Chan & Associates v. UCBR


Chan & Associates,                               :
                               Petitioner        :
                        v.                       :   No. 8 C.D. 2020
                                                 :   SUBMITTED: September 17, 2020
Unemployment Compensation Board                  :
of Review,                                       :
                    Respondent                   :

                HONORABLE J. ANDREW CROMPTON, Judge


SENIOR JUDGE LEADBETTER                                           FILED: October 19, 2020

                Employer, Chan & Associates, petitions for review of an order of the
Unemployment Compensation Board of Review that reversed the order of a referee.
The referee had determined that Claimant, Lori L. High, was ineligible for
unemployment compensation benefits because her actions constituted willful
misconduct under Section 402(e) of the Unemployment Compensation Law (Law).1
We affirm the order of the Board granting benefits.2
                The facts as found by the Board are as follows. Claimant worked as a
paralegal for Employer, a law firm, from July 2013 to June 2019 at a final hourly
rate of $26.92. (Board’s Finding of Fact “F.F.” No. 1.) Her job duties included
scheduling, filing, answering the phone, billing, bookkeeping, and writing checks.

        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
      The Board indicated that it would not be filing a brief, stating that Claimant’s brief
adequately covered the issues that it would have briefed.
(F.F. No. 3.)    Over the years, Employer’s caseload grew thereby increasing
Claimant’s workload. (F.F. No. 4.)
             Employer’s owner, Wendy Chan, tried to enable Claimant to keep up
with the demands of her job. Chan suggested that Claimant stop answering the
phones and close her office door to avoid distractions. (Id.) However, Claimant
answered the phone when no one else did so or she was the only employee in the
office. Additionally, when Claimant tried working with her door shut, “other
employees would frequently knock to solicit her assistance.” (F.F. No. 5.) Chan
also directed Claimant “to relinquish some of her duties like billing and check-
writing to a new legal assistant and give all divorce cases to the other paralegal.”
(F.F. No. 6.) However, Claimant “had to train the new legal assistant which limited
the duties that she could relinquish.” (F.F. No. 7.)
             Subsequently, problems ensued once Employer approved Claimant’s
request to take vacation from July 1 through 5, 2019, with a return date of July 8.
(F.F. No. 8.) “There were three court filing deadlines set to occur on or around July
1, 2019 and July 2, 2019.” (F.F. No. 9.) As the Board found:

             10. One of the deadlines involved the filing of an expert
             report by July 1, 2019.
             11. Per [Chan’s] request, [C]laimant contacted the client
             on June 28, 2019. The client responded that “treatment
             notes” would be emailed to [C]laimant the next day, at
             which time [she] would forward them to the other
             12. [C]laimant told the other paralegal to be on the look-
             out for any client reports, and that she would forward the
             document to her when she received it. However, the client
             never emailed the report.

                  13. [E]mployer blamed [C]laimant for not informing the
                  other paralegal about a discovery deadline in the divorce
                  case, and for not placing a deadline on the calendar to
                  exchange exhibits and meet with opposing counsel in a
                  separate custody case.

(F.F. Nos. 10-13.)
                  After Claimant returned from vacation, Chan met with her to discuss
the situation. As a result, Employer discharged Claimant from employment “for the
missed filing deadlines that had occurred during her vacation.”3 (F.F. No. 15.)
Claimant applied for unemployment compensation benefits and the Erie
Unemployment Compensation Service Center found her to be eligible for benefits.
Following a hearing at which Claimant, with counsel, and Employer’s witnesses,
Chan and a paralegal, appeared and testified, the referee reversed the eligibility
                  On appeal, the Board issued its own findings of fact and decision in
favor of Claimant. In support of its determination, the Board cited the totality of the
evidence. (Board’s Decision at 4.) Employer’s petition for review to this Court
followed. Employer presents one issue for review: whether the Board erred in
determining that Claimant’s conduct did not rise to the level of willful misconduct.4
                  Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n which his unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work . . . .” 43 P.S. § 802(e). Although not statutorily defined, “willful

          Employer did not have a handbook or maintain any written disciplinary policy. (F.F. No.
      Whether a claimant’s conduct constitutes willful misconduct is a question of law over which

this Court exercises plenary review. Frazier v. Unemployment Comp. Bd. of Review, 

833 A.2d 1181

(Pa. Cmwlth. 2003).

misconduct” has been described as a wanton and willful disregard of an employer’s
interest, deliberate violation of rules, disregard of standards of behavior which an
employer can rightfully expect from its employee, or negligence which manifests
culpability, wrongful intent, evil design, or intentional and substantial disregard for
the employer’s interest or the employee’s duties and obligations. Glatfelter Barber
Shop v. Unemployment Comp. Bd. of Review, 

957 A.2d 786

, 792 (Pa. Cmwlth.
2008). The employer bears the initial burden of proving that a claimant engaged in
willful misconduct. Brown v. Unemployment Comp. Bd. of Review, 

49 A.3d 933

937 (Pa. Cmwlth. 2012). Once the employer establishes a prima facie case of willful
misconduct, the burden then shifts to the claimant to demonstrate good cause.

Id. The Board is

the ultimate finder of fact in unemployment compensation
cases with the power to determine credibility and evidentiary weight. Peak v.
Unemployment Comp. Bd. of Review, 

501 A.2d 1383

, 1388 (Pa. 1985). This Court
may not reweigh the evidence or overturn credibility determinations on appeal.
Fitzpatrick v. Unemployment Comp. Bd. of Review, 

616 A.2d 110

, 111 (Pa. Cmwlth.
1992). We must view the evidence in the light most favorable to the party who
prevailed before the Board, giving that party the benefit of all inferences that can
logically and reasonably be drawn from the testimony. Chapman v. Unemployment
Comp. Bd. of Review, 

20 A.3d 603

, 607 (Pa. Cmwlth. 2011). “The fact that
Employer may have produced witnesses who gave a different version of the events,
or that Employer might view the testimony differently than the Board, is not grounds
for reversal . . . .” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 

650 A.2d 1106

, 1108-09 (Pa. Cmwlth. 1994). Additionally, the Board’s findings of fact are
conclusive on appeal when the record, in its entirety, contains substantial evidence

supporting those findings. Oliver v. Unemployment Comp. Bd. of Review, 

5 A.3d 432

, 438 (Pa. Cmwlth. 2010).
             In the present case, Employer argues that Claimant’s admitted failure
to abide by its suggestions and directives over the course of several months resulted
in her missing important filing deadlines and constituted a wanton and willful
disregard of its interests, a deliberate violation of its rules, and negligence indicating
an intentional disregard of its interests or her duties and obligations. Additionally,
it maintains that there is no support in the record for Finding of Fact No. 5—that
Claimant tried working with her door closed but found it to be difficult due to
coworkers frequently knocking and requesting her assistance, and Finding of Fact
No. 7—that training a new legal assistant limited the duties that she could relinquish.
In support, Employer notes (1) Claimant’s admission that she only closed her door
a few times and inability to explain why she did not do so all of the time; and (2) the
fact that she spent three weeks training a coworker contrary to its directive to hand
over the billing and check writing.
             Employer’s arguments constitute an improper attack on the Board’s
determinations as to credibility and evidentiary weight.          The Board accepted
Claimant’s version of the events surrounding her separation, concluding that she
made reasonable efforts to improve her work performance and that Employer’s
directives were not always reasonable under the circumstances. (Board’s Decision
at 4.)
             As Employer asserts with respect to its suggestion that Claimant close
her door, Claimant testified that she stopped doing so after a few times. (Sept. 19,
2019 Hearing, Notes of Testimony “N.T.” at 27; Reproduced Record “R.R.” at 48.)
However, in an attempt to illustrate Claimant’s failure to follow directions, Chan

confirmed Claimant’s explanation that people kept stopping in to bother her and that
she would have to stop what she was doing and explain something to them. (N.T. at
13; R.R. at 34.) Similarly, the Board concluded that Employer’s suggestion that
Claimant increase her productivity by not answering the phone was unreasonable,
given the fact that she had no alternative when calls went unanswered or she was
alone in the office. (Board’s Decision at 4.)
                 Additionally, the Board weighed the fact that Claimant was in the
process of training a new coworker. (Id.) Notwithstanding Claimant’s testimony
that Employer instructed her simply to transfer the check writing duties to a
coworker, Claimant explained “there were processes and it wasn’t just something I
could hand to [a coworker].” (N.T. at 25; R.R. at 46.) As for billing, Claimant
described what the task entailed and stated that it took her three weeks to transfer
those duties.5 Consequently, even though the failure to follow reasonable directives
might constitute willful misconduct,6 Employer failed to establish that Claimant’s
reasonable efforts to comply and/or subsequent compliance with its directives
constituted willful misconduct under the circumstances of this case.
                 As for the missed filing deadlines, which Employer testified
precipitated Claimant’s involuntary discharge and arguably resulted from a failure
to follow the aforementioned directives, the Board determined that Employer failed

        The relevant testimony is as follows:
                 I trained [the coworker] on how to do the billing. I helped her with
                 any problems, answered any questions, explained the processes of
                 making sure everyone else had their billing in, how to generate
                 drafts, explained to her that [Employer’s owner] needed to review
                 them before they went out and showed her how to send them.
(N.T. at 26; R.R. at 47.)
        LeGare v. Unemployment Comp. Bd. of Review, 

444 A.2d 1151

, 1153 (Pa. 1982).

to establish that any mistakes were of an intentional or deliberate nature rising to the
level of willful misconduct. In support, the Board accepted as credible Claimant’s
testimony that she was working sixty to seventy hours per week and to the best of
her abilities.   (Board’s Decision at 4.)      Additionally, it noted that Employer
instructed her not to work so late. (Id.) Notably, a finding of fact that a claimant
worked to the best of his or her abilities negates a conclusion of willful misconduct.
Norman Ashton Klinger & Assocs., P.C. v. Unemployment Comp. Bd. of Review,

561 A.2d 841

, 843 (Pa. Cmwlth. 1989).
             Additionally, the Board rejected the referee’s application of a
“heightened level” of care to paralegals that our Supreme Court rejected with respect
to healthcare workers in Navickas v. Unemployment Compensation Board of Review,

787 A.2d 284

, 307 (Pa. 2001). Specifically, the Court rejected an ad hoc “higher
standard of care” for healthcare workers, which ostensibly would have permitted any
act of negligence or inadvertence on their part, standing alone, to be deemed willful
misconduct, emphasizing that mere negligence does not constitute willful
misconduct and that there is only one standard.

Id. Accordingly, mindful in

present case that Claimant did not testify that she knew the difference between an
expert report and treatment notes, the Board reasoned:

             It was noted in the Referee’s decision that [C]laimant’s
             conduct in relation to the missed custody report filing was
             particularly egregious because [she] “should have known
             the difference” between “treatment notes” and an “expert
             report” based on her paralegal training. However, given
             that the standard of behavior against which to measure
             [her] conduct is not that of a paralegal, but standards
             common to all, the fact that [she] had paralegal training is
             irrelevant for purposes of determining whether her mistake
             rose to the level of willful misconduct . . . .

(Board’s Decision at 3.)
            Moreover, the Board found that Claimant should not be deemed solely
culpable for the missed deadline, reasoning:

            [C]laimant also stated that the other paralegal was aware
            of the report and on the “look-out” for it, as [C]laimant
            would be forwarding it to her once [Claimant] received it
            from the client. Thus, when the report was not received
            by Monday, July 1, 2019, the other paralegal could have
            reached out to [C]laimant or the client to inquire about the

            Further, the Board addressed the effect of Employer’s directive to
Claimant to relinquish all of her duties relating to the firm’s divorce cases on its
inclusion of a missed filing deadline in a divorce proceeding as a reason for
termination. The Board concluded: “To state that [C]laimant was instructed to
relinquish her divorce case responsibilities, but then use her mistake in a divorce
proceeding as a reason to fire her, is inconsistent.” (Id.) As Employer asserts,
Claimant’s scheduling duties might have included placing this deadline on the
calendar. However, as we reiterate below, the Board determined that Claimant’s
mistakes were not intentional or deliberate but instead, the result of attempting to
keep up with her increased workload.
            Finally, mindful of Employer’s acknowledgement that Claimant
initially was able to keep up with the demands of her job, the Board reasoned:

            Though a claimant who has already demonstrated the
            skills and abilities to perform the job may be disqualified,
            here, there is no indication that [C]laimant’s work
            performance deteriorated because of carelessness.
            [E]mployer testified that over the years, the firm’s

               caseload and, therefore, [C]laimant’s work had “tripled,
               quadrupled” in size.        As such, any mistakes or
               “carelessness” are attributable to [C]laimant’s struggle to
               manage a significantly larger workload.

               Accordingly, we affirm.7

                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge

      In light of Employer’s failure to meet its prima facie burden of proving willful misconduct,
the burden never shifted to Claimant to establish that her conduct was justifiable or reasonable
under the circumstances pursuant to Frumento v. Unemployment Compensation Board of Review,

351 A.2d 631

, 634 (Pa. 1976).


Chan & Associates,                    :
                      Petitioner      :
                 v.                   :   No. 8 C.D. 2020
Unemployment Compensation Board       :
of Review,                            :
                    Respondent        :


           AND NOW, this 19th day of October, 2020, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.

                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
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