                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gemma M. Sawa,                                :
                      Petitioner              :
                                              :
                v.                            :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 84 C.D. 2015
                 Respondent                   :   Submitted: August 28, 2015

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: October 20, 2015
                Gemma M. Sawa (Claimant), petitions for review of the Order of the
Unemployment Compensation Board of Review (Board) that affirmed the
Referee’s denial of benefits to Claimant under Section 402(e) of the
Unemployment Compensation Law (Law).1


                                      I. Background.
                The facts, as initially found by the Referee and confirmed by the
Board, are as follows:

                1. The claimant was employed as a full-time Alarm
                Monitor and Telecommunicator with the employer from
                March 23, 2013 until June 3, 2014 at the final rate of pay
                of $20.30 per hour.


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
2. Prior to March 23, 2013, the claimant was also
employed with the employer’s Resources Development
Group.

3. The employer requires all employees to complete
yearly training on computer and internet usage.

4. The employer’s policy permits limited use of the
Internet.

5. The employer also has a government Internet usage
policy, as there is a contract to provide emergency
communications services to the federal protective
service.

6.   The employer reviews the policies with the
employees.

7. The employees are required to be compliant with the
software and information technology usage policy in the
workplace.

8. The employer has a progressive disciplinary policy.

9. The employer skips the steps in the policy if the
offense is egregious.

10. The claimant and a co-worker had a verbal
altercation as the co-worker asked the claimant’s
assistance in answering the phones.

11. The claimant was not attending to her work, which
caused the co-worker to pick up additional work.

12. The claimant refused to answer the phones.

13. The co-worker was over-burdened by the claimant’s
actions in not doing her work; the claimant’s actions also
had a potential for putting the federal police officers in
danger.

14. An investigation was conducted.


                            2
            15. The claimant’s browser history was reviewed.

            16. The browser history indicated that the claimant was
            attending on-line courses, was taking tests during the
            work hours.

            17. The investigation indicated that…over a period of
            almost two months the claimant had devoted 41.08 hours
            towards unapproved activities for which she was paid.

            18. The claimant’s conduct was considered so egregious
            that the employer discharged the claimant for violation of
            their policies.

Referee’s Decision (Decision), August 11, 2014, Findings of Fact (F.F.) Nos. 1-18
at 1-2; Reproduced Record (R.R.) at 000039a-000040a.


            The Referee determined:

            At the Referee’s hearing, the employer’s witness
            provided competent and credible testimony and
            documentary evidence, which established that the
            claimant during her work hours had spent 41.08 hours
            from March 16, 2014 until May 9, 2014 by [sic] taking
            online education courses, which resulted in her failure to
            perform her job duties. The employer’s witness testified
            that the claimant’s conduct was so egregious that the
            employer had to skip the steps in the progressive
            discipline policy and discharge the claimant without
            issuing a prior warning. The employer’s witness stated
            the browser history indicated that the claimant had on
            certain days spent a total of 560 minutes doing her
            homework and taking educational courses.              The
            employer stated that limited use of the internet is
            permitted but the claimant’s conduct was in flagrant
            disregard of the employer’s policies, affected her work,
            and caused the other employees to be overburdened. The
            employer added that the claimant’s conduct also created
            a potential for putting the federal police officers in
            danger. The employer added that in the past too [sic]


                                        3
              employees were discharged for violation of the
              employer’s internet usage policy.     Therefore, the
              employer discharged her from employment.

              In the present case, the claimant stated that other
              employees were also using the employer’s computers and
              there was no policy, [sic] which stated that they could not
              do so. The claimant’s witness, her sister, who is also an
              employee of the employer stated that other employees
              also used the internet. The testimony of the claimant and
              that of her sister was not credible.

              Based on the competent and credible testimony provided
              by the employer’s witness, the Referee finds that the
              claimant devoted her time by logging onto the online
              courses, would spend an inordinate amount of time on a
              given day doing her homework or taking the educational
              courses. Here, the Referee finds that the claimant’s
              conduct was in disregard of the standards of behavior that
              an employer has the right to expect of an employee and is
              also considered a theft of time, as the claimant got paid
              for the work she did not do. As such, the Referee finds
              that the claimant’s conduct was also inimical to the
              employer and not in the best interest of the employer.
              Therefore, the Referee finds that the claimant is ineligible
              for benefits under Section 402(e) of the Law.

Decision at 2-3; R.R. at 000040a. (Emphasis added.)


              The Board affirmed.


                                II. Present Controversy.
              Claimant contends2 that the Board erred when it determined that she
was ineligible for benefits under Section 402(e) of the Law. Essentially, Claimant

       2
         This Court’s review in an unemployment compensation case is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
(Footnote continued on next page…)

                                              4
argues: 1) that RDG-GCS Joint Venture III (Employer) did not previously or
uniformly enforce its policies regarding improper use of the internet; 2) that the
Board did not rely on substantial, competent evidence when it determined that
Claimant was not credible; and 3) that Employer failed to follow its progressive
disciplinary policy.3



(continued…)

findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment
Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
       3
         In her “Statement of Question Involved,” Claimant listed the following issue:
               1. Did the Unemployment Compensation Board of Review err in
               determining that Gemma Sawa [Claimant] was ineligible for
               benefits where she was allegedly terminated for violating the
               employer’s internet use policies and for neglecting her job duties,
               and where:
                       (1) The record evidence is clear that the employer had not
                       previously enforced these policies and that once Ms. Sawa
                       [Claimant] was put on notice that the employer intended to
                       begin enforcing them, she did not engage in further
                       violations of these policies;
                       (2) The Board relied solely upon hearsay evidence, and
                       chose to disbelieve Ms. Sawa’s [Claimant’s] non-hearsay
                       testimony to the contrary, in reaching its conclusion that
                       Ms. Sawa [Claimant] used the internet ‘to the neglect of her
                       job duties’;
                       (3) The Board adopted the factual conclusion of the
                       Referee that Ms. Sawa [Claimant] was actively using the
                       internet for extended periods of time, despite no credible
                       testimony or other evidence to that effect, and despite Ms.
                       Sawa’s [Claimant’s] testimony to the contrary;
                       (4) The employer did not follow its progressive discipline
                       policy in terminating Ms. Sawa [Claimant];
                       (5) The employer did not uniformly enforce its rule; and
                       (6) Ms. Sawa [Claimant] was singled out for retaliation for
                       complaints she had made against her second-level
                       supervisor- the decision-maker with respect to the decision
(Footnote continued on next page…)

                                           5
             First, Claimant argues that Employer did not previously enforce its
policies regarding improper use of the internet.


             Whether a claimant’s conduct rises to the level of willful misconduct
is a question of law subject to this Court’s review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991).             Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
standards of behavior which an employer can rightfully expect from the employee,
or negligence which manifests culpability, wrongful intent, evil design, or
intentional and substantial disregard for the employer’s interest or employee’s
duties and obligations. Frick v. Unemployment Compensation Board of Review,
375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that
it discharged an employee for willful misconduct.         City of Beaver Falls v.
Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982).
The employer bears the burden of proving the existence of the work rule and its
violation.   Once the employer establishes that, the burden then shifts to the
claimant to prove that the violation was for good cause. Park v. Unemployment
Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).


             In the present case, Employer established that it had a policy which
prohibited the use of computers for private purposes. Employer’s Electronic and

(continued…)

                       to enforce the internet use rule against Ms. Sawa
                       [Claimant]?
                       ….
Claimant’s Brief, Statement of Question Involved at 10-11.



                                          6
Telephonic    Communications    policy       explained,   “Accessing   inappropriate
information and materials via any Company/client system is strictly prohibited.
‘Inappropriate’ would include…sites which include…any non-business related use.
The use of any software and business equipment, including…computers…for
private purposes is prohibited. Employees who violate these rules will be subject
to disciplinary action up to and including termination.” Employer’s Policy at 20-
21; R.R. at 000128a-000129a. The Department of Homeland Security also had an
enforceable Information Technology security policy that required its “office
equipment to be used for official use, with only limited personal use allowed.”
Homeland Security Policy at 2; R.R. at 000121a. Claimant signed an agreement to
comply with the computer and internet policy of Employer and Homeland Security
on May 2, 2013, and June 25, 2012, respectively.            See Homeland Security
Acknowledgement Statement and RGJV Employee Handbook Acknowledgement
of Receipt; R.R. at 126a and 131a. An investigation into Claimant’s browser
history indicated that Claimant spent 41.08 hours on unapproved activities in an
approximate two month period. Decision at 2, F.F. 17; R.R. at 000040a.


             Sheila McCombs (Ms. McCombs), Director for Employer, testified
that Claimant was discharged because she violated both the Government Internet
policy and the Employer’s Employee Handbook policy regarding internet usage.
Notes of Testimony, August 6, 2014, (N.T.) at 10; R.R. at 000014a.              Ms.
McCombs credibly testified that both policies were equally enforced. N.T. at 11;
R.R. at 000015a. On May 9, 2014, there was an altercation between Claimant and
another employee that led Employer to conduct an investigation into the internet
usage of multiple employees.     N.T. at 11; R.R. at 000015a-000016a.           The



                                         7
investigation revealed that Claimant was the only employee spending an excessive
amount of time taking online classes. Notably, Ms. McCombs credibly testified
that other employees were previously discharged for misuse of the computer
policy. N.T. at 12; R.R. at 000016a.


             In unemployment compensation proceedings, the Board is the
ultimate fact-finding body empowered to resolve conflicts in evidence, to
determine the credibility of witnesses, and to determine the weight to be accorded
evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328
(Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the
record, taken as a whole, provides substantial evidence to support the findings.
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa.
1977). The Board adopted and incorporated the Referee’s findings into its Order.
This Court finds no error.


             Claimant also contends that Employer did not uniformly enforce its
policy regarding internet usage and that Paul Kelley, Project Manager for
Employer (Mr. Kelley), enforced this policy only against Claimant as a means of
retaliation for complaints she had previously made about him.


             Mr. Kelley credibly testified that he had personally terminated another
employee who violated Employer’s Internet use policy by accessing “college sites”
prior to this incident with Claimant. N.T. at 21-22; R.R. at 000025a-000026a.




                                         8
               The Board did not credit the testimony of Claimant and her sister
Jacqueline Sawa (Ms. Sawa), a Dispatch Supervisor for Employer, that other
employees accessed the internet for personal use. N.T. at 23 and 32; R.R. at
000027a and 000036a.


               The Board determined that Employer shouldered its burden to prove
that Claimant’s actions rose to the level of willful misconduct.

               The Board does not credit claimant’s testimony that her
               supervisor was aware of her excessive internet usage, that
               the employer’s policy was vague, and that the employer
               did not enforce its internet policy. The policy is clear,
               and the claimant’s excessive use of the internet on work
               time to the neglect of her job duties was in violation of
               the policy.
Board’s Decision, December 24, 2014, at 1. (Emphasis added.)


               As finder of fact, the Board determined that Claimant devoted 41.08
hours towards unapproved activities for which she was paid.                     This excessive
personal use of the internet exhibited a sufficient disregard of Employer’s interests
to constitute willful misconduct. Employer established that it had a rule and that
Claimant violated that rule. Additionally, Claimant failed to provide good cause
for violating the rule.4



       4
          Assuming arguendo that Employer failed to establish that it had an enforceable policy
regarding internet usage, Claimant’s argument would still fail. The existence of a specific rule is
not necessary where the employer has a right to expect a certain standard of behavior, that
standard is obvious to the employee, and the employee’s conduct is so inimical to the employer’s
interests that discharge is a natural result. Ellis v. Unemployment Compensation Board of
Review, 59 A.3d 1159, 1162 (Pa. Cmwlth. 2013).



                                                9
             Further, Claimant failed to establish that Employer did not uniformly
enforce its policies when it discharged Claimant or that she was discharged due to
retaliation. This Court will not reweigh the factual findings of the Board.


             Second, Claimant argues that the Board did not rely on substantial,
competent evidence when it determined that Claimant was not credible. More
specifically, Claimant argues that the Board relied on hearsay evidence to
determine that Claimant used the internet “to the neglect of her job duties.”
Board’s Decision at 1.


             Hearsay is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing offered in evidence to prove the
truth of the matter asserted.” Pa.R.E. 801(c). A “statement” is defined in the
Pennsylvania Rules of Evidence as “(1) an oral or written assertion or (2)
nonverbal conduct of a person it if is intended by the person as an assertion.”
Pa.R.E. 801(a).


             Here, Ms. McCombs testified that she became aware of Claimant’s
misuse of the internet after Claimant had a verbal altercation with a co-worker on
May 9, 2014, where the co-worker accused Claimant of “neglecting her work.”
N.T. at 11; R.R. at 000015a. The co-worker complained that she had to handle a
“high volume of dispatching activity” because Claimant was not attending to her
work. N.T. at 11; R.R. at 000015a. Mr. Kelley testified that there are “officer
safety issues involved” that require employees to adhere to Employer’s internet
usage policy. N.T. at 17; R.R. at 000021a. Claimant’s co-worker’s statements



                                         10
merely prompted Employer to conduct an investigation which revealed that
Claimant spent 41.08 hours logged into an educational site. These statements were
offered to show their effect on Ms. McCombs and Mr. Kelley- which led them to
have cause for concern that Claimant was abusing the internet policy- and not to
show that Claimant was abusing Employer’s policy. These statements were not
offered for the truth of the matter asserted and were, therefore, not hearsay. See,
e.g. In re Shahan, 631 A.2d 1298, 1304 (Pa. Super. 1993) (stating, “[s]ince the
statement was not admitted for its truth, but rather its effect on the listener, the
statement was not hearsay.”)


             Third, Claimant contends that Employer failed to follow its
progressive discipline policy.


             Ms. McCombs explained that Employer had a progressive discipline
policy that consisted of a verbal warning, then a written warning or some form of
counseling, and then additional discipline up to and including termination. N.T. at
13; R.R. at 000017a. However, Ms. McCombs testified that she did not follow that
policy “because her [Claimant’s] behavior was so egregious no prior warning was
necessary.” N.T. at 14; R.R. at 000018a.


             This Court has held that even if an Employer has a progressive
discipline policy, an offense may be so serious as to warrant immediate discharge.
Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629 (Pa.
Cmwlth. 1994). Here, there was substantial evidence to support a finding that
Claimant’s violation of the internet usage policy was so serious that Employer



                                        11
acted in compliance with its disciplinary policy when it discharged her without
prior warning.


            Accordingly, the decision of the Board is affirmed.



                                     ____________________________
                                     BERNARD L. McGINLEY, Judge




                                       12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gemma M. Sawa,                      :
                  Petitioner        :
                                    :
             v.                     :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 84 C.D. 2015
                 Respondent         :


                                ORDER

             AND NOW, this 20th day of October, 2015, the decision of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.




                                    ____________________________
                                    BERNARD L. McGINLEY, Judge
