           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fabrice Afata Botikotiko,                     :
                             Petitioner       :
                                              :
                v.                            :   No. 873 C.D. 2018
                                              :   Submitted: November 9, 2018
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: January 4, 2019

                Fabrice Afata Botikotiko (Claimant), representing himself, petitions
for review from an order of the Unemployment Compensation Board of Review
(Board) that denied his claim for unemployment compensation (UC) benefits under
Section 402(e) of the UC Law (Law) (relating to willful misconduct). 1 Claimant
challenges several of the Board’s findings as well as the Board’s determination that
he committed willful misconduct. He also argues his employer, Arconic/Alcoa
(Employer), subjected him to disparate treatment in the enforcement of its policies.
Additionally, Claimant asserts he did not receive a fair hearing before the referee
in light of the fact that a language barrier existed because English is not his first
language. Upon review, 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 worked for Employer from January 2016 until August 2017
as a full-time material handler and assistant machine operator. After his separation
from employment, Claimant applied for UC benefits. The UC service center
denied benefits under Section 402(e) of the Law. Claimant appealed. A hearing
ensued before a referee.


             After the hearing, the referee issued a decision that contained the
following findings. Employer has a progressive disciplinary policy. Claimant was
aware of that policy. Pursuant to Employer’s progressive disciplinary policy, an
employee will receive a verbal warning, a written minor warning, a written major
warning, a written major warning with a three-day suspension, and a written major
warning with a five-day suspension pending termination.


             Employer also has a cell phone usage policy. Claimant was aware of
that policy. Pursuant to Employer’s cell phone policy, a cell phone used for non-
company business is restricted to designated areas during normal break times,
including cell phone charging. Non-company cell phones must be turned off when
an employee is not on break and in a designated cell phone area. While at a work
station or a job site (or anywhere else in the plant where the user is responsible for
operating equipment), use of a non-company cell phone for emergency calls is not
acceptable. Cell phones observed outside a purse, a backpack, a pocket, or a
lunchbox are assumed in use and, therefore, in violation of the policy.


             On May 24, 2016, Claimant received a verbal warning for a safety
violation. Two days later, he received a written minor warning for a cell phone

                                          2
policy violation when his cell phone went off during an employee meeting. About
nine months later, Claimant received a written major warning for a performance
issue.


             Thereafter, in July 2017, Claimant received a written major warning
with a three-day suspension for a performance issue and for a cell phone policy
violation when Claimant’s cell phone went off three times during a meeting.
Claimant was aware his job was in jeopardy.


             In late-July 2017, after Claimant’s lunch break, a meeting was held
with employees, including Claimant, in the cafeteria, a designated cell phone use
area. Employer’s cell phone use policy applied during the staff meeting, even
though it was held in the cafeteria, because the break period ended and the meeting
occurred during work hours. As the meeting ended, Claimant’s cell phone rang,
and he answered it. The shift coordinator witnessed Claimant answer his cell
phone and talk on the cell phone during work hours at the end of the employee
meeting. Claimant received a written major warning with a five-day suspension
pending discharge for the cell phone policy violation. About a month later, after
Employer completed its necessary procedures, Employer discharged Claimant for
violating its cell phone policy.


             Based on these findings, the referee made the following
determinations:

             [C]laimant was discharged for violating [E]mployer’s
             cell phone policy. [E]mployer’s cell phone policy, of
             which [C]laimant was aware, provides that employees


                                        3
             must have their cell phones turned off at all times unless
             on a designated break and in a designated cell phone use
             area. If the phone goes off or is seen during working
             hours, it is a violation of the policy. [C]laimant
             progressed through [E]mployer’s disciplinary steps, some
             of which were for cell phone policy violations and he
             was aware that his job was in jeopardy. The final
             incident, which led to [C]laimant’s discharge, occurred
             on July 27, 2017, when [C]laimant answered his cell
             phone at the end of a staff meeting. …

             [C]laimant’s reasons for answering his cell phone during
             working hours are not credible. [C]laimant was aware
             that he was in a staff meeting on work time. Even though
             it was in the cafeteria which is a designated cell phone
             use area, this does not excuse the cell phone from being
             turned on or for [C]laimant answering it during working
             hours. [E]mployer has met its burden. Accordingly,
             [UC] benefits are denied.

Referee’s Dec., 11/6/17, at 3.


             Claimant    appealed, and       the Board   affirmed,   adopting   and
incorporating the referee’s findings and conclusions. Further, the Board provided
additional reasons for denying Claimant UC benefits under Section 402(e) of the
Law. Among other things, the Board stated:

                    At the hearing, [E]mployer established that
             [C]laimant deliberately violated [E]mployer’s [cell
             phone] policy despite prior warnings. Therefore, the
             burden shifted to [C]laimant to establish good cause for
             his rule violation. The Referee rejected his explanation
             as not credible. Therefore, [C]laimant failed to show
             good cause for his violations.

Bd. Op., 5/31/18, at 1. Claimant now petitions for review to this Court.




                                         4
                                         II. Issues
              On appeal,2 Claimant challenges several of the Board’s findings as
well as the Board’s determination that he committed willful misconduct. He also
argues Employer subjected him to disparate treatment in the enforcement of its
policies. Additionally, Claimant contends he did not receive a fair hearing before
the referee as a language barrier existed because English is not Claimant’s first
language.


                                     III. Discussion
              In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in evidence, witness credibility, and weight afforded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008). We are bound by the Board’s findings so long as
the record, taken as a whole, contains substantial evidence to support them. Id.
Further, unchallenged findings are conclusive on appeal. Campbell v.
Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth. 1997).
Additionally, it is irrelevant whether the record contains evidence to support
findings other than those made by the Board, as fact-finder; the critical inquiry is
whether there is evidence to support the findings actually made. Ductmate.
Employer, as the prevailing party below, is entitled to the benefit of all reasonable
inferences drawn from the evidence. Id.




       2
          Our review is limited to determining whether the Board’s necessary findings of fact
were supported by substantial evidence and whether the Board erred as a matter of law or
violated constitutional rights. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa.
Cmwlth. 2014).



                                             5
                                A. Board’s Findings
             Claimant challenges the Board’s Findings of Fact Nos. 10-14, which
state:

             10. The cell phone use policy applied during the staff
             meeting, even though it was being held in the cafeteria
             because the break time had ended and the meeting was
             held during working hours.

             11. On July 27, 2017, as the meeting ended, [C]laimant’s
             cell phone went off and he answered it.

             12. On July 27, 2017, the shift coordinator personally
             witnessed [C]laimant answering his cell phone and
             speaking on it during working hours at the end of the
             employee meeting.

             13. [C]laimant was given a written major warning with a
             5-day suspension pending discharge for the cell phone
             policy violation on July 27, 2017.

             14. On August 29, 2017, after [E]mployer completed all
             the necessary procedures, [C]laimant was discharged for
             violating [E]mployer’s cell phone policy.

Referee’s Op., Findings of Fact (F.F.) Nos. 10-14.


             Contrary to Claimant’s assertions, the record amply supports each of
the challenged findings. Referee’s Hr’g, Notes of Testimony (N.T.), 10/30/17, at
12, 16-19, 21 (testimony of Jason Fisher, Employer’s C-Crew Shift Coordinator
and Claimant’s Supervisor); Ex. E-1 (“Policy and Procedure”; “Mobile
Technology Devices”). Therefore, we reject Claimant’s various challenges to
Findings of Fact Nos. 10-14, which are based largely on Claimant’s version of the
facts rather than the facts as found by the Board.




                                          6
                               B. Willful Misconduct
             Claimant next challenges the Board’s determination that he committed
willful misconduct. He asserts his violation of Employer’s cell phone policy
“occurred [sic] in confusing environment and mitigating circumstances, so the UC
Law 402(e) [sic] is not applicable for this case.” Pet’r’s Br. at 12.


             Section 402(e) of the Law states that an employee shall be ineligible
for compensation for any week in which his unemployment is a result of willful
misconduct connected to his work. 43 P.S. §802(e). Willful misconduct is defined
as:   (1) the wanton and willful disregard of an employer’s interests; (2) the
deliberate violation of an employer’s rules; (3) the disregard of the standards of
behavior that 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 to the employer.          Allen v. Unemployment
Comp. Bd. of Review, 189 A.3d 2018 (Pa. Cmwlth. 2018).


             The employer bears the initial burden of establishing a claimant
engaged in willful misconduct. Id. Whether a claimant’s actions constitute willful
misconduct is a question of law fully reviewable on appeal. Id.


             Once an employer meets its burden, the burden shifts to the employee
to prove he had good cause for his actions. Guthrie v. Unemployment Comp. Bd.
of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). An employee establishes good
cause where his actions are justified or reasonable under the circumstances.
Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth.
2006).


                                           7
              In addition,

              [a]n employer seeking to prove willful misconduct by a
              policy violation must demonstrate the existence of the
              policy, its reasonableness, and its violation.          The
              employer must also show that the [claimant] intentionally
              or deliberately violated the work rule. This Court must
              determine if the work rule is reasonable in light of all the
              circumstances and whether a claimant had good cause to
              violate the work rule.

Klampfer v. Unemployment Comp. Bd. of Review, 182 A.3d 495, 500 (Pa.
Cmwlth. 2018) (citations, quotations and emphasis omitted).


              Here, Employer established the existence of a progressive disciplinary
policy, which consists of: (1) a verbal warning; (2) a written minor warning; (3) a
written major warning; (4) a written major warning with a three-day suspension;
and (5) a written major warning with a five-day suspension, pending termination.
N.T. at 10-11. Claimant was aware of Employer’s progressive discipline policy.
N.T. at 11.


              Further, Jason Fisher, Claimant’s Supervisor, testified that Claimant
received the following disciplinary actions: (1) a verbal warning for a safety
violation, F.F. No. 4; N.T. at 13; (2) a written minor violation for violating
Employer’s cell phone policy, F.F. No. 5; N.T. at 13; (3) a written major violation
for a performance issue, F.F. No. 6; N.T. at 14-15; (4) a written major violation
with a three-day suspension for violating Employer’s cell phone policy, F.F. No. 7;
N.T. at 14-15; and (5) a written major warning with a five-day suspension pending
termination for violating Employer’s cell phone policy, followed by his



                                           8
termination from employment. F.F. Nos. 13, 14; N.T. at 16, 18. See also Exs. 16-
19C.


             Although Claimant asserts his final cell phone policy violation was
merely a mistake and that the referee erred in failing to consider his policy
violations were “out of [his] total control,” Pet’r’s Br. at 9, the referee and the
Board did not credit Claimant’s testimony.           Rather, the Board expressly
determined the rule violation was deliberate, particularly in light of Claimant’s
recurrent prior violations and Employer’s repeated warnings. Bd. Op. at 1; N.T. at
11, 13-16.


             In addition, while Claimant attempted to offer various justifications
for his final cell phone policy violation, the referee and the Board expressly
determined: “[C]laimant’s reasons for answering his cell phone during working
hours are not credible.” Referee’s Op. at 3; Bd. Op. at 1. Thus, Claimant did not
establish good cause for the policy violation. Bd. Op. at 1.


             Further, contrary to Claimant’s assertions, the referee and the Board
were not required to accept Claimant’s version of the facts. Ductmate. And, to the
extent Claimant maintains his cell phone use did not violate the purpose of
Employer’s cell phone policy (which is to minimize distractions and prevent
accidents and injuries), the Board’s supported findings reveal Claimant did, in fact,
violate the express terms of the cell phone policy by using his cell phone during
work hours while not on a break. Employer’s cell phone policy, limiting cell
phone usage to designated areas during normal break times, is reasonable.



                                          9
             In short, the record supports the Board’s findings. In turn, those
findings support the Board’s ultimate determination that Employer proved
Claimant committed willful misconduct.


                              C. Disparate Treatment
             Claimant next argues Employer engaged in disparate treatment
because it terminated Claimant’s employment “for reaching the highest
disciplinary action despite the fact that there are people who have reached the same
step of disciplinary action but kept their jobs till [sic] today.” Pet’r’s Br. at 8. He
further asserts: “Similar violation [sic] committed by other persons are ignored,
even on the same day and place in question here.” Id. at 11.


             Disparate treatment is an affirmative defense by which a claimant who
engaged in willful misconduct may still receive benefits. Geisinger Health Plan v.
Unemployment Comp. Bd. of Review, 964 A.2d 970 (Pa. Cmwlth. 2009). In order
to prove disparate treatment, a claimant must make an initial showing of each of
the following: (1) the employer discharged 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 employee based on an improper criterion. Id.


             Here, in rejecting Claimant’s disparate treatment defense, the Board
stated: “[C]laimant alludes to discrimination in his testimony.             However,
[C]laimant failed to establish disparate treatment. Furthermore, [C]laimant had
acknowledged that he received prior infractions[.]” Bd. Op. at 1. Based on our



                                          10
review of the record, the Board properly rejected Claimant’s disparate treatment
defense.


             To that end, before the referee, Claimant attempted to argue that other
employees used their cell phones on the date Claimant’s final policy violation
occurred and these employees were not subject to discipline.                Contrary to
Claimant’s assertion, Claimant’s Supervisor testified that he did not observe any
other employees on their cell phones at that time. N.T. at 22. Further, the referee
and the Board did not credit Claimant’s testimony.


             Nevertheless, even if Claimant is correct that Employer discharged
him but did not discharge other employees who engaged in similar conduct,
Claimant did not show he was similarly situated to the other employees who were
not discharged, or that Employer discharged him based on an improper criterion.
Geisinger. Thus, Claimant did not establish the elements of a disparate treatment
defense.


                                   D. Language Barrier
             As a final issue, Claimant maintains he “was many times unable to
express himself during the hearing, which constitute [sic] a language barrier. Note
that english [sic] is [Claimant’s] second language.” Pet’r’s Br. at 12. Responding
to this issue, the Board stated:

             [C]laimant comments on appeal that there was a
             language barrier and request[s] a new hearing on this
             basis. [C]laimant was apprised on the notice of hearing
             to contact the Referee’s office if he needed an interpreter.



                                           11
            He did not do so. Accordingly, the Board determines he
            is not entitled to a new hearing.

Bd. Op. at 1. The record supports the Board’s determination.


            More particularly, the Referee’s Notice of Hearing mailed to Claimant
two weeks before the hearing, states:

            If you … need an interpreter for your own language other
            than English, contact the Referee’s office listed on this
            notice as soon as possible. The Board is responsible to
            provide an appropriate device or qualified interpreter
            whose credentials are certified for quasi[-]judicial
            proceedings. Also, the Board covers the costs required to
            provide this assistance.

Certified Record, Item #9 at 2 (emphasis in original). Here, there is no indication
that Claimant contacted the referee’s office to request an interpreter prior to the
hearing. Indeed, Claimant does not assert he did so.


            Further, Claimant fully participated in the referee’s hearing, and he
did not raise any issue regarding the need for an interpreter. Instead, toward the
end of the hearing, the following exchange occurred:

            [Employer’s Representative] I’m sorry. Is [C]laimant
            recording this [h]earing on his cell phone?

            [Claimant] Excuse me?

            [Employer’s Representative] Is [C]laimant recording
            this -- this [h]earing on his cell phone?

            [Claimant] No, why?

            [Employer’s Representative]      He has it out.


                                        12
               [Claimant] No, that’s for my -- my translation. I use
               this for translation for some words. Especially...

               [Referee] I -- I -- I would have been happy to have
               gotten you a translator. All you would have...

               [Claimant] Okay.

               [Referee] … needed to do was request that. I would just
               say that you may not record any -- any of us without
               notifying us, if that is the case.

N.T. at 28-29.


               Claimant offered no response to the referee’s statement that an
interpreter would have been provided if requested. N.T. at 29. Additionally, our
review of the transcript in its entirety does not reveal Claimant experienced any
communication difficulties as a result of a language barrier.                    Thus, despite
generally asserting a language barrier existed and hindered his ability to
communicate, Claimant offers no specific examples as to how any purported
language difficulty obstructed his ability to fully present his case before the
referee. Thus, Claimant’s argument fails.


               For all the foregoing reasons, we affirm.3


                                             ROBERT SIMPSON, Judge

       3
          Claimant also argues that Employer violated his rights under the Fifth Amendment to
the U.S. Constitution by, among other things, punishing him twice for the same violation.
However, Claimant did not raise this issue before the referee or in his appeal to the Board. Thus,
it is waived. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603 (Pa. Cmwlth.
2011) (issues not raised before the referee or the Board are waived for purposes of appeal and
will not be addressed for the first time by this Court).



                                               13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fabrice Afata Botikotiko,                  :
                            Petitioner     :
                                           :
            v.                             :   No. 873 C.D. 2018
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


                                         ORDER


            AND NOW, this 4th day of January, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                          ROBERT SIMPSON, Judge
