper cause for her nonappearance.

UCBR Dec. at 3.

3 “Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by
substantial eviden ce. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v. Unemployment Comp. Bd. of Review , 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).4 interest or a disregard of the employee’s duties and obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review , 755 A.2d 744, 747

- 48 n.4

(Pa. Cmwlth. 2000) (citation omitted). “When an employee is discharged for

viola ting a work rule, the employer must prove the existence of the rule and the fact

of its violation.” Lewis v. Unemployment Comp. Bd. of Review , 42 A.3d 375, 377
(Pa. Cmwlth. 2012). “Once the employer has met its initial burden, the burden then

shifts to t he claimant to show either that the rule is unreasonable or that claimant had
good cause for violating the rule.” Cnty. of Luzerne v. Unemployment Comp. Bd. of

Review , 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).

Employer argues that “the [UCBR’s] credibility determination in favor
of Claimant as to Claimant’s reasons for being in the break room was not supported
by substantial evidence.” Claimant Br. at 14 (bold emphasis and uppercase omitted).

The law is well established that:

[T]he [UCBR] is the ultimate fact

- finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. 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. Where substantial evidence supports the [UCBR’s] findings, they are conclusive on appeal.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Re view , 949 A.2d 338, 342 (Pa.

Cmwlth. 2008) (citations omitted ; emphas i s added ). This Court has explained:

Substantial evidence is relevant evidence upon which a reasonable mind could base a conclusion. In deciding whether there is substantial evidence to support the [UCBR’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 which can logically and reasonably be drawn from the evidence.5

Sanders v. Unempl oyment Comp. Bd. of Review , 739 A.2d 616, 618 (Pa. Cmwlth.

1999).

Here, t he UCBR found as a fact: “[C]laimant explained that she was in
the break room to look out the window at the area below where the young workers
gathered to smoke because she was goin g to ask the busboy to put the jell[ies] out.”

UCBR Dec. at 2, Finding of F act (FOF) 10.

W hen asked what she said to Fitzsimmons during Employer’s
investigation into the handbag incident, Claimant testified at the remand hearing as

follows:

I told him th at I wa s at work, I was out in the dining room

.

I had got to work early that morning, a little earlier than

no rm al. The Luminella girls were out in the dining room with me. We were the only three people in the dining room at that time. A retreatant [si c] came up to me and asked me if there were jellies. The jellies that sit next to the toasters weren’ t put out yet. I was working on one side of the dining [room] where the toasters are, the girls we re working on the other side of the dining room. So I stepped into the kitchen, I was right by the kitchen door to see if I saw one of the boys that I had seen earlier tha [t] morning. His na m e is [ Cole ]

. I didn’ t see anyone in the kitch en at that time so I walked to where our break room is and I looked in t he break room thinking somebody would be in there to put the jellies out. There was no one in there, so I walked over to the window because there’s a stairwell outside that sometimes the kids will go out and they ’ ll smoke out there. So I walked over to t he window and I looked out the window and saw no one. And then I heard the girls

-- well I didn’ t know it was the girls, but I heard the door open behind me. And I turned around and the two Luminella sisters were walking into the break room. And I turne d to them and I said have you seen Cole, and both girls said no. And so I walked out of the break room, the girls said nothing else to me

, and I went back through the hallway back into the kitchen, and I did see Cole at the dish machine. And I said to him at that time, I said we need to put the jellies out. And he said that [the other supervisor] Ashley Hope [(Hope)] had just put them out.6

Reproduced Record (R.R.) at 91a (emphasis added)

. On cross

- examination,
Employer’s counsel questioned Claimant as fo llows:

E[mployer’s] L[awyer] And why would you go in the break room to look for Cole?

C[laimant] Because when, a lot of tim es when the kids had finished

– I call them kids

-- but when they had, the young
peo p le had finished with their jo b s they would go into the break room before breakfast or a meal would start and they would kind of congregate and like talk in there

. So that was the first idea I had, maybe he had walked ba c k to the break

room.

EL And when you o p ene d the door and saw that he wasn’ t ther e why didn ’ t you just leave at that point?

C Because I know that if they’ re not in the break room sometimes they sit out at the stairwell. There’ s like a low stairwell, steps come down, goes across, then it comes back up into the kitchen area, and they ’ ll go out there and smo k e and hang out and talk, so I thought perhaps he would be out there.

EL Why wouldn ’ t you just go out to the stairwell to see i f he was there?

C Because I was already i n the break room so I just walked

over to look out the window t hat was right close to where the stairwell was []

.

R.R. at 99a

- 100a

. T he above testimony is relevant evidence upon which a reasonable

mind could conclude that Claimant went into the break room to look for Cole.
Accordingly, the UCBR’s finding of fact is s upported by substantial evidence.

Employer next argues that “the [UCBR’s] finding of animosity between

Claimant and the Luminella sisters

, and that the Luminella sisters had motive to place
Claimant in a bad light was not supported by substantial evidence .” Claimant Br. at
17 (bold emphasis and uppercase omitted). T he UCBR opined: “[C] laimant testified
that there was animosity between her and the [Luminella] sisters for several incidents7

that had previously occurred, and the [UCBR] credits this testimony

. ” UCBR Dec. at

4. The UCBR concluded :

Given that [C] laimant has consistently denied the allegations, and provided the more reasonable explanation for her presence in the break room on the day in question, and given that the only eye

- witnesses to the all eged misconduct were sisters who had a motive to place [C] laimant in a bad light , the [UCBR] is constrained to find and conclude that [E] mployer did not bear its burden of proving willful misconduct as [a] matter o f law in this case.

Id. (emphasis added).

At the remand hearing, Claimant’s counsel presented a letter Claimant
wrote to Fitzsimmons regarding why she believed the Luminella sisters had animosity

towards her. In the letter Claimant described an incident that occurred on June 12,

2012, wherein, Hope had complained to their supervisor about Claimant leaving work
early . The supervisor called Claimant who voluntarily returned to work. W hen

Claimant left work Hope and the L uminella sisters were outside smoking

, and when
she returned, they were st ill outside smoking. Claimant and Hope went back and forth
about why Hope made the s upervisor call Claimant when the work was already
completed, and eventually Hope and the Luminella sisters got in Hope’s car and drove

away. See Ex. CB

- 1. The letter con tinued regarding Claimant’s correction of the three
girls’ prior use of foul language. The letter expressly stated: “ I think Ashl e y [Hope],
Monica [Luminella] and Alexis [Luminella] have animosity towards me because
of my constant correction of [their] ba d language around retreatants [sic] and co

workers .” Ex

. CB

- 1 at 2 (emphasis added) . The letter was accepted into evidence.

In reference to the letter, Claimant’s c ounsel questioned Claimant as

follows:

C [laimant’s] L [awyer] Now the J une, 2012 incid ent when

you wrote this letter that wasn ’ t the first time you had8 mentioned to [] Fitzsimmons or anybody at [Employer] about the issue that occurred on June 12th, correct?

C[laimant] Correct.

CL And was there also an issue as you stated in the letter

w here there was an accusation that you had left and not done your work, that you had gone home early?

C That’ s correct.

CL And were the Luminella sisters part of the accusation?

C They were.

R.R. at 105a. During re cross

- examination , Employer’s co unsel questioned Claimant
about the fact that Hope was the one who complained about her during the June 12 th

incident, not the Luminella sisters and Claimant testified as follows:

E[mployer’s] L[awyer] So if I understand your testimony correctly, [ Hope ] is the one who complained?

C[laimant] [ Hope ] called [Employer’s supervisor] Jim Hall. But when I got, when I saw the two glasses I went back out on the loading dock and I said to the girls, I said there is nothing to be done here, I don ’ t know what all t his is about, I don ’ t really understand this. So the girls at that point were getting ready to leave, they were

- walking toward [Hope’s] car. [Hope] said, [sic] I said [Hope]

, what is going on here? [Hope] used some profanities and said I’ m tired of do ing your job. And the girls [the Luminella sisters] just kind of snickere d and laughed about it and didn’ t say anything. And they al l got in [Hope’s] car and they left.

EL So [Claimant] , you don ’ t know that the Luminella sisters complained?

C Well I do n’ t, I don ’ t know that they complained but they

sure didn ’ t say anything to defend the situation. They just
sto o d there and snickered about it.

EL All right. So they we re there when you were having a conversation with [Hope] . . .9 C Right, and

. . .

E L

. . . who was the one that complained?

C . . . and the girls are this little tight group of g irls. They’ re very good friends. And so I would assume that,
you know, [Hope] and them got together and decided this [is] what they were

-- I assumed they go t together

. . .

EL All right. So you’ re assuming that somehow they were involved because

. . .
C Yes.

EL

. . . they’ re friends w ith [Hope] ?

C Right.

EL You don’t know that they were involved?

C I

-- well let’ s put it this way, I would say that I do know that they were involved in it because [of] the way they conducted themselves when I went back over there.

EL So you know they were involved because they got into [Hope’s] car and they’ re friends with [Hope] ?

C No. I know they’ re involved by the ir manneris m s when I went back o v e r there, how you have just a knowledge of knowing when people are back

- stabbing
you.

EL Now do you think that you have some issues with the Luminella sisters that you think that maybe they don ’t like yo u ?

C Do I think th at now?

EL Yes.

C Of course I think that now.

EL Well , no, back at that time.

C Back at that time, yeah, I think there was a lot going

on behind my back at that time.

R.R. at 106a

- 108a (emphasis added)

.10 Reviewing the letter and the above testimony in the light most favorable

to Claimant as the prevailing party , and giving Claimant the benefit of any inferences
which can logically and reasonably be drawn from the evidence as we must, the letter
and the testimony is relevant evidence upon which a reasona ble mind could conclude

that there was animosity between Claimant and the Luminella sisters. Accordingly,
because there was substantial evidence to support the UCBR’s conclusion of
animosity, we will not disturb the UCBR’s credibility determination

.

For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laymen’s Retreat League, : Petitioner :

:

v. :

: Unemploym ent Compensation : Board of Review, : No. 777 C.D. 2014 Respondent :

O R D E R

AND NOW, this 31 st day of July , 201 5

, the Unemployment
Compensation Board of Review’s April 8, 2014 order is affirmed.

___________________________ ANNE E . COVEY, Judge