IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GNC Community : Federal Credit Union, : : Petitioner :

: v. : No. 1063 C.D. 2018

: Submitted : February 14, 2018 Unemployment Compensation : Board of Review, : : Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: March 4, 2019

GNC Community Federal Credit Union (Employer) petitio ns for review from an order of the Unemployment Compensation Board of Review (Board), which determined that Tracy Taylor (Claimant) was not ineligible for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (La w) 1 (relating to willful misconduct). Employer contends that the Board ’ s determination that Claimant established good cause to justify her willful misconduct is erroneous and not supported by substantial evidence. Additionally, Employer asserts that the Board violated Employer ’ s due process right s and failed to follow requisite procedures. Discerning no error, we
affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §802(e).2 Claimant worked for Employer as a full

- time receptionist from May 2014 until her last day of work on January 26, 2018 . After her separation from employment, Claimant applied for UC benefits, which a local service center granted. Employer appealed, and a referee held a hearing.

At the hearing, t he referee received evidence and heard testimony from
Claimant and two wi tnesses for Employer : Dianna Cecchini, Employer ’ s CEO (CEO) and Renae Colaizzi, Employer ’ s Branch Manager (Branch Manager)

. 2 T he
referee found that Claimant committed willful misconduct by refusing to perform her assigned job functions. Thus, t he refere e determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed.

B ased on the record created at the referee ’ s hearing, t he Board found the following facts. Employer maintains an employee conduct policy , whi ch states, in relevant part, that unacceptable job performance includes insubordination or failing to follow manager directions. Claimant was aware of Employer ’ s policy.
B oard Opinion , 7/17/18 , Findings of Fact (F.F.) Nos. 2

- 3.

In May 2014, Employer hired Claimant to be a receptionist for its main
bank located in downtown New Castle (main branch) . In August 2014, Employer opened a branch bank in Neshannock, approximately three miles from the main
branch (satellite branch) . At that time, Emp loyer instructed Claimant to work at both
bank branche s on a daily basis. Claimant began her day at the main branch , took lunch, and then traveled to and worked at the satellite branch, where she finished her day . F.F. Nos. 4

- 5.

In February 2016, Clai mant met with CEO regarding her work hours. CEO informed Claimant that Employer pays her for 40 hours per week; however,

2 Claimant and Employer were both represented by counsel.3

Claimant ’ s time records show ed that she wa s working less than 40 hours. CEO
directed Claimant to take a 45

- minute lunch instead of a one

- hour lunch to make up
the difference. During the meeting, Claimant requested reimbursement for the mileage she accrued traveling between the bank branches . CEO agreed to pay her the current IRS mileage rate on a monthly basis. Claimant again approac hed CEO about compensation for mileage and, i n May 2017, she was informed that Employer would reimburse her the mileage , but never did. F.F. Nos. 6

- 8.

In December 2017, Claimant began having transportation issues. She requested the promised reimbursemen t for mileage and to stay at the main branch during the winter. On January 2, 2018, Claimant did not go to the satellite branch. Claimant received permission from the CEO to remain at the main branch due to a staffing shortage. Two days later , Claimant took her lunch at 3:09 p.m. due to a busy workday. Upon informing CEO, CEO directed Claimant not to travel to the satellite branch that day. F.F. Nos. 9

- 11.

On January 5, 2018, CEO initiated a meeting with Claimant regarding traveling between the two br anches and voiced an issue with Claimant frequently taking a late lunch , which allowed for only a minimal amount of time at the satellite
branch. Claimant informed CEO that the tires on her vehicle were bad and her other vehicle was having electrical issu es. Claimant requested to remain at the main
branch during the winter. CEO stated she would get back to her on the issue, reiterated that Claimant must continue to travel between offices daily, and directed her to take a lunch by 1:30 p.m. F.F. Nos. 12

- 13.

On January 11, 2018, Claimant, following Employer ’ s written procedural policy, filed a written complaint with the President of Employer ’ s Board
of Directors regarding not receiving reimbursement for mileage. Later that month,4

Claimant met with the President, and they discussed multiple options for resolving
Claimant ’ s concerns about traveling between the offices. Claimant asked to remain at either branch for the entire workday, rather than partial days , citing transportation
issues. Claimant state d it was difficult to find a ride in the middle of the day to take her to the satellite branch. President indicated that all options would be considered ; however, he informed Claimant that the decision was ultimately up to CEO.
F.F. Nos. 14

- 15.

On Janua ry 26, 2018, CEO met with Claimant. CE O presented
Claimant with a four

- page job description for Claimant ’ s position and directed her to sign it. The job description included a provision for daily travel between branches, without mileage reimbursement. E mployer indicated that Claimant was paid for 40 hours of work when she frequently worked less than 40 hours and that this difference was approximately the same amount that Claimant would be paid for mileage and, as such, Employer would consider that her co mpensation for traveling between the
bank branches . Claimant refused to sign the job description , and CEO discharged Claimant for insubordination in violation of Employer ’ s policies. F.F. Nos. 16

- 18.

T he Board concluded that Employer has a right to make reasonable changes to an employee ’ s job duties. Commuting three miles a day between branches on a daily ba s is is a reasonable job change. Claimant performed her new job duties beginning in August 2014 until January 26, 2018, when she refused to sign an updated job description that included the duty to commute between branches.
The Board determined that Claimant ’ s refusal to accept the requirement of commuting without mileage reimbursement constituted an act of insubordination.

However, the Board concluded that Claimant demonstrated good cause for her refusal. Employer had agreed to reimburse her monthly for mileage, but5

never did. Claimant followed Employer ’ s policy by filing a complaint with the
President of Employer’s Board of Direct ors

. Although m ultiple solutions wer e proffered, in the end, CEO chose not to make any accommodation s and instead
revised Claimant ’ s job duties to require daily commute between branches without mileage reimbursement. The Board determined that Claimant ac ted reasonably
under the circumstances by acting within the process outlined for resolving complaints and had good cause for refusing to accept CEO ’ s offer for settlement of her complaint. Thus, t he Board reversed the referee ’ s determination and granted
b enefits to Claimant. Employer ’ s petition for review to this Court followed. 3

On appeal, Employer argues that : the Board ’ s findings are not supported by substantial evidence; the Board erred by failing to affirm the referee ’ s decision; and the Board denied it due process.

Willful Misconduct First, Employer argues that the Board ’ s findings are not supported by substantial evidence. Claimant was aware, and had agreed to, the travel requirements of the job, yet refused to travel. Claimant had no issue with the travel assignment and compensation arrangement for three years. There was never a

3 Our review of the Board’s decision is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact were supported by substantial evidence. Wise v. Unemployment Compensatio n Board of Review , 111 A.3d 1256, 1261 n.5 (Pa. Cmwlth. 2015). In addition, we review for capricious disregard of competent evidence “in every case in which such question is properly before the court.” Leon E. Wintermyer, Inc. v. Workers ’ Compensation Ap peal Board (Marlowe) , 812 A.2d 478, 487 (Pa. 2002). “A capricious disregard of evidence occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.” Wise , 111 A.3d at 1262. “[W]here there is substantial evidence to support the agency’s factual findings and those findings support the legal conclusions, “it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard.” Id. (quoting Wintermyer , 812 A.2d at 487 n.14).6

promise to reimburse Claimant for mileage. Instead, Claimant was paid for additional, unworked hours as compensation for the mileage it took to drive to the
satellite branch. In addition, Claimant committed other acts of insubordination , including taking lengthy lunch breaks and failing to appear at the satellite branch in a timely manner. According to Employer, t he Board ignored this evidence.
Clai mant did not prove just cause for her actions.

Section 402(e) of the Law provides, “ [a]n employe shall be ineligible for compensation for any week

. . . [i]n which his unemployment is due to [her] discharge

. . . from work for willful misconduct conne cted with his work

. . . . ”
43 P.S. §802(e). “ [W]illful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer ’ s interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer c an rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer ’ s interests or the employee ’ s duties and obligations. ” Johns v. Unemployment Comp ensation Board of Review , 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied , 97 A.3d 746 (Pa. 2014) (citing Grieb v. Unemployment Comp ensation Board of
Review , 827 A.2d 422 (Pa. 2002)).

The employer bears the initial burden of proving a claimant engaged in
willful misconduct. Johns , 87 A.3d at 1009

. When asserting a disc harge based on a violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant ’ s knowledge of the rule, and its violation.
Id. (citing Ductmate Indus tries , Inc. v. Unemployment Comp ensation Bo ard of
Review , 949 A.2d 338 (Pa. Cmwlth. 2008)).

Policy 5070 of Employer ’ s Employee Handbook govern s employee
conduct and provide s that “ insubordination or failing to follow manager directions ”7

constitut es unacceptable conduct subject to corrective acti on. Reproduced Record ( R.R. ) at 118a. In addition, t his Court has defi ned insubordination as :

A willful disregard of an employer ’ s instructions, esp. behavior that gives the employer cause to terminate a worker ’ s employment

. . . [or] an act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give ” and an unwillingness “ to submit to authority

. . . disobedience of orders, infraction of rules, or a generally disaffected at titude toward authority

. Scott v. Unemployment Compensation Board of Review , 105 A.3d 839, 846 (Pa. Cmwlth. 2014) , appeal denied , 125 A.3d 779 (Pa. 2015) (citations omitted)

.

Once an employer meets its burden of proving willful misconduct , the burden shifts to the employee to prove good cause for her actions. Johns , 87 A.3d

at 1010

. An employee establishes good cause where her actions are justified or
reasonable under the circumstances. Docherty v. Unemployment Compensation Board of Rev iew , 898 A.2d 1205 , 1208

- 09 (Pa. Cmwlth. 2006). A determination of

“ willful misconduct requires a consideration of ‘ all of the circumstances, including the reasons for the [claimant ’ s] noncompliance with the employer ’ s directives. ’” Id. (quoting Navickas v. Unemployment Compensation Board of Review , 787 A.2d 284 , 288 (Pa. 2001))

.

Further, in UC cases, the Board is the ultimate fact

- finder and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Wise , 1 11 A.3d at 1261

- 62 (citing Ductmate , 949 A.2d at 342)

. It is irrelevant whether the record contains evidence that would support findings other than those made by the Board; the proper inquiry is whether substantial evidence supports the findings actually made. Id. at 1262. Substantial evidence is8

“ such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion

. ” Id. A reviewing court must examine “ the evidence in the light most favorable to the prevailing party, and give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony

. ” Id.

Employer challenges statements made by the Board in its discussion
that “ CEO chose not to accept any offered solution , ” that “ CEO met with [Cl aimant] and reneged on the prom ise to pay for the mileage, ” and that Claimant “ was provided with different reasons for why she was not going to be paid the mileage and, in good faith, she filed a written complaint. ” See Petitioner ’ s Brief at 7 , 9 (quoting Board Opinion at 4). According to Employer, Claimant was compensated for mileage. Employer paid Claimant an additional 15 minutes each day to reimburse her for her
travel time between the two offices. R.R. at 25a, 28a. This quarterly

- hour payment amounted to more money than mileage reimbursement for a one

- way three

- mile trip.
R.R. at 25a

- 28a, 45a. Employer contends this evidence was ignored.

Contrary to Employer ’ s assertions, this evidence was not disregarded , but considered

. See F.F. No. 17. Ho wever, t he Board made numerous findings that Claimant and Employer discussed mileage re imbursement on several occasions, and Employer agreed to reimburse Claimant for mileage, but never did, despite multiple requests for payme nt. See F.F. Nos. 6

- 9, 13, 14.

The Board ’ s findings are supported by Claimant ’ s testimony , and, to
some extent, CEO ’ s own testimony. CEO testified that , as early as February of 2016, Claimant requested mileage. R.R. at 28a. Claimant testified that Employer agree d
to reimburse her for mileage on a monthly basis. R.R. at 44a, 49a, 6 0 a. Claimant made several requests to be reimbursed, but was never paid for the mileage. R.R. at9

49a, 57a, 6 1 a. CEO acknowledge d that she and Claimant had several conversations about mileage. R.R. at 63a.

Although Employer asserts that compensation Claimant received for 40 hours a week while working for some fraction of time less than 40 hours a week was higher than what Claima nt would receive in mileage (Pet itioner ’ s Brief at 9), that assertion is not supported by sufficient evidence to reach that conclusion. Moreover,
CEO testified that Employer never reviewed such a cost analysis with Claimant.
R.R. at 25a. Claimant testif ied she was not compensated for 15 minutes to drive to
the satellite branch. R.R. at 57a.

Insofar as Employer cites to other instances of insubordination, such as lengthy lunch breaks and failure to appear at the satellite branch in a timely manner

or a t all , CEO testified that she terminated Claimant because she refused to travel to the satellite branch , not because she was tardy or exceeded her lunch break. R.R. at
33a

- 34a. Notwithstanding , Claimant testified that the instances cited by Employer

were authorized or excused by CEO or Branch Manager

. For instance, CEO testified
that , on December 28, 2017, Claimant was gone for several hours midday without her knowledge. R.R. at 29a. However, Claimant testified that she had taken her son
to a docto r ’ s appointment during the day and had advised her Branch Manager of this appointment

. R.R. at 46a. CEO testified that Claimant did not arrive at the satellite branch on January 2, 2018 . R.R. at 30a. According to Claimant ’s testimony,
CEO allowed her to remain at the main branch that day because the main branch was short a teller. F.F. No. 10; R.R. at 52a. CEO testified that, on January 4, 2018,
Claimant arrived late at the satellite branch. R.R. at 30 a. Claimant testified that she
did not travel t o the satellite branch that day because , by the late hour at which she took lunch, she would have spent only a short time at the satellite branch and CEO10

excused her from travel that day. F.F. No. 11; R.R. at 53a. CEO also acknowledge d that she allowed Claimant to remain at the main branch during inclement weather.
R.R. at 29a. Further, Claimant testified that she did not have a set time for lunch , and she was not told to take her lunch by 1:30 p.m. until the meeting with CEO on
Jan uary 5, 2018. R.R. at 45a, 53a , 56a

. Claimant testified that the main branch was much busier than the satellite branch, which caused her to take a late lunch break or no lunch at all some days . R.R. at 56a. Claimant testified that at no point did she

s tay at the main branch and not travel to the satellite branch without the approval of
the CEO. R.R. at 51a.

Claimant, in accordance with Employer ’ s policy, filed a written complaint regarding her travel between the two branches and mileage
reimbursemen t , among other issues, and met with the President of Employer’s Board
of Directors

. F.F. No. 14; R.R. at 40a

- 43a. Although the options of working full days in each of the two locations and providing mileage reimbursement were proffered during the meeting , the ultimate decision was CEO ’ s. F.F. No. 15; R.R.
at 44a , 63a

. CEO presented Claimant with an updated job description that required Claimant to travel daily between the offices with no reimbursement for mileage. F.F. No. 16; R.R. at 50a

- 51a

. Claimant refused to sign the job description and was discharged for insubordination. F.F. No. 18; R.R. at 51a.

Upon review, the Board ’ s findings are supported by substantial
evidence

. That Employer may have provided “ a different version of the events, or

. . . 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 Compensation Board of Review , 650 A.2d 1106, 1108

- 09 (Pa. Cmwlth. 1994). The11

B oard’s findings support the determination that Claimant acted reasonably in following Employer ’ s procedure for addressing work issues and had good cause for refusing to accept CEO ’ s offer to resolve her complaint

.

Referee ’ s Decision Next, Employer argues that the Board erred by failing to affirm the
referee ’ s decision. Employer takes issue with the fact that the referee examined the same evidence and found in Employer ’ s favor. The Board did not indicate any alleged errors made by the referee.

I n this regard, Employer mis apprehends the Board ’ s role and our standard of review in UC matters. The Board is the ultimate finder of fact and is not bound by the referee ’ s findings and conclusions. Peak v. Unemployment Compensation Board of Review , 501 A .2d 1383, 1385 (Pa. 1985). It is the Board’s “exclusive power to resolve conflicts in the evidence and to decide witness credibility and the weight to be accorded the evidence .” Wise , 111 A.3d at 1261

- 62

. Further, w e review the Board ’ s decision, not the referee ’ s, for errors of law and evidentiary support. Id. at 1261 n.5. This argument is without merit.

Due Process Next, Employer claims that the Board denied Employer basic due process during the pendency of its appeal. First, the Board did not pr ovide Employer notice of the allowance of appeal, despite two inquiries. Pursuant to the Department
of Labor and Industry ’ s regulations, if appeals are allowed by the Board, notice must be given to all interested parties. 34 Pa. Code §101.104(c). Second , Employer12

contends that the Board failed to provide Employer with an opportunity to file a brief, while expressly granting Claimant the right to do the same.

“ It is well settled that the essential elements of due process in an administrative proceeding are notice and an opportunity to be heard. ” McFadden v. Unemployment Compensation Board of Review , 806 A.2d 955, 958 (Pa. Cmwlth. 2002)

. In the context of a proceeding before the Board, these elements encompass
the right to notice as well as the right to request oral argument and to file a brief. Id.

To that end, t he Board ’ s regulations provide that “ [t] he Board may allow or disallow any application for a further appeal without hearing, solely on the basis of the application and the record. ” 34 P a. Code §101.104 (a). If allowed, the
Board “ assumes jurisdiction of the appeal ” and mails notification “ to the last known post office address of each interested party. ” 34 Pa. Code §101.104(c).

Further, “ any of the interested parties may file a writte n request for oral or written argument. ” 34 Pa. Code §101.104(e). “ Such request will be granted as
of course. ” Mileski v. Unemployment Compensation Board of Review , 379 A.2d 643, 644 (Pa. Cmwlth. 1977) ; see 34 Pa. Code §101.104(e) ( “ the normal time allowed for submitting written argument shall be 7 day s from the date of the request ” ). Each party shall be afforded the opportunity to reply to the arguments and contentions of the other parties. 34 Pa. Code §101.104(e)

.

Here, the record contains Claim ant ’ s petition for appeal to the Board
and the cover sheet showing it was mailed to Employer ’ s counsel. R.R. 183a

- 85a,
187a

. Employer does not deny receiving this notice, but complains that it did not
receive any “ correspondence ” from the Board indicatin g whether the Board allowed
or disallowed Claimant ’ s appeal. Petitioner ’ s Brief at 14

- 15 . However, the lower13

portion of the petition for appeal indicates that the Board accept ed the appeal and assign ed an appeal number. R.R. at 184a. Consequently, n o f urther notice was due. As for Employer ’ s claim that the Board deprived Employer of an opportunity to file a brief , Claimant ’ s counsel requested permission to file a brief on
her behalf and then filed one . R.R. at 182a. Employer acknowledged that it received a copy of Claimant ’ s brief

. R.R. at 200a. Although the regulations permitted Employer to file its own brief, Employer did not seek the Board ’ s permission to do

so . In stead , Employer requested the Board to disregard Claimant ’ s brief because the

“ previously established record is adequate to meet the Board ’ s fact finding responsibilities and the parties were given ample opportunity to present their testimony and evidence at the Referee hearing

. ” R.R. at 189a, 200a. Consequently, Employer waived i ts opportunity to respond by brief. Upon review, Employer ’ s due process arguments lack merit.

Accordingly, we affirm.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

GNC Community : Federal Credit Union, : : Petitioner :

: v. : No. 1063 C.D. 2018

: Unemployment Compensation : Board of Review, : : Respondent :

O R D E R

AND NOW, this 4 th day of March , 201 9 , the order of the Unemployment Compensation Board of Review, dated July 17, 2018, is
AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge