IN THE COMMONWEALTH COURT OF PENNSYLVANIA

White Rose Credit Union, :

Petitioner :

:

v. : No. 694 C.D. 2019

: SUBMITTED: November 8, 2019 Unemployment Compensation Board : of Review, :

Respondent :

BEFORE: HONORABLE REN É E COHN JUBELIRER , Judge

HONORABLE PATRICIA A. McCULLOUGH , Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: January 6, 2020

White Rose Credit Union (Employer) petitions for review of the May 7, 2019
Order of the Unemployment Compensation Board of Review (Board) reversing the
decision of a Referee to deny Jennifer F

. Swanner (Claimant) unemployme nt compensation (UC) benefits. T he Board concluded that Claimant was eligible for

UC benefits under Section 402(e) of the Unemployment Compensation Law (Law) 1

because Employer failed to prove that she was discharged for willful misconduct.

W e affirm the Board’s Order.
Background

C laimant w orked full time as Vice President of Marketing for Employer from
August 23, 2011 through August 30, 2018. Bd.’s Finding of Fact (F.F.) No. 1 ;

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 his [or her] unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his [or her] work.” 43 P.S. § 802(e).2

Record (R.) Item No. 3 . E mployer has a policy that prohibits its employees from
making false statements about Employer

, its employees

, or its members. Bd.’s F.F.

No. 2. E mployer also has a policy that provides for an employee’s discharge if the
employee demonstrates unsatisfactory work performance. Id. No. 3. Claimant was
aware of Employer’s policies. Id. Nos. 2, 3.
On August 21, 2018, C laimant and one of her subordinate s, Robert Ford, were expected to represent E mployer at a marketing event at Central Market in York

, Pennsylvania

, from approximately 11:00 a.m. until 2 :00 p.m. Id. No. 4 ; Notes of
Testimony (N.T.), 10/22/18, at 10 , 13

. C laimant and Mr. Ford arrived at Central

M arket that day a t 11:30 a.m., but the outside event had been cancelled due to light

rain. Bd.’s F.F. No. 5. C laimant network ed with p atrons inside the market and

hand ed out promotional items displaying E mployer ’ s logo

. Id. Around 12:00 p.m.,

Claimant gave Mr. Ford a lunch break

. Id. No. 6 ; N.T., 10/22/18, at 11 , 13

. Claimant

also took a lunch break at that time and walk ed to a food vendor just outside of the

market. Bd.’s F.F. No. 6. C laimant r eturned to Central Market around 1:00 p.m.

and continued to network with patrons and vendors in side the market until 2:00 p.m.

Id. C laimant left promotional materials inside the market before she left the
premises for the day

. Id.
Three other employees of Employer went to Central Market that day for lunch

, arriving a round 11:50 a.m. and leaving around 1:00 p.m. Id. No. 7. Th e se employees did not see C laimant or Mr. Ford w hile they were at Central M arket. Id.

No. 8

. Later that day, Employer’ s Vice P resident of H uman R esources , Tam i ka
Baker, overheard C laimant describing the Central M arket event to another c o

worker as “ busy ” and stating that Claimant handed out Employer’s promotional3

material s at the market

. Id. No. 9; N.T., 10/23/18, at 2, 6 . Ms. Baker was one of the

three employees who had gone to Central Market for lunch. Bd.’s F.F. No. 9. Ms.

Baker had concern s about C laimant ’ s integrity after overhearing th is conversation.

Id. No. 10.
On August 30, 2018, Ms

. Baker and Employer’s Chief Executive Officer,

Deb ra Kauffman, met with C laimant regarding her representation to another co

worker that she was at Central Market on August 21, 2018

. Id. No. 11 ; N.T.,

10/2 2 /18, at 7

- 8 . C laimant told them that she was present at Central Market that day

. Bd.’s F.F. No. 11 ; see N.T., 10/22/18, at 8 (Claimant testified that she “ absolutely
was present at the [Central Market] event ”)

. E mployer offered C laimant an op portunity to resign in lieu of discharge.

Bd.’s F.F. No. 12. E mployer initiated the termination due to Claimant’ s violation of

its polic ies prohibiting unsatisfactory work performance and false statements and

C laimant ’s failure to maintain integrity. Id

. Claimant filed a claim for UC benefits, which the local UC Servi c e Center

denied. The Service Ce nter noted that the record contained conflicting evidence
regarding whether Claimant voluntarily quit or was discharged from her
employment; however, the Service Center ultimately found that Claimant
voluntarily quit because she “ initiated the separation” from employment. Not. of
Determination, 9/27/18, at 1. The Service Center found that “ although the Claimant

had a nec essitous and compelling reason for quitting, . . . [she] did not exhaust all
alternatives prior to quitting .” Id. Th erefore , the Service Center determined that
Claimant was ineligible for UC benefits under Section 402(b) of the Law. 2 Id.

2 Section 402(b) of the Law provides that an employee shall be ineligible for UC benefits for any week “[i]n which his [o r her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.” 43 P.S. § 802(b).4

Claimant timel y appealed to the Referee, who held a hearing on October 22,

2018

. At the hearing, Claimant testified that on August 21, 2018, she and Mr. Ford

were scheduled to attend a lunchtime networking event known as “Box Lunch
Review” at Central Market. N.T., 10/ 22/18, at 10. The event was organized by York
City Special Events, but Employer is one of the event’s sponsors. Id. at 9. Claimant
testified that “[t]his was the second season that [Employer] had participated in this
event, which happened numerous times throughout the summer.” Id. at 8. Claimant

described the nature of the event as follows:

Ty pically, when the event happen s outside, my staff and I would set up a table with marketing supplies and giveaways. We would spend ou [r] time just networking with the people that attend the event. It was more important for us to network versus giving items away. We also made it a pr iority to network with local business owners and vendors.

. . . .
[However,] the table was not set up [on August 21, 2018] because the event was brought inside of the market because of the weather, which was typical for t hat particular event [,] because it’ s an o utdoor event. Numerous times it’ s been brought inside.

. . . .

[It] was not my call to bring the event inside [that day]

. It’ s not our event that we put on. It ’ s just an event that we attend.

Id. at 9

. Claimant testified that she and Mr. Ford arrived at Central Market a t 11:30

a.m. that day and had come directly from another marketing event that ended at

11:00 a.m. Id. at 10

- 11 . Wh en they arrived at Central Market, Claimant and her

staff were “ exhausted ” and “ hungry .” Id. at 10. Claim ant test i fied :5

I told my staff, if you want to go and get something to eat and take a little bit of a break; the event that we were going to be doing over the lunch hour was going to be diff erent than what we normally do. So, I made the call to let my staff go take a break and then, I also went and took a

. . . lunch break. I went and got some food from one of the vendors inside the market and then, I also went and w alked to York City Pretzel , which is just outside of the market, to just do some general networking with the business owners there, as we were featuring one of them in our upcoming newsletter.

Id. at 11 ; see id. at 13

- 14 . After their lunch break s , Claimant and Mr. Ford “s pent

the last hour

. . . networking and mingling ” and “ talking to a handful of different

business owners that were vendors in the market. ” Id. at 11

- 12. Claimant further
testified that she handed out newsletters and pen cards 3 bearing Employer’s logo to

patrons at Central Market. Id. at 16

- 17. Claimant sta ted, “I didn’t put any
[ promotional materials] on t he tables inside of the market. I did have a few pen cards
in my hand and the very few people that were sitting and having lunch, I walked up
to them and offered them a pen card. ” Id. at 17. Claimant te stified that Mr. Ford
did not hand out promotional materials because Claimant carried the bag containing
the materials, which she brought with her when she went to York City Pretzel. Id.

at 17

- 18.
After receiving Claimant’s testimony, t he Referee stopped the hearing and
continued it to the next day so that Claimant could attend a scheduled job interview.

Id. at 20.

3 Claimant explained that “pen cards” are “ little cards that have pens attached to them. ” N.T., 10/22/18, at 9.6

Claimant did not appear at the hearing on October 23, 2018

. 4 Employer
presented the testimony of Ms. Baker, Ms. Kauf f man, and Bryan Smith, Employer’s
Vice President of Lending . Mr. Smith testified that he, Ms. Baker, and Tina S hiller

went to Central Market for lunch around 11: 50 a.m. on August 21, 2018. N.T.,

10/2 3 /18, at 3 ; Bd.’s F.F. No. 7

. Mr. Smith testified that the three of them walked

around the market looking for a place to eat and “ did not see either [Claimant or Mr.
Ford]

, [and] didn ’ t see any evidence of [Employer ’s promotional materials ] at the

entire event. ” N.T., 10/2 3 /18, at 3. Mr. Smith testified that he “ was looking for
[Claimant and Mr. Ford] because we expected them to be there. ” Id. at 4.

Ms. Baker testified that she went to C en tral Market for lunch with Mr. Smith

and Ms. S hiller that day and did not see Claim a nt
, Mr. Fo rd , or any Employer
literature or promotional materials inside the market. Id. at 4

- 5. W hen Ms. Baker

returned to the office after lunch , she “ overheard [Claimant] saying [to Ms. S hiller ]
how busy [Central Market] was, that [Claimant] handed out p[e] n ca rds and

newsletters inside and out

, and she also talked about where she ate .” Id. at 6. Ms.

Baker testified that after overhearing this conversation,

I was very concerned. I was very shocked, because I felt that [Claimant’s] integrity was in question, because we were just at that event, and we did not see [Cla i mant ] [] or [Mr. Ford]. I was concerned, because it sounded like a story. I felt that she wasn’ t telling the truth.

4 Regarding Claimant’s failure to appear, the Board found:

[C]laimant did not appear at the continued hearing because her brother with special needs had fallen at his day program. [C]laimant had to go to the hospital to fulfill the role as legal guardian because her mother was out of the state. [C]laimant requested a continuance of the hearing[, which the Referee denied].

Bd.’s F.F. No. 13; see N.T., 2/8/19, at 4

- 5

.7

Id. at 6

- 7. Ms. Baker believed that given Claimant ’s senior management position
with Employer , “ th [ere] was a huge problem with [Claimant’s] integrity. ” Id. at 8.

Ms. Baker met with Mr. F ord and asked him whether he had attended the Box

Lunch Review event , and he “s tat [ed] that [he and Claimant] were th ere at the Box

Lunch Rev [iew] that day. ” Id. at 7. Ms. Baker also met with Claimant , who “s tated

that [she and Mr. Ford] were present at the Box Lunch Rev [iew]

, [and] that they
spoke to a lot of people. ” Id. at 10. Employer discharged Claimant for violating its
policies prohibiting “ unsatisfactory work performance ” and “ ma king false claims or
statements” and for violating Employer’s “ core values . . . [of] integrity,

. . . commitment, accountability [,] and respect

. ” Id. at 15.
Following the hearings, t he Referee concluded that Claimant was ineligible

for UC benefits under Section 402(e) of the Law because she was discharged for

willful misconduct. 5 The Referee determined :

At the hearing, [C] laimant testified th at she did not distribute [promotional] material [s] and did not provide material [s] for [Mr. Ford] to distribute. Even if the Referee would find [C] laimant ’ s testimony credible that she was at the [Central Market] event, [C] laimant admittedly did not perform the job responsibilities she was required [to perform] by distributing material [s] at the event as she informed [E] mployer she had done. Based on the discrepancy in [C] laimant ’ s own testimony, the Referee concludes that [C]laimant’ s testimony is

n ot credible. The Referee finds [E]mployer’ s testimony credible that [C]l aimant was untruthful regarding her activity at the event and untruthful whether or not she even attended the Central Market sponsored event [where] she was supposed to promote [E] mpl oyer by distributing materials on behalf of the company. As such, [C]laimant’ s

5 With regard to Claimant’s eligibility for UC benefits under Section 402(b) of the Law, the Referee concluded, “[B]oth [C]laimant and [E]mployer competently testified that [C]laimant accepted [the opportunity] to submit her resignation in lieu of a discharge. Since [C]laimant’s separation was not voluntary, a finding under Section 402(b) of the Law does not apply.” Ref.’s Order, 10/30/18, at 3. This determination is not at issue in this appeal.8

behavior was contrary to the standards of behavior which [E]m ployer has the right to expect and [UC] benefits are denied.

Ref.’s Order, 10/30/18, at 3

- 4

. Claimant timely appea led to the Board, which rem an d ed the matter to the
Referee for a supplemental hearing. Specifically, the Board directed the Referee to

take additional evidence on Claimant’ s reason for her non

- appearance at the October

23, 2018 hearing , as well as additio nal testim ony and evidence on the merits. Bd.’s

Remand Order, 1/11/19, at 1.
Following the remand hearing , the Board made its own findings of fact an d

conclusions of law and reversed the Referee’s decision . The Board concluded:

[E] mployer presented credible evidence that it maintains a policy that prohibits making false claims or statements about [Employer]

, [its] employees [,] or [its] members. [E] mployer also established that [C] laimant was aware of the policy. [E] mployer presented [the] testimony of three witnesses that had gone to [Central M] arket on August 21, 2018. These witnesses testified that they did not see [C] laimant or [Mr. Ford] at the market. Thus, [E] mployer sought to prove that [C] laimant made false statements regarding her whereab outs that day through circumstantial evidence. It relied upon its witnesses ’ failure to see [C]laimant at the location . However, the Board accepts [C]laimant’s testimony as credible that she was at the market on August 21, 2018, networking with vendors a nd potential customers, and that she handed out [E]mployer’s [promotional] items. The Board also accepts that [Claimant] visited a vendor outside of the market while [E]mployer’s witnesses were there. Further, [C]laimant left promotional materials for [E ]mployer at the market after [E]mployer’s witnesses had left. Therefore, the Board does not find that [C] laimant made false statements or violated [E] mployer ’ s policies.9

Bd.’s Order, 5/7/19, at 3

- 4

. Therefore, t he Board concluded that Claimant was n ot

di s qualified from receiving UC benefits under Section 402(e) of the Law. Employer
now petitions for review of that decision. 6
Analysis
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 the standards of behavior that the employer has a right to expect of its employees,

or n egligence indicating an intentional disregard of the employer’s interests or of the
employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Review

, 83 A.3d 484, 486

- 87 (Pa. Cmwlth. 2014). An employer seeking to prove that a

claimant commit ted willful misconduct by violating a work policy “must
demonstrate the existence of the policy, its reasonableness, and its violation.”
Klampfer v. Unemployment Comp. Bd. of Review , 182 A.3d 495, 500 (Pa. Cmwlth.
2018). If the employer satisfies its bur den of proof, then “the burden shifts to the
claimant to demonstrate good cause for violating the [policy].” Chester Cmty.
Charter Sch. v. Unemployment Comp. Bd. of Review , 138 A.3d 50, 54 (Pa. Cmwlth.
2016).
On appeal, Employer asserts that the Board ca priciously d isregarded

un controverted evidence establishing that Claimant left the Box Lunch Review event

while she was required t o be p resent and w orking for Employer. Employer

maintains that Claimant was expected to network at Central Market for the ent ire

6 Our scope of review is limited to determining whether the necessary factual findings are supported by substantial evidence, whether an error of la w was committed, or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.10

Box Lunch Review event and her failure to do so , as well her misrepresentations
regarding the work she performed, violate d its policies. We disagree.
Our Court has explained:

Capricious disregard “occurs where the fact finder willfully and delibera tely disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.” Wise v. Unemployment Comp [.] B [d.] o f Review , 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of evidence occurs “where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment.” Id. at 1263. It is the responsibilit y of the factfinder to resolve the conflicts in the testimony and explain why it has accepted, or rejected, each piece of relevant evidence. Id.

Bertram v. Unemployment Comp. Bd

. of Review , 206 A.3d 79, 83 ( Pa. Cmwlth.
2019).
Employer contends that Claim ant’s testimony that she was present at Central
Market on the day in question wa s “ false in light of [Claimant’s] admissions at the
[h]earing” and the testimony of Employer ’ s witnesses that they did not see Claimant

“ when they were present for 70 minutes a t

. . . Central Market. ” Employer’s Br. at
15. However, as the Board correctly found, Employer did not discharge Claimant
for falsely stating that she was present at Central Market for a specified period of
time, but for falsely stating that she was present at Central M arket at all

. Bd.’s F.F.

No

. 11 ; s ee R. Item No. 5 ( Employer’s disciplinary record states that Claimant was

dis charged for her “

failure to appear at Central Market for the Box Lunch Review[,]

which was a schedu l ed [m] arketing event ”) ( emphasis added)

. Here, Claimant
credibly testified that she was working for Employer inside Central Market from

11:30 a.m. until 12:00 p.m. and again from 1:00 p.m. until 2:00 p.m. during the Box11

Lunch Review event. Bd.’s F.F. No s

. 5, 6

. Simply because E mployer’s witnesses
did not see Claimant during their visit to Central Market that day does not render
Claimant’s statement false, because the record show s that Claimant and Employer ’ s

witnesses were not inside Central Market at the same time. See Bd.’s Order, 5/7/19,
at 4 (finding that Claimant “ visited a vendor outside of the market while
[E]mployer’s witnesses were there ”).
Despite its assertion on appeal that Claimant was required to be stationed

inside Central Market during the entire Box Lunch Revi ew event
, Employer
presented no evidence that Claimant was pr ohibited from taking a break during the

e vent

. Indeed, i t is entirely reasonable that Claimant would take a lunch break at

some point between 11: 30 a.m. and 2:00 p.m., particularly where the record shows

that she had come directly from working at another Employer

- s ponsored marketing
event, which ran from 7:00 a.m. to 11:00 a.m. Claimant testified:

We had just come from another event that morning, where we had seen approximately . . . 1, 200 people. It was a very intense event. I was exhausted. My staff was exhausted. We were both hungry. Because the [ Box Lunch Review ] event had been changed [to] inside, it sort of goes from, you know, high profile to low p rofile, when the event is changed from outdoors to indoors [,] because we don’ t have room to set up a table.

N.T., 10/22/18, at 10 ; see also id. , Ex

. E

- 1 (Ms. Baker’s notes state that Employer’s

“ Marketing Team ( [Claimant and Mr. Ford] ) had an event at Central High School
on Tuesday, August 21, 2018, and th ere was a calendar reminder 7am

- 11am for
[Claimant and Mr. Ford]”).

Moreover, al though Claimant left Central Mark et for one hour during the Box

Lunch Review event , she credibly testified that she w ent to a vendor “just outside”

the market and w as still net work ing for Employer during that timeframe

. Claimant12

testified, “ I walked to York City Pretzel , which is just outside of the market, to just
do some general networking with the business owners there , as we were featuring

one of them in our upcoming newsletter” and “[a] fter that, I met up with my staff,

back inside the market. ” N.T., 10/22/18, at 11 (emphasis added) . Claimant also

testified that while she was at York City Pretzel, “ I spoke with one of the business

owners there and a few other people had come in the door

, [who] were also having

lunch [,] that I recognized. So, I would say it was kind of a healthy lunch [and] also
networking, which is very typical for me[] whenever I do have lunch . .

. at the

market

. ” Id. at 14 (emphasis added)

. Furthermore, Claimant testified that Mr. Ford reported that he had a lso

networked for Employer during his lunch break, stating that “ he had talked to one of

the vendors down on the other side of the market, who is a credit union member. ”

Id. at 15. Claimant testified that Mr. Ford “ ended up talking to

. . . some business
owners and things like that, which is essentially the exact same thing that I was
doing

. ” Id. at 14 (emphasis added)

. 7 The Board credite d Claimant ’ s testimony and
found that she did, in fact, perform marketing work for Employer during the Box

Lunch Review event

. Bd.’s F

. F

. Nos. 5, 6 ; see Guthrie v. Unemployment Comp

. B d.
of Review , 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (stating that the Board is the

7 Claimant explained:

[I]t’s such a casual event and we ha [ve] numerous White Rose Credit Union members [there] , we always ha ve people that want to stop us and talk to us

. . . . We sort of call it our shaking hands and kissing babies networking time. [W]e have members that

. . . want to ask us q uestions about a specific loan. They want to ask us questions about

. . . their b rother, sister, [or] uncle becoming a memb er. Or, they want to sit and tell us their life story, which is perfectly accept able and very standard when you’ re doing those kinds of event s.

N.T., 10/22/18, at 15.13

ultimate factfind er i n UC cases and is empowered to resolve conflicts in evidence,

determine the weight to be accorded the evidence, and determi ne the credibility of
witnesses).
Employer also contends that Claimant intentionally omitted a mat erial fact by
failing to disclose to Employer that she took a one

- hour lunch break during the Box

Lunch Review event . This claim, however, is belied by the record. A ccording to

Ms. Baker’s notes of her conversation with Claimant about the incident, Claimant

told Ms. Baker that she “ spent time outside [of Central M arket] visiting all [of] their
regulars (the guy with the dog, the guy in the wheelchair, the daycare with kids)

. . . [and] went to York City Pretzel [].” N.T., 10/22/18, Ex. E

- 2.
Finally, Employer argues that the Board failed to resolve the conflicts in

Claimant’ s testimony regarding whether she distributed Employer’s promotional

materials inside Central Market during the Box Lunch Review event

. We disagree.

In its decisio n, t he Board noted the conflicts in Claimant’ s testimony regarding this

issue and ultimately determined that she handed out promotional materials to Box
Lunch Review patrons before her lunch break and placed promotional materials on

tables inside Central Market after l unch . Bd.’s F.F. No. 6. The Board observed that
at the remand hearing, C laimant testified that she had placed promotional materials
on tables before lunch, but the Board found that to be “ a minor inconsistency ” and

irr elevant to the issue of whether Claimant was performing work for Employer at

Central Market on the day in question

. We agree with the Board

. Claimant
consistently testified at both hearings that she worked for Employer during the Box

Lunch Review event on August 21, 2018 , bo th by networking with p atrons and

vendors inside and outside Central M arket and by handing out promotional materials

to patrons before and after her lunch break

. Claimant also continued to network with14

nearby vendors and other patrons during her lunch break. Therefore

, we conclude

that the Board did not capricious ly disregard competent evidence

. Conclusion

We conclude, based on the credible evidence of record, that Employer failed
to prove that Claimant violated its policies prohibiting false stateme nts and
unsatisfactory work performance

. Accordingly, we affirm the Board’s Order

.

________________________________ ELLEN CEISLER , J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

White Rose Credit Union, :

Petitioner :

:

v. : No. 694 C.D. 2019

: Unemployment Compensation Board : of Review, :

Respondent :

O R D E R

AND NOW, this 6 th day of January, 2020, the Order of the Unemployment
Compensation Board of Review, dated May 7, 2019, is hereby AFFIRMED

.

_________________________________ ELLEN CEISLER , J udge