D.D. Witherell v. UCBR ( 2016 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Debra D. Witherell,                          :
    Petitioner       :
    :
    v.                      :
    :
    Unemployment Compensation                    :
    Board of Review,                             :    No. 808 C.D. 2015
    Respondent               :    Submitted: December 31, 2015
    BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE MARY HANNAH LEAVITT, Judge1
    HONORABLE ANNE E. COVEY, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                       FILED: May 12, 2016
    Debra D. Witherell (Claimant) petitions this Court for review of the
    Unemployment Compensation (UC) Board of Review’s (UCBR) April 23, 2015
    order affirming the Referee’s decision denying Claimant UC benefits under Section
    402(e) of the UC Law (Law).2 Claimant presents five issues for this Court’s review:
    (1) whether the UCBR’s finding that Claimant “admitted to making unauthorized
    [photo]copies of photographs for the inmates, which she knew might be used for
    tattooing purposes,” is supported by substantial evidence;3 (2) whether the UCBR
    erred in determining that Claimant’s actions constituted willful misconduct rather
    than negligence; (3) whether the UCBR erred in determining that the Pennsylvania
    1
    This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
    became President Judge.
    2
    Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    802(e) (referring to willful misconduct).
    3
    Original Record Item No. 17, UCBR April 23, 2015 Decision and Order at 2.
    Department of Corrections (Department) met its burden of proving that Claimant
    deliberately violated a work rule; (4) whether substantial evidence supports the
    UCBR’s determination that Claimant’s photocopying for inmates was the actual
    cause for her dismissal; and, (5) whether the UCBR erred when it denied Claimant
    UC benefits for the 76 days of her suspension, based not on the reason for her
    suspension, but on a reason for her subsequent dismissal. After review, we affirm.
    Claimant was employed as a Corrections Officer II with the Department
    from June 10, 2002 through May 13, 2014.             Claimant received a copy of the
    Department’s Code of Ethics and also received training for her position. The Code of
    Ethics included the following relevant provisions:
    Code of Ethics A2
    No [D]epartment employee shall engage directly or
    indirectly in any personal business transaction or private
    arrangements for personal profit which accrues from or is
    based upon his/her official position or authority. The scope
    of this provision shall include prohibition against entering
    into any type of business transaction or private
    arrangements with inmates. . . .
    Code of Ethics A4
    Employees and their families shall not directly or indirectly
    solicit, accept, or agree to accept any gift of money or
    goods, loans or services for personal benefit which would
    influence the performance of their work duties or decision
    making. Correctional employees shall not accept or
    perform favors or accept or distribute any gifts, money, or
    loans to or from inmates or members of an inmate’s family.
    Code of Ethics B6
    There shall be no fraternization or private relationship of
    staff with inmates or members of their families. This
    includes, but is not limited to, trading, bartering or receiving
    gifts, money and favors from either the inmate or the
    inmate’s friends, relatives, or representatives. Moreover,
    2
    employees are not to deliver gifts or money to inmates’
    friends, relatives or representatives.
    Code of Ethics B10
    Employees are expected to treat their peers, supervisors,
    and the general public with respect and conduct themselves
    properly and professionally at all times; unacceptable
    conduct or insolence will not be tolerated.
    Original Record (O.R.) Item No. 9, Department’s July 28, 2014 Letter.
    On February 13, 2014, Gregory Holler (Holler), a criminal investigator
    with the Office of Special Investigations and Intelligence, received a request to
    investigate allegations made by an inmate that Claimant was involved in a sexual
    relationship with an inmate.       The Department conducted a pre-disciplinary
    conference with Claimant on April 4, 2014. At a “Suspension Pending” meeting
    Claimant attended on May 14, 2014, allegations concerning Claimant’s conduct were
    discussed, including: that Claimant engaged in sexual contact with an inmate; that
    Claimant “[m]ade unauthorized photocopies, some of tattoos used by inmates to
    make   tat[t]oos[;]”   that   Claimant   “[p]ermitted   and   condoned   homosexual
    relationship/contact between inmates[;]” and, that Claimant “[a]ccepted gifts of food
    in exchange for permitting homosexual relations between inmates.” O.R. Item No. 3,
    Suspension Pending. The next day, the Department suspended Claimant pending
    completion of its investigation.         The Department memorialized Claimant’s
    suspension by May 27, 2014 letter, which explained that it confirmed “verbal
    notification” of Claimant’s May 15, 2014 suspension and provided, “[the] suspension
    is pending completion of [the Department’s] investigation into charges of an
    unauthorized relationship between [Claimant] and an inmate.” O.R. Item No. 3, May
    27, 2014 Revised Letter.      The letter also stated: “On May 14, 2014, you were
    afforded the opportunity to provide a statement and/or furnish your version of the
    3
    charges. You declined that opportunity. . . . Due to the charges filed against you,[4]
    your removal from the work place is warranted pending further investigation.”
    Id. (emphasis added).
    Claimant applied for UC benefits. On June 5, 2014, the Erie UC Service
    Center issued a notice of determination finding Claimant eligible for benefits. On
    June 20, 2014, the Department appealed from the determination.5
    Evidence discovered during Holler’s investigation led him to conclude
    that Claimant allowed inmates to engage in sexual activities in exchange for food,
    and she had done favors for inmates by making photocopies of photographs from
    tattoo magazines.
    On June 9, 2014, the Department held a second pre-disciplinary
    conference (PDC) with Claimant before a three-member management panel (Panel),
    which included Sandra Diehl, the Department’s Human Resource Officer. The PDC
    minutes (PDC Minutes) contained a fact-finding overview, which specifically
    described Holler’s interviews of inmates, co-workers and Claimant:
    [Claimant] confirmed that she made unauthorized
    [photo]copies, utilizing the copier in the counselor’s office,
    of photographs from magazines. [Claimant] admitted she
    knew the photographs were used for tattooing purposes.
    [Claimant] confirmed she hid food items in the ceiling of
    the A Block bubble. She stated some of the items were
    coffee and related supplies. She stated this was to prevent
    other shifts from using her items.
    O.R. Item No. 9, PDC Minutes at 3. Concerning Claimant’s acceptance of gifts from
    inmates, the fact-finding revealed:
    4
    Notably, the charges presented at the May 14, 2014 meeting (referenced in the May 27,
    2014 Revised Letter) included more than just the alleged unauthorized relationship, and expressly
    included the charge that Claimant “[m]ade unauthorized photocopies, some of tattoos used by
    inmates to make tat[t]oos.” O.R. Item No. 3, Suspension Pending.
    5
    A Referee hearing was not held until January 5, 2015.
    4
    [Claimant] admitted she accepted food items such as chips
    and sandwiches from Inmate Jose. She explained Inmate
    Jose would bring the food items back with him after he had
    finished his shift in the kitchen. [Claimant] denied she
    stored those items in the ceiling; she said she ate them
    immediately.
    ....
    [Claimant] admitted she accepted food items such as chips
    from Inmate Stewart, which he purchased at the
    commissary, in exchange for allowing Inmate Stewart’s
    homosexual lover Inmate Smith-Bey to visit Inmate
    Stewart’s cell. [Claimant] stated she was aware that Inmate
    Stewart and Inmate Smith-Bey were lovers and assumed
    they were engaging in sexual acts while in Inmate Stewart’s
    cell. However, she claimed she did not witness the sexual
    acts directly.
    When interviewed by [Holler] . . . Inmate Stewart admitted
    he and Inmate Smith-Bey were homosexual lovers and
    engaged in sexual conduct in his cell. Inmate Stewart
    confirmed he provided [Claimant] with chips and popcorn
    from the commissary in exchange for allowing Inmate
    Smith-Bey in his cell to engage in sex. Inmate Stewart
    stated [Claimant] was well aware of him and Inmate Smith-
    Bey engaging in sex.
    When interviewed by [Holler] . . . Inmate Smith-Bey
    confirmed that he and Inmate Stewart were homosexual
    lovers and engaged in sexual conduct inside of Inmate
    Stewart’s cell.       Inmate Smith-Bey confirmed that
    [Claimant] would give him permission to visit Inmate
    Stewart’s cell even during count. Inmate Smith-Bey stated
    [Claimant] was aware of him and Inmate Stewart engaging
    in sexual conduct. Inmate Smith-Bey confirmed that
    Inmate Stewart provided [Claimant] with something which
    allowed him to visit.
    ....
    This investigation found the allegations about [Claimant]
    engaging in sexual misconduct with Inmate Johnson were
    unsubstantiated. . . .        However, this investigation
    substantiated that [Claimant] violated the Code of Ethics . .
    . by her own admissions of accepting gifts and favors from
    5
    [i]nmates and for condoning sexual contact between two
    inmates.
    O.R. Item No. 9, PDC Minutes at 3-4.
    The PDC Minutes also included Claimant’s responses to the Panel’s
    questions that directly contradicted portions of the fact-finding as follows:
    Panel: . . . [B]ased on your own statement you allowed
    Inmate Stewart to have his lover in the cell.
    [Claimant]: Inmate Stewart has a lot of issues. He was
    removed from the block for threats, then he came back and
    we have had a lot of problems with him. He would be in
    the dayroom and would get upset and start crying and I
    didn’t want him to get picked on so I would send him to his
    cell and would allow Inmate Smith-Bey to go with him
    because I knew he was the one person who could calm him
    down. They were never allowed to have sex. After about 5
    minutes[,] I would go back and check on them.
    Panel: Is Inmate Smith-Bey assigned to the same cell?
    [Claimant]: No.
    Panel: You wrote in your statement that you knew they
    were lovers, why would you not write the explanation you
    just gave us in your statement?
    [Claimant]: I was to keep it short and simple. He has a lot
    of issues and when I addressed it, I was told to make it
    work. At no time did I condone or authorize sex.
    Panel: Did you make [photo]copies of pictures for tattoos?
    [Claimant]: I made [photo]copies [out of] tattoo magazines
    so they could draw. It was not a wise decision but I did it.
    ....
    Panel: Inmate Stewart says he gave you chips so you would
    allow his lover into his cell, you never mentioned to Staff
    that he was giving you chips?
    [Claimant]: I was in counselor’s office and he walked by
    and when I looked[,] there was a bag with chips in it but I
    6
    never asked him for it. Another time he slid a candy bar
    through the slot in the bubble. I told him that he had to stop
    and he did.
    Panel: Did you return it?
    [Claimant]: No.
    Panel: What about the sandwiches with Inmate Jose?
    [Claimant]: I would sometimes bring sandwiches back from
    the chow hall for staff and occasionally when I had some
    leftover I would give Inmate Jose a sandwich.
    Panel: You were aware of a relationship between Inmate
    Stewart and Inmate Smith-Bey, please explain why you let
    him go into Inmate Stewart’s cell?
    [Claimant]: As I said before, he was the one guy who could
    talk to him. He knew how to get through to him. He was
    never in his cell for a length of time that would enable them
    to have sex.
    O.R. Item No. 9, PDC Minutes at 5-6. Claimant was not asked why her answers to
    the Panel significantly differed from the answers she allegedly gave Holler.
    By July 28, 2014 letter, the Department dismissed Claimant effective
    July 29, 2014 due to violations of the Code of Ethics, Sections A2, A4, B6 and B10.
    Specifically, the letter stated:
    You admitted to a private arrangement with Inmate Stewart
    to accept food in exchange for allowing Inmate Smith-Bey
    to visit his cell. You also admitted that you did favors for
    inmates by making [photo]copies of photographs from
    magazines for inmates who used the photographs for
    tattooing. You further admitted that you made unauthorized
    [photo]copies of photographs and allowing [sic] non-
    sanctioned visits for the purpose of sex.
    The above violations warrant the level of discipline
    imposed.
    O.R. Item No. 9, July 28, 2014 Dismissal Letter at 1-2.
    7
    On January 5, 2015, a Referee hearing was held, at which Claimant
    appeared without legal counsel. Holler and Diehl appeared for the Department. The
    Department’s exhibits, including the Department’s suspension letter, the PDC
    Minutes and termination letter were offered into evidence without objection.
    Holler summarized his interviews of several inmates and Claimant.
    Holler stated that, in addition to the charges that Claimant was having an
    inappropriate relationship with an inmate, “part of the other allegations were that she
    was making unauthorized [photo]copies of different reading materials and other
    materials for inmates including photographs that were being utilized to do tattooing
    which is against [Department] policy.” O.R. Item No. 10, Notes of Testimony (N.T.)
    at 10. Holler explained, without objection, that although he could not substantiate the
    allegations pertaining to an inappropriate relationship, he discovered that Claimant
    had engaged in the other charged misconduct. Specifically, Holler asserted that
    Claimant
    admitted to receiving food items from inmates that she hid
    in the ceiling . . . . She admitted to accepting food items
    such as chips and sandwiches from an inmate by the name
    of Andre Jose which were being brought in from the kitchen
    area. She admitted to accepting food items such as chips
    from an Andre Stewart which he was purchasing at the
    commerce area. My interview with – she admitted to
    allowing [I]nmate Stewart and [I]nmate Smith-B[e]y [] that
    both admitted to being homosexual lovers – [Claimant]
    stated she was aware of that and she was allowing them to
    engage – allowing them to be in each other’s cells which
    they were in different parts of the block so that they could
    engage in homosexual activities. They both admitted that
    they had conversations with her and Stewart stated he was
    providing her with food items so that she would allow that
    to occur. And she admitted she was allowing the
    visitations.
    ....
    8
    She didn’t indicate that she thought that there was any harm
    in those two being friends and alone in the cell.
    ....
    And she denied that she was doing it for them to engage in
    sexual activity. But they both admitted that she was aware
    of it through their conversations with her and that, you
    know, she would give them a wink and a nod.
    N.T. at 10.        Holler did not address whether Claimant admitted to making the
    photocopies.        Diehl testified similarly, also without objection, summarizing the
    reason for Claimant’s removal.6
    In response, Claimant explained:
    [A] lot of these items they’re saying I admitted to[,] I did
    not admit to what they’re saying. If you would read in the
    minutes of the PDC that was held in June when they asked .
    . . about . . . allowing the inmates in the cell[,] I explained
    6
    Specifically, Diehl stated:
    [T]he Claimant[] admitted to a private arrangement with [I]nmate
    Stewart to accept food in exchange for allowing [I]nmate Smith-B[e]y
    to visit his cell. She admitted she did favors for inmates by making
    [photo]copies of photographs or magazines for inmates who use the
    photographs for tattooing. Tattooing is prohibited. By her own
    admission she did these things. She received the food, she
    photocopied pictures to be used for tattooing and she admitted to
    allowing inmates who she knew were lovers to visit one another in
    their cells. So if A, she accepted the food from the inmate, B, she
    knew the inmates were in a relationship as evidenced by her reference
    to them as lovers, C, she admitted to allowing visits, then it would
    seem it follows . . . if A, B and C are true[,] it’s just common sense to
    determine that she knew what the purpose of those calming visits
    were and that that was for the purpose of sex. [Claimant] is not a new
    employee . . . . [A]s a lead . . . [s]he’s a role model. Part of that
    responsibility is to demonstrate appropriate behavior to other staff and
    to adhere to [Department] [C]ode of [E]thics which she did not do.
    Those are the reasons for the termination.
    N.T. at 13-14.
    9
    that on several occasions . . . the [I]nmate Stewart who was
    a very emotional, highly[-]irritated inmate would get upset
    on the block, would start crying, doing things like that. And
    so I would have him go to his cell and then sometimes I
    would allow the [I]nmate Smith-B[e]y to go down to his
    cell – all this time there are people out on the floor. The
    door to the cell remained open and they were never given
    more than five minutes alone in the cell together. But I
    would allow [Inmate] Smith-B[e]y to go in and try to calm
    [I]nmate Stewart down to prevent any kind of more ruckus
    on the block. As they stated[,] I . . . worked for the
    Department for 12 years. I had also been the hostage
    negotiation team leader for probably about five years of
    that. I was often sent down to places at the Department’s
    request to try to negotiate with inmates to get them to
    comply with orders. So I looked at it as the same thing. I
    was working on negotiating with these guys to let [Inmate]
    Smith-B[e]y speak to [I]nmate Stewart to try to calm him
    down to prevent any more problems on the block. As for
    the food, I never agreed or never stated that I made any kind
    of arrangements to take food. I explained that . . . [I]nmate
    Stewart at one point in time while I was making
    [photo]copies dropped a paper bag off on a chair sitting by
    the copier. When I looked in the paper bag[,] I found a bag
    of chips and I did not return the chips to [I]nmate Stewart[,]
    but I also did not eat the chips. They were taken to the
    bubble and destroyed. About the food in the ceiling, the
    only food in the ceiling is items that I purchased, coffee,
    tea, creamer, sugar. And those were kept in the ceiling
    because it’s the only way I could keep them from being
    stolen and used by officers on the other shift that had not
    paid or were not supposed to be using them. At no time
    were there chips that I took from any inmates put in the
    ceiling. So that is completely untrue. . . . As for the
    [photo]copies[,] I did make [photo]copies of religious stuff.
    I made [photo]copies of some of their legal stuff. And I did
    make [photo]copies of some pictures at sometimes that
    yes[,] they could’ve possibly used for tattoos. I did admit to
    that. But the other items I did not admit to.
    N.T. at 14-15.   When asked by the Department’s representative why Claimant
    permitted Inmate Stewart and Inmate Smith-Bey to visit together, Claimant explained
    that she did so because she knew that allowing Inmate Smith-Bey to speak with
    10
    Inmate Stewart was an effective way to calm Inmate Stewart down when he was
    agitated. She further reasoned:
    The rules of not allowing inmates in each other’s cells are
    definitely not enforced. I wrote up I don’t know how many
    inmates for being in their cells when there was not a valid
    reason and nothing was ever done about it. So I figured . . .
    they didn’t seem to care. Then when I was doing it for a
    constructive reason to try to prevent things from happening
    on the block just like when they send me down to use as a
    hostage negotiator in other incidences to get what they
    wanted taken care of I looked at it as I was doing that same
    thing on my block. I was keeping calm on the block.
    That’s what I’m supposed to do and that’s what was done.
    N.T. at 16-17. Finally, Claimant explained:
    I admitted to doing a couple of violations of the rules[,] but
    I also explained the other ones that I did not violate and
    being terminated I believe was excessive punishment for the
    rules that I did violate considering some of the things other
    people have done there and they all still continue to have
    their jobs.
    N.T. at 19.
    On January 15, 2015, the Referee reversed the UC Service Center’s
    determination, finding Claimant ineligible for benefits under Section 402(e) of the
    Law. Claimant appealed to the UCBR. On April 23, 2015, the UCBR affirmed the
    Referee’s decision. The UCBR upheld the denial of UC benefits based on Claimant’s
    violation of the policy prohibiting employees from performing favors for inmates, but
    did not address the Department’s charge that Claimant permitted the inmates to
    engage in sexual activity in exchange for food. Claimant appealed to this Court.7
    7
    “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 evidence. 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).
    11
    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 the employer’s
    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).
    Claimant first argues that the UCBR’s finding that Claimant “admitted
    to making unauthorized [photo]copies of photographs for the inmates, which she
    knew might be used for tattooing purposes” is not supported by substantial evidence.
    O.R. Item No. 17, UCBR Dec. at 2. We disagree.
    This Court has explained:
    ‘In unemployment compensation matters, ‘the [UCBR] is
    the ultimate fact finder and is empowered to resolve
    conflicts in the evidence and to determine the credibility of
    witnesses.’’ Goppman v. Unemployment Comp. Bd. of
    Review, 
    845 A.2d 946
    , 947 n.2 (Pa. Cmwlth. 2004) (quoting
    Owoc v. Unemployment Comp. Bd. of Review, 
    809 A.2d 441
    , 443 (Pa. Cmwlth. 2002)). ‘Findings made by the
    [UCBR] are conclusive and binding on appeal if the record,
    examined as a whole, contains substantial evidence to
    support the findings.’ Umedman v. Unemployment Comp.
    Bd. of Review, 
    52 A.3d 558
    , 563–64 (Pa. Cmwlth. 2012)
    (quoting Owoc, 
    809 A.2d at 443
    ). ‘Substantial evidence is
    evidence which a reasonable mind might accept as adequate
    to support a conclusion.’ 
    Id. at 564
     (quoting Wheelock
    Hatchery, Inc. v. Unemployment Comp. Bd. of Review, . . .
    12
    
    648 A.2d 103
    , 105 n.3 ([Pa. Cmwlth.] 1994)). This Court
    has held:
    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, in
    this case, the Employer, giving that party the
    benefit of any inferences which can logically
    and reasonably be drawn from the evidence.
    Sanders v. Unemployment Comp. Bd. of Review, 
    739 A.2d 616
    , 618 (Pa. Cmwlth. 1999).
    Jacobs v. Unemployment Comp. Bd. of Review, 
    129 A.3d 639
    , 643 (Pa. Cmwlth.
    2015).    Claimant maintains that “except for the [Referee hearing] transcript of
    [Claimant’s] admission [that she made photocopies out of tattooing magazines so that
    the inmates could draw], the documents the Department introduced into the record, as
    evidence in support of the charge of unauthorized photocopying, were entirely
    uncorroborated hearsay.” Claimant’s Amended Br. at 13. Claimant argues that “in
    an unemployment compensation case, uncorroborated hearsay is not competent to
    support a finding of fact, even in the absence of an objection[.]”8 
    Id.
    Contrary to Claimant’s assertion, at least one of the Department’s
    documents was corroborated by Claimant herself.            During the Referee hearing,
    Claimant argued that her PDC statements supported her testimony, and asked the
    8
    The ‘Walker rule’ established by Walker v. Unemployment
    Compensation Board of Review, . . . 
    367 A.2d 366
     ([Pa. Cmwlth.]
    1976), provides the following guidelines for the use of hearsay
    evidence in administrative proceedings: ‘(1) Hearsay evidence,
    [p]roperly objected to, is not competent evidence to support a finding
    of the Board . . . (2) Hearsay evidence, [a]dmitted without objection,
    will be given its natural probative effect and may support a finding of
    the [UCBR], [i]f it is corroborated by any competent evidence in the
    record, but a finding of fact based [s]olely on hearsay will not stand.’
    Id. at 370 (internal citations [and italics] omitted.)
    Reed v. Workers’ Comp. Appeal Bd. (Allied Signal, Inc.), 
    114 A.3d 464
    , 470 n.5 (Pa. Cmwlth.
    2015).
    13
    Referee to read Claimant’s explanations contained “in the minutes of the PDC that
    was held in June[.]” O.R. Item No. 10, N.T. at 14. According to the PDC Minutes,
    Claimant admitted that she had received and signed for the Code of Ethics, and that
    she was not compliant with the Code of Ethics, Section A4, which provides in
    relevant part, “Correctional employees shall not accept or perform favors or accept or
    distribute any gifts, money, or loans to or from inmates or members of an inmate’s
    family.” O.R. Item No. 9, Department’s July 28, 2014 Letter at 1. She also admitted
    therein that she “made [photo]copies [out of] tattoo magazines so [the inmates] could
    draw. It was not a wise decision[,] but I did it.” O.R. Item No. 9, PDC Minutes at 6.
    Claimant, therefore, sought to rely at the Referee hearing on the very same
    “uncorroborated hearsay” that she now challenges. Her reliance thereon corroborated
    the hearsay and thus, at the very least, Claimant’s admissions in the PDC Minutes
    constitute competent evidence.     Accordingly, there is substantial evidence that
    Claimant knowingly violated the Department’s rule prohibiting the performance of
    favors for inmates, and that she made photocopies so that the inmates could draw.
    Claimant next contends that there is no evidence demonstrating that
    Claimant knew at the time she made the photocopies that they might be used for
    tattooing purposes and, thus, her work rule violation was not willful misconduct, but
    merely negligence. We disagree. The UCBR found that Claimant “admitted to
    making unauthorized [photo]copies of photographs for the inmates, which she knew
    might be used for tattooing purposes[,]” and that Claimant was discharged for
    “performing favors to inmates.” O.R. Item No. 17, UCBR Dec. at 2 (emphasis
    added). Claimant is correct that although Claimant admitted at the UC hearing that
    the photocopies could have been used for tattooing purposes, she did not admit during
    14
    her testimony that she knew at the time she made the photocopies that they could
    be used for tattooing.9
    Nonetheless, Claimant’s intentional conduct was photocopying the
    photographs, without authorization, for the inmates’ benefit. Whether Claimant made
    the photocopies “out of tattoo magazines” knowing that they were for tattooing
    purposes, or as Claimant reasoned, “so [the inmates] could draw[,]” Claimant made
    the photocopies.      O.R. Item No. 9, PDC Minutes at 6.                Claimant’s conduct in
    photocopying the tattoo magazine photos – even if they were to be used for drawing
    purposes – constituted favors for inmates.10               The intentional performance of
    prohibited favors for inmates constituted a violation of the Code of Ethics, Section
    A4. Thus, there is substantial evidence to support the UCBR’s finding that Claimant
    “admitted to making unauthorized [photo]copies of photographs for the inmates,”
    which violated the Department’s Code of Ethics prohibiting employees from
    providing favors to inmates.
    Claimant next argues that the Department failed to meet its burden of
    proving the elements of a work rule violation. We disagree.
    When an employee is discharged for violating a work rule,
    the employer must prove the existence of the work rule, the
    reasonableness of the rule, the claimant’s awareness of the
    rule, and the fact of its violation. The burden then shifts to
    the employee to prove that he or she had good cause for
    9
    However, the PDC fact-finding revealed that, during Holler’s interview, “[Claimant]
    confirmed that she made unauthorized [photo]copies, utilizing the photocopier in the counselor’s
    office, of photographs from magazines. [Claimant] admitted she knew the photographs were used
    for tattooing purposes.” O.R. Item No. 9, PDC Minutes at 3. Claimant contradicted Holler’s
    representation: “I made [photo]copies [out of] tattoo magazines so they could draw. It was not a
    wise decision but I did it.” O.R. Item No. 9, PDC Minutes at 6 (emphasis added).
    10
    Claimant’s knowledge of the inmates intended use for the photocopies is not relevant to
    our inquiry regarding whether Claimant performed prohibited favors for inmates, since, regardless
    of whether she knew at the time that she made the photocopies that they could be used for tattooing
    purposes, the unauthorized copying itself constituted a prohibited favor.
    15
    violating the rule. An employee establishes good cause by
    showing that his or her conduct was justified or reasonable
    under the circumstances.
    Adams v. Unemployment Comp. Bd. of Review, 
    56 A.3d 76
    , 79 (Pa. Cmwlth. 2012)
    (citations omitted).
    With respect to the first element, the Department offered into evidence,
    without objection, its July 28, 2014 dismissal letter which quoted the applicable Code
    of Ethics sections.     Further, both of the Department’s witnesses explained that
    Claimant’s conduct was prohibited and violated the Department’s Code of Ethics.
    Finally, Claimant admitted during the PDC that she was not compliant with the Code
    of Ethics, Section A4. Accordingly, the Department sufficiently established the work
    rule’s existence.
    In regards to the second element, our Supreme Court has held: “To be
    reasonable, the policy and its application under the circumstances presented must be
    ‘appropriate to pursue a legitimate interest.’” Chambersburg Hosp. v. Unemployment
    Comp. Bd. of Review, 
    41 A.3d 896
    , 900 (Pa. Cmwlth. 2012) (quoting Caterpillar, Inc.
    v. Unemployment Comp. Bd. of Review, 
    703 A.2d 452
    , 457 (Pa. 1997)). Preventing
    fraternization and favors between inmates and Department employees serves a
    legitimate interest of ensuring the proper operation of Department facilities and
    prevents potential undue or improper inmate influence over Department employees.11
    Concerning the third element - Claimant’s knowledge of the applicable
    work rule – the Department’s witness, Holler, testified that “[Claimant] was the
    sergeant [and] knew what the policy was regarding such issues. She received the
    proper training[.]”     N.T. at 11.      Holler’s conclusion is further supported by
    Claimant’s admissions. The PDC Minutes show that Claimant admitted receiving
    11
    “Prison officials are given a wide range of discretion in the promulgation and
    enforcement of rules to govern the prison community in order to maintain security, order and
    discipline.” Dep’t of Public Welfare, Farview State Hosp. v. Kallinger, 
    580 A.2d 887
    , 890 (Pa.
    Cmwlth. 1990).
    16
    and signing for a copy of the Department’s Code of Ethics.12 Accordingly, the
    Department established that Claimant was on notice of the Department’s work rules.
    See Schroeder v. Unemployment Comp. Bd. of Review, 
    846 A.2d 790
     (Pa. Cmwlth.
    2004).
    With respect to the fourth element, Claimant argues that the Department
    did not demonstrate that Claimant violated the work rule prohibiting Department
    employees from providing favors to inmates since the rule does not specifically
    describe prohibited conduct. Claimant contends that the term “favor” as used in the
    rule is vague, and a strict interpretation would unreasonably prohibit “all acts of
    kindness and helpfulness.” Claimant’s Amended Br. at 19. We disagree.
    In support of her position, Claimant cites the American Heritage
    Dictionary’s definition of “favor” as “an act of kindness.”13 Claimant’s Amended Br.
    at 19. She also quotes the Oxford American Dictionary (1980) definition of “favor”
    as “an act that is kindly or helpful beyond what is due or usual[.]” Claimant’s
    Amended Br. at 19. Claimant asserts that the prohibited conduct is not clearly
    delineated, and asks “[w]hat kindness or helpfulness is due or usual?” 
    Id.
    Based on this latter definition, it is clear that all acts of kindness are not
    favors and those “kindly or helpful” acts that are “due or usual” are not favors. 
    Id.
    Claimant’s job duties (those tasks Claimant was required to perform for her position)
    12
    Claimant asserts that her admission at the PDC that she received and signed for the Code
    of Ethics does not prove that she had done so prior to the violation, and thus, there is no proof that
    she was aware of them at the time of the violations. However, Claimant pronounces in her brief and
    cites to the record evidence of her testimony and Diehl’s testimony as well as documentation that
    she had twelve years of service with the Department, eight years of which she served as a special
    team leader and attained the rank of sergeant. Claimant’s Amended Br. at 22. Moreover, Holler’s
    uncontroverted testimony that Claimant knew the policy at the time of the violations based on her
    years of experience and the training she received is substantial evidence from which the UCBR
    could conclude that Claimant was aware of the policy at the relevant time.
    13
    Notably, The American Heritage Dictionary of the English Language 479 (1980) also
    defines “favor” as “[a]n act requiring sacrifice or special generosity[,]” and “[p]artiality;
    favoritism.” (Emphasis added.)
    17
    were Claimant’s “due [and] usual” activities, even if those duties involved kindness
    or helpfulness in assisting inmates. 
    Id.
     Thus, acts that fall within Claimant’s job
    duties are acts that are “due [and] usual.”       
    Id.
       When Claimant engaged in
    unauthorized activities beyond the duties of her position to benefit the inmates, she
    performed prohibited favors. Thus, we conclude that the Department established
    Claimant’s violation of its work rule.     The burden then shifted to Claimant to
    establish that she had good cause for violating the rule. Claimant presented no such
    evidence; therefore, the Department met its burden.
    Next, Claimant asserts the UCBR’s determination that Claimant’s
    photocopying for inmates was the actual cause for her dismissal is not supported by
    substantial evidence. Claimant argues that she was charged with both permitting
    inmates to engage in sex in exchange for food, and for providing favors in the form of
    unauthorized photocopies. Therefore, Claimant contends that “[t]he Department . . .
    asserted that it was the combination of the alleged violations that warranted
    [Claimant’s] dismissal[,]” and accordingly, the Department was required to show that
    Claimant’s employment would have been terminated solely for her conduct related to
    the photocopying. Claimant’s Amended Br. at 21. We disagree.
    In Anderson v. Unemployment Compensation Board of Review, 
    485 A.2d 900
     (Pa. Cmwlth. 1985), this Court held that where an employee’s employment
    is terminated for multiple reasons, the employee will be ineligible for UC benefits if
    even one of those reasons amounts to willful misconduct.          Here, because the
    Department established that Claimant’s unauthorized photocopying for the inmates
    constituted willful misconduct, Claimant’s argument fails.
    Finally, Claimant argues that the UCBR erred when it denied Claimant
    UC benefits for the 76 days of her suspension based, not on the reason for her
    suspension, but on a reason for her subsequent dismissal. We disagree.
    18
    Claimant’s suspension from May 15, 2014 through July 29, 2014, as
    stated in the Department’s May 27, 2014 letter, was explained at the Department’s
    May 14, 2014 meeting. See O.R. Item No. 3, Suspension Pending. Claimant was
    suspended one day after a “Suspension Pending” meeting, during which multiple
    charges (including the unauthorized photocopying charge) were presented against
    Claimant and at which time Claimant declined to respond to the charges. Thus,
    Claimant was made aware of the charges the day before her suspension and provided
    an opportunity to respond. Although the May 27, 2014 letter explained that “[t]his
    suspension is pending completion of [the Department’s] investigation into charges of
    an unauthorized relationship between yourself and an inmate[,]” the letter also
    communicated that it is to “confirm verbal notification” of the suspension and, stated
    that “[d]ue to the charges filed against you, your removal from the work place is
    warranted pending further investigation.” O.R. Item No. 3, May 27, 2014 Revised
    Letter.   Thus, Claimant’s suspension was not simply based on the unauthorized
    relationship, but on all of the charges presented at the meeting the day before the
    suspension became effective. Accordingly, Claimant’s argument is without merit.
    For all of the above reasons, the UCBR’s order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    19
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Debra D. Witherell,                    :
    Petitioner     :
    :
    v.                   :
    :
    Unemployment Compensation              :
    Board of Review,                       :   No. 808 C.D. 2015
    Respondent         :
    ORDER
    AND NOW, this 12th day of May, 2016, the Unemployment
    Compensation Board of Review’s April 23, 2015 order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge