               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

H.B. Arrison of West Virginia, Inc.,       :
                        Petitioner         :
                                           :
                    v.                     :
                                           :
Unemployment Compensation Board            :
of Review,                                 :   No. 645 C.D. 2019
                    Respondent             :   Submitted: February 11, 2020


BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: February 28, 2020

             H.B. Arrison of West Virginia, Inc. (Employer) petitions this Court for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR) April
30, 2019 order reversing the Referee’s decision denying UC benefits under Section
402(e) of the UC Law (Law).1 Employer presents one issue for this Court’s review:
whether the UCBR erred by concluding that Edward J. Ramsey (Claimant) did not
commit willful misconduct. After review, we affirm.
             Claimant worked for Employer as a part-time sawmill yard worker.           In
October 2018, Claimant was involved in an altercation with co-workers which
Claimant reported to Employer as racially-charged.2           Thereafter, Claimant was
involved in a second altercation with a co-worker in which Claimant grabbed the co-
worker by the throat (Second Incident). According to Employer’s Office Manager
Samantha Greene (Greene), the argument arose from an off-duty incident where the

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
       2
         Claimant was Employer’s only African-American employee.
co-worker used racial epithets. On October 24, 2018, Employer suspended Claimant
without pay. On October 30, 2018, Claimant told Greene that he planned to get
himself fired so he could collect unemployment benefits while attending school to
learn a new trade.    On October 31, 2018, Claimant appeared for his shift, but
Employer’s General Manager Nathan Sisler (Sisler) terminated Claimant’s
employment.
             Claimant applied for UC benefits. On December 10, 2018, the Indiana
UC Service Center (UC Service Center) determined that Claimant was ineligible for
UC benefits under Section 402(e) of the Law. Claimant appealed and a Referee
hearing was held on February 1, 2019.
             At the hearing, Employer’s President Bryan Vernon (Vernon) testified
that in order to personally address the incidents, he travelled from Georgia to the
Pennsylvania worksite to meet with Claimant and the other employees to provide
training and information on proper workplace behavior. See Reproduced Record
(R.R.) at 67a. Vernon admitted that during his meeting with Claimant, Claimant
reported to Vernon that he was being harassed at work. See R.R. at 70a.
             Vernon acknowledged that even after the Second Incident, he planned to
continue to employ Claimant and he believed the matter had been resolved. Vernon
explained:

             I actually spoke the most with [Claimant] and [the other
             employee] when I spoke with them both privately about
             what had happened. And I even asked the question, are
             they both willing to put what happened behind them to
             move forward and could they abide by what we just
             discussed, and what I discussed with the group then is
             basically the same thing that I had spoke [sic] with each of
             these guys about.
             ....



                                          2
               As far as I was concerned . . . it was done. [Claimant] . . .
               was coming back to work the next . . . scheduled day of
               work listed.

R.R. at 68a.
               Greene testified that on October 30, 2018, Claimant’s first scheduled
work day following his suspension, Claimant stopped at her desk and confided3 to
Greene, “what I’m thinking about doing is taking the coal mining test. . . . [S]o
what I’m going to try to do is get myself fired so I can collect unemployment while
I’m going to school.”4 R.R. at 55a (emphasis added). Greene related that Claimant’s
statement left her in shock. Greene stated that she told Claimant they would talk
later, and once Claimant left her desk, she called Vernon to inform him of Claimant’s
statement. Greene reported that Claimant’s statement raised concerns with respect to

               [s]afety for everybody there, just the issues that it would
               cause, what’s he going to do to get himself fired. I mean,
               we had previous issues in the past, so I don’t know if that’s,
               you know – he was doing things to work himself up to that
               to get himself fired already[.]

R.R. at 56a.
               On February 11, 2019, the Referee affirmed the UC Service Center’s
determination denying UC benefits. Claimant appealed to the UCBR. On April 30,
2019, the UCBR reversed the Referee’s decision and awarded Claimant UC benefits.
Employer appealed to this Court.5
               Employer argues that the UCBR erred by reversing the Referee’s
decision because it did not consider Claimant’s statement in the context of Claimant’s

       3
          Claimant testified that he considered Greene to be a friend. See R.R. at 73a.
       4
          Notably, Claimant denied that he told Greene he was going to try to get himself fired. See
R.R. at 80a.
        5
          “Our scope of review is to determine whether constitutional rights were violated, whether
an error of law was committed or whether necessary findings of fact are supported by substantial
competent evidence.” Allen v. Unemployment Comp. Bd. of Review, 189 A.3d 1128, 1133 n.3 (Pa.
Cmwlth. 2018).
                                                 3
work history and prior warnings, but instead, isolated Claimant’s statement when it
concluded Claimant’s actions did not constitute willful misconduct.                    Employer
emphasizes that verbal and physical fighting and threats of violence constitute willful
misconduct.      See Employer Br. at 15-16.            Employer contends that Claimant’s
statement that he planned to get himself fired so he could collect UC benefits
communicated a threat in light of Claimant’s past unruly behavior, and thus,
constituted willful misconduct.6
              Section 402(e) of the Law provides that an employee shall be ineligible
for UC benefits for any week in which his unemployment is due to discharge or
suspension for willful misconduct.

              [W]illful misconduct is defined by the courts 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 rightfully
              expect from an employee; or, (4) negligence showing an
              intentional disregard of the employer’s interests or the
              employee’s duties and obligations. The employer bears the
              initial burden of establishing a claimant engaged in willful
              misconduct. Whether a claimant’s actions constitute willful
              misconduct is a question of law fully reviewable on appeal.
              The issue of whether Claimant’s conduct constituted willful
              misconduct under Section 402(e) of the Law is a question of
              law fully reviewable by this Court. Further, Employer
              bears the initial burden of showing Claimant’s conduct rose
              to the level of willful misconduct.



       6
           Employer contends that the UCBR punished Employer for attempting to rehabilitate
Claimant rather than terminating his employment after the first dispute, since Claimant “would
clearly have been ineligible for [UC] benefits had Employer terminated [Claimant’s employment]
for the altercations that preceded [Vernon’s] meeting with the employees at issue.” Employer Br. at
16. Employer also asserts that rather than terminating Claimant’s employment, Employer retrained
Claimant, and despite the retraining, he made the statement to Greene. Notwithstanding, Claimant’s
employment was terminated not for conduct for which he had been previously disciplined, but for
the statement he made. See R.R. at 14a-15a, 18a, 19a, 121a.
                                                4
Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009-10 (Pa. Cmwlth.
2014) (emphasis added; citations omitted).


             In addition,

             [i]n the willful misconduct context, this Court defined a
             threat ‘as a communication that conveys an ‘intent to
             inflict harm or loss on another or on another’s
             property.’’ Aversa v. Unemployment Comp. Bd. of Review,
             52 A.3d 565, 571 (Pa. Cmwlth. 2012) (quoting Black’s Law
             Dictionary 1519 (8th ed. 2004)). Absent intent, the words
             of the statement itself must objectively establish a
             threat. In addition to the words used in a threat, this Court
             is mindful of the effect the statement has on the hearer, and
             the reasonableness of construing the statement as a credible
             threat in context. . . .
             Our Supreme Court’s test to discern a ‘true threat’ in a non-
             criminal case (expulsion of student from school) informs
             our analysis here. See J.S. v. Bethlehem Area Sch. Dist., . . .
             807 A.2d 847 ([Pa.] 2002). In J.S., to determine threatening
             nature, our Supreme Court applied a totality of the
             circumstances test. Relevant factors to consider are: ‘the
             statements, the context in which they were made, the
             reaction of listeners and others as well as the nature of the
             comments . . . .’ Id. at . . . 858.

Johns, 87 A.3d at 1010-11 (emphasis added; footnote omitted). A statement that does
not rise to the level of an actual threat does not constitute willful misconduct. Blount
v. Unemployment Comp. Bd. of Review, 466 A.2d 771 (Pa. Cmwlth. 1983). Further,
“[w]hether [a] threat [is] conditional in nature and whether the employee indicate[s]
any intent to act according to the remark are factors which can play a role in a
determination that a threat [is] de minimis in nature[,]” and thus does not constitute
willful misconduct. Id. at 773.
             In the instant matter, the UCBR reversed the Referee’s decision and
granted Claimant UC benefits, explaining:


                                            5
              It is now well settled that if there is no willful misconduct in
              the final incident for which a claimant has been
              discharged[,] a denial of benefits cannot ensue under
              Section 402(e) of the Law.
              [Employer] discharged [Claimant] for stating to the office
              manager that he was going to try to get fired to collect
              unemployment benefits while going to school.
              [Employer’s] witnesses testified to safety concerns about
              how [Claimant] would potentially attempt to get fired due
              to the worksite being a saw[]mill. There was also testimony
              about a previous incident involving [Claimant] and other
              employees that resulted in [Claimant’s] unpaid suspension.
              However, [Claimant] was not terminated for [that] incident,
              as he had an unpaid suspension, and returned to work.
              There was no evidence that [Claimant] had a specific plan
              for getting fired or that [Claimant] refused to follow any
              policies or refused to do any work. As such, [Employer’s]
              safety concerns were merely speculative based on a vague
              comment without any bad act by [Claimant]. [Employer]
              has not shown any willful misconduct by [Claimant] that
              resulted in his discharge.
UCBR Decision at 2, R.R. at 121a.

              Importantly, Employer did not terminate Claimant’s employment for
engaging in conduct for which he had been previously disciplined, i.e., arguing or
fighting. In fact, Vernon testified he intended to continue to employ Claimant after
the incidents. Employer was not sufficiently concerned about Claimant’s conduct to
contact police or to terminate Claimant’s employment following the prior incidents
with his co-workers. Rather, Employer terminated Claimant’s employment as a
direct result of his statement to Greene.7 Despite Claimant’s prior incidents with
Employer’s employees which resulted in Claimant’s suspension, this Court concludes
that Claimant’s vague comment describing “what [he was] thinking about doing” and
what he was “going to try to do” with respect to taking actions to get himself fired


       7
        There is no record evidence that Claimant engaged in further confrontations with his co-
workers before Employer terminated his employment.
                                               6
was, under the totality of the circumstances, de minimis in nature and did not
constitute an actual threat of physical violence. R.R. at 55a. In fact, Greene testified
that Claimant’s statement “could have involved anything.” R.R. at 63a. According
to Greene, after notifying Vernon about Claimant’s statement, she simply “went
about [her] day.” R.R. at 56a. Sisler explained that Claimant’s statement caused him
concern because “there’s a lot of safety around that saw[]mill. We need a – all
accidents can happen, and I don’t know what someone would do to get fired. But,
it definitely could . . . end up in . . . a really bad mishap, somebody getting hurt or
killed[.]” R.R. at 64a (emphasis added).
               In addition, Vernon recounted:

               [W]hen [Claimant] made that statement, I – after what had
               just happened and what we just went through, I didn’t
               know what he planned to do, and I was concerned for the
               safety of not only the employees that are out there working,
               but also [Greene]. I didn’t want to take any chances of
               either the equipment or the men getting damaged or hurt.

R.R. at 68a (emphasis added). Notably, there is no record evidence that anyone
contacted police on Employer’s behalf regarding safety concerns arising from
Claimant’s statement.
               The aforementioned testimony reveals that Employer’s representatives
were concerned regarding what Claimant could do rather than by the actual threats
Claimant made.8 Accordingly, the UCBR properly concluded that “[E]mployer’s



       8
          See Berkley Med. Res. Inc. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 1383
C.D. 2013, filed June 6, 2014) (where a claimant stated she was going to punch a co-worker in the
face if something was not done about the co-worker, the claimant’s statements “were not threats,
but instead were simply a means by which [the claimant] was venting her anger” and the claimant’s
employment was “essentially terminated because of the possibility that she might commit some
future act[.]”), slip op. at 11 (emphasis added). Pursuant to Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a), unreported opinions are not binding precedent, but
may be cited for their persuasive value. Berkley is cited for its persuasive value.
                                                 7
safety concerns were merely speculative based on a vague comment without any bad
act by . . . [C]laimant.” R.R. at 121a.
              In addition, the record evidence does not support Employer’s contention
that Claimant’s statement was a “wanton and willful disregard of an employer’s
interests” or a “disregard of the standards of behavior which an employer can
rightfully expect from an employee[.]” Johns, 87 A.3d at 1009. The statement
Claimant made to Greene (whom Claimant considered to be a friend) occurred during
a private conversation between the two employees. Claimant testified that he was
frustrated by alleged racially discriminatory incidents, Employer’s purported failure
to address Claimant’s concerns, and his suspension. There is no record evidence that
Claimant took any steps to carry out the actions described in his statement, and as the
UCBR noted, “[t]here was no evidence that [Claimant] had a specific plan for getting
fired or that [Claimant] refused to follow any policies or refused to do any work.”
R.R. at 121a. Accordingly, the UCBR properly concluded that Claimant’s statement
did not constitute willful misconduct.9
              For all of the above reasons, the UCBR’s order is affirmed.



                                             ___________________________
                                             ANNE E. COVEY, Judge



       9
              This Court has often stated that ‘there is a critical distinction between
              the employer’s right to terminate employment and the state’s right to
              deny unemployment benefits.’ Palladino v. Unemployment Comp[.]
              B[d.] of Review, 81 A.3d 1096, 1103 (Pa. Cmwlth. 2013) (citation
              omitted). To be sure, ‘the question of justifiable termination and
              eligibility for unemployment benefits are two different things; an
              employee may be fired for completely proper reasons, yet remain
              eligible for benefits.’ Id. at 1101 (citation omitted).
Miller v. Unemployment Comp. Bd. of Review, 131 A.3d 110, 116 n.9 (Pa. Cmwlth. 2015).
                                                 8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


H.B. Arrison of West Virginia, Inc.,     :
                        Petitioner       :
                                         :
                   v.                    :
                                         :
Unemployment Compensation Board          :
of Review,                               :   No. 645 C.D. 2019
                    Respondent           :


                                       ORDER

            AND NOW, this 28th day of February, 2020, the Unemployment
Compensation Board of Review’s April 30, 2019 order is AFFIRMED.


                                       ___________________________
                                       ANNE E. COVEY, Judge
