          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn P. Ealy,                             :
                           Petitioner      :
                                           :
             v.                            :    No. 203 C.D. 2019
                                           :    Submitted: June 21, 2019
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: August 20, 2019



             Shawn P. Ealy (Claimant), representing himself, petitions for review
from an order of the Unemployment Compensation Board of Review (Board)
denying him unemployment compensation (UC) benefits under Section 402(e) of
the UC Law (Law).1        Claimant challenges his termination from employment,
asserting he was not insubordinate. Rather, Claimant argues his employment was
terminated in retaliation for reporting a superior. Upon review, we affirm.


             Claimant     worked    full-time   for   American      Contract   Services
(Employer) as an assistant manager from March 2015, until the date of his



      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e) (relating to willful misconduct).
termination from employment, August 10, 2018. Employer’s policy prohibited
abusive, intimidating, and threatening language or behavior.


            Claimant typically started the work day by discussing operations with
the plant manager (Plant Manager). However, on August 10, 2018, he arrived to
work in an agitated state. That day, instead of meeting with Plant Manager,
Claimant began assembling boxes. When Plant Manager asked what was wrong,
Claimant explained he was distressed because Plant Manager failed to inform him
that other employees were upset by his personal relationship with another
coworker (Coworker).


            Plant Manager observed Claimant become increasingly upset during
their conversation and ordered Claimant to go home for the day. Claimant refused,
and he proceeded to loudly burst into the operations area to confront other
employees about the rumor. Plant Manager directed Claimant to calm down,
explained that Claimant had no right to behave this way, and for the second time,
ordered him to leave the facility.    Again, Claimant ignored the directive and
threatened to tell Employer’s business partner (Business Partner) that Plant
Manager was stealing supplies from Employer.           Addressing the group of
employees, Claimant asked who had an issue with him working with Coworker.
One employee, (Assembler), raised her hand.


            Claimant became demonstrably more agitated by Assembler’s
response, and Plant Manager ordered Claimant to leave for the third time. Again,
Claimant disregarded his directive; he stormed into Business Partner’s office and



                                         2
accused Plant Manager of stealing plastic bags.               Plant Manager immediately
terminated Claimant’s employment and requested that Claimant be escorted out of
the building.


                Thereafter, Claimant filed for UC benefits. The Department of Labor
and Industry (Department) issued a Notice of Determination denying benefits,
determining Claimant was insubordinate for reporting false statements about Plant
Manager in front of a customer.2 Claimant appealed, and a referee’s hearing
ensued. Claimant, then represented by counsel, testified on his own behalf, and
Plant Manager and Assembler testified on behalf of Employer.


                Plant Manager testified that despite his efforts, he could not calm
Claimant down that day. Plant Manager indicated Claimant used expletives when
confronting other employees, which Assembler confirmed in her testimony. Plant
Manager insisted that Claimant’s employment was terminated solely because of his
behavior to other employees on the day in question.


                Claimant recalled being “a little pissed off” concerning allegations of
his personal relationship with Coworker. Referee’s Hr’g, Notes of Testimony
(N.T.), 11/6/18, at 12. Claimant described feeling “consistently harassed” by these
accusations and felt compelled to confront the other employees. N.T. at 16. He

       2
          The Board acknowledged Employer prohibits criticism of its policies in front of
customers or third parties. See Bd. Op., 1/29/19, Finding of Fact (F.F.) No. 3. However, neither
the referee nor the Board indicated Claimant made the accusation of Plant Manager’s theft in
front of a customer or third party. Because the Board determined Claimant’s employment was
terminated for insubordination and belligerent language and behavior, a finding concerning the
persons or parties before whom he raised this allegation is irrelevant to our analysis.



                                               3
admitted to using a louder tone when speaking to the other employees, but denied
he yelled or used profanity. Claimant also denied the existence of any personal
relationship with Coworker. He maintained they were just friends.


              Claimant believed his employment was terminated in retaliation for
reporting Plant Manager’s alleged theft and improper plastic bag use to Business
Partner.    However, Plant Manager maintained Claimant’s employment was
terminated before Claimant reported the allegations to Business Partner.


              The referee affirmed the Department’s determination of ineligibility,
finding Claimant’s employment was terminated for insubordination. She concluded
Claimant did not establish good cause for refusing several directives to leave the
facility.   The referee also reasoned that had Claimant wanted to report Plant
Manager’s alleged theft to Business Partner, he could have done so at a different
time. Claimant appealed to the Board, arguing he was not insubordinate and that
reporting theft to Business Partner constituted good cause for violating Plant
Manager’s directive to go home.


              The Board affirmed the referee’s decision and issued its own findings.
It found that in addition to insubordination, Claimant was discharged for his
belligerence toward other employees. In so doing, the Board rejected Claimant’s
testimony that his employment was terminated in retaliation. It found that Claimant
became increasingly hostile with Plant Manager in front of other employees, refused
numerous directives to leave, and confronted other employees in an aggressive
manner. The Board also noted Plant Manager afforded Claimant many opportunities



                                          4
to calm down. It emphasized Claimant not only ignored these opportunities, but
escalated matters by accusing Plant Manager of theft. As such, the Board deemed
Claimant ineligible for UC benefits under Section 402(e) of the Law, 43 P.S.
§802(e).3


              Claimant, now representing himself, petitions for review.4


              We discern the following arguments from Claimant’s uncounseled
brief. Claimant contends he was fired in retaliation for reporting Plant Manager, not
for insubordination. Alternatively, Claimant maintains his actions did not constitute
willful misconduct under Section 402(e) of the UC Law, 43 P.S. §802(e).5




       3
         The Board also denied Claimant’s request for a remand hearing to offer additional
evidence that Claimant neglected to present to the referee.
       4
         Our review is limited to determining whether the Board’s findings were supported by
substantial evidence, whether the Board committed an error of law, or whether constitutional
rights were violated. Dep’t of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011
(Pa. Cmwlth. 2008). In UC proceedings, the Board’s findings of fact are conclusive on appeal as
long as they are supported by substantial evidence. Grieb v. Unemployment Comp. Bd. of
Review, 827 A.2d 422 (Pa. 2003).
       5
          Notably, Claimant waives certain arguments on appeal. Claimant argues the Board
erred by allowing Employer “to raise the second issue which was outside the scope of hearing,”
yet, he fails to identify the second issue. Pet’r’s Br. at 13. Claimant contends the Board
considered this issue in making its determination without affording him proper notice under
Section 501(c)(2) of the UC Law, 43 P.S. §821(c)(2). Because Claimant failed to raise this
argument before the Board, and fails to develop it sufficiently in his brief here, it is waived.
Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375 (Pa. Cmwlth. 2012).
        Additionally, Claimant advanced both disparate treatment and harassment arguments in
his petition for review. However, because he fails to address these issues in his brief, they are
waived on appeal. Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608 (Pa. Cmwlth.
2006).



                                               5
            Claimant avers Employer terminated his employment in retaliation for
accusing Plant Manager of stealing supplies. We construe this as a challenge to the
Board’s credibility determinations.


            It is well settled that the Board is the ultimate fact-finder and is
empowered to make its own determinations regarding witness credibility and
evidentiary weight. Serrano v. Unemployment Comp. Bd. of Review, 149 A.3d
435 (Pa. Cmwlth. 2016). On appeal, we are bound by the Board’s findings, even if
the record contains contrary evidence. Id.


            Here, the Board credited Plant Manager’s testimony over Claimant’s
testimony regarding the reason for Claimant’s discharge. Bd. Op., 1/29/19, at 3.
Plant Manager testified Claimant’s termination of employment resulted “solely”
from his “threatening behavior toward the employees.” N.T. at 7. Plant Manager
explained in light of Claimant’s escalating anger and what Claimant previously
shared with him about “his temper,” Plant Manager terminated Claimant’s
employment out of “fear of what could’ve happen[ed].” N.T. at 8, 19.


            In contrast, the Board did not credit Claimant’s testimony that he was
fired in retaliation for accusing Plant Manager of theft. Bd. Op. at 3. There is
substantial, credited evidence to support the Board’s findings that Claimant’s
employment was terminated because of his insubordinate and aggressive behavior.
We are bound by the Board’s credibility determinations on appeal. Serrano.




                                         6
             Under Section 402(e) of the Law, 43 P.S. §802(e), a claimant is
ineligible for UC benefits when an employer discharges him for willful
misconduct. Willful misconduct is defined in our case law 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; or (d) negligence indicating an intentional or substantial
disregard of an employer’s interest or an employee’s duties or obligations.
Klampfer v. Unemployment Comp. Bd. of Review, 182 A.3d 495 (Pa. Cmwlth.
2018). If the employer satisfies its burden of proof, the burden then shifts to the
claimant to prove good cause for his actions, meaning they were justified and
reasonable under the circumstances.        Kelly v. Unemployment Comp. Bd. of
Review, 747 A.2d 436 (Pa. Cmwlth. 2000).


             Claimant contends his behavior did not constitute willful misconduct.
In support of this argument, he cites various cases for the proposition that an
employee cannot be discharged in retaliation for reporting the illegal activity of a
superior. See Pet’r’s Br. at 12.


             The Board did not find Claimant’s alleged whistleblowing to be based
on credible facts and rejected it as a reason for his discharge. Bd. Op. at 3. Instead,
it was Claimant’s behavior toward Plant Manager and toward other employees, the
actions that led to his discharge, that are pertinent to our review.


             A claimant’s deliberate violation of an employer’s rules and a
disregard of behavioral standards an employer has a right to expect of an employee



                                           7
constitutes willful misconduct. Ellis v. Unemployment Comp. Bd. of Review, 749
A.2d 1028 (Pa. Cmwlth. 2000). Insubordination, combined with the use of profane
and abusive language to a superior, also constitutes willful misconduct. Saxton v.
Unemployment Comp. Bd. of Review, 455 A.2d 765 (Pa. Cmwlth. 1983). Here,
Employer’s policy prohibits “[a]busive, intimidating or threatening language or
behavior, fighting, harassment, discrimination, or retaliation.” Bd. Op., Finding of
Fact (F.F.) No. 2.


             It is undisputed that Claimant was upset when he arrived to work on
the date of his discharge. Plant Manager attempted to speak to Claimant, but was
met with hostility; he witnessed Claimant become increasingly agitated throughout
the morning. See F.F. No. 9 (finding “[C]laimant told [Plant Manager] that he
would work with whomever he wanted”).          Plant Manager repeatedly ordered
Claimant to go home and told Claimant that he had no right to act in such a
manner, but Plant Manager “could not catch [Claimant], could not stop him, [and]
could not get him to calm down.” N.T. at 5.


             Claimant continued to disrupt a group of employees and confront
them about the personal rumor. When he did so, Claimant used expletives, more
than simply a “loud” voice, as well as threatening language, to discover who
amongst them took issue with his relationship with Coworker. N.T. at 16. Plant
Manager testified he became “extremely nervous at that point” because he “had
never seen [Claimant] act like that before.”      N.T. at 6.   Although Claimant
explained he did not intend to terrorize his coworkers, both Plant Manager and




                                         8
Assembler described the employees as shocked, scared, and visibly shaken by
Claimant’s outburst.


              Further, and of particular import here, Plant Manager instructed
Claimant to calm down and go home at three separate times on the day in question.
Yet, Claimant refused each directive.              This alone may constitute willful
misconduct. See Sease v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No.
1200 C.D. 2017, filed April 10, 2018), 2018 WL 1722662 (unreported)6 (holding
that a claimant’s refusal to follow a manager’s clear and simple instruction to leave
the premises constitutes willful misconduct).


              The record shows Claimant clearly violated Plant Manager’s directive
and Employer’s rules concerning behavior by acting in an insubordinate,
belligerent, and threatening manner to Plant Manager and other employees. Plant
Manager afforded Claimant multiple chances to preserve his employment by
leaving, but Claimant failed to comply. F.F. Nos. 10, 12, 15. Therefore, we hold
Claimant’s actions rose to the level of willful misconduct under Section 402(e) of
the UC Law, for which Claimant did not show good cause.


              Accordingly, we affirm the Board’s order.




                                           ROBERT SIMPSON, Judge

       6
         This case is cited for its persuasive value in accordance with Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).



                                              9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn P. Ealy,                      :
                     Petitioner     :
                                    :
           v.                       :   No. 203 C.D. 2019
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER

           AND NOW, this 20th day of August 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
