           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Bauer,                                   :
                                                :
                              Petitioner        :
                                                :
               v.                               :   No. 151 C.D. 2015
                                                :
Unemployment Compensation                       :   Submitted: August 21, 2015
Board of Review,                                :
                                                :
                              Respondent        :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                      FILED: November 3, 2015


       Joseph Bauer (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming a UC
Referee’s (Referee) Decision finding Claimant ineligible for UC benefits pursuant
to Section 402(e)1 or, alternatively, 402(b)2 of the UC Law (Law). On appeal,

       1
        Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides, in relevant part, that “[a]n employe shall be ineligible for
compensation for any week . . . [i]n which his unemployment is due to his discharge or
temporary suspension from work for willful misconduct connected with his work.” Id.

       2
          43 P.S. § 802(b). Section 402(b) provides, in relevant part, that “[a]n employe shall be
ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.” Id.
Claimant maintains that he was not discharged for a rule violation, but instead was
terminated because he refused to accept a demotion and that his refusal was
necessitous and compelling under Section 402(b). Therefore, Claimant argues, the
Board erred in concluding that he was terminated for willful misconduct under
402(e) of the Law. Discerning no error, we affirm.


      Claimant had been employed at the Pennsylvania Department of
Transportation (Employer) since 1999, where he most recently served as a
Roadway Programs Coordinator. Claimant was discharged by Employer effective
October 27, 2014. Claimant subsequently filed for UC benefits, and the UC
Service Center issued a Notice of Determination finding Claimant not ineligible for
benefits under Section 402(e). (Notice of Determination, R. Item 6.) The UC
Service Center found that “Claimant did not admit to the incident which caused the
separation and the Employer did not provide information to show the Claimant was
involved in the incident that caused the separation.” (Notice of Determination.)
Therefore, the UC Service Center concluded that Employer did not sustain its
burden of proof in showing that Claimant’s actions constituted willful misconduct.


      Employer appealed and a hearing was held before a Referee. Claimant was
represented by counsel and testified on his own behalf. Employer presented the
testimony of its Human Resources Officer, a Clerk Typist 2 (SL), an Account
Assistant, a Roadway Program Technician, and an Equipment Operations
employee. During the hearing, both parties consented to allow the Referee to
consider Claimant’s eligibility for UC benefits under Section 402(b), in addition to
402(e) of the Law. (Hr’g Tr. at 48, R. Item 10.) Based on the evidence presented,
the Referee made the following findings of fact:
                                         2
1. Claimant started working for [the] Pennsylvania Department of
   Transportation in 1999 and the last day he worked as a full-time
   Roadway Programs Coordinator was September 25, 2014.

2. Claimant worked at [one of] Employer’s . . . facilit[ies].

3. Employer’s Sexual Harassment Policy defines sexual harassment,
   in part, as unwelcome sexual advances, requests for sexual favors,
   and other verbal, visual, or physical conduct of a sexual nature
   where such conduct has the purpose or effect of unreasonably
   interfering with an individual’s work performance or creating an
   intimidating, hostile, or offensive working environment.

4. Verbal sexual harassment includes, but is not limited to,
   derogatory sexually explicit or offensive comments and
   inappropriate comments about an individual’s body.

5. Physical harassment includes impeding or blocking movements, or
   touching, patting, pinching or any other unnecessary physical
   contact.

6. Claimant received training on the sexual harassment policy and as
   a manager was responsible to enforce the policy.

7. SL, a clerk typist in PennDot’s . . . [facility], reported to [a
   supervisor] who reported to Claimant.

8. On September 23, 2014, approximately 15 to 20 employees
   attended CPR/First Aid/training.

9. The training included discussion about automated external
   defibrillators (AED) and how a defibrillator must have direct
   contact with a person’s skin.

10. During the training, Claimant made multiple comments about
    using CPR as a means to get SL to remove her clothes and bra.

11. When Claimant made the first of such comments, SL told him to
    “knock it off”, however Claimant continued to make similar
    comments throughout the training.




                                   3
12. On September 24, 2014, SL reported Claimant’s comments to her
    supervisor who suggested she contact the Human Resources
    office.

13. The Human Resources officer interviewed SL and other
    employees and received multiple reports of Claimant engaging in
    harassing behavior toward SL.

14. On September 25, 2014, after conducting a pre-disciplinary
    conference with Claimant, Employer suspended Claimant pending
    an investigation.

15. Beginning in the spring of 2014, Claimant routinely inserted his
    finger through the hoop earrings of SL and another female
    employee, touching their ear or neck while making the comment,
    “I’m touching your hole” or “I’m touching your goal”.

16. On multiple occasions, Claimant shoved SL into a coworker’s
    cubicle wall.

17. On one or two occasions, Claimant used a gel wrist pad to slap
    SL’s thigh.

18. On a regular basis, Claimant stood by SL’s work station and
    stared at her.

19. When SL asked if he needed something, he continued to stand
    there and did not respond.

20. Employer determined it could not allow Claimant to remain
    employed at the [same] facility where SL is employed.

21. On October 15, 2014, Employer offered Claimant a demotion to a
    Roadway Programs Specialist at [another] facility.

22. By letter dated October 16, 2014, Claimant declined the offered
    position.

23. Claimant’s suspension was converted to a discharge effective
    October 27, 2014.

24. Employer terminated Claimant’s employment for inappropriate
    behavior and violation of the sexual harassment policy.

                                 4
(Referee Decision, Findings of Fact (FOF) ¶¶ 1-24.) Based on these findings, the
Referee reversed the UC Service Center’s Determination and found Claimant
ineligible for UC benefits under both Sections 402(e) and 402(b) of the Law. The
Referee found SL’s unrefuted testimony credible that Claimant exhibited
inappropriate conduct toward her, who was his subordinate, and that Claimant did
not have good cause for his actions. Because “Claimant’s actions were a deliberate
violation of Employer’s policy and a disregard of the standards of behavior which
Employer had a right to expect of an employee,” the Referee determined that
“Claimant’s actions rise to the level of willful misconduct . . . and he must be
found ineligible for benefits under Section 402(e) of the Law.” (Referee Decision
at 3.)


         Addressing Claimant’s ineligibility for benefits under Section 402(b), the
Referee concluded that even if Claimant’s separation from employment was
voluntary, he was not entitled to UC benefits because the decision to demote and
transfer him was justified “as a result of his inappropriate behavior toward a female
subordinate employee.” (Referee Decision at 3.) The Referee further concluded
that Claimant did not show “good cause for refusing an offer of continuing
employment.” (Referee Decision at 3.) Therefore, the Referee determined that
Claimant lacked necessitous or compelling cause for refusing the demotion.


         Claimant appealed to the Board, which adopted the Referee’s findings of
fact and conclusions of law, and affirmed the Referee’s Decision. However, “[t]he
Board further conclude[d] that the claimant ha[d] a choice whether or not to accept
the advice of his counsel with regard to accepting the demotion in order to retain
his employment[,]” and that his “voluntary decision to accept the advice of his
                                          5
counsel and to refuse a justified demotion [did] not provide good cause for his
willful misconduct.” (Board Order.) Claimant now petitions this Court for review
of the Board’s Order.3


       On appeal,4 Claimant argues that the Board erred in determining that he was
ineligible for benefits under Section 402(e) of the Law because his decision to
refuse the demotion does not constitute willful misconduct. Claimant maintains
that when he was offered the demotion on October 15, 2014, the sexual harassment
investigation had ended. Therefore, he contends that he was not terminated for
violating Employer’s sexual harassment policy, but rather for refusing to accept the
demotion. A refusal to accept an unjustified demotion, Claimant argues, does not
constitute willful misconduct.


       Whether an employee’s conduct constitutes willful misconduct is a question
of law subject to this Court’s appellate review.                    Brown v. Unemployment
Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012).                                In
unemployment compensation cases, “[t]he employer has the burden of proving that
it discharged an employee for willful misconduct.” Adams v. Unemployment
Compensation Board of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). Among
other things, willful misconduct may include a deliberate violation of the


       3
          Our scope of review “is limited to determining whether the necessary findings of fact
were supported by substantial evidence, whether errors of law were committed or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review,
87 A.3d 1006, 1009 n.2. (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746
(Pa. 2014).

       4
           Employer intervened in this matter and has filed a brief in support of the Board’s Order.

                                                  6
employer’s rules. Id. at 78. When discharging an employee for violating an
employer’s rule, the employer must establish “the existence of the work rule, the
reasonableness of the rule, the claimant’s awareness of the rule, and the fact of its
violation.” Id. at 79. Once the employer has established the four prongs, “[t]he
burden shifts to the employee to prove that he or she had good cause for her
actions.” Chapman v. Unemployment Compensation Board of Review, 20 A.3d
603, 607 (Pa. Cmwlth. 2011).


       Here, Claimant does not challenge the existence of Employer’s rule against
sexual harassment, the reasonableness of the rule, or his awareness of the rule.
Instead, Claimant argues that he was not terminated for violating the rule, but
rather for refusing to accept a demotion. This refusal, Claimant asserts, did not
constitute willful misconduct.        However, Claimant’s contention conflates the
reasoning in the Referee’s Decision, as adopted by the Board, and mischaracterizes
the record.


       The findings of fact show that the willful misconduct that resulted in
Claimant’s termination was his violation of the Employer’s sexual harassment
policy, not his refusal to accept a demotion. The Board specifically found that
“Employer terminated Claimant’s employment for inappropriate behavior and
violation of the sexual harassment policy.” (FOF ¶ 24.) This finding is supported
by the record.5


       5
        Where there is substantial evidence to support the Board’s findings, such findings are
binding on appeal. Leace v. Unemployment Compensation Board of Review, 92 A.3d 1272,
1276 (Pa. Cmwlth. 2014).


                                              7
       First, the Board accepted as credible, SL’s unrefuted testimony describing
“the inappropriate conduct of Claimant, a male manager, directed toward her, a
female subordinate employee.”6 (Referee Decision at 3.) Second, the record
shows that Claimant was offered a demotion and transfer by Employer so that
Claimant could remain employed despite his violation of Employer’s sexual
harassment policy. (Hr’g Tr. at 13-14, 17-18.) Third, the record shows that if
Claimant had accepted the demotion, appropriate action still would have been
taken by Employer in response to Claimant’s violation of the sexual harassment
policy. (Hr’g Tr. at 17-18.) Claimant testified that he understood that if he
declined the demotion, his suspension would have been “converted to a suspension
with a final warning.” (Hr’g Tr. at 44.) Moreover, although Claimant testified that
he was fired because he did not accept the demotion, he further testified that he
declined to accept the demotion because, on advice of counsel, he was waiting for
a resolution of an appeal of his suspension from the State Civil Service
Commission. (Hr’g Tr. at 41; Ex. C-3, Letter from Counsel to Employer, October
16, 2014.) Therefore, the Board did not err in concluding, based on its findings,
that Claimant was terminated for violating Employer’s sexual harassment policy
rather than finding that Claimant was discharged for refusing the demotion.


       Because Employer successfully carried its burden to establish termination
for willful misconduct, the burden shifts to Claimant to demonstrate he had good
cause for violating the rule. Chapman, 20 A.3d at 607. Here, Claimant makes no
attempts to show that he had good cause for violating Employer’s sexual


       6
          In unemployment cases, the Board is the ultimate fact-finder tasked with making all
credibility determinations. Id.

                                             8
harassment policy. Furthermore, as determined by the Board, refusing a demotion
based on counsel’s advice does not provide good cause for Claimant’s willful
misconduct, which was the violation of Employer’s sexual harassment policy.
Accordingly, the Board did not err by concluding that Claimant’s behavior
constituted “willful misconduct” under 402(e) of the Law, thereby precluding him
from receiving UC benefits.


      Claimant further asserts that he had a “necessitous and compelling” reason
to refuse the demotion, thus making him eligible for UC benefits under 402(b) of
the Law. Section 402(b)’s necessitous and compelling standard only applies when
the employee voluntarily terminates his employment.      43 P.S. § 802(b) (“An
employee shall be ineligible for compensation for any week . . . [i]n which his
unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature . . .”) (emphasis added). Here, Claimant did not voluntary
terminate his employment; rather, he was discharged by Employer for violating its
sexual harassment policy. In fact, Claimant concedes that he “never voluntarily
ended his employment in the first place.” (Claimant’s Br. at 11.) However, even if
we were to conclude that Claimant’s separation was voluntary, he did not meet his
burden of proving a necessitous and compelling reason for terminating his
employment.


      Whether an employee had necessitous and compelling reasons for
terminating his employment is a question of law subject to review by this Court.
Wise v. Unemployment Compensation Board of Review, 111 A.3d 1256, 1261
(Pa. Cmwlth. 2015).     A claimant has the burden of proving that he had a
necessitous and compelling reason for terminating his employment. Id. at 1264.
                                        9
Where an employee voluntarily terminates his employment after a demotion, the
focus of the analysis is on the justification for the demotion. Allegheny Valley
School v. Unemployment Compensation Board of Review, 697 A.2d 243, 248 (Pa.
1997). If the demotion was justified, an employee does not have necessitous and
compelling reason to quit their employment. Id. An employer may properly
demote an employee “as a form of discipline or for other legitimate business
purposes.” Id. at 247; Unemployment Compensation Board of Review v. Tune,
350 A.2d 876, 877 (Pa. Cmwlth. 1976).


      Here, Claimant violated Employer’s sexual harassment policy. As a result,
Employer offered to transfer Claimant to a different site, where he would not have
further contact with the employee whom he had harassed.           (Hr’g Tr. at 13.)
Because Employer’s offer to demote Claimant was “a form of discipline,” as
contemplated by Allegheny Valley School, it was a justified demotion, and
Claimant did not have a necessitous and compelling reason for refusing it.


      For the foregoing reasons, the Board’s Order is affirmed.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                        10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Joseph Bauer,                         :
                                      :
                       Petitioner     :
                                      :
           v.                         :   No. 151 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER



     NOW, November 3, 2015, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
