IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark Dixon, :

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Dixon,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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No. 452 C.D. 2014
Submitted: September 19, 2014
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY
FILED: October 17, 2014
Mark Dixon (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 11, 2014
order affirming the Referee’s decision denying UC benefits under Section 402(e) of
the UC Law (Law).1 Claimant presents one issue for this Court’s review: whether the
UCBR erred in ruling that Claimant’s conduct rose to the level of willful
misconduct.2 After review, we affirm.
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
2
In its brief, the UCBR maintains that Claimant raised an additional issue in his Petition for
Review that was not raised in his brief, thus, it is waived. Specifically, in his Petition for Review,
Claimant contends that the UCBR erred because it failed to consider that Employer listed “failure to
meet the responsibilities as Site Superintendent” as its reason for employment termination on
Employer’s “Notice of Application,” rather than “alleged altercation on July 10, 2013.” Petition for
Review at 3. However, Claimant did not raise or address this issue in his brief. “[A]n issue raised
in the Petition for Review but not addressed in the petitioner’s brief on appeal, [is] waived[.]”
Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006).
Accordingly, we will not address this issue.
Claimant was employed by CFM Engineering (Employer) from May 7,
2012 to July 9, 2013, as a full-time site superintendent/construction manager.
Employer has a policy in its employment manual requiring employees to exhibit
professional behavior. On June 21, 2013, Employer’s senior project manager Ruth
Heffes (Heffes) received a complaint that Claimant told multiple government
inspectors to “F off.” Notes of Testimony, September 17, 2013 (N.T.) at 10. In
addition, Claimant insulted Employer’s field electrician Ronald Oteri (Oteri) and
other employees on a daily basis. Heffes warned Claimant that yelling and cursing at
customers was not considered acceptable behavior, and “routinely spoke to
[Claimant] about the need for professionalism . . . .” N.T. at 11. Employer also
received complaints that Claimant put his hands on a subordinate employee David
Daniel (Daniel) multiple times, and the final contact resulted in an altercation.
Specifically, on the day before Claimant’s discharge, after a company meeting in the
job trailer, Claimant left the trailer and when passing Daniel, Claimant touched
Daniel’s face. Daniel thereafter “went after [Claimant].” N.T. at 16. Claimant
maintained that he did not touch Daniel, but that Daniel had punched him in the head
and face with his closed fist. Claimant admitted that on a prior occasion, he and
Daniel had a “little slap fight at lunchtime to see who the better boxer was.” N.T. at
19. Employer discharged Claimant for being involved in a physical altercation with a
subordinate employee.
Claimant applied for UC benefits. On August 22, 2013, the Lancaster
UC Service Center determined that Claimant was eligible for UC benefits. Employer
appealed and on September 17, 2013, a Referee hearing was held. On September 24,
2013, the Referee affirmed the UC Service Center’s determination.
Employer
appealed to the UCBR. The UCBR reversed the Referee’s decision and denied
2
Claimant UC benefits under Section 402(e) of the Law. Claimant appealed to this
Court.3
Claimant argues that the UCBR erred in ruling that Claimant’s conduct
rose to the level of willful misconduct. Section 402(e) of the Law provides that an
employee will be ineligible for UC benefits 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 defined in
the Law, our courts have described “willful misconduct” as:
(1) a wanton or willful disregard for an employer’s
interests; (2) a deliberate violation of an employer’s rules;
(3) a disregard for standards of behavior which an employer
can rightfully expect of an employee; or (4) negligence
indicating an intentional disregard of the employer’s
interest or an employee’s duties or obligations.
Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965, 968 (Pa.
Cmwlth. 2010). “When an employee is discharged for violating a work rule, the
employer must prove the existence of the rule and the fact of its violation.” Lewis v.
Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012). “Once
the employer has met its initial burden, the burden then shifts to the claimant to show
either that the rule is unreasonable or that claimant had good cause for violating the
rule.” Cnty. of Luzerne v. Unemployment Comp. Bd. of Review, 611 A.2d 1335,
1338 (Pa. Cmwlth. 1992).
The law is well established that:
[T]he [UCBR] is the ultimate fact-finder in unemployment
compensation matters and is empowered to resolve all
conflicts in evidence, witness credibility, and weight
3
“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.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).
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accorded the evidence. It is irrelevant whether the record
contains evidence to support findings other than those made
by the fact-finder; the critical inquiry is whether there is
evidence to support the findings actually made. Where
substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted). This Court has explained:
Substantial evidence is relevant evidence upon which a
reasonable mind could base a conclusion. 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 . . . 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).
Here, the record evidence supports the UCBR’s finding that Employer
had a policy that required employees to exhibit professional behavior and that
Claimant violated said policy. Employer’s human resource officer Paula Constantino
(Constantino) testified that “[i]t is in the manual that every employee is to act in a
professional manner . . . .” N.T. at 8. Oteri testified that he witnessed Claimant
“either slap[] or touch[] [Daniel] on the face” the day of the altercation and that
Claimant insulted Oteri and other employees daily. N.T. at 16. Claimant admitted
that he had a previous slap fight with Daniel, and that he insulted employees. N.T. at
18-19. The UCBR found Employer’s witnesses credible, and Claimant “specifically
not credible that he did not touch [Daniel] on the final day.” UCBR Dec. at 2. With
this evidence, Employer met its burden of proof, which then shifted the burden to
Claimant to show either that the work rule was unreasonable or that he had good
cause for violating it. However, Claimant supplied no evidence of good cause for his
unprofessional conduct other than he believed it was acceptable behavior in his
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workplace. Nor did Claimant present any evidence that Employer’s work rule was
unreasonable.
Even without a work rule “[f]ighting is considered inimical to the best
interests of the employer and, as such, willful misconduct.” Miller v. Unemployment
Comp. Bd. of Review, 83 A.3d 484, 487 (Pa. Cmwlth. 2014) (quoting Rivera v.
Unemployment Comp. Bd. of Review, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987)).
“Moreover, as a matter of law [verbal and physical fighting] clearly rises to the level
of willful misconduct in that it constitutes a disregard of the standards of behavior
which the Employer has a right to expect of an employee.” Jones v. Unemployment
Comp. Bd. of Review, 460 A.2d 412, 414 (Pa. Cmwlth. 1983). Accordingly, the
UCBR did not err by concluding that Claimant engaged in willful misconduct.
Claimant contends that Employer’s evidence consisted of hearsay
testimony.
Specifically, Claimant asserts that Constantino and Heffes “did not
provide any first[-]hand testimony . . . as to what occurred on July 10, 2013[,]” and
therefore it was inadmissible hearsay and thus, cannot support the UCBR’s decision.
Claimant Br. at 16. However, Claimant did not object to the testimony.
‘[H]earsay is defined as a ‘statement, other than one made
by the declarant while testifying at the trial or hearing
offered in evidence to prove the truth of the matter
asserted.’ Pa.R.E. 801(c).’ Yost v. Unemployment Comp.
Bd. of Review, 42 A.3d 1158, 1163 (Pa.[]Cmwlth.[]2012).
‘It has long been established in this Commonwealth that
hearsay evidence, properly objected to, is not competent
evidence to support a finding of the [UCBR], whether or
not corroborated by other evidence.’
Myers v.
Unemployment Comp. Bd. of Review, . . . 625 A.2d 622,
625 ([Pa.] 1993); see also Walker v. Unemployment Comp.
Bd. of Review, . . . 367 A.2d 366 ([Pa. Cmwlth.] 1976).
However, ‘[h]earsay 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. .
. .’ Walker, 367 A.2d at 370.
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Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606, 608 (Pa.
Cmwlth. 2014) (emphasis added).
Constantino testified that the final event that resulted in Claimant’s
discharge was “[t]hat [Claimant] had actually been in a physical altercation with a
subordinate employee.” N.T. at 6. Constantino further related that Claimant had
exhibited “various other unprofessional behavior[.]” N.T at 7. Heffes testified that
she “routinely spoke to [Claimant] about the need for professionalism. . . .” N.T. at
11. That testimony is based on personal first-hand knowledge and is not hearsay.
Moreover, Claimant’s unprofessional conduct was corroborated by Oteri’s testimony
that on July 10, 2013, Oteri witnessed Daniel come out of the trailer “and within a
matter of maybe a few seconds, half a minute, [Claimant] came down the stairs quite
quickly and went around and either slapped or touched [Daniel] on the face[.]” N.T.
at 16.
In addition, Oteri testified that Claimant would insult Oteri and other
employees and “[i]t pretty much was a daily occurrence.” Id. Further, Claimant
himself admitted that he had a slap fight with Daniel but it was consensual, and that
he did insult Oteri and other employees but claimed he was joking. Hence, because
Constantino and Heffes’ cited testimony is not hearsay and was corroborated by
competent record evidence, their testimony can “be given its natural probative effect
and may support a finding of the [UCBR][.]” Stugart, 85 A.3d at 608. Accordingly,
this argument is without merit.
Claimant next asserts that because altercations and profanity were
common in the workplace with no repercussions, Employer could not reasonably
expect they would not occur. Claimant cites Moyer v. Unemployment Compensation
Board of Review, 110 A.2d 753 (Pa. Super. 1955), Geisinger Health Plan v.
Unemployment Compensation Board of Review, 964 A.2d 970 (Pa. Cmwlth. 2009),
and Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162 (Pa.
Cmwlth. 2004), to support his position. However, none of the cited cases stand for
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the alleged proposition. In Moyer, the claimant argued that he did not call his
employer to notify him regarding a week long absence because he did not know it
was required, and he did not know where to call. The Court found “[the c]laimant’s
failure to notify his employer of his intended absence was without a substantial
reason. . . .”
Moyer, 110 A.2d at 754 (emphasis added). Further, Geisinger is a
disparate treatment case, wherein, the UCBR found that the claimant was not
similarly situated to the other employees who were not discharged. Finally, the
Pettyjohn Court held: “[A] lack of prior warnings ‘is not a defense in willful
misconduct cases’ regarding admitted misconduct.” Id. at 165 (emphasis added).
In Pettyjohn, the claimant was discharged for using the internet at work
during work hours. The claimant maintained that her employer did not have a clear
policy in place regarding internet usage, and she could not have reasonably
anticipated that her job would be in jeopardy from using the internet, or that her
actions constituted willful misconduct. The Court agreed with the UCBR that
[the c]laimant’s conduct constituted willful misconduct
because ‘it is contrary to reasonable standards of behavior
for an employee to use company property for personal
activities without authorization, even absent a rule
prohibiting such conduct.’ Smith v. Unemployment [Comp.
Bd.] of Review, . . . 508 A.2d 1281, 1283 ([Pa. Cmwlth.]
1986); see also Wetzel [v. Unemployment Comp. Bd. of
Review, 370 A.2d 415 (Pa. Cmwlth. 1977)]. Using
computers for personal, non-work purposes after being
instructed not to do so amounts to willful misconduct[.]
Pettyjohn, 863 A.2d at 165.
Similarly, it is “contrary to reasonable standards of behavior for an
employee to” generally act unprofessionally, and to specifically touch, slap or hit a
subordinate employee, “even absent a rule prohibiting such conduct.” Id. Here,
Claimant was warned about his unprofessional conduct.
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Moreover, Claimant
admitted to using profanity towards Oteri and other employees, and having a slap
fight with a subordinate employee. Consequently, Claimant’s argument must fail.
Lastly, Claimant argues that even if he did commit willful misconduct,
he can still receive benefits because Employer discharged Claimant but not other
employees who engaged in the same conduct, and he is similarly situated to the other
employees who were not discharged. Essentially, Claimant is alleging disparate
treatment.
Disparate treatment is an affirmative defense by which a
claimant who has engaged in willful misconduct may still
receive benefits if 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
claimant was similarly situated to the other employees who
were not discharged; and (3) the employer discharged the
claimant based upon an improper criterion. Once the
claimant has made this showing, the burden then shifts to
the employer to show that it had a proper purpose for
discharging the claimant. . . . [I]t is important to remember
that the disparate treatment defense to a finding of willful
misconduct is not found in the Law, but has its genesis in
the Pennsylvania Supreme Court’s decision in Woodson v.
Unemployment Compensation Board of Review, . . . 336
A.2d 867 ([Pa.] 1975). There, the Supreme Court refused to
give the imprimatur of state action to the discriminatory
conduct of an employer who discharged black employees
for tardiness and absenteeism, but did not discharge white
employees for similar tardiness and absenteeism. While
decisions from this Court may have expanded the scope of
the disparate treatment defense somewhat, they have not
expanded the scope of the defense so far that the [UCBR]
and this Court have become super-employers which must
scrutinize every situation in which a claimant alleges
merely that he was discharged while another employee was
not. ‘[T]he mere fact that one employee is discharged for
willful misconduct and others are not discharged for the
same conduct does not establish disparate treatment.’ [Am.]
Racing [Equip.], Inc. v. Unemployment [Comp. Bd.] of
Review, . . . 601 A.2d 480, 483 ([Pa. Cmwlth.] 1991) (citing
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Bays v. Unemployment [Comp. Bd.] of Review, . . . 437
A.2d 72, 73 ([Pa. Cmwlth.] 1981)).
Geisinger Health Plan, 964 A.2d at 974-75 (citations and footnote omitted).
In the instant case, Claimant did not make the required showing that:
Employer discharged Claimant, “but did not discharge other employees who engaged
in similar conduct;” Claimant “was similarly situated to the other employees who
were not discharged;” or Employer discharged Claimant “based upon an improper
criterion.” Id. In fact, the only other employee Claimant specifically refers to is
Daniel, who he asserts should have been discharged for fighting since Claimant was
discharged for fighting. However, Claimant and Daniel were not similarly-situated
because Claimant was a supervisor and Daniel was his subordinate. “[T]he essence
of disparate treatment is that similarly situated people are treated differently as a
result of improper criteria. . . . [M]anagers are not similarly situated with nonmanagerial employees and may be treated differently based on their level of
responsibility.”
Rebel v. Unemployment Comp. Bd. of Review, 692 A.2d 304,
308 (Pa. Cmwlth. 1997), aff’d, 723 A.2d 156 (Pa. 1998). Accordingly, this argument
cannot stand.
For all of the above reasons, the UCBR’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Dixon,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
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No. 452 C.D. 2014
ORDER
AND NOW, this 17th day of October, 2014, the Unemployment
Compensation Board of Review’s March 11, 2014 order is affirmed.
___________________________
ANNE E. COVEY, Judge