          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert J. Ross,                             :
                    Petitioner              :
                                            :
             v.                             :
                                            :
Unemployment Compensation                   :
Board of Review,                            :   No. 1571 C.D. 2018
                 Respondent                 :   Submitted: May 24, 2019



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                         FILED: October 11, 2019

             Robert J. Ross (Claimant), pro se, petitions for review of the October
5, 2018 order of the Unemployment Compensation Board of Review (Board)
affirming the determination of the referee finding Claimant ineligible for
unemployment compensation benefits under the Unemployment Compensation Law
(Law).1 Upon review, we affirm.
             Claimant was employed as a senior mortgage originator with PHH
Mortgage (Employer) from November 27, 2017 to June 4, 2018. Certified Record
(C.R.), Item No. 13, Board’s Decision & Order at 1, Board’s Finding of Fact (F.F.
1. In the latter part of May 2018, Claimant’s supervisor asked Employer’s Human

      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751 – 919.10.
Resources (HR) department to arrange a meeting with Claimant in order to provide
him with a counseling memo regarding his attendance, which constituted the first
level of discipline under Employer’s procedures. F.F. 2. This meeting was held on
or around June 1, 2018, at which time Claimant was informed that he would be
delivered a performance improvement plan, as his performance in May fell within
the bottom 10% of Employer’s sales floor. Id.
             Following the meeting, Claimant e-mailed an associate HR business
partner expressing concerns and requesting another meeting. F.F. 3. A subsequent
meeting occurred on or about June 4, 2018, at which Claimant complained about the
distribution of sales leads, the purported manipulation of his timecard by a
supervisor and an alleged hostile work environment. Id. Employer permitted
Claimant to stay home on June 5 and 6, 2018 while Employer investigated his
concerns. F.F. 4. On or about June 5, Employer’s associate HR business partner
informed Claimant of Employer’s determination that no hostile work environment
existed and asked Claimant to report to work half an hour prior to the start of his
shift on June 7, 2018 in order to provide him with the results of the investigation.
Id. Employer determined that supervisors were adjusting timecards based on phone
logs, resulting in discrepancies of a minute or two, but did not find that Claimant
was owed any money. F.F. 5. Employer instructed the entire sales floor that
timecards were not to be adjusted without actual verbal communication to serve as
confirmation. Id. Employer further found that leads were distributed in accordance
with performance metrics and determined that consultants with similar performance
levels were treated the same. F.F. 6.
             Employer met again with Claimant on June 7, 2018 as scheduled. F.F.
7. Claimant disagreed with Employer’s findings but was expected to return to work.


                                         2
Id. Claimant thereafter texted his Employer and asked to be “marked out” June 7,
2018, as he was not returning to work that day. Id. Employer treated this absence
as unexcused, warranting level-two disciplinary action in the form of a written
warning. Id. Claimant also asked to be “marked out” on June 8, 2018, resulting in
a final warning from Employer.            F.F. 8.    The associate HR business partner
communicated to Claimant by e-mail that his employment would be in jeopardy if
he did not return. Id. Claimant failed to report to work on Monday, June 11, 2018,
instead sending a text message to his supervisor asking to be “marked out” for the
day without explanation. F.F. 9. Consequently, Employer terminated Claimant for
failure to return to work. F.F. 10.
              As a result of his separation from employment, Claimant applied for
unemployment compensation benefits. C.R., Item No. 2, Internet Initial Claims at
1.    The Unemployment Compensation Service Center of the Pennsylvania
Department of Labor and Industry (Department) found that, under the circumstances
of the case, Claimant’s absenteeism constituted willful misconduct pursuant to
Section 402(e) of the Law,2 43 P.S. § 802(e), thereby rendering Claimant ineligible
for benefits. C.R., Item No. 6, Notice of Determination at 1. Claimant appealed to
a referee and a hearing was held, at which Claimant and three witnesses for
Employer testified. C.R. Item No, 10, Transcript of Testimony, 8/21/18 at 1.
Subsequently, the referee issued a decision and order finding that Claimant
voluntarily left his employment without necessitous and compelling cause and was,
therefore, ineligible for benefits pursuant to Section 402(b) of the Law, 43 P.S. §
802(b). C.R., Item No. 11, Referee’s Decision & Order at 2-3.


       2
         Section 402(e) of the Law provides 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).
                                               3
               Claimant appealed the referee’s denial of benefits to the Board. C.R.
Item No. 12, Claimant’s Appeal, 8/27/18. Thereafter, the Board issued a decision
and order affirming the referee’s decision, albeit on different grounds. C.R., Item
No. 13, Board’s Decision & Order at 1. The Board concluded that Claimant’s refusal
to return to work rose to the level of willful misconduct and, therefore, rendered him
ineligible for benefits under Section 402(e) of the Law. Id. at 3.
               On appeal,3 Claimant requests that this Court reverse the Board’s
determination that Claimant is ineligible for benefits. Claimant’s Brief at 11-12.
Claimant argues that the Board erred when it considered this matter to be a case of
willful misconduct rather than one of a voluntary termination. Id. at 10. Claimant
argues that the Board erred in disregarding the referee’s findings of fact concerning
the actual workplace conditions, while considering those testified to by Employer’s
representatives. Id. at 10-11. In response, the Board asserts that the totality of the
circumstances indicate that Claimant was terminated for willful misconduct. See
Board’s Brief at 7-9.
               “The employer has the burden of proving that it discharged an
employee for willful misconduct.” Adams v. Unemployment Comp. Bd. of Review,
56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). This Court has defined willful misconduct
as:


               (1) wanton and willful disregard of an employer’s
               interests; (2) deliberate violation of rules; (3) disregard of
               the standards of behavior which an employer can

       3
         “The Court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, whether a practice or procedure of the Board was not
followed or whether the findings of fact are supported by substantial evidence in the record.” W.
& S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth.
1991); see also 2 Pa.C.S. § 704.
                                                4
             rightfully expect from an employee; or, (4) negligence
             showing an intentional disregard of the employer’s
             interests or the employee’s duties and obligations.


Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.
2014). Once an employer establishes a prima facie case of willful misconduct, the
burden shifts to the claimant to prove good cause for his actions. Downey v.
Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006).
             “A determination of whether a claimant’s separation from employment
was a voluntary resignation or a discharge is made by examining the facts
surrounding the claimant’s termination of employment.” Pa. Liquor Control Bd. v.
Unemployment Comp. Bd. of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994).
Further, “[s]uch determination is a question of law to be made based upon the
Board’s findings.” Id. “A finding of voluntary termination is essentially precluded
unless the claimant has a conscious intention to leave his employment.” Fekos
Enters. v. Unemployment Comp. Bd. of Review, 776 A.2d 1018, 1021 (Pa. Cmwlth.
2001). “In determining the intent of the employee, the totality of the circumstances
surrounding the incident must be considered.” Id.
             As noted, Claimant essentially argues that the Board erred in denying
him benefits, because he was forced to quit his employment due to Employer’s
alleged creation of a hostile work environment. See Claimant’s Brief at 10-11.
Claimant cites Treon v. Unemployment Compensation Board of Review, 453 A.2d
960 (Pa. 1982), in which the Pennsylvania Supreme Court stated that the Board “did
not have the right to arbitrarily and capriciously disregard the findings of the referee
when the referee listened to the testimony of the sole witness and observed his
demeanor, and made findings of fact based upon that uncontradicted testimony.”


                                           5
Claimant’s Brief at 11 (citing Treon, 453 A.2d at 962). Claimant asserts the alleged
hostile work environment fostered by Employer “is not materially different” from
the circumstances in Treon, where the employer expected the claimant to travel long
distances to a new construction site. Id. Claimant also contends Employer’s
witnesses “arrived at the . . . hearing well scripted,” “brought no records,” and
“claimed a set of discipline rules that nobody followed, because [the sales leads
manager] controlled everything[.]” Id. Claimant claims the sales leads manager did
not appear at the hearing and did not attempt to rebut Claimant’s testimony regarding
either him or the hostile work environment. Id.
             We first note that Claimant’s arguments that the Board disregarded the
referee’s findings and that the Board was not permitted to unilaterally “change” the
case from a Section 402(b) voluntary quit case to a Section 402(e) willful misconduct
case are without merit. Section 504 of the Law provides, in part:


             The [B]oard shall have power, on its own motion, or on
             appeal, to remove, transfer, or review any claim pending
             before, or decided by, a referee, and in any such case and
             in cases where a further appeal is allowed by the board
             from the decision of a referee, may affirm, modify, or
             reverse the determination or revised determination, as the
             case may be, of the [D]epartment or referee on the basis of
             the evidence previously submitted in the case, or direct the
             taking of additional evidence.

43 P.S. § 824. Therefore, the Board had the authority to modify the determination
of the referee.
             Further, Claimant’s reliance upon Treon is misplaced, because, here,
both sides presented testimony and, contrary to Claimant’s assertions, his testimony
was not uncontradicted. In Peak v. Unemployment Compensation Board of Review,

                                          6
501 A.2d 1383 (Pa. 1985), the Pennsylvania Supreme Court explained that where
testimony is conflicting, the Board is not bound by the facts found by the referee;
rather, the Board is “the ultimate finder of fact with power to substitute its judgment
for that of its referees on disputed facts.” Id. at 1386-87; cf. Griffith Chevrolet-Olds,
Inc. v. Unemployment Comp. Bd. of Review, 597 A.2d 215, 246 (Pa. Cmwlth. 1991)
(holding that where referee’s findings are based on uncontradicted evidence, Board
may disregard those findings when it sets forth its reasons for reversal or the reason
for reversal is clear from record). Consequently, the Board was not bound by the
referee’s findings.
             An examination of the facts surrounding Claimant’s separation from
employment supports the Board’s determination that Claimant was discharged due
to willful misconduct, rather than that Claimant quit. Employer’s associate HR
business partner testified that Claimant only asked to be marked out for the day each
time he failed to report to work, and also that she had warned Claimant that his job
would be in jeopardy if he did not return to work. C.R. Item 10, Transcript of
Testimony at 9-10. Further, although Claimant testified that “this was a forced quit
because of the hostile situation,” Claimant reported on his Internet Initial Claims
form that he had been discharged due to tardiness. Id. at 29; Internet Initial Claims,
6/18/18 at 2. Claimant also indicated to Employer by e-mail on June 4, 2018 that he
was “not resigning or leaving th[e] organization,” and that he “look[ed] forward to
resuming [his] duties” after the issues were addressed. C.R., E-mail, 6/4/18. Thus,
the totality of the circumstances surrounding Claimant’s separation from
employment substantially support the finding that Claimant lacked the requisite
intention to quit. See Fekos Enters., 776 A.2d at 1021; Pa. Liquor Control Bd., 648
A.2d at 126.     Therefore, we find no error in the Board’s determination that


                                           7
Claimant’s separation was due to a termination.
             Notably, Claimant does not challenge the determination that his actions
constituted willful misconduct. To the extent Claimant’s argument regarding a
hostile work environment could be construed as a contention that he had good cause
for his actions, this argument fails. Although Claimant alleged a hostile work
environment, the Board did not credit Claimant’s assertion in this regard, but found
instead that Claimant failed to report to work because he wanted to be assigned to a
different supervisor or to be given a new position within the company, for which he
did not qualify. F.F. 11 & 12. These reasons do not constitute good cause for failing
to report to work. Green Tree Sch. v. Unemployment Comp. Bd. of Review, 982 A.2d
573, 578 (Pa. Cmwlth. 2009) (stating, “[e]mployees do not enjoy a general right to
participate in management decisions, such as how many staff are needed in another
department”).
             Accordingly, we affirm.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert J. Ross,                    :
                  Petitioner       :
                                   :
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :   No. 1571 C.D. 2018
                 Respondent        :


                               ORDER


            AND NOW, this 11th day of October, 2019, the October 5, 2018
decision and order of the Unemployment Compensation Board of Review is
AFFIRMED.




                                 __________________________________
                                 CHRISTINE FIZZANO CANNON, Judge
