Homeland Center v. UCBR ( 2017 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Homeland Center,                       :
    Petitioner   :
    :
    v.                         :   No. 1008 C.D. 2016
    :   Submitted: December 9, 2016
    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 BROBSON                           FILED: March 29, 2017
    Petitioner Homeland Center (Employer) petitions for review of an
    order of the Unemployment Compensation Board of Review (Board). The Board
    reversed the decision of a Referee, thereby granting unemployment compensation
    benefits to Bonnie Barrick (Claimant). For the reasons set forth below, we affirm
    the Board’s order.
    While some of the factual findings in this case are contested, and
    discussed below, the basic facts of the underlying conflict are not. Claimant was
    employed at Homeland Center as an administrative assistant. (Reproduced Record
    (R.R.) at 88a.)      She informed a coworker, Jill Yeager (Yeager), that she
    experienced personal problems after breaking up with her boyfriend. (Id. at 28a.)
    She shared with Yeager that she created a fake Facebook account to keep informed
    on her ex-boyfriend and purchased a GPS device to track his whereabouts and
    discover the address of his new girlfriend’s house. (Id.) Yeager shared this
    information with her superiors, who then required Claimant to attend counseling
    and conditioned her continued employment on the directive not to discuss her
    relationship with coworkers. (Id. at 93a.) Employer discharged Claimant after she
    confronted Yeager regarding her ex-boyfriend. (Id. at 28a.)
    Claimant filed for unemployment             compensation benefits on
    November 15, 2015, after being discharged. (Id. at 31a.) The Altoona UC Service
    Center (Service Center) issued a notice of determination finding Claimant
    ineligible for unemployment compensation benefits under Section 402(e) of the
    Unemployment Compensation Law (Law),1 relating to willful misconduct. (Id.)
    Claimant appealed, and a Referee conducted an evidentiary hearing.
    Three employees testified for Employer. Claimant testified on her own behalf.
    Nicol Brown (Brown), Employer’s Human Resources Director and
    Compliance Manager, testified that Employer discharged Claimant for failure to
    comply with the terms of a document titled “Conditions of Continued
    Employment.” (Id. at 89a.) She testified that Claimant signed the document on
    November 9, 2015, and that this agreement, along with an oral directive, prohibited
    Claimant from engaging in any action or discussion regarding her ex-boyfriend.
    (Id.)   Brown testified that Claimant was discharged for “inappropriately and
    offensively” confronting Yeager after witnessing Yeager speak with her
    ex-boyfriend. (Id.) Brown further testified that Claimant was required to meet
    with the “Employee Assistance Provider” to discuss what Brown characterized as
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
    § 802(e).
    2
    2
    Claimant’s “self-destructive behaviors and the appropriate coping skills.”
    (Id. at 90a.)
    Employer’s President and Chief Executive Officer, Barry Ramper
    (Ramper), testified that he participated in the meeting with Brown and Claimant on
    November 9, 2015. (Id. at 92a.) Ramper testified that he explained to Claimant
    that further discussing matters relating to her ex-boyfriend at work would result in
    her discharge. (Id.) Ramper testified that Claimant understood and accepted his
    directive. (Id. at 93a.)
    Yeager, who is employed as an Aide Supervisor for Employer,
    testified that after she reported to her supervisors what Claimant shared with her
    regarding Claimant’s personal struggles and Employer addressed the issues with
    Claimant, Claimant hugged her and thanked her. (Id. at 95a.) Yeager testified that
    two days later, on November 11, 2015, she pulled into her work parking lot and
    observed Claimant’s ex-boyfriend leaving the building. (Id. at 94a.) She testified
    that she spoke with the ex-boyfriend for less than a minute. (Id.) After that short
    interaction, Yeager testified that she noticed Claimant in the window of the office
    building, looking down upon her. (Id.) Yeager testified that when she arrived at
    the entrance of the office building, Claimant confronted her and asked why she
    needed to tell the ex-boyfriend everything. (Id.) Yeager testified that Claimant
    2
    Brown stated that she signed a letter that was sent to Claimant confirming her
    termination. (R.R. at 86a.) The Referee admitted the letter into evidence. (Id.) The letter
    indicates that one of the reasons for the directive to Claimant was that her “behaviors and
    instability have created angst in the workplace and a negative change in [Claimant’s] attitude
    when asked to complete an assignment.” (Id. at 16a-17a.) During the hearing before the
    Referee, however, no witness testified to either the perceived “angst” or the change in Claimant’s
    attitude at the time of the directive.
    3
    said what Yeager did was “something an enemy would do” and because of Yeager,
    Claimant was in jeopardy of losing her job. (Id.) She described that during the
    exchange, Claimant was very direct, confrontational, and forward. (Id. at 95a.)
    Claimant testified last, and she primarily disagreed with Yeager’s
    characterization of their exchange. (Id. at 96a.) She testified that she did not
    approach Yeager aggressively, nor was she watching Yeager out the window. (Id.)
    Claimant testified that she approached Yeager when she went to take the mail
    outside, and she merely asked Yeager “why she did what she did.” (Id.) Claimant
    added that she believed Yeager should not have brought that information into her
    professional life, because her troubles with her ex-boyfriend did not affect her
    performance or ability to do her job.         (Id.)   Further, on cross-examination,
    Claimant testified that she was aware at the time she spoke with Yeager that the
    exchange was in violation of the directive she received to not discuss her
    ex-boyfriend with her coworkers. (Id. at 97a.)
    Following the evidentiary hearing, the Referee issued a decision,
    affirming the Service Center’s determination, thereby determining Claimant
    ineligible for benefits pursuant to Section 402(e) of the Law. (Id. at 103a.)
    Claimant then appealed to the Board, which reversed. (Id. at 119a.)
    In so doing, the Board issued its own findings of fact and conclusions of law.
    (Id. at 118a-119a.) The Board made the following findings:
    1.    The claimant was last employed by Homeland
    Center as a full-time administrative assistant from
    May 6, 2013, until November 20, 2015, at a rate of
    pay of $21.92 per hour.
    2.    The ex-boyfriend of the claimant works for the
    employer at the same workplace as the claimant
    did.
    4
    3.    Due to events that occurred between the claimant
    and her ex-boyfriend outside of the workplace, the
    employer required the claimant to sign a condition
    of continuing employment agreement on
    November 9, 2015.
    4.    The claimant agreed to be evaluated by the
    employer’s Employee Assistance Program.
    5.    As part of the agreement, the claimant agreed not
    to engage in any action or discussions in the
    workplace regarding her ex-boyfriend, or she may
    be terminated.
    6.    On November 11, 2015, the claimant confronted
    the aide supervisor who was observed by the
    claimant to be talking to her ex-boyfriend in the
    parking lot.
    7.    The claimant said to the aide supervisor, “What
    you did to me is something only an enemy would
    do, and my job is now in jeopardy.”
    8.    The aide supervisor reported the conversation to
    the employer.
    9.    The employer discharged the claimant on
    November 20, 2015, for violating the conditions of
    continuing employment agreement.
    (Id.)   The Board reasoned that Employer failed to demonstrate that requiring
    Claimant to sign the Conditions of Continued Employment was reasonable.
    (Id. at 119a.) The Board further reasoned that the misconduct was not sufficiently
    work-related to warrant a denial of benefits. (Id.) The Board reversed and granted
    unemployment compensation benefits to Claimant. (Id. at 120a.)
    5
    On appeal,3 Employer argues that the Board’s findings of fact
    numbers 2, 3, 5, 6, and 7 are not supported by substantial evidence. Employer
    alleges that the Board erred in concluding that its directive to Claimant—requiring
    that she sign the Conditions of Continued Employment and not discuss her
    ex-boyfriend—was unreasonable.             Employer contends that it was reasonable
    because Employer had a responsibility to “protect the health, safety and welfare of
    its employees.” (Homeland Br. at 10.) Employer emphasizes that Claimant added
    to the stress of the office environment by confronting Yeager. Employer also
    argues that the Board erred as a matter of law by determining that Claimant’s
    noncompliance was not sufficiently work-related.4
    In response, the Board argues that Employer provided no reason that
    Claimant’s personal life outside of work, prior to the November 9, 2015 meeting
    and the November 11, 2015 confrontation with Yeager, warranted the directive or
    Conditions of Continued Employment. The Board also argues that the alleged
    3
    This Court’s standard of review is limited to determining whether constitutional rights
    were violated, whether an error of law was committed, or whether necessary findings of fact are
    supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
    § 704.
    4
    Employer has failed to adequately develop arguments in its brief as required by
    Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, which provides:
    The argument shall be divided into as many parts as there are questions to be
    argued; and shall have at the head of each part—in distinctive type or in type
    distinctively displayed—the particular point treated therein, followed by such
    discussion and citation of authorities as are deemed pertinent.
    Pa. R.A.P. 2119(a) (emphasis added). This Court has held that “[m]ere issue spotting without
    analysis or legal citation to support an assertion precludes our appellate review of [a] matter.”
    Commonwealth v. Spontarelli, 
    791 A.2d 1254
    , 1259 n.11 (Pa. Cmwlth. 2002). To the extent that
    Employer provides assertions regarding the law in Pennsylvania, but without any citation to legal
    authority, we decline to address them.
    6
    misconduct was not “connected with [Claimant’s] work,” as required under
    Section 402(e) of the Law in order to find someone ineligible.
    First, we will consider Employer’s arguments that several of the
    Board’s findings of fact are not supported by substantial evidence. Substantial
    evidence is relevant evidence that a reasonable mind might consider adequate to
    support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review,
    
    604 A.2d 1159
    , 1161 (Pa. Cmwlth. 1992).          In determining whether there is
    substantial evidence to support the Board’s findings, this Court must examine the
    testimony in the light most favorable to the prevailing party, giving that party the
    benefit of any inferences that can logically and reasonably be drawn from the
    evidence. 
    Id. A determination
    as to whether substantial evidence exists to support
    a finding of fact can only be made upon examination of the record as a whole.
    Taylor v. Unemployment Comp. Bd. of Review, 
    378 A.2d 829
    , 831 (Pa. 1977). The
    Board’s findings of fact are conclusive on appeal only so long as the record taken
    as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson,
    
    485 A.2d 359
    , 365 (Pa. 1984). “The fact that [the employee] may have produced
    witnesses who gave a different version of the events, or that [the employee] might
    view the testimony differently than the Board is not grounds for reversal if
    substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment
    Comp. Bd. of Review, 
    650 A.2d 1106
    , 1107 (Pa. Cmwlth. 1994). Similarly, even if
    evidence exists in the record that could support a contrary conclusion, it does not
    follow that the findings of fact are not supported by substantial evidence. Johnson
    v. Unemployment Comp. Bd. of Review, 
    504 A.2d 989
    , 990 (Pa. Cmwlth. 1986).
    Moreover, in an unemployment case the Board is the ultimate fact
    finder and is, therefore, entitled to make its own determinations as to witness
    7
    credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review,
    
    501 A.2d 1383
    , 1386 (Pa. 1985).         The Board is also empowered to resolve
    conflicts in the evidence.    DeRiggi v. Unemployment Comp. Bd. of Review,
    
    856 A.2d 253
    , 255 (Pa. Cmwlth. 2004).
    Employer challenges finding of fact number 2, which provides that
    Claimant’s ex-boyfriend worked for Employer at the same workplace. Employer
    argues that there is no evidence in the record that the ex-boyfriend worked for
    Employer. Rather, Employer contends that the ex-boyfriend worked at the same
    workplace, but not for Employer. The testimony of the parties before the Referee
    does not indicate the identity of Claimant’s ex-boyfriend or his employer. A
    statement from Employer’s witness Yeager that Employer introduced into evidence
    indicates that the ex-boyfriend is a non-employee.     (R.R. at 23a.)   No other
    evidence appears to exist in the record. We agree, therefore, that substantial
    evidence does not exist to support finding of fact number 2. Employer, however,
    does not suggest that this error compels reversal.
    In a similar light, Employer challenges finding of fact number 3,
    which provides that the conflict between Claimant and her ex-boyfriend was
    outside of the workplace. Employer again contends that there is no evidence on
    record with which the Board should have concluded that the conflict between the
    two occurred outside of the workplace. The Board appears to have based this
    finding on Claimant’s testimony that it was Yeager, and not Claimant, who
    brought the information about Claimant’s personal struggles into Claimant’s
    professional life by sharing that information with her supervisors. (Id. at 96a.)
    The Board acted within its authority by determining the credibility of Claimant’s
    testimony. See 
    Peak, 501 A.2d at 1386
    . Moreover, this testimony constituted
    8
    “relevant evidence that a reasonable mind might consider adequate to support” this
    finding of fact. Hercules, 
    Inc., 604 A.2d at 1161
    . We conclude, therefore, that
    substantial evidence exists in the record to support finding of fact number 3.
    Employer’s arguments concerning the remaining contested findings of
    fact are also without merit. Regarding finding of fact numbers 5 and 6, Employer
    initially appears to contest them, but later states that Employer is merely clarifying
    the record. (Homeland Reply Br. at 6-7.) In fact, Employer actually does not
    contest finding of fact number 5, but merely seeks to elaborate on it. Employer
    argues that finding of fact number 6 shows the Board did not credit Claimant in
    one instance, and thus should have determined her not credible in all of her
    testimony. In making credibility determinations, however, the Board may accept
    or reject the testimony of any witness in whole or in part. 
    Peak, 501 A.2d at 1388
    .
    Similarly, with respect to finding of fact number 7, Employer argues that the Board
    ignored credible testimony by Yeager and Ramper. Employer appears to argue
    that the Board should have made additional findings based on this credible
    testimony. As previously stated, the Board is entitled to make such credibility
    determinations and corresponding factual findings.          
    Id. at 1386.
        Because
    Employer is not contesting whether these findings are supported by substantial
    evidence, but essentially seeking more favorable findings, we find no error by the
    Board.
    We now turn to Employer’s argument that the Board erred in
    concluding that Employer failed to establish that Claimant engaged in willful
    misconduct. Section 402(e) of the Law provides, in part, that an employee shall be
    ineligible for compensation for any week in which “his unemployment is due to his
    discharge or temporary suspension from work for willful misconduct connected
    9
    with his work.” The term “willful misconduct” is not defined by statute. The
    courts, however, have defined “willful misconduct” as:
    (a) wanton or willful disregard for an employer’s
    interests; (b) deliberate violation of an employer’s rules;
    (c) disregard for standards of behavior which an
    employer can rightfully expect of an employee; or
    (d) negligence indicating an intentional disregard of the
    employer’s interest or an employee’s duties or
    obligations.
    Grieb v. Unemployment Comp. Bd. of Review, 
    827 A.2d 422
    , 425 (Pa. 2003).
    The burden of proving willful misconduct rests with the employer.
    Guthrie v. Unemployment Comp. Bd. of Review, 
    738 A.2d 518
    , 521 (Pa.
    Cmwlth. 1999). Where an employer seeks to prove willful misconduct by showing
    that the claimant violated the employer’s rule, directive, or instruction, the
    employer must demonstrate the existence of the reasonable rule, directive, or
    instruction, and that the claimant violated it. Devine v. Unemployment Comp. Bd.
    of Review, 
    429 A.2d 1243
    , 1244 (Pa. Cmwlth. 1981). Moreover, the employer
    must establish that the claimant’s actions were intentional or deliberate. Tongel v.
    Unemployment Comp. Bd. of Review, 
    501 A.2d 716
    , 717 (Pa. Cmwlth. 1985).
    Whether the employee’s refusal constitutes willful misconduct depends upon the
    reasonableness of the request and the reasonableness of the refusal.       Behe v.
    Unemployment Comp. Bd. of Review, 
    467 A.2d 1208
    , 1209 (Pa. Cmwlth. 1983).
    Once the employer meets its burden, the burden shifts to the claimant
    to show good cause for his refusal to comply with the rule. Great Valley Publ’g v.
    Unemployment Comp. Bd. of Review, 
    136 A.3d 532
    , 536 (Pa. Cmwlth. 2016). A
    claimant has good cause if his actions are reasonable and justifiable under the
    circumstances. Docherty v. Unemployment Comp. Bd. of Review, 
    898 A.2d 1205
    ,
    1208-09 (Pa. Cmwlth. 2006). Whether an employee’s conduct constitutes willful
    10
    misconduct and whether a claimant has proved good cause are questions of law
    subject to our review. Dep’t of Corr. v. Unemployment Comp. Bd. of Review,
    
    943 A.2d 1011
    , 1015-16 (Pa. Cmwlth. 2008).
    Here, the Board determined that Employer failed to demonstrate that
    its directive was reasonable.       We agree. Employer does not explain why its
    directive to prevent Claimant from speaking about her personal life was reasonable
    at the time Employer gave her that directive on November 9, 2015.                     Rather,
    Employer primarily argues that its concern was vindicated by the ultimate
    confrontation with Yeager on November 11, 2015. By addressing the alleged
    misconduct to justify the directive, Employer conflates the two steps to our
    analysis; we must first determine the reasonableness of the rule or directive.
    
    Devine, 429 A.2d at 1244
    .          Aside from emphasizing the November 11, 2015
    confrontation, Employer’s only remaining arguments for the reasonableness of the
    directive are first, caring for Claimant’s health, and second, eliminating stress from
    the workplace. Employer failed to present any evidence that it was reasonable to
    prevent Claimant from speaking about her personal issues with a co-worker in
    order to protect Claimant’s own health and well-being. Employer likewise failed
    to provide testimony of any instances prior to its directive that demonstrated how
    Claimant’s conduct was causing stress or disruption in the workplace. Employer
    simply failed to meet its burden. Thus, the Board did not err in concluding that
    Employer failed to establish that Claimant engaged in willful misconduct when she
    violated Employer’s unreasonable directive.5
    5
    Because we have concluded that the Board correctly determined that Employer did not
    prove its directive was reasonable, we need not address the Board’s determination that this was
    not work-related.
    11
    Accordingly, we affirm the decision of the Board.
    P. KEVIN BROBSON, Judge
    12
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Homeland Center,                    :
    Petitioner     :
    :
    v.                       :   No. 1008 C.D. 2016
    :
    Unemployment Compensation           :
    Board of Review,                    :
    Respondent      :
    ORDER
    AND NOW, this 29th day of March, 2017, the decision of the
    Unemployment Compensation Board of Review is hereby AFFIRMED.
    P. KEVIN BROBSON, Judge