           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hector Santana,                              :
                            Petitioner       :
                                             :
                     v.                      :    No. 424 C.D. 2016
                                             :    Submitted: July 29, 2016
Unemployment Compensation                    :
Board of Review,                             :
                    Respondent               :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                           FILED: November 15, 2016


       Hector Santana (Claimant) petitions for review of the February 25, 2016
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) of the UC Law (Law). 1 On appeal, Claimant
raises two broad challenges: (1) the Board erred by finding that his conduct
constituted willful misconduct because he was disparately treated by his employer,


       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides that an employee is ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful misconduct
connected with his work.” Id.
North American Machine Works (Employer), when Employer terminated
Claimant, but failed to terminate a similarly situated employee for the same
conduct; and (2) the Board’s Decision is not supported by substantial evidence
because it failed to consider all of the evidence demonstrating that Claimant acted
in self-defense in accord with Miller v. Unemployment Compensation Board of
Review, 83 A.3d 484 (Pa. Cmwlth. 2014). We affirm.
      Claimant was employed by Employer as a full-time valve technician from
March 2010 to October 30, 2015, when he engaged in a physical altercation with
his coworker, Raymond Rios. (Board Decision, Findings of Fact (FOF) ¶¶ 1, 12.)
On November 2, 2015, Employer discharged Claimant for fighting in the
workplace. Mr. Rios was not discharged. The events that took place on October
30, 2015, are the subject of the instant dispute.
      Claimant applied for UC benefits on November 2, 2015, stating that he was
discharged for fighting. (Internet Initial Claims, C.R. at 2.) Claimant stated that
there was an incident “over an issue about a scratch on my car [. . .] the argument
continued and the other employe[e] grabb[]ed a board and threatened to hit me. [I]
grabbed the board and hit the other employee.” (Claimant Questionnaire, C.R. at
4.) Claimant checked the box on the questionnaire to indicate he was fighting out
of self-defense alone. (Id.) Employer did not respond to Claimant’s claim for UC
benefits. (Request for Employer Separation Information, C.R. at 3 (indicating no
response received from Employer).)
      The UC Service Center issued a Notice of Determination on November 16,
2015, finding Claimant not ineligible for UC benefits pursuant to Section 402(e) of
the Law. (Notice of Determination, C.R. at 5.) The UC Service Center determined
that “Claimant was fighting in self-defense alone and, as such, had good cause for


                                           2
fighting. Th[us], Claimant’s actions do not constitute willful misconduct . . . .”
(Id.) Accordingly, the UC Service Center concluded that Claimant was eligible for
benefits beginning with the waiting week ending November 7, 2015. (Id.)
         Employer appealed to the Referee. In its petition, Employer explained that
Claimant was not acting in self-defense, but that he “started the fight by pushing a
fellow employee to the ground during an argument.” (Petition for Appeal, C.R. at
6.) Employer stated that there was another employee who witnessed the incident.
(Id.) A hearing on Employer’s appeal was held before the Referee on January 7,
2016.2 Claimant appeared, with counsel, and testified. Employer appeared with
three witnesses: Larry Picciani, Vice President/General Manager; Mr. Rios, Inside
Sales; and Carl Mintz, Safety Valve Technician.
         Mr. Picciani testified that the general manager of the valve shop was the first
person to report to him that Claimant attacked Mr. Rios at lunch time and that Mr.
Mintz witnessed the fight. Mr. Picciani recalled that Claimant gave a different
version of events than Mr. Mintz’s account, and that Claimant stated “[Mr. Rios]
had a stick” and Claimant was allegedly threatened by the stick. (Hr’g Tr. at 7.)
Mr. Picciani noted that Employer does not have a written policy that prohibits
fighting at work, but employees should know “it’s a crime to attack someone.” (Id.
at 8.)
         Mr. Rios testified that he was supposed to play football with Claimant at
lunch when Claimant confronted him about pretending to key Claimant’s car, and
that he was confused about the situation. (Id. at 9.) Mr. Rios stated that Claimant


         2
         The hearing was continued from December 17, 2015, so that Claimant could obtain
counsel. Counsel entered his appearance on behalf of Claimant on January 5, 2016. (Entry of
Appearance, C.R. at 9.)

                                            3
came right up to his face and that is when they started arguing back and forth. Mr.
Rios testified that Claimant pushed him, which caused him to fall onto a stack of
skids, and then Mr. Rios grabbed a “three foot brittle piece of stick” to keep
Claimant away from him. (Hr’g Tr. at 9, 11.) Mr. Rios stated that he never raised
the stick in a defensive manner and that after he put the stick down, Claimant
punched him in the face. (Id. at 9-10.) Mr. Rios explained that as he stood up,
Claimant backed up and Mr. Mintz told Claimant to stop. Mr. Rios stated that he
stood up calmly and walked away. Mr. Rios maintained that he did not throw the
first punch. (Id. at 22.)
      Mr. Mintz testified as to what he observed on October 30, 2015.             He
explained that Claimant pushed Mr. Rios back towards the skids, Mr. Rios picked
up a small stick, Claimant grabbed Mr. Rios’ arm and twisted it and then punched
Mr. Rios twice, after which Mr. Rios fell to the ground, and was struck again on
the ground. (Id. at 13.) Mr. Mintz testified that Claimant and Mr. Rios always
argue like this, although they have not physically fought before. Mr. Mintz stated
that he was on the phone with his wife, which was why he did not tell Claimant
and Mr. Rios to stop until after Mr. Rios was hit. (Id.) Mr. Mintz testified that Mr.
Rios got up after being punched and walked inside.
      Claimant testified that he confronted Mr. Rios about a gesture Mr. Rios
made near Claimant’s car, and that Mr. Rios got in Claimant’s face. He stated that
they were close to each other “chest to chest,” and that Mr. Rios then told Claimant
“I’m going to hit you” and started emptying his pockets. (Id. at 15.) Claimant
admitted that he pushed Mr. Rios away and that Mr. Rios fell to the ground.
Claimant stated that Mr. Rios ran about 10 feet away to get the stick, and then
Claimant went over to Mr. Rios to hold the stick away and tell him to stop. (Id. at


                                         4
16.) Claimant testified that Mr. Rios took a swing at him, and that was when
Claimant hit Mr. Rios back and he fell to the ground. (Id.) Claimant stated that he
“immediately backed away from [Mr. Rios] and when I backed away from him
[Mr. Rios] got up and started coming towards me and I kept pushing him – I kept
telling him it’s over, that’s it.” (Hr’g Tr. at 16.) Claimant noted that Mr. Mintz
never came over to break up the fight. (Id. at 16-17.) In response to questions
from the Referee, Claimant agreed that he could have backed up before the
physical altercation began, but stated that he did not leave the parking lot because
he felt threatened. (Id. at 15-16.) In response to a question posed by Claimant’s
counsel, Claimant stated he felt threatened when he and Mr. Rios were chest to
chest and when Mr. Rios grabbed the stick. (Id. at 17.) Claimant described the
stick as “a two by four and it had a nail at the end.” (Id. at 19.) At the end of the
hearing, Claimant’s counsel asserted that Claimant reasonably acted in self-
defense. (Id. at 23.)
      The Referee, acknowledging that there were conflicts in the evidence as to
what actually happened on October 30, 2015, credited the testimony of Employer’s
witnesses over Claimant’s testimony.      (Referee Decision at 2.)     The Referee
concluded that even if Claimant’s testimony was credible, Claimant willingly
participated in the verbal altercation, which ended in physical violence, and
Claimant had numerous opportunities to remove himself from the situation prior to
engaging in any violence but he did not do so. (Id.) The Referee found that
“[C]laimant was the aggressor in the matter, physically assaulted his co-worker,
[and] thus engaged in willful misconduct.” (Id.) Accordingly, the Referee rejected
Claimant’s self-defense claim, reversed the UC Service Center’s determination,



                                         5
and found that Claimant was ineligible for benefits under Section 402(e) of the
Law. Claimant appealed to the Board.
       In his appeal to the Board, Claimant argued that the Referee failed to
consider the totality of the circumstances, such that the Referee Decision is not
supported by substantial evidence, and erred in finding willful misconduct and in
applying the law on self-defense. (C.R. at 12.) In his brief to the Board,3 Claimant
argued that “retreat” is not an element of self-defense, relying on the test set forth
in our decision in Miller, 83 A.3d 484, as support. (Claimant’s Br. to the Board at
2, C.R. at 15.) Claimant also contended that there is no substantial evidence of
record to support the notion that he “was the aggressor in the matter.” (Id. at 5.)
       The Board affirmed the Referee, but made its own findings of fact:

       1.   The claimant was last employed as a full-time valve technician
            by North American Machine Works from March 2010, until
            October 30, 2015, at a final rate of $23.00 per hour.

       2.   On October 30, 2015, the claimant and another employee, Carl
            Mintz, were in the parking lot during their lunch break.

       3.   A third employee, Raymond Rios, returned from lunch.

       4.   The claimant confronted Rios in the parking lot because the
            claimant believed that Rios had pretended to key the claimant’s
            car.

       5.   The claimant and Rios engaged in a heated verbal altercation.

       6.   The claimant pushed Rios onto the ground.

       7.   Rios picked up a piece of a large skid; Rios was approximately
            10 feet from the claimant at that time.

       3
         Claimant’s counsel requested to file a brief with the Board, which was granted. (Board
Letter, C.R. at 14.)

                                              6
      8.   The claimant walked over to Rios.

      9.   Rios threatened to hit the claimant with the piece of wood.

      10. The claimant held Rios’ hand back, but then let it go.

      11. Rios swung the wood at the claimant.

      12. The claimant punched Rios in the face.

      13. The claimant backed away from Rios.

      14. Mintz told the claimant to stop and broke up the fight.

      15. The employer discharged the claimant for hitting Rios.

(FOF ¶¶ 1-15.) Like the Referee, the Board acknowledged the conflicts in the
testimony regarding the details of the incident. However, the Board concluded that
it was undisputed “that the [C]laimant confronted Rios and started the altercation .
. . [and] that the [C]laimant pushed Rios onto the ground.” (Board Decision at 2.)
The Board found that Claimant could have walked away, but instead, he “went
towards Rios and re-engaged Rios.” (Id.) The Board also found Claimant credible
that Rios threatened to hit Claimant with the piece of wood, Rios did swing the
wood at Claimant, and then Claimant punched Rios in the face and “immediately
backed away.” (Id. at 3.) The Board concluded that Claimant did not act in self-
defense because he “did not testify that his actions were reactive or that it was a
reflex[,]” and that Claimant’s actions in initiating a fight and physically assaulting
his co-worker were below the standards of behavior Employer had a right to expect
from its employees. (Id.) Accordingly, the Board concluded that Claimant was
ineligible for benefits under Section 402(e) of the Law.            (Board Decision,




                                          7
Conclusion of Law.) Claimant filed a request for reconsideration, which the Board
denied. Claimant now petitions this Court for review of the Board’s Order. 4
       On appeal, Claimant argues that he did not commit willful misconduct
because he was subject to disparate treatment by Employer when Employer
terminated Claimant, but failed to terminate Mr. Rios, a similarly situated
employee, for the same conduct. (Claimant’s Br. at 3.) Claimant contends that the
Board’s Decision is not supported by substantial evidence demonstrating that he
acted in self-defense. Specifically, he argues that retreat is not a requirement of
self-defense, and that the Board erred in relying on the absence of any testimony
by Claimant that his actions were “reactive” or the result of a “reflex.” (Id. at 6, 8.)
       In response, the Board argues that substantial evidence supports that
Claimant did not act in self-defense, and that Claimant acted below the standards
of behavior that Employer had a right to expect from its employees when Claimant
confronted Mr. Rios and physically assaulted him in the parking lot. The Board
contends that Claimant’s actions “were more akin to retaliation” than self-defense;


       4
         This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact
were supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014). The Board is the factfinder in UC cases and is, thus,
empowered to make credibility determinations and resolve conflicts in the evidence presented.
Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The
Board’s findings are conclusive on appeal if the record, as a whole, is supported by substantial
evidence. Mathis v. Unemployment Comp. Bd. of Review, 64 A.3d 293, 299 (Pa. Cmwlth.
2013). We view the record in the light most favorable to the party that prevailed before the
Board, and we afford that party the benefit of all reasonable inferences that can be drawn from
the evidence to determine if substantial evidence exists.           Big Mountain Imaging v.
Unemployment Comp. Bd. of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012). “Substantial
evidence is such relevant evidence which a reasonable mind might accept as adequate to support
a conclusion.” American Gen. Life and Accident Ins. Co. v. Unemployment Comp. Bd. of
Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994).

                                               8
Claimant was the aggressor and escalated the situation, and Claimant did not act in
“a reflexive or instantaneous manner.” (Board’s Br. at 10, 12.)5
      Section 402(e) of the UC Law provides, in pertinent 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.” 43 P.S. § 802(e). While the Law does not define
“willful misconduct,” our Court has defined it 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). Employer bears the burden of proving willful misconduct.
Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth.
2008). “[F]ighting is considered inimical to the best interests of the employer and,
as such, [it is] willful misconduct.”           Rivera v. Unemployment Comp. Bd. of
Review, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). “Even in the absence of a
written policy [prohibiting fighting in the workplace], fighting may be considered a
disregard of the standards of behavior that an employer can expect from its
employees, even when the claimant was not the initial aggressor.” Miller, 83 A.3d
at 487 (citations omitted). In certain situations, it is justifiable to use reasonable
force in self-defense. Id. (citing Sun Oil Co. v. Unemployment Comp. Bd. of
Review, 408 A.2d 1169, 1171 (Pa. Cmwlth. 1979) (“A reasonable belief of

      5
          For clarity purposes, we will reorder Claimant’s arguments.

                                                9
imminent bodily harm and feared danger of an assault justifies reasonable
retaliatory force.”)). “Where an employee’s conduct is justifiable or reasonable
under the circumstances, it cannot be considered willful misconduct because it is
not a willful disregard of standards of behavior that an employer has a right to
expect.” Miller, 83 A.3d at 488 (citation omitted). However, in situations where a
claimant could retreat and seek help but instead willingly continues to escalate the
situation, the claimant’s actions are “neither reasonable nor justifiable and [do] not
constitute good cause.” Rivera, 526 A.2d at 1256 (citation omitted).
      Claimant does not dispute “that violence should not occur in the work place
and would be willful misconduct with or without an employee handbook.” (Hr’g
Tr. at 23.) Rather, Claimant argues that the Board’s Decision is not supported by
substantial evidence because it failed to consider all of the evidence demonstrating
that he acted in self-defense. Specifically, Claimant argues that he was the only
person to attempt to de-escalate the situation and that he had a reasonable belief of
imminent bodily harm.        (Claimant’s Br. at 11.)       We note, initially, that
“[r]econstructing the facts of an emotionally charged incident is a difficult task and
belongs to the Board.” Wolfe v. Unemployment Comp. Bd. of Review, 425 A.2d
1218, 1219 (Pa. Cmwlth. 1981). In this case, both Claimant and Employer’s
witnesses testified, and there was conflicting factual testimony about the verbal
argument and physical altercation that occurred on October 30, 2015. Given the
conflicting testimony, the Board properly exercised its role as factfinder and chose
to credit the testimony of Employer’s witnesses over that of Claimant. Curran v.
Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).
The Board concluded that Claimant’s conduct constituted willful misconduct
because “[C]laimant’s actions of initiating an altercation and physically assaulting


                                         10
his coworker were below the standard[s] of behavior . . . [E]mployer had a right to
expect.” (Board Decision at 3.) The Board also expressly considered whether
Claimant’s conduct constituted self-defense, and concluded that it did not. (Id.)
We agree.
      Notably, the Board did not find that Claimant tried to de-escalate the
situation or that Claimant’s action in punching Mr. Rios “was an instantaneous and
reflexive reaction” in response to “imminent bodily harm and feared danger of an
assault.” See Miller, 83 A.3d at 487-88 (finding that the claimant first “attempted
to diffuse the situation,” and when the claimant’s coworker grabbed the claimant’s
shirt, threatened him, and shoved him, the claimant responded by pushing his
coworker back, which was considered to be “an instantaneous and reflexive
reaction” to the claimant’s fear that bodily harm was imminent, and the claimant
had the right to protect himself). Here, the Board recognized that it is undisputed
that Claimant confronted Mr. Rios and started the fight by pushing Mr. Rios on the
ground. (Board Decision at 2; Hr’g Tr. at 9, 11, 15.) Mr. Rios, Mr. Mintz, and
Claimant testified that Mr. Rios grabbed a stick, which was approximately 10 feet
away from Claimant, and that Claimant, instead of walking away or maintaining
his distance, which he admits he could have done, went back over to Mr. Rios to
engage in a physical fight by grabbing Mr. Rios’ arm. (Board Decision at 2-3;
Hr’g Tr. at 9-11, 13, 15-16.) Although the Board credited Claimant’s testimony
that Mr. Rios threatened to hit Claimant with the stick and swung the stick at
Claimant, it did not find Claimant’s testimony that he felt threatened to be credible.
(Board Decision at 2-3; Hr’g Tr. at 15-16.) If Claimant truly felt threatened by Mr.
Rios’ actions, he could have walked away from the physical altercation; instead, he
made the decision to walk back to Mr. Rios, grab his arm, and then punch Mr. Rios


                                         11
in the face before backing away. (Hr’g Tr. at 16.) In addition, to the extent that
Claimant felt threatened when Mr. Rios swung at him, Claimant put himself in that
position by walking over to Mr. Rios. Because Claimant continued to escalate the
situation, we conclude that Claimant’s actions are neither reasonable nor justifiable
under the circumstances in this case and, thus, constitute willful misconduct.
Rivera, 526 A.2d at 1256. The testimony as described is substantial evidence of
record which supports the Board’s findings of fact, which are conclusive on
appeal, and the Board did not err in finding Claimant ineligible for UC benefits.
Mathis v. Unemployment Comp. Bd. of Review, 64 A.3d 293, 299 (Pa. Cmwlth.
2013).
      Claimant also argues that he was disparately treated by Employer.           In
response, the Board argues that Claimant waived this issue by not raising it before
either the Referee or the Board.      In the alternative, the Board contends that
Claimant did not establish the necessary elements of the disparate treatment
defense.
      Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a),
provides that “[a] party who proceeded before a Commonwealth agency under the
terms of a particular statute shall not be precluded from questioning the validity of
the statute in the appeal, but such party may not raise upon appeal any other
question not raised before the agency . . . .” Likewise, Rule 1551(a) of the
Pennsylvania Rules of Appellate Procedure provides that “[n]o question shall be
heard or considered by the court which was not raised before the government unit.”
Pa. R.A.P. 1551(a). We previously held that a “matter is not properly before us not
having been raised before the Referee or the Board. The reason for this rule is well
exemplified by the present case for had it been raised, there would have been an


                                         12
opportunity to establish the facts on the record.” Zakrzewski v. Unemployment
Comp. Bd. of Review, 381 A.2d 503, 504 (Pa. Cmwlth. 1978).
       Claimant did not argue before the Referee or the Board that he was
disparately treated by Employer because he was fired and Mr. Rios was not, and
neither the Referee nor the Board considered the defense in their respective
decisions. (See Claimant’s Arguments, Hr’g Tr. at 23; C.R. at 12, 15.)6 Claimant
raised this defense for the first time in his request for reconsideration of the
Board’s Decision. (C.R. at 17.) Because Claimant’s alleged disparate treatment
was not raised in the proceedings, there was no opportunity to establish the facts
pertaining to the elements of the defense on the record before the Referee or the
Board. Therefore, the defense of disparate treatment is waived.7

       6
           In his brief to the Board, Claimant argues that Employer’s “policy” was
indiscriminately enforced and, as such, it was not really a “policy.” (Claimant’s Br. to the Board
at 2, C.R. at 15.)
        7
          Were we to consider the merits of the defense, we would hold that Claimant has not met
his burden of demonstrating the three required elements of the defense on this record. Disparate
treatment is an affirmative defense by which a claimant who has engaged in willful misconduct
may still receive benefits if the claimant makes an initial showing that: (1) the employer
discharged claimant, but did not discharge other employees that 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 on improper criteria. Geisinger Health Plan v.
Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 (Pa. Cmwlth. 2009). “[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.” Id. at 975 (citing Am. Racing Equip., Inc.
v. Unemployment Comp. Bd. of Review, 601 A.2d 480, 483 (Pa. Cmwlth. 1991)). In
determining whether employees are “similarly situated,” this Court has considered the severity of
a claimant’s conduct, as compared to the conduct of other employees. Id. at 976.
        Here, Claimant satisfies the first element of the defense because he demonstrated at the
Referee hearing that he was fired for fighting, while Mr. Rios was not. (Hr’g Tr. at 22.) As for
the second and third elements, Claimant neither submitted evidence that he was similarly situated
to Mr. Rios, who allegedly engaged in the same conduct as Claimant but was not fired, nor did
Claimant submit evidence that his dismissal was based on improper criteria. Claimant appears to
argue that Employer’s policy, or lack of policy, on fighting in the workplace “was not uniformly
                                                                                 (Continued…)
                                               13
       Based on the foregoing reasons, we affirm the Board’s Order.



                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge




nor consistently applied,” however, Claimant fails to fully develop this argument in his brief or
connect it in any way to the required elements of a disparate treatment defense. (Claimant’s Br.
at 7.) Therefore, Claimant has not met his burden of proving disparate treatment.

                                               14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hector Santana,                       :
                       Petitioner     :
                                      :
                  v.                  :   No. 424 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


      NOW, November 15, 2016, the February 25, 2016 Order of the
Unemployment Compensation Board of Review, entered in the above-captioned
matter, is hereby AFFIRMED.



                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
