                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin S. Bowman,                             :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :    No. 880 C.D. 2015
                    Respondent               :    Submitted: November 25, 2015


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: April 6, 2016

              Kevin S. Bowman (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) May 1, 2015 order
affirming the Referee’s decision denying UC benefits under Section 402(e) of the UC
Law (Law).2 Claimant presents four issues for this Court’s review: (1) whether the
UCBR erred by failing to recognize the ambiguity in the Pennsylvania Department of
Revenue’s (Employer) confidentiality policy (Employer’s Policy); (2) whether the
UCBR erred by finding that Claimant committed willful misconduct when he was
never given a warning; (3) whether the UCBR erred by capriciously disregarding
evidence of Claimant’s prior workplace commendation; and (4) whether the UCBR


       1
         This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
       2
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
erred by finding that Claimant did not have good cause to violate Employer’s Policy.
After review, we affirm.
               Claimant was employed as a full-time tax account collections technician
by Employer from October 23, 2006 until October 16, 2014. Employer’s Policy
prohibits the dissemination of confidential tax information, unless it is specifically
related to a work assignment.           Violation of Employer’s Policy is grounds for
discharge. Claimant was or should have been aware of Employer’s Policy. Claimant
was given permission to email confidential tax information needed to address
Claimant’s concerns about Employer’s computer database to a human resources (HR)
representative. However, on several occasions, Claimant emailed confidential tax
information to co-workers while complaining about the system and about
management. Claimant could have made the same complaints without attaching
confidential tax information. The email recipients did not have work assignments
related to the disseminated confidential tax information, and there was no business
purpose for including it.
               In May 2014, Claimant requested accommodations under the Americans
with Disabilities Act (ADA),3 including being excused from mandatory meetings and
interactions with management. Claimant was accommodated in accordance with his
ADA request. Claimant’s decision to disseminate confidential tax information to co-
workers was unrelated to his ADA request.            Employer discharged Claimant for
violating Employer’s Policy.          Claimant had no adequate justification to violate
Employer’s Policy. Claimant is able and available for work.
               Claimant applied for UC benefits. On October 29, 2014, the Altoona
UC Service Center issued a determination denying Claimant UC benefits under
Section 402(e) of the Law. Claimant appealed, and a Referee hearing was held. On

      3
          42 U.S.C. §§ 12101-12213.


                                              2
December 12, 2014, the Referee affirmed the UC Service Center’s decision.
Claimant appealed to the UCBR which remanded the matter to the Referee to address
Section 401(d)(1) of the Law.4 On May 1, 2015, the UCBR affirmed the Referee’s
decision. Claimant appealed to this Court.5
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for unemployment compensation benefits when
              his unemployment is due to discharge from work for willful
              misconduct connected to his work. The employer bears the
              burden of proving willful misconduct in an unemployment
              compensation case. Willful misconduct has been defined as
              (1) an act of wanton or willful disregard of the employer’s
              interest; (2) a deliberate violation of the employer’s rules;
              (3) a disregard of standards of behavior which the employer
              has a right to expect of an employee; or (4) negligence
              indicating an intentional disregard of the employer’s
              interest or a disregard of the employee’s duties and
              obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4
(Pa. Cmwlth. 2000) (citation omitted).               “When an employee is discharged for
violating a work rule, the employer must prove the existence of the rule and the fact
of its violation.” Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377
(Pa. Cmwlth. 2012). “Once the employer has met its initial burden, the burden then
shifts to the claimant to show either that the rule is unreasonable or that claimant had
good cause for violating the rule.” Cnty. of Luzerne v. Unemployment Comp. Bd. of
Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).
              The law is well established that:

       4
         43 P.S. § 801(d)(1) (relating to ability and availability to work).
       5
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).


                                                 3
            [T]he [UCBR] is the ultimate fact-finder in unemployment
            compensation matters and is empowered to resolve all
            conflicts in evidence, witness credibility, and weight
            accorded the evidence. It is irrelevant whether the record
            contains evidence to support findings other than those made
            by the fact-finder; the critical inquiry is whether there is
            evidence to support the findings actually made. Where
            substantial evidence supports the [UCBR’s] findings, they
            are conclusive on appeal.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted). This Court has explained:

            Substantial evidence is relevant evidence upon which a
            reasonable mind could base a conclusion. In deciding
            whether there is substantial evidence to support the
            [UCBR’s] findings, this Court must examine the testimony
            in the light most favorable to the prevailing party, in this
            case, [] Employer, giving that party the benefit of any
            inferences which can logically and reasonably be drawn
            from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
            Claimant first argues that the UCBR erred by failing to recognize the
ambiguity in the Employer’s Policy. Specifically, Claimant contends the phrase
“work assignment” is so ambiguous that he was not aware that he could not share
taxpayer information with his co-workers.
            Employer’s Policy provides in relevant part:

            All information on tax returns and accompanying
            documents is confidential. Tax information or other
            sensitive information, provided to [Employer] by other
            governmental agencies is considered confidential. Tax
            information stored in electronic media in computer systems,
            including personal computers, and information obtained
            from computer terminals and/or printers, is also confidential
            tax information.



                                            4
            Unless it is part of a work assignment, the tax laws of the
            Commonwealth of Pennsylvania and the United States
            prohibit employees from accessing, using, discussing,
            divulging, or disclosing in any manner, any information
            employees receive because of their access to tax returns or
            tax information. Employees may only access, use, discuss
            or reveal tax information with the taxpayer or the
            taxpayer’s representative, and as appropriate, as an
            integral part of a work assignment. Employees may not
            publish, disclose, or make known, in any manner, any
            information that discusses or could identify a taxpayer.
            Employees may not use, for private purposes, any tax
            information obtained in the course of their employment.
            ....
            Unauthorized release of confidential taxpayer information is
            a crime, and may result in prosecution under Pennsylvania
            law. Employees who access, inspect, divulge or disclose
            confidential tax information, for other than reasons that
            are integrally related to a work assignment, will be
            terminated from [Employer’s] employment.

Certified Record (C.R.) Item No. 9, Ex. E-3 (italics added). Further, Claimant signed
a confidentiality agreement which included the following:

            I understand that, unless it is part of a work assignment, the
            tax laws of the Commonwealth of Pennsylvania and the
            United States prohibit me from accessing, using, discussing,
            divulging or disclosing in any manner, any information I
            may receive because I work with, or have access to, tax
            returns or tax information. This means that any personal,
            non-work related reasons [for] accessing, using, discussing,
            divulging or disclosing any confidential tax information are
            prohibited.
            ....
            I understand that I should consider everything on tax
            returns, schedules, worksheets, audit reports, investigative
            reports, computer files, print outs, listings and books to be
            CONFIDENTIAL. This means I should not access, use,
            discuss or reveal any information with anyone outside
            [Employer], including my friends and members of my
            family. I may only access, use, discuss or reveal tax
                                          5
             information with the taxpayers or their specific
             representative and as appropriate and as an integral part of
             a work assignment.
            I understand that if I receive any inappropriate question
            which is not related to my work assignment, from anyone,
            about information on a tax return, schedule, worksheet,
            audit report, investigative report, computer file, print out or
            listing or concerning taxes, I must immediately refer the
            questioning person to my supervisor for an answer. I will
            not access for, or give any information to, an
            unauthorized individual. This also applies to questions
            about [Employer’s] internal procedures concerning the
            state’s taxes and collection of them in general.
C.R. Item No. 3, Ex. 12 (italics added).
             Claimant sent six emails to two co-workers that contained confidential
information. Claimant asserts that he was not aware that he could not share the
information with whom he worked because they all shared the same work and work
from the same data pool. Further, Claimant believed that because he was permitted to
share the information with Employer’s labor relations analyst Jane Baldo (Baldo), he
was permitted to share it with his co-workers as well.
             Claimant testified at the December 11, 2014 Referee hearing:

             EL [Employer’s Lawyer] Can I direct your attention to the
             third paragraph [of Employer’s Policy], please?
             C[laimant] Okay.
             EL Would you agree that the last sentence in there
             indicates that any personal, non-work related reasons for
             accessing, using, discussing, divulging, or disclosing any
             confidential tax information are prohibited? Would you
             agree that is what the document says?
             ....
             C What you read, yes, that’s what you read.
             ....



                                           6
            EL And you agree that your e[]mail [to your co-workers]
            was for highlighting what you perceived to be inefficiencies
            with the work system that you have to work as part of your
            job, correct?
            C Yes, we all work the same.
            EL And you would agree the e[]mail that you sent [to your
            co-workers] contained confidential tax information that you
            had while working on a work assignment.
            C Say that again.
            EL You would agree that the e[]mail that you sent [to your
            co-workers] contained work information that you obtained
            while you were working on a work assignment, correct?
            C Yes.

C.R. Item No. 9 at 43. Further, concerning the information Claimant revealed to
Baldo, Employer’s labor relations’ chief Stacy Hastings (Hastings) testified:

            CL [Claimant’s Lawyer] What was your assessment of the
            e[]mail exchange between [] Claimant and [] Baldo?
            EW3 [Hastings] I was aware of the e[]mails as they were
            going on. I felt that [] Baldo was doing everything she
            could to investigate his concerns. I knew that he was
            sending her screen prints, because she talked about it
            jamming up her inbox, due to too much data and having to
            delete things. And I agreed that she needed to have that
            information to investigate his concerns and his complaints.
            R[eferee] Just to be clear, you were aware that the e[]mails
            between [] Claimant and – I’m sorry. . .
            EL [] Baldo.
            R . . . [] Baldo were of a confidential nature?
            EW3 I knew that they contained confidential taxpayer
            information, yes.
            ....



                                          7
             CL And it’s your contention that that was work-related
             within the definition of the policy?
             EW3 Absolutely. I know that [] Linda Miller, our director
             asked her to meet with [Claimant] and that as a result of
             that, he had concerns and that he was forwarding her
             confidential taxpayer information so she could take that
             information and see if what he was saying was accurate or
             not.
             CL And that was part of -- again, your testimony is going
             to be that that was part of a work assignment as well?
             EW3 That was her work assignment, yes.

Id. at 53.
             The UCBR opined:

             In the present case, the credible testimony of [E]mployer’s
             witness establishes that it has a policy, which prohibits the
             dissemination of confidential tax information, unless it is
             part of a work assignment. Violation of the policy is
             grounds for discharge. [C]laimant was aware of the policy.
             [C]laimant acknowledges distributing confidential tax
             information to co[-]workers.          The [UCBR] rejects
             [C]laimant’s assertion that there was a valid work
             assignment as to the basis of his dissemination of this
             information. [C]laimant was complaining to his co[-
             ]workers regarding problems with the system and the
             inefficiencies of the management. The purpose of the
             dissemination was not to resolve the problems, but simply
             to complain. This is unlike the situation where [C]laimant
             emailed confidential tax information to the HR
             representative, who needed the information to properly
             address [C]laimant’s concerns.

UCBR Dec. at 3.      We discern no error in the UCBR’s reasoning.            The above
testimony and exhibits are substantial evidence which support the UCBR’s findings
and conclusions. Accordingly, we hold that there was no ambiguity surrounding the
term “work assignment,” and the UCBR properly applied Employer’s Policy.




                                          8
              Claimant next contends that the UCBR erred by finding Claimant
committed willful misconduct when he was never given a warning.6 Claimant asserts
that Oyetayo v. Unemployment Compensation Board of Review, 110 A.3d 1117 (Pa.
Cmwlth. 2015), supports his position. We disagree.
              The willful misconduct in Oyetayo consisted of a violation of
employer’s policy prohibiting the use of employer’s materials and equipment for
personal use.      Like the instant case, claimant contended that the policy was
ambiguous.      The policy, however, contained a clause allowing for de minimis
personal usage. It was around the phrase “de minimis” that claimant centered his
argument. The UCBR found that because claimant was warned several times and
said warnings specifically advised him that no personal usage of employer’s
equipment was permitted, his actions constituted willful misconduct.
              Here, Employer’s Policy is unequivocal: “Employees may only access,
use, discuss or reveal tax information with the taxpayer or the taxpayer’s
representative, and as appropriate, as an integral part of a work assignment.” C.R.
Item No. 9, Ex. E-3 (emphasis added). “Employees who access, inspect, divulge or
disclose confidential tax information, for other than reasons that are integrally
related to a work assignment, will be terminated from [Employer’s]
employment.”7 Id. (emphasis in original). Clearly, a warning was not required to
make Claimant aware that attaching confidential tax information to emails he sent to

       6
           Notably, Claimant admits that “a warning is not a prerequisite to a finding of willful
misconduct[.]” Claimant Br. at 10.
         7
           Employer’s Division Chief William Tharp (Tharp) testified that under Employer’s Policy,
the confidentiality agreement is a zero-tolerance work rule. C.R. Item No. 4 at 12. Tharp further
testified that “on a quarterly basis, [Employer], as a whole, sends out the confidential taxpayer
information agreement out [sic] to all the employees to review. That way they are notified. We
have also notified them in staff meetings as well about taxpayer confidentiality.” Id. at 9. Tharp
declared that Claimant should have been aware that sending the email violated both Employer’s
Policy and the confidentiality agreement. Id. at 13.


                                                9
co-workers complaining about the system and management was a violation of
Employer’s Policy that would result in employment termination. Accordingly, the
UCBR properly concluded that Claimant committed willful misconduct.
            Claimant next argues that the UCBR erred by capriciously disregarding
evidence of Claimant’s prior workplace commendation.          Specifically, Claimant
contends that the UCBR ignored the fact that Claimant received Employer’s
Innovation Award in June 2014 which demonstrated that Employer encouraged
Claimant to scrutinize the performance of work in the workplace, and explained why
he viewed workplace efficiency as important.

            Capricious disregard is a deliberate disregard of competent
            evidence that one of ordinary intelligence could not
            possibly avoid in reaching the result. This standard will
            generally assume a more visible role on consideration of
            negative findings and conclusions. Nevertheless, it is not to
            be applied in such a manner as would intrude upon the
            agency’s fact-finding role and discretionary decision-
            making authority.
            Further, ‘where there is substantial evidence to support an
            agency’s factual findings, and those findings in turn support
            the conclusions, it should remain a rare instance in which an
            appellate court would disturb an adjudication based upon
            capricious disregard.’ [Leon E.] Wintermyer, [Inc., v.
            Workers’ Comp. Appeal Bd. (Marlowe)], 812 A.2d [478],
            488 n.14 [(Pa. 2002)].

Diehl v. Unemployment Comp. Bd. of Review, 4 A.3d 816, 824 (Pa. Cmwlth. 2010),
reversed on other grounds, 57 A.3d 1029 (Pa. 2012). Here, because substantial
evidence supports the UCBR’s findings, and the findings support the conclusions, the
UCBR did not capriciously disregard Claimant’s evidence of his prior work
commendation. Thus, we find no reason to disturb the UCBR’s decision.
            Lastly, Claimant argues that the UCBR erred by finding Claimant did
not have good cause to violate Employer’s Policy. Specifically, Claimant contends


                                         10
that he had good cause for not understanding Employer’s policy. See Claimant Br.
at 14. We disagree.

            The issue of whether good cause exists is a factual one for
            the [UCBR] to resolve. Wideman v. Unemployment
            [Comp.] [Bd.] of Review, . . . 505 A.2d 364, 368 ([Pa.
            Cmwlth.] 1986). ‘The [UCBR], as ultimate fact finder,
            determines the weight and credibility of the evidence and is
            free to reject even uncontradicted testimony.’ Id.

Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1164 (Pa. Cmwlth.
2013). Here, the UCBR specifically “reject[ed] [C]laimant’s assertion that there was
a valid work assignment as to the basis of his dissemination of this information.”
UCBR Dec. at 3. Accordingly, the UCBR found “[C]laimant had no justification to
violate [Employer’s Policy].” UCBR Dec. at 2. It was within the exclusive province
of the UCBR to make this finding and Claimant cannot impugn it on appeal.
Accordingly, the UCBR properly found that Claimant did not have good cause to
violate Employer’s Policy.
            For all of the above reasons, the UCBR’s order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge




                                        11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin S. Bowman,                      :
                        Petitioner    :
                                      :
                   v.                 :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 880 C.D. 2015
                    Respondent        :


                                     ORDER

            AND NOW, this 6th day of April, 2016, the Unemployment
Compensation Board of Review’s May 1, 2015 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
