S. Rodriguez v. UCBR ( 2019 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Sharon Rodriguez,                               :
    Petitioner                :
    :   No. 223 C.D. 2019
    v.                               :
    :   Submitted: July 26, 2019
    Unemployment Compensation                       :
    Board of Review,                                :
    Respondent                     :
    BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE ELLEN CEISLER, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                                FILED: October 18, 2019
    Sharon Rodriguez (Claimant) petitions for review of the January 2, 2019
    decision of the Unemployment Compensation Board of Review (Board) reversing a
    referee’s decision and concluding that Claimant was ineligible for benefits under
    section 402(e) of the Unemployment Compensation Law (Law).1
    The underlying facts of this case are not in dispute. Claimant was last
    employed as a full-time manager-in-training by Anthropolgie Inc. (Employer) from
    March 28, 2016, to March 18, 2018. Employer maintains a non-discrimination and
    anti-harassment policy providing that all individuals will be treated with respect and
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
    In relevant part, section 402(e) states that an employee shall be ineligible for compensation for any
    week in which her unemployment is due to her discharge from work for willful misconduct connected
    with her work.
    dignity in the work environment. The policy dictates that all relationships among
    employees, customers, vendors, and contractors will be professional, respectful,
    ethical, and free of bias, prejudice, discrimination, and harassment. Additionally, the
    policy provides that, under certain circumstances, the use of profanity, obscenity,
    sexually suggestive or explicit jokes, displaying sexual, racial, or otherwise offensive
    pictures, writings, or objects, and indecent letters, emails, or invitations, may rise to the
    level of unlawful harassment or discrimination. (Board’s Findings of Fact Nos. 1-2.)
    Claimant was or should have been aware of Employer’s policy. On March
    10, 2018, Claimant sent a video of two naked men to a female co-worker, whom she
    considered a friend, via text message outside of work as a joke. The next day, the co-
    worker who received the video from Claimant was talking about the video to a second
    co-worker. The second co-worker asked Claimant if the video was as bad as the other
    co-worker had described. Claimant then asked the second co-worker if she wanted to
    see the video and she said yes. Claimant showed the video to the second co-worker in
    the workplace before they entered the sales floor. (Board’s Findings of Fact Nos. 3-8.)
    On March 12, 2018, Employer’s shop manager received a report that
    Claimant had showed an explicit video to a co-worker in the back office the previous
    day and had also used profanity while on the sales floor that day. On March 18, 2018,
    Employer discharged Claimant for texting and showing a sexually explicit video to co-
    workers, as well as using profanity on the sales floor, in violation of Employer’s non-
    discrimination and anti-harassment policy. (Board’s Findings of Fact Nos. 9-10.)
    Claimant proceeded to file a claim for unemployment compensation
    benefits with her local job center. The local job center determined that Claimant’s
    violation of Employer’s harassment policy rendered her ineligible for benefits under
    2
    section 402(e) of the Law. Claimant appealed and the matter was assigned to a referee,
    who conducted a hearing on June 21, 2018.
    At the beginning of the hearing, the referee admitted numerous documents
    without objection, including excerpts of the practices and policies set forth in the
    employee handbook and Claimant’s acknowledgment of receipt of the handbook.
    Employer presented the testimony of Erin Satchell, a shop manager at the location
    where Claimant had worked. Satchell first introduced, without objection, a script of
    the conversation she and Karen Foster, another of Employer’s managers, had with
    Claimant that led to her termination. The script noted Claimant’s possible violation of
    Employer’s anti-discrimination, anti-harassment, and professionalism and respect
    policies, including Claimant’s purported use of profanity on the sales floor, texting of
    a video of naked men to a co-worker, and later showing of that video to another co-
    worker. Satchell noted that the last co-worker had brought the incident to her attention,
    after which she and Foster interviewed Claimant and the decision was made to
    terminate Claimant. Satchell stated that she then forwarded all materials to Employer’s
    human resources department. (Certified Record at Item No. 11; Notes of Testimony
    (N.T.), 6/21/18, at 2-7.)
    Claimant testified next. She admitted that she first sent the video of two
    naked men via text to a co-worker outside of work, whom she thought would find it
    funny. Claimant also admitted that she played the video for another co-worker during
    work prior to entering the sales floor. Claimant stated that this co-worker asked to see
    the video after hearing discussion of the video by the original co-worker who had
    received it via text message. Claimant specifically denied ever using profanity in front
    of co-workers on the sales floor. (N.T., 6/21/18, at 8-10.)
    3
    By decision mailed June 25, 2018, the referee reversed the determination
    of the local job center and concluded that Claimant was not ineligible for benefits under
    section 402(e) of the Law. In reaching this conclusion, the referee stated that because
    the texting of the video to a co-worker was done outside of work and did not involve
    the use of company resources, it could not serve as a basis for a violation of Employer’s
    non-discrimination and anti-harassment policy. With respect to Claimant’s actions in
    showing the video to a co-worker during work, the referee noted that this co-worker
    was not present at the hearing and any statements that the co-worker was offended by
    the video were hearsay and could not be used to support a finding of harassment.
    Additionally, the referee emphasized that the second co-worker asked to see the video
    after hearing the first co-worker discuss the same.       While the referee described
    Claimant’s actions in sharing the video as “less than good judg[]ment,” he concluded
    that Claimant did not violate Employer’s work rules in doing so. (Referee’s decision
    at 3.) The referee did not address Claimant’s purported use of profanity on the sales
    floor.
    Employer appealed to the Board, which reversed the referee’s decision
    and concluded that Claimant was ineligible for benefits under section 402(e) of the
    Law. With regard to Claimant’s purported use of profanity on the sales floor, the Board
    stated that Employer failed to offer any firsthand testimony regarding the same, that
    Claimant denied such use, and that Employer did not meet its burden in this regard.
    With respect to Claimant showing the video to a co-worker at work, the Board
    concluded that, despite the co-worker’s consent to view the video, Claimant’s actions
    amounted to “a violation of the employer’s policy prohibiting obscenity in the
    workplace.” (Board’s decision at 3.) The Board went on to state that “[c]oworkers
    cannot agree to watch pornography at work in violation of an employer policy
    4
    prohibiting such conduct.” 
    Id. Even absent
    a policy, the Board further noted that
    Claimant’s conduct fell below the standards of behavior that an employer has a right
    to expect from its employees. Hence, the Board concluded that Claimant’s actions
    constituted willful misconduct. Claimant thereafter filed a petition for review with this
    Court.
    On appeal,2 Claimant argues that the Board erred in concluding that her
    actions constituted willful misconduct as the record lacks substantial evidence that she
    deliberately violated company policy or that her actions fell below the reasonable
    standard of behavior that an employer has a right to expect from its employees. We
    disagree.
    Section 402(e) of the Law provides that an employee shall be ineligible
    for unemployment compensation benefits for any week in which her unemployment is
    due to willful misconduct connected to her work. 43 P.S. §802(e). Willful misconduct
    is defined as (1) wanton and willful disregard of an employer’s interests; (2) deliberate
    violation of an employer’s rules; (3) disregard of the standards of behavior that an
    employer can rightfully expect from an employee; or (4) negligence showing an
    intentional disregard of the employer’s interest or the employee’s duties and
    obligations. Grieb v. Unemployment Compensation Board of Review, 
    827 A.2d 422
    ,
    425 (Pa. 2003).       Whether a claimant’s conduct constitutes willful misconduct is a
    question of law fully reviewable by this Court on appeal. Temple University of the
    Commonwealth System of Higher Education v. Unemployment Compensation Board
    of Review, 
    772 A.2d 416
    , 418 n.1 (Pa. 2001).
    2
    Our scope of review is limited to determining whether constitutional rights were violated,
    whether the adjudication is in accordance with the law, and whether findings of fact are supported by
    substantial evidence. Ellis v. Unemployment Compensation Board of Review, 
    59 A.3d 1159
    , 1162
    n.2 (Pa. Cmwlth. 2013).
    5
    In unemployment compensation cases, the Board’s findings of fact must
    be supported by “[s]ubstantial evidence [which] is defined as ‘such relevant evidence
    which a reasonable mind would accept as adequate to support a conclusion.’” Western
    & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 
    913 A.2d 331
    , 335 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation
    Board of Review, 
    738 A.2d 518
    , 521 (Pa. Cmwlth. 1999)). “The Board’s findings are
    conclusive on appeal so long as the record, when viewed in its entirety, contains
    substantial evidence to support the findings.” Western & Southern Life Insurance 
    Co., 913 A.2d at 335
    . This Court is bound “to examine the testimony in the light most
    favorable to the party in whose favor the Board has found, giving that party the benefit
    of all inferences that can logically and reasonably be drawn from the testimony” to
    determine if substantial evidence exists to support the Board’s findings. United States
    Banknote Co. v. Unemployment Compensation Board of Review, 
    575 A.2d 673
    , 674
    (Pa. Cmwlth. 1990). Moreover, “even if there is contrary evidence of record, the
    Board’s findings of fact are binding upon the Court where supported by substantial
    evidence.” Borough of Coaldale v. Unemployment Compensation Board of Review,
    
    745 A.2d 728
    , 731 (Pa. Cmwlth. 2000).
    Furthermore, if an employer alleges misconduct because of a claimant’s
    violation of a work rule, the employer must prove the existence of the rule and its
    violation, and the burden then shifts to the claimant to show good cause for her actions.
    McKeesport Hospital v. Unemployment Compensation Board of Review, 
    625 A.2d 112
    ,
    114 (Pa. Cmwlth. 1993). “[W]here the claimant has good cause for violating the rule,
    it is not willful misconduct because it cannot properly be charged as a willful disregard
    of the employer’s interest or rules or of the standard of conduct which the employer
    has a right to expect.” Docherty v. Unemployment Compensation Board of Review,
    6
    
    898 A.2d 1205
    , 1209 (Pa. Cmwlth. 2006). “Whether a claimant has good cause to
    violate an employer’s rule or policy is a question of law subject to this [C]ourt’s review
    and should be viewed in light of all of the attendant circumstances.” 
    Id. In the
    present case, Employer maintains a non-discrimination and anti-
    harassment policy providing that all individuals will be treated with respect and dignity
    in the work environment and cautioning that obscenity or the displaying of sexual,
    racial, or otherwise offensive pictures may rise to the level of unlawful harassment or
    discrimination. (Board’s Finding of Fact No. 2). The Board found, and Claimant did
    not dispute, that she was or should have been aware of Employer’s policy. (Board’s
    Finding of Fact No. 3.) There is also no dispute that Claimant showed a video of naked
    men to a co-worker before they entered the sales floor. (Board’s Finding of Fact No.
    8.) Indeed, Claimant admitted to the same at the hearing before the referee. (Certified
    Record at Item No. 11; N.T., 6/21/18, at 9.)
    This Court has previously held that sending emails with photos depicting
    naked individuals or showing pictures of naked individuals to co-workers on company
    time constitutes willful misconduct, either as a violation of an employer’s company
    policy or as a disregard of the standards of behavior that an employer can rightfully
    expect from an employee. See Johnson v. Unemployment Compensation Board of
    Review, 
    744 A.2d 817
    (Pa. Cmwlth. 2000) (emailing nude photo to co-worker’s home
    email address, coupled with inappropriate gestures at work, violated the employer’s
    sexual harassment policy and/or fell beneath the standards of behavior which an
    employer has a right to expect from an employee); Baldinger v. Unemployment
    Compensation Board of Review (Pa. Cmwlth., No. 793 C.D. 2012, filed February 13,
    2013) (unpublished) (showing a photograph on a cell phone to co-workers depicting
    male genitalia violated the employer’s policy against disruptive/offensive use of
    7
    electronic communications and runs afoul of the employer’s right to expect that its
    employees are engaging in meaningful work); Letteer v. Unemployment Compensation
    Board of Review (Pa. Cmwlth., No. 227 C.D. 2010, filed September 15, 2010)
    (unpublished) (sending emails to co-workers containing sexually explicit pictures of
    naked women violated the employer’s sexual harassment and electronic
    communications policies).3
    Contrary to Claimant’s argument, there is substantial evidence in the
    record that supports the Board’s determination that Claimant’s actions violated
    Employer’s non-discrimination and anti-harassment policy and/or fell below the
    reasonable standard of behavior that an employer has a right to expect from its
    employees.4 Thus, we cannot say that the Board erred in concluding that Claimant’s
    actions constituted willful misconduct.
    Nevertheless, Claimant further asserts disparate treatment to the extent
    that Claimant’s co-workers engaged in the same activity but were not disciplined.
    Claimant’s assertion is misplaced.
    This Court has previously explained that:
    Disparate treatment is an affirmative defense by which a
    claimant who has engaged in willful misconduct may still
    receive benefits if [s]he can make an initial showing that: (1)
    the employer discharged claimant, but did not discharge
    other employees who engaged in similar conduct; (2) the
    3
    Pursuant to section 414(a) of this Court’s Internal Operating Procedures, an unpublished
    opinion may be cited for its persuasive value, but not as binding precedent. 210 Pa. Code §69.414(a).
    4
    Claimant asserts that the Board erred in concluding that her actions fell below the reasonable
    standard of behavior that an employer has a right to expect from its employees because Employer is
    part of a group of retailers whose parent company has set a standard of controversial and provocative
    advertising, including advertisements featuring naked women, and directs this Court’s attention to a
    particular website. However, Claimant did not raise this issue before the referee or the Board, nor
    was this advertisement part of the record below.
    8
    claimant was similarly situated to the other employees who
    were not discharged; and (3) the employer discharged the
    claimant based upon an improper criterion.
    Geisinger Health Plan v. Unemployment Compensation Board of Review, 
    964 A.2d 970
    , 974 (Pa. Cmwlth. 2009). In the present case, as noted above, Claimant admitted
    to showing the video of naked men to a co-worker while at work. It was Claimant’s
    action in displaying the sexual video that resulted in her termination. The first co-
    worker, who received the video on her personal phone at home, was unaware that
    Claimant was sending the video. The second co-worker simply viewed the video at
    work, she did not display the video herself. While the viewing of inappropriate sexual
    material at the workplace may in itself be unacceptable conduct, here the issue is one
    of displaying the same. Claimant does not raise any other alleged actions by her co-
    workers. Hence, Claimant’s co-workers did not engage in similar conduct, and
    Claimant has failed to establish the first element necessary for a claim of disparate
    treatment.
    Accordingly, the order of the Board is affirmed.5
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    5
    Claimant raises additional arguments that Employer’s policy regarding
    discrimination/harassment and obscenity was so vague that it was unreasonable and that the Board
    erred in concluding that the video was obscene without reviewing the standards set forth by our United
    States Supreme Court in Miller v. California, 
    413 U.S. 15
    (1973). However, given our determination
    above, we need not reach these issues.
    9
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Sharon Rodriguez,                   :
    Petitioner      :
    :    No. 223 C.D. 2019
    v.                      :
    :
    Unemployment Compensation           :
    Board of Review,                    :
    Respondent         :
    ORDER
    AND NOW, this 18th day of October, 2019, the order of the
    Unemployment Compensation Board of Review, dated January 2, 2019, is hereby
    affirmed.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge