IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kim M. Stevenson, : : No. 909 C.D. 2016 Petitioner : Submitted: November 10, 2016

:

v. :

: Unemployment Compensation : Board of Review, :

: Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: April 19, 2017

Kim M. Stevenson (Claimant) petitions pro s e for review of the April

29, 2016 order of the Unemployment Compensation Board of Review (Board)

denying unemployment compensation benefits under Section 402(e) of the

Unemployment Compensation Law (Law)

. 1 We affirm.

Claimant was employed by Reliant Pro spect Park , LLC (Employer)

from August 2013 through January 18, 2016. At the time of her separation from

employment, Claimant’s ra te of pay was $13.00 per hour.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e ). Section 402(e) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to her d ischar ge from work for willful misconduct

connect ed with her work

.2 In October 2015, Cla imant was promoted from her position as a

certified nursing assistant (CNA) to Unit C lerk . H owever, after a probationary

period , Employer determined that Cla imant was not a good fit for that position.

Employer had a meeting with Claimant on January 18, 2016

, inform ed her of the

decision , and offered her several CNA shifts

. Following the meeting, Claimant

was sent to pack up her things from the Unit C lerk station

. Although Employer

initially offered to keep Claimant on as a CNA, she was ulti mately disc harged,

before accepting that position, for placing facility documents in a shredding

container. Findings of Fact (F.F.) Nos. 1

- 4 , 8

.

Claimant filed for unemployment compensation benefits on February

9, 2016, and cited her attitude and a disagreement with her supervisor as the reason

for her d ischarge. Certified Record (C.R.) Item No. 2. The local service center

determined that Claimant was not ineligible for benefits under Section 402(e) of

the Law, and Employer appealed.

The referee held a hearing on March 24, 2016. Claimant attended, as

well as Kathy Baker, Employer’s Director of Human Resources, Patty Burke,

Employer’s Director of Medical Records, and Christy Lan e, Employer’s Building

Administrator. Burke testified that she received a report that while Claimant was
cleaning out her thin gs from the Unit Clerk office, she had placed items in the Iron

Mountain shredding bin. Notes of Testimony (N.T.) at 10. Burke found four

binders in the shredding bin that contained resident s’ lab reports , sign

- in forms,

and patient information for Claim ant’s job duties, in addition to Claimant’s emails

and login information. N.T. at 11

- 12.

Baker testified that she, Burke, and the Assistant Director of Nursing

reviewed the materials that Burke retrieved from the shredding bin. N.T. at 8

- 9.3

Baker state d that loss of the information Claimant placed in the shredding bin

would have been detrimental to Employer’s operation. N.T. at 15.

Baker testified that on January 22, 2016, following th e materials

review, she and Lane called Claimant regarding what was placed in the shredding

bin and Claimant stated that she “may have done that.” N.T. at 9. At that point,

Baker testified, she and Lane informed Claimant that they were no longer offering

her the CNA position and were, instead, terminating her employment

. Id. Baker

also testified that Employer had no formal policy regarding materials that go in the

shredding bin, but it did have a formal policy regarding resident records. N.T. at 9

-

10. At no point during the hearing did Claimant object to the testimony of

Employer’s witnesses. 2

Claimant testified that after her meeting with Employer on January

18, 2016, she went directly to her office to collect her things. N.T. at 13. She

stated that she had purchased many things for the unit to make it mor e presentable,

including binders and bins. Id. She testified that while she was gathering her

things, she disposed of several binders into the Iron Mountain shredding bin , which

contained emails, job description paperwork, and her own notes regarding jo b

duties such as appointments. Id. Claimant stated that she disposed of things that

had her name on it for the purposes of preventing identity theft. Id

. Claimant

testified that she was not aware that the information in the binders was Employer’s

prope rty. N.T. at 14.

2 Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board if it is corroborated by any competent evidence in the
record. F

ord v. Unemployment Compensation Board of Review , 498 A.2d 449, 450 (Pa. Cmwlth. 1985); Orloski v. Unemployment Compensation Board of Review , 415 A.2d 720, 721 (Pa. Cmwlth. 1980).4 The referee determined that Claimant had committed willful

misconduct and was ineligible for benefits under Section 402(e) of the Law. In

reaching her decision, the referee resolved conflicts in the evidence in Employer’s

favor and fou nd that Claimant threw out four binders containing residents’ lab

reports and appointments for follow

- up, as well as information on Claimant’s job

duties, and was discharged for attempting to destroy company property. F.F. Nos.

7

- 8.

Claimant appealed to the Board, challenging the referee’s findings

that she committed willful misconduct by attempt ing to destroy company proper ty.
Specifically, Claimant assert ed that Employer failed to provide su bstantial

evidence that she placed the binders in q uestion in the shredding bin. Moreover,

she argued that any documents that she placed in the bin were of a personal nature

and not company property. The Board affirmed the referee’s decision, adopting

and incorporating the referee’s findings and conclusions.

On ap peal to this Court, 3 Claimant argues that the Board erred in

finding her ineligible for benefits as the result of willful misconduct

. 4 She argues

3 Our scope of review is limited to determining whether constitutional right s were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843

- 44 (Pa. Cmwlth. 1987).

4 Claimant’s arguments have been edited for clarity. Her Pa. R.A.P. 2116 Statement of Questions Involved portion of her appellate brief reads as follows:

1. Who physically witnessed Ms. Stevenson throw [the] alleged
items in the shred bin?
2. By what means [wer e] the alleged items held for review of evidence besides [by] the people in question?
3. Who told Ms. McCray that Ms. Stevenson discarded the items belonging to [the] facility in[to] the shred bin? (Footnote continued on next page...)5

that the Board’s findings are not supported by substantial evidence and again

asserts that any materials she placed in the shredding bin were personal and not

company property. 5 We disagree.

Preliminarily, we note that a lthough not defined in the Law

, willful

misconduct has been defined by the courts as: an act of wanton and willful

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

a disregard of a standard of behavior which the employer has the right to expect; or

n egligence rising to the level of an intentional disregard of the employer’s interests

or the employee's duties and obligations. Johns v. Unemployment Compensation

Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied, 97 A.3d 746

(Pa. 2014). A n employer bears the burden of proving willful misconduct. Id. at
1010. Once the employer meets its burden, the burden then shifts to the claimant

t o demonstrate good cause for her actions. Id.

(continued...)

4. Why did it take four (4) days to notify Ms. Stevenson that sh e was being terminated when the items that Ms. Stevenson allegedly placed in the shred bin were found immediately upon her departure?
5. When did [Ms. Stevenson’s] personal property become the property of Reliant Prospect Park, LLC?

6. Why was there no physical evidence brought to [Ms. Stevenson’s] attention of at the hearing for [her] review?

5 Claimant additionally argues that her discharge was too remote from her alleged actions
to have been the real reason she was discharged. H owever , Claimant failed to rai se this argument before the Board and, therefore, it is waived. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551(a); Lewis v. Unemployment Compensation Board of Review , 42 A.3d 375, 379 n.8 (Pa. Cmwlth. 2012) (holding th at a claimant waived issues regarding his employer's disciplinary procedures where he failed to raise the issues in his appeal to the Board ).6 Additionally, t he Board is the factfinder in unemployment

compensation cases, empowered to determine credibility of witnesses and resolve

conflicts in evidence. Curr an v. Unemployment Compensation Board of Review

, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). While willful misconduct is a legal

determination fully revie wable by this Court, we are bound by the Board’s findings

so long as there is substantial evidence in the record, taken as a whole, supporting

those findings. Guthrie v. Unemployment Compensation Board of Review, 738

A.2d 518, 521 (Pa. Cmwlth. 1999)

. We view the record in the light most favorable

to the party prevailing before the Board and afford that party the benefit of all

reasonable inferences that can be drawn from the evidence to determine if

substantial evidence exists. Big Mountain Imaging v. Unemployment

Compensation Board of Review , 48 A.3d 492, 494

- 95 (Pa. Cmwlth. 2012). T he

fact that a witness has presented a version of the facts different from that accepted

by the Board is not a basis for reversal if substantial evidence supports the Boa rd’s

findings. Tapco, Inc. v. Unemployment Compensation Board of Review , 650 A.2d

1106, 1108

- 09 (Pa. Cmwlth. 1994). “ 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. ”

Ductmate Indus tries , Inc. v. Unemployment Comp ensation B oar d of Review , 949

A.2d 338 , 342 (Pa. Cmwlth. 2008) (citation omitted)

.

Here, Claimant asserts that any items that she put in th e shredding bin

were personal property and Employer did not produce any evidence to demonstrate

otherwise. However , t he Board credited Burke’s testimony as to what she found in

the shredding bin and Baker’s testimony that, when questioned about placing

re sidents’ lab reports and appointment information into the bin, Claimant admitted7

that she “may have done that.” 6 Based on those credibility determinations, t he
Board concluded that Claimant’s actions were injurious to Employer’s interests

and that Claiman t did not establish good cause for her actions. Claimant ’s

argument is based on facts that are different from those found by the Board. O ur review of the record confirms that the Board’s findings are supported by

substantial evidence

. Consequently, thos e findings are binding on appeal. Owoc v.

Unemployment Compensation Board of Review , 809 A.2d 441, 443 (Pa. Cmwlth.

2002). Based on the facts as found by the Board, Claimant’s actions constituted

willful misconduct, and Claimant failed to establish good cause for her conduct.

Accordingly, we affirm the order of the Board.

MICHAEL H. WOJCIK, Judge

Judge Brobson dissents.

6 In addition to Claimant failing to object to possible hearsay at the referee’s hearing , the
Board found that Cla imant’s statement of “Yeah, I may have done that” was a statement against interest and, therefore, admissible under the Pennsylvania Rules of Evidence Rule 804(b)(3). Pa. R.E. 804(b)(3).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kim M. Stevenson, : : No. 909 C.D. 2016 Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, :

: Respondent :

O R D E R

AND NOW, this 19 th day of April , 2017

, the order of the

Unemployment Compensation Board of Review, dated April 29, 2016, is

AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge