              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven P. Joncas, II,                             :
                                 Petitioner       :
                                                  :
                          v.                      :   No. 997 C.D. 2016
                                                  :   Submitted: November 4, 2016
Unemployment Compensation Board                   :
of Review,                                        :
                    Respondent                    :



BEFORE:            HONORABLE RENÉE COHN JUBELIRER, Judge
                   HONORABLE PATRICIA A. McCULLOUGH, Judge
                   HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                               FILED: February 1, 2017



          Steven P. Joncas, II (Claimant), proceeding pro se, petitions for review of an
Order of the Unemployment Compensation (UC) Board of Review (Board) finding
Claimant ineligible for benefits due to willful misconduct pursuant to Section
402(e) of the UC Law (Law).1 Finding no errors of law, abuse of discretion, or
procedural infirmities, we affirm.




          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
I.    BACKGROUND
      Claimant was employed as a full-time Security Officer with UPMC
Presbyterian/Shadyside (Employer) until February 2, 2016, when he was
discharged for using profane and inappropriate language in violation of
Employer’s progressive disciplinary policy. (Board Decision, Findings of Fact
(FOF) ¶¶ 1, 2, 7.) Claimant filed for UC benefits, which were denied by the UC
Service Center pursuant to Section 402(e) of the Law. Claimant, represented by
counsel, appealed, and a hearing was held before a UC Referee (Referee).
Claimant testified on his own behalf, and Employer presented the testimonies of
Joyleene Baldonieri, Human Resources Consultant for Employer; Leo Dicesare,
the Security Manager for Employer; and Donald Charley, the Assistant Vice
President of Parking and Security Centers for Employer.
      Ms. Baldonieri testified that Employer has a Corrective Action and
Discharge Policy (Policy) that provides for a “progressive disciplinary process that
starts from a verbal warning, to written, final written suspension, and then as a last
resort, a discharge.” (Hr’g Tr. at 8, C.R. at Item 11.) The Policy is reviewed
during an employee’s orientation and posted on Employer’s internal computer
network. (Id.) Ms. Baldonieri testified that Claimant attended orientation and had
access to the internal computer network on which the Policy was stored. (Id.)
According to Ms. Baldonieri, Claimant received a final written warning pursuant to
the Policy on December 1, 2015. (Id.; Employer’s Hr’g Ex. 2, C.R. at Item 11.)
The instant incident occurred after Claimant received the December 1, 2015 final
written warning, and, pursuant to the Policy, resulted in Claimant’s discharge.
(Hr’g Tr. at 8.)



                                          2
          Mr. Dicesare testified that he served as Claimant’s manager and personally
witnessed the behavior that led to Claimant’s termination.         (Id. at 11.)   Mr.
Dicesare testified that Claimant approached him and was enraged with how
Employer’s operations were run and the actions of other employees. (Id. at 12.)
According to Mr. Dicesare, Claimant, with a “very heightened voice,” made
statements such as “this is f**ked up, and what’s the big f**king deal,” and
pounded his fists on the desk. (Id.) Mr. Dicesare was concerned about Claimant’s
mental state and felt a duty to report Claimant’s actions. (Id.) He testified that the
only appropriate use of profanity for security officers at Employer’s facilities is
quoting someone else’s profanity when reporting an incident to a supervisor. (Id.
at 14.)
          Mr. Charley testified that he is responsible for all security and parking
services for Employer. (Id. at 15.) He testified that he was present when Claimant
received the final written warning on December 1, 2015, and that he told Claimant
at that time “that any subsequent violation of [the Policy] or performance issues
could result in up to and including termination of his employment.” (Id.) Mr.
Charley further testified that other employees have been disciplined for using
profanity in his department. (Id.)
          Claimant testified as follows.   The incident occurred when he saw Mr.
Dicesare writing a note on a white board that another employee was going to be
late. (Id. at 16.) Claimant jokingly asked Mr. Dicesare why he was noting that the
other employee was arriving late when the other employee is typically late. (Id.)
Mr. Dicesare responded by asking if that was true, and after a brief discussion on
the other employee’s conduct, the conversation ended without any use of profanity.
(Id.) Claimant was not aggressive and used a normal tone of voice. (Id. at 17.)


                                           3
Claimant is in the police academy and was, at the time of the incident, looking for
other work. (Id. at 18.) Claimant assumed that the fact that he was looking for
work got back to Employer and that Employer decided to push him out of his job.
(Id.)
        Claimant further testified that profanity is common at his workplace and that
its use is not limited to quoting others when reporting an incident. (Id.) Claimant
acknowledged that the use of profanity is prohibited by the Policy but understood
the Policy to only prohibit such language in proximity of patients or visitors. (Id.
at 20.) When asked to name others who used profanity at the workplace, Claimant
could not identify any specific person because, in Claimant’s view, profanity was
just so common. (Id. at 19.) At no point in the disciplinary process did Claimant
tell his supervisors that profanity was commonplace or that he was being treated
differently than other similarly situated employees. (Id. at 21-22.)
        After reviewing the evidence presented, the Referee made the following
findings of fact.

   1. [C]laimant was employed full-time as a Security Officer with
      [Employer] from April 8, 2013 through February 2, 2016 at a final
      rate of pay of $14.25 per hour.
   2. [E]mployer has a Corrective Action and Discharge policy providing
      for termination from employment for future violation of any UPMC
      or Department policy.
   3. [E]mployer Corrective Action and Discharge policy provides for
      corrective action for profane or inappropriate language.
   4. [C]laimant was aware of [E]mployer[’s] policies and the potential
      consequence of their violation.
   5. On December 1, 2015, [E]mployer provided [C]laimant with a Final
      Written Warning for work Negligence or Carelessness.
   6. On February 2, 2016, [C]laimant voiced dissatisfaction with his
      coworkers and hospital operations to the Security Manager.
   7. During the above incident, [C]laimant raised his voice, pounded his
      fists on a desk, and used profanity with the Security Manager
      including “this is f**ked up” and “what’s the big f**king deal”.
                                          4
(FOF ¶¶ 1-7.) Based on the above factual findings, the Referee concluded that
Claimant was ineligible for UC benefits because his discharge was for reasons
considered to be willful misconduct. (Board Op. at 3.) According to the Referee:

        [E]mployer provided credible testimony to demonstrate that
        [C]laimant was on a final written warning and subject to termination
        for violation of [the P]olicy. [E]mployer further provided credible
        testimony to demonstrate a policy prohibiting profanity or
        inappropriate language and [C]laimant’s violation of this policy.
        [C]laimant denies using profanity but also argues that profanity was
        commonplace. [C]laimant failed to cite any specific examples when
        profanity was previously used in the workplace. [Mr. Dicesare]
        provided credible testimony that the only acceptable use of profanity
        was repeating language used by someone else when necessary to
        report an incident. Credibility on the issues is found in favor of
        [E]mployer[’s] witness. [C]laimant’s testimony is found to be self-
        serving and not credible. There is no evidence of record to
        demonstrate that [E]mployer’s policies are unreasonable or to show
        that [C]laimant had good cause for violating the [E]mployer’s
        policies. [C]laimant’s actions are found to demonstrate a willful
        disregard of [E]mployer’s interests rising to the level of misconduct
        and [C]laimant’s request for UC benefits must be denied in
        accordance with Section 402(e) of the Law.

(Id.)
        Claimant appealed to the Board, which adopted the Referee’s findings and
conclusions of law in their entirety in an Order issued May 9, 2016. (Board Op. at
1.)     The “Board specifically discredit[ed] that the [C]laimant did not use
profanity.” (Board Op. at 1.) Claimant, now proceeding without the assistance of
counsel, sought reconsideration by the Board arguing that the Board misinterpreted
the Policy, that the Board’s findings of fact were incorrect and prejudicial, and that
the Board erred in concluding that Employer met its burden.             (Request for




                                          5
Reconsideration, C.R. at Item 17.) The Board denied reconsideration on June 3,
2016. Claimant timely filed this appeal from the May 9, 2016 merits order.2


II.    CLAIMANT’S APPEAL
       On appeal, Claimant makes a variety of procedural and substantive
arguments. Claimant argues: (1) that the Board abused its discretion by denying
his request for reconsideration; (2) that the UC Service Center staff and Referee
inaccurately recorded Claimant’s statements; (3) that the Referee did not provide
Claimant with an opportunity to argue that his actions were justified by good
cause; (4) that the Board erred in making its credibility determination and findings
of fact; (5) that Employer did not meet its burden to show willful misconduct; and
(6) that the Board erred by not finding Claimant’s conduct de minimis in nature
and that Claimant was subject to disparate treatment. We will first address
Claimant’s arguments related to the procedural issue and then proceed to the
substance of the Board’s Opinion.


       A.     Claimant’s Procedural Arguments
       We will first address Claimant’s procedural arguments, starting with his
contention that the Board abused its discretion by not granting reconsideration.
Claimant did not appeal the Board’s June 3, 2016 Order denying reconsideration,
and only appealed the Board’s May 9, 2016 Order. Thus, the only Order under



       2
         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 facts are
supported by substantial evidence. Chapman v. Unemployment Compensation Board of Review,
20 A.3d 603, 606 n.3 (Pa. Cmwlth. 2011).

                                               6
review is the May 9, 2016, and we cannot consider Claimant’s arguments related to
the Board’s June 3, 2016 Order denying reconsideration.3
       Claimant next argues that the UC Service Center staff and the Referee’s staff
inaccurately recorded his statements. Claimant specifically focuses on his initial
interview with UC Service Center staff and argues that he does not recall making
the exact statements documented in the interview notes. Claimant contends that
the inaccurate notes damaged his credibility with the Referee, but does not identify
any specific portion of the interview notes he finds objectionable.                      However,
Claimant testified directly to the Referee and had the opportunity, at that time, to
explain that his statements had been inaccurately recorded or to clarify his previous
statements. However, he did not do so. Because Claimant did not raise these

       3
          We note that, if Claimant had appealed the June 3, 2016 Order, we would have
concluded that the Board did not abuse its discretion by denying Claimant’s request for
reconsideration. The Board’s “decision to grant or deny a request for reconsideration is a matter
of administrative discretion.” Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779
(Pa. Cmwlth. 1999). As such, our review is limited to determining whether the Board abused its
discretion. Id. The Board’s regulations provide that it may grant reconsideration if there is
“good cause” to do so. Id. (citing 34 Pa. Code § 101.111). “In determining whether ‘good
cause’ exists, the Board must consider whether the party requesting reconsideration has
presented new evidence or changed circumstances or whether it failed to consider relevant law.”
Id.
        Claimant argues that reconsideration was warranted because his circumstances changed
when he assumed pro se status. Claimant argues that he was ineffectively represented by counsel
at the hearing before the Referee and in his appeal to the Board, and that he was unable to
represent himself in the earlier stages in the process. In his request for reconsideration and in his
brief to this Court, Claimant does not contend that reconsideration is required so that new
evidence can be presented. The only new information he seeks to present is his personal
perspective of the case independent of his attorney. Claimant’s decision to represent himself is
not the type of changed circumstances that establishes good cause for reconsideration when no
new evidence is presented and the arguments made could have been made to the Referee and
Board. Bushofsky v. Unemployment Comp. Bd. of Review, 626 A.2d 687, 690 (Pa. Cmwlth.
1993).



                                                 7
issues to the Referee or the Board when he had the opportunity to do so, he cannot
raise them for the first time on appeal. Chapman v. Unemployment Comp. Bd. of
Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (citing Section 703(a) of the
Administrative Agency Law, 2 Pa. C.S. § 703(a)).
       In his final procedural argument, Claimant contends that he was not
provided with an opportunity to present evidence of good cause for his actions.
Review of the record reveals no instances where Claimant was restrained from
showing good cause. On the contrary, Claimant testified to the Referee that he did
not use profanity in the instance alleged by Employer, and that if he did use
profanity in other conversations, such use was common at the work environment.
(Hr’g Tr. at 19.) It is not clear to this Court how Claimant could have shown good
cause for an act he testified that he did not commit.4


       B.     Claimant’s Challenges to the Substance of the Board’s Decision
       Claimant next raises a series of objections to the substance of the Board’s
Decision. Claimant’s first challenge to the Board’s Decision is that the Board’s
credibility determinations and findings of fact were biased against him. Nothing in
the record, Claimant argues, validates the Board’s decision to believe Employer’s
witnesses over Claimant’s testimony.
       “This Court’s review of a decision by the Board does not permit it to
reweigh the evidence or substitute its own findings for those made by the Board.”
Chartiers Cmty. Mental Health & Retardation Ctr. v. Unemployment Comp. Bd. of

       4
         To the extent that Claimant’s argument that profanity was common at the workplace can
be construed as a good cause argument, this argument was rejected by the Board when it credited
Mr. Dicesare’s testimony showing that profanity was only appropriate when reporting an
incident over Claimant’s contrary testimony.

                                              8
Review, 134 A.3d 1165, 1173 (Pa. Cmwlth. 2016). Credibility determinations are
the province of the Board, “which may either accept or reject a witness’ testimony
whether or not it is corroborated by other evidence of record.” Chapman, 20 A.3d
at 607. Findings of fact made by the Board “are conclusive upon review provided
that the record, taken as a whole, contains substantial evidence to support the
findings.” Id. In determining whether the findings of fact are supported by
substantial evidence, this Court examines “the evidence in the light most favorable
to the party who prevailed before the Board, and to give that party the benefit of all
inferences that can be logically and reasonably drawn from the testimony.” Id.
Here, Claimant does not point to any specific finding not supported by substantial
evidence. Instead, he asks this Court to reweigh the evidence, which we cannot do.
Accordingly, we will not disturb the Board’s credibility determinations and
findings of fact.
      While the Board is the ultimate fact finder and its findings are conclusive
upon review if supported by substantial evidence, “[w]hether an employee’s
conduct constitutes willful misconduct is a question of law subject to this Court’s
review.” Id. at 606. Section 402(e) of the Law provides, “[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). The Law does not define willful
misconduct; however, numerous decisions of this Court have defined the term as:

      (1) the wanton and willful disregard of the employer’s interests; (2)
      the deliberate violation of rules; (3) the disregard of standards of
      behavior that an employer can rightfully expect from his employee; or
      (4) negligence which manifests culpability, wrongful intent, evil
      design, or intentional and substantial disregard for the employer’s
      interests or the employee’s duties and obligations.

                                          9
Chapman, 20 A.3d at 606-07. The employer bears the burden of proving willful
misconduct. Id. at 606. Should the employer meet its burden, the burden shifts to
the claimant to prove that he had good cause for his actions. Id. at 607.
      Claimant contends that the Board erred in concluding that Employer met its
burden to show willful misconduct. Claimant’s argument in this regard rests on an
incorrect understanding of willful misconduct. In his brief, Claimant treats the
four-part definition of willful misconduct detailed above as four elements that must
all be met and argues that Employer did not present evidence to satisfy every
element. However, the use of the word “or” to separate the four parts of the
definition of willful misconduct is given its normal disjunctive meaning. As such,
the four-part definition above provides four separate examples of willful
misconduct, not four necessary elements.
      The Board concluded that Claimant’s actions “demonstrate a willful
disregard of the employer’s interests rising to the level of misconduct . . . .”
(Board Op. at 3.) We agree. Employer has a policy against using profanity, and
the Board found that Claimant used profanity directed at his supervisor after
receiving a final disciplinary warning pursuant to the Policy. Claimant does not
argue, and has not presented any evidence showing, that Mr. Dicesare provoked his
use of profanity. As this Court has held that “[e]ven a single instance of vulgarity
addressed to and unprovoked by a supervisor may support a finding of willful
misconduct,” Viglino v. Unemployment Comp. Bd. of Review, 525 A.2d 450, 453
(Pa. Cmwlth. 1987), we see no error in the Board’s conclusion.
      Claimant argues that even if he did use profanity, it was a de minimis
violation of the Policy, and that other employees were not terminated for similar
conduct. With regard to Claimant’s disparate treatment defense, “[t]he essence of


                                         10
disparate treatment is that similarly situated people are treated differently, based
upon an improper criterion.” American Racing Equipment, Inc. v. Unemployment
Comp. Bd. of Review, 601 A.2d 480, 482 (Pa. Cmwlth. 1991).                   We have
explained:

      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 [the]
      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.


Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974
(Pa. Cmwlth. 2009). The burden is on the claimant to prove the elements of a
disparate treatment defense.
       When asked to identify any other employees who used profanity but were
treated differently, Claimant could not identify any other employees by name.
(Hr’g Tr. at 17.) Instead, he testified that “every individual that I’ve worked with
has used profanity at some point.” (Id.) The Board found Claimant’s testimony
not credible and credited Mr. Charley’s testimony that others were disciplined for
using profanity. Because Claimant did not present any credible evidence showing
that other employees who engaged in similar conduct were not disciplined pursuant
to the Policy, he cannot avail himself of the disparate treatment defense.
      Finally, Claimant argues that even if he did use profanity, such use was de
minimis. The use of vulgar language in the workplace will generally not be
considered willful misconduct if the offensive language was provoked or de
minimis. Cundiff v. Unemployment Comp. Bd. of Review, 489 A.2d 948, 951 (Pa.

                                         11
Cmwlth. 1985).     To that end, this Court assesses whether the conduct was
“reasonable under the circumstances.” Id. Here, the credited evidence is that
Claimant, dissatisfied with the conduct of other employees and Employer’s
policies, “raised his voice, pounded his fists on a desk, and used profanity with
[Mr. Dicesare].” (FOF ¶¶ 6-7.) Claimant’s conduct was so aggressive that Mr.
Dicesare grew concerned over Claimant’s mental state. (Hr’g Tr. at 12.) We agree
with the Board that such behavior was not reasonable under the circumstances.
This conduct was unprovoked, vulgar, and aggressive. We, therefore, affirm the
Board’s conclusion that Claimant’s violation was not de minimis and that
Employer met its burden of showing willful misconduct.
      For the reasons stated above, the Order of the Board is affirmed.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                        12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven P. Joncas, II,                  :
                        Petitioner     :
                                       :
                   v.                  :   No. 997 C.D. 2016
                                       :
Unemployment Compensation Board        :
of Review,                             :
                    Respondent         :



                                     ORDER


      NOW, February 1, 2017, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is AFFIRMED.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
