          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Josue E. Colon,                                  :
                               Petitioner        :
                                                 :
                v.                               :   No. 10 C.D. 2017
                                                 :   Submitted: March 8, 2018
Unemployment Compensation                        :
Board of Review,                                 :
                    Respondent                   :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                 FILED: April 2, 2018

                Josue E. Colon (Claimant), represented by counsel, 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 (relating to willful misconduct). Claimant argues the Board
erred in concluding his conduct in keeping cut produce a day past its discard date
violated a work rule when posted discard dates merely represented a best practice.
He contends Wegmans Food Markets (Employer) did not enforce the discard dates
uniformly, and his conduct was consistent with the practice of other employees,
including his supervisor, who routinely extended the discard dates on cut vegetables.
He also asserts the referee erred in excluding testimony that other employees,
including his supervisor, told him it was permissible to extend discard dates.
Discerning no error below, we affirm.


      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
                                   I. Background
             Since 2001, Claimant worked for Employer, most recently as a Team
Leader Cook in the Sushi Department. When Employer conducted an internal audit,
it discovered the Sushi Department used cut vegetables beyond the discard date set
forth on the shelf life matrix (Shelf Life Matrix) posted in kitchen areas. In July
2016, Employer discharged Claimant because he admittedly did not discard cut
vegetables in accordance with the Shelf Life Matrix. Claimant applied for UC
benefits, which the local service center denied. Claimant appealed.


             A referee held a hearing where Claimant was represented by counsel,
and Employer was represented by a tax consultant. Claimant testified on his own
behalf.   Employer presented the testimony of Michele McGeary (Employee
Representative) and Perishable Manager William McElwee (Manager).


             Employee Representative testified about Employer’s food safety
policies and procedures. She explained the Shelf Life Matrix sets the dates for
storage and discard of the products, and “falls under the food safety policy under the
good retailing best practices.” Referee’s Hr’g, 9/13/16, Notes of Testimony (N.T.)
at 11. A violation of food safety procedures is grounds for termination.


             Employee Representative also attended the meeting with Claimant
where Employer revealed its audit findings. During the meeting, Claimant admitted
it was a violation of food safety policies to extend the shelf life of produce. N.T. at
5. However, at the same time Claimant insisted, “it’s always been that way”
regarding extending discard dates on cut vegetables. N.T. at 10.



                                          2
             Manager was involved in the investigation and meeting that led to
Claimant’s discharge when Claimant’s supervisor was unavailable. He confirmed
the auditor found noncompliance with the Shelf Life Matrix in the Sushi Department.
Manager explained the Shelf Life Matrix “existed as a resource for departments for
several years now.” N.T. at 13. He emphasized that, as Team Leader, Claimant was
“in charge of making sure all the best practices [were] being followed.” Id.


             During the investigation, Claimant did not advise Employer that he was
instructed to extend the shelf life by any supervisor. During his second meeting with
Manager, Claimant admitted he knew extending the dates was wrong under the food
safety guidelines. N.T. at 17. Manager acknowledged that Employer warned other
employees accused of the same offense. N.T. at 18.


             Claimant testified he was aware of the Shelf Life Matrix, but he did not
think it was a requirement. Based on the course of conduct he observed in the
kitchens, Claimant believed that when a product was still usable, he had the
discretion to keep it for an extra day. He testified his supervisor (the sous chef)
allowed him to extend the discard date on vegetables, so he considered the Shelf Life
Matrix a guideline. Claimant also instructed employees who reported to him as
Team Leader that they could extend the shelf life of vegetables by one day.


             When Claimant attempted to testify as to what other employees told him
about the Shelf Life Matrix, Employer’s representative raised a hearsay objection;
the referee sustained it. Claimant’s counsel argued the testimony was not offered
for the truth of the matter asserted, but for Claimant’s “state of mind … [which]



                                         3
becomes relevant because it’s whether this is a rule or a best practice or policy or
procedure.” N.T. at 22. In his offer of proof, Claimant testified that based on what
other employees told him, he thought it “was okay” to extend discard dates. Id.


             Claimant admitted the Shelf Life Matrix was posted in his department,
and Employer adopted it as a procedure. N.T. at 23. He also conceded during the
meeting preceding his discharge that extending the discard date was “the wrong
practice and I did wrong.” N.T. at 25.


             The referee admitted the Shelf Life Matrix as Employer’s exhibit.
Entitled “Sushi Shelf Life,” it states: “Respect the Date - Food Integrity. No
products are to be sold beyond their expiration date regardless if hot or cold &
packaged or unpackaged.” Certified Record, Item No. 9 (Ex. E-1).


             The referee determined Claimant was ineligible for UC benefits under
Section 402(e) of the Law. She made the following pertinent findings:

             2. [E]mployer’s Policies and Work Rules call for disciplinary
             action for violations of the Food Safety Policy/procedures.

             3. [C]laimant was aware of [E]mployer’s Food Safety
             Policy/procedures and, as the team leader, responsible for
             ensuring compliance among his staff.

             4. [E]mployer has a [Shelf Life Matrix] that calls for food items
             to be discarded after a certain number of days in order to ensure
             food safety for customers.

             5. [C]laimant was aware of the Shelf Life [M]atrix that indicated
             that cut vegetables were to be discarded after four days (day of
             production[,] plus three days).



                                          4
              6. The bins containing the food items are labeled with the
              production and discard dates.

              7. During an internal audit, [E]mployer became aware that food
              items in [the] sushi area were not discarded on the discard date
              and the discard date was extended past the original date.

              8. On July 8, 2016, when questioned by [E]mployer about
              extending the discard dates, [C]laimant admitted that he
              extended the date on vegetables.

              9. On July 12, 2016, during a follow-up interview, [C]laimant
              admitted that extending the dates was the wrong practice and that
              he did wrong.

              10. On July 12, 2016, [E]mployer discharged [C]laimant for
              violating its Food Safety Policy/procedures.

Referee’s Dec., 9/13/16, Findings of Fact (F.F.) Nos. 2-10. The referee concluded
that Employer’s “Food Safety Policy/procedures requir[e] that employees follow the
Shelf Life [M]atrix that determines when a food item must be discarded to ensure food
safety for customers.” Id. at 2.


              Ultimately, the Board determined Claimant was ineligible for UC
benefits, adopting the referee’s findings and conclusions. Bd. Op., 12/5/16, at 1.
Claimant now petitions for review. After briefing, the matter is ready for disposition.


                                      II. Discussion
              On appeal,2 Claimant argues the Board erred in concluding the Shelf
Life Matrix constituted a work rule. Because other employees did not follow the

       2
          “Our 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 Comp. Bd. of Review, 87 A.3d 1006,
1013 n.2 (Pa. Cmwlth. 2014).

                                              5
Shelf Life Matrix, and his supervisor stated it was not required, Claimant contends
he had good cause for his conduct. He also asserts his testimony about what other
employees, including his supervisor, told him about the Shelf Life Matrix should
have been admitted under the state of mind exception to the hearsay rule.


             The Board responds that Employer established the Shelf Life Matrix
was a rule. Because Claimant was aware of the Shelf Life Matrix, and decided not
to follow it, he committed willful misconduct. The Board asserts Claimant did not
establish good cause through uneven enforcement or an accepted past practice.


                               A. Willful Misconduct
             Pursuant to 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.
Although the Law does not define “willful misconduct,” appellate courts define it 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 of an employee; or[,] (d) negligence indicating an intentional
disregard of the employer’s interest or an employee’s duties or obligations.” Grieb
v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). The issue
of whether a claimant’s conduct constitutes willful misconduct is a question of law
fully reviewable by this Court. Ductmate Indus., Inc. v. Unemployment Comp. Bd.
of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).


             An employer bears the initial burden of showing a claimant committed
willful misconduct. Id. An employer seeking to prove willful misconduct by a rule



                                          6
violation must demonstrate the existence of the rule, its reasonableness, and its
violation. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa.
Cmwlth. 1999). “The employer must also show that the employee intentionally or
deliberately violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment
Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016).


             Once an employer proves a rule violation, the burden then shifts to the
claimant to show good cause for the violation. Chapman v. Unemployment Comp.
Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011). A claimant shows good cause by
“demonstrating that uneven enforcement has rendered a policy unreasonable.” Id. at
607.


                                   1. Rule Status
             There is no dispute that Claimant violated the Shelf Life Matrix.
Claimant challenges the status of the Shelf Life Matrix as a rule when it actually
represents a best practice offering guidance. He maintains its status as a rule was
ambiguous given the common practice of extending discard dates in the kitchen, and
when his supervisor and other employees told him the practice was “okay.” N.T. at 22.


             In support of his argument that the Shelf Life Matrix was not a rule,
Claimant cites Employer’s witnesses’ references to it as a “best practice.” Pet’r’s Br.
at 6. He also asserts that his testimony as to what other employees told him was
improperly excluded as hearsay when it was offered to show his reason for believing
extending discard dates was permitted, not for the truth of the matter asserted.




                                           7
                               a. Employer’s Evidence

             Employer’s witnesses testified the Shelf Life Matrix was a part of
Employer’s food safety policies. N.T. at 11, 12. It was only in that context that they
used the term “best practice.” Id. Specifically, Manager testified Employer conducted
an internal audit of departments to ensure that they were complying with food safety
practices “as they apply to work rules.” Id. at 12. Aside from an internal audit to
assess compliance, Manager emphasized that Claimant, as Team Leader, was
responsible for making sure his team followed food safety practices. N.T. at 13.


              Claimant attended “various trainings regarding food safety and
management of expiration dates.” N.T. at 6. Manager testified the training includes
review of the Shelf Life Matrix, and employees “[are] made aware that they are to
follow the matrix ….” N.T. at 14. Further, both of Employer’s witnesses testified
that during the meeting preceding his termination, Claimant admitted he violated the
food safety policy and procedures. N.T. at 6, 17.


             The Board is the ultimate fact-finder. Oyetayo v. Unemployment
Comp. Bd. of Review, 110 A.3d 1117 (Pa. Cmwlth. 2015). The Board may credit
any witness, in whole or in part. Id. We consider the testimony “in the light most
favorable to the prevailing party, giving [it] the benefit of any inference that can
logically and reasonably be drawn from the evidence.” Johns v. Unemployment
Comp. Bd. of Review, 87 A.3d 1006, 1013 (Pa. Cmwlth. 2014) (citation omitted).


             Here, the Board credited Employer’s witnesses’ testimony, which
constitutes substantial evidence to support its findings as to the status of the Shelf Life


                                            8
Matrix. Examining their testimony in the light most favorable to Employer, Employer
established the Shelf Life Matrix was a rule of which Claimant was aware.


                               b. Hearsay Evidence

             Claimant asserts that evidence as to what others told him was relevant to
both whether he believed the Shelf Life Matrix was a rule, and the alleged willfulness
of his conduct. As a result, he argues the referee’s exclusion of this testimony
constitutes grounds for a remand for another hearing to admit such evidence.


             Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement. Commonwealth v. Laich, 777 A.2d 1057 (Pa.
2001); see Pa.R.E. 801(c). While hearsay is generally not admissible, evidence as
to a “declarant’s then-existing state of mind (such as motive, intent or plan)” falls
within an exception to the hearsay rule. Pa.R.E. 803(3). “[W]here a declarant’s out-
of-court statements demonstrate [his] state of mind, are made in a natural manner, and
are material and relevant, they are admissible pursuant to the exception.” Laich, 777
A.2d at 1060-61.


             Evidence as to what other employees, including Claimant’s supervisor,
told Claimant about the Shelf Life Matrix was not hearsay. Claimant’s counsel was
clear that the purpose of the testimony was not to prove the truth of employees’
statements that extending discard dates was acceptable, but rather to show the effect
on Claimant’s beliefs. N.T. at 22.




                                          9
               Regardless, assuming such statements constituted hearsay, they were
admissible under the state of mind exception. Hooker v. State Farm Fire & Cas. Co.,
880 A.2d 70 (Pa. Cmwlth. 2005). Based on what his supervisor told him, Claimant
believed it was within his discretion to use cut vegetables one day past the discard
date stated on the Shelf Life Matrix as long as “the product [was] still good.” N.T. at
21.


               However, the testimony has limited relevance as to whether the Shelf
Life Matrix was a rule. To the extent the evidence was relevant to Claimant’s beliefs,
Claimant’s admissions at the time of his discharge show that he recognized the Shelf
Life Matrix as part of Employer’s food safety policies. Therefore, the exclusion of
Claimant’s contradictory testimony that other employees told him extending discard
dates “was okay” does not affect the result. N.T. at 22.


               Additionally, Claimant’s supervisor’s alleged acquiescence in the
practice of extending discard dates beyond those in the Shelf Life Matrix does not
excuse Claimant’s conduct. Temple Univ. v. Unemployment Comp. Bd. of Review,
772 A.2d 416 (Pa. 2001) (claimant’s mistaken belief that supervisor may permit
conduct is not good cause for engaging in such conduct). That a supervisor authorizes
conduct does not show the employer necessarily accepts it.3


               Because the testimony as to what other employees told Claimant is not
relevant to the status of the Shelf Life Matrix as a rule, and is contradicted by



       3
         Factors for attributing a practice to an employer are addressed later in the past practice
section of this opinion.

                                                10
Claimant’s admissions, a remand for a hearing that develops this testimony is not
necessary.


                                  2. Rule Violation
             Claimant’s remaining arguments that he did not deliberately violate a
rule are equally unavailing. As analyzed above, the Shelf Life Matrix was a rule.
Claimant conceded he was aware of the Shelf Life Matrix, and it was a procedure that
Employer adopted. N.T. at 23. Claimant did not violate it by mistake. He made
deliberate decisions to extend discard dates on vegetables based on his experience that
“it’s okay to use [vegetables] one more day.” N.T. at 24. Claimant did not check with
his supervisor before extending discard dates, so it was not done at his supervisor’s
direction. Id. He also instructed his team to extend discard dates.


             Claimant’s testimony that he observed other employees not following
the discard dates also does not overcome evidence showing his deliberate violation.
Because some of those employees report to Claimant, and follow his example, their
failure to follow the Shelf Life Matrix does not show Employer condoned violations
of the discard dates. Rather, it shows that Claimant condoned such violations.


             Claimant also argues the Shelf Life Matrix is not a rule because nothing
in writing states that if an employee does not comply with the Shelf Life Matrix, he is
subject to discharge. However, “[i]t is not necessary that an employer’s reasonable
order or directive be written in order for the Court to determine that an employee’s
violation thereof constitutes willful misconduct ….” Graham v. Unemployment
Comp. Bd. of Review, 840 A.2d 1054, 1057 (Pa. Cmwlth. 2004).



                                          11
             Claimant’s admissions show he recognized the Shelf Life Matrix was a
procedure Employer expected to be followed. Yet, he did not follow it. Accordingly,
we conclude Employer met its burden to prove Claimant violated a rule.


                                    B. Good Cause
             Next, we consider whether Claimant demonstrated good cause for his
violation.   Claimant asserts Employer did not enforce the Shelf Life Matrix
consistently. He also argues that extending the discard date for vegetables by a day
was consistent with Employer’s actual practice.


             Claimant bears the burden of proving lack of enforcement of the policy.
Chapman. He may meet this burden by showing Employer allowed a practice that
conflicts with the policy, id., or by showing the policy was not uniformly enforced.
Beaver Falls v. Unemployment Comp. Bd. of Review, 441 A.2d 510 (Pa. Cmwlth.
1982).


                             1. Uneven Enforcement
             Discharge may be an excessive penalty for a policy violation when the
policy is not consistently enforced. See, e.g., Great Valley Publ’g v. Unemployment
Comp. Bd. of Review, 136 A.3d 532 (Pa. Cmwlth. 2016) (affirming Board;
employer failed to establish claimant’s use of internet amounted to willful
misconduct). Here, Claimant contends he should not have been discharged when
other employees only received a warning for the same violation. In essence, he
complains of disparate treatment.




                                         12
             However, “[t]o succeed on his defense, Claimant was required to
establish that Employer treated similarly situated employees differently based upon
improper criteria.” Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363,
370 (Pa. Cmwlth. 2008); Am. Racing Equip., Inc. v. Unemployment Comp. Bd. of
Review, 601 A.2d 480 (Pa. Cmwlth. 1991). In American Racing, we found no
disparate treatment occurred because the terminated employee was not similarly
situated to the other employees who received lesser discipline. There, we reasoned
that an employer may treat an employee differently based on his level of
responsibility.   Id.   Because the claimant was a manager, and the other two
employees who were not discharged for the same conduct were not managers, the
employer had a proper basis for imposing different discipline.


             Like the employee in American Racing, as Team Leader, Claimant was
a supervisor to whom other employees reported.           In that capacity, he had
responsibility for enforcing the Shelf Life Matrix as well as following it. There is
no indication that the other employees who were warned for violating the Shelf Life
Matrix also worked as supervisors. Thus, Employer did not apply an improper
criterion by discharging Claimant for failing to follow the Shelf Life Matrix.


             This Court also rejects Claimant’s contention that he was entitled to a
warning based on his misconception that the Shelf Life Matrix was not binding.
Claimant cites no legal support for this argument. Further, and to the contrary, the
Law contains no prior warning requirement. Graham. Also, “a lack of prior warnings
‘is not a defense in willful misconduct cases’ regarding admitted misconduct.”




                                         13
Chapman, 20 A.3d at 610 (quoting Pettyjohn v. Unemployment Comp. Bd. of Review,
863 A.2d 162, 165 (Pa. Cmwlth. 2004)).


             Claimant admittedly violated the Shelf Life Matrix. Because Claimant
did not establish he was similarly situated to the employees who were warned, he
did not show his conduct merited the same discipline, i.e., a warning instead of
discharge.


                                   2. Past Practice
             Claimant also argues Employer accepted the practice of extending the
discard date on cut vegetables one day beyond the Shelf Life Matrix. We disagree.
Claimant’s testimony that other employees routinely violated the Shelf Life Matrix
does not establish a “past practice” so as to excuse his violation.


             For an action to be considered a “past practice” in the employment
context, “it must be a practice which is unequivocal, clearly enunciated and acted
upon, readily ascertainable over a reasonable period of time as [a] fixed and
established practice accepted by both employer and employees.” Seton Co. v.
Unemployment Comp. Bd. of Review, 663 A.2d 296, 299 (Pa. Cmwlth. 1995)
(emphasis added). To establish an employer’s acceptance of the past practice,
evidence as to the employer’s awareness and toleration of the practice is necessary.
Compare Great Valley Publ’g (coworker’s testimony that she was not reprimanded
for violating policy and employer’s admission that it tolerated violations sufficed to
prove past practice), with Seton Co., 663 A.2d at 299 (substantial evidence did not
support past practice when “there is no testimony whatsoever in the record that



                                          14
management knew of or accepted the practice ....”), and Palmieri v. Unemployment
Comp. Bd. of Review (Pa. Cmwlth., Nos. 2106, 2107 C.D. 2011, filed August 14,
2012), 2012 WL 8700470 (unreported) (claimant failed to establish past practice
because director testified she had no knowledge of the practice).


            Here, there is no evidence that Employer accepted violations of the
Shelf Life Matrix. To the extent Employer was aware of violations, it did not
condone them. To the contrary, other employees who violated the Shelf Life Matrix
were disciplined in the form of a warning. N.T. at 18.


            Because Claimant did not establish Employer accepted the practice in
which he engaged, he failed to prove a past practice defense.


                                  III. Conclusion
            Employer met its burden of proving the Shelf Life Matrix was a rule.
Claimant admitted he was aware of the Shelf Life Matrix, and he violated the discard
date for cut vegetables.     He did not establish good cause for his actions.
Accordingly, the Board’s order is affirmed.




                                       ROBERT SIMPSON, Judge




                                        15
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Josue E. Colon,                        :
                        Petitioner     :
                                       :
            v.                         :   No. 10 C.D. 2017
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent


                                     ORDER

            AND NOW, this 2nd day of April, 2018, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.




                                      ROBERT SIMPSON, Judge
