             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles J. Gigliotti,                         :
                             Petitioner       :
                                              :
                v.                            :   No. 1183 C.D. 2019
                                              :   Submitted: March 13, 2020
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                 FILED: May 12, 2020

                Charles Gigliotti (Claimant), pro se, petitions for review from an
order of the Unemployment Compensation Board of Review (Board), finding him
ineligible for unemployment compensation (UC) benefits pursuant to Section
402(e) of the Pennsylvania UC Law (Law).1 Claimant argues that the Board never
conducted a factual hearing and, thus, should be bound by the findings of fact of
the UC referee, who had the opportunity to determine the credibility and demeanor
of Claimant and the witnesses appearing on behalf of Triangle Tech (Employer).


                 On February 10, 2019, Claimant filed a claim for UC benefits, and
on March 4, 2019, the local service center determined he was eligible. Employer,

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
a technical school, appealed the determination, and after a hearing, the UC referee
affirmed the service center’s determination. At the hearing before the UC referee,
Ms. Stephanie Craig, director of school operations and student affairs, and Mr.
John Kimpan, school director at Employer’s Pittsburgh campus, testified on behalf
of Employer. Claimant testified on his own behalf. No other witnesses testified.
Based on the testimony and the witnesses before him, the UC referee determined
that Employer had not met its burden of proof to establish Claimant’s discharge
from employment was for reasons which rose to the level of willful misconduct in
connection with his work, and thus, benefits could not be denied under Section
402(e) of the Law, 43 P.S. §802(e).2 Employer appealed to the Board which
reversed the referee.


              Because Claimant was discharged, Employer has the burden of
establishing that the discharge was for willful misconduct in connection with his
work. While Section 402(e) of the Law provides that a claimant shall be ineligible
for compensation for any week in which his unemployment is due to discharge for
willful misconduct connected with his work, the term “willful misconduct” is not
actually defined in the Law. However, the Board and the appellate courts have
defined willful misconduct as an act of wanton or willful disregard of the
employer’s interests, a deliberate violation of the employer’s rules, a disregard of
the standards of behavior which the employer has a right to expect of an employee,


       2
        Section 402(e) of the Law states, in pertinent part, that “an 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, irrespective of
whether or not such work is “employment” as defined in this act.” 43 P.S. §802(e).




                                               2
or negligence indicating an intentional disregard of the employer’s interests or of
the employee’s duties and obligations to the employer. Cipriani v. Unemployment
Comp. Bd. of Review, 466 A.2d 1102 (Pa. Cmwlth. 1983).              “Where willful
misconduct is based upon the violation of a work rule, the employer must establish
the existence of the rule, its reasonableness, and that the employee was aware of
the rule…. Once the employer meets its burden, the burden shifts to the claimant
to prove that the rule was unreasonable or that he had good cause for violating the
rule.” Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933, 937 (Pa.
Cmwlth. 2012). “An employer must enforce rules equally in order to establish a
standard of conduct which could reasonably be expected of an employee…. The
essence of disparate treatment is not only whether unlawful discrimination has or
has not occurred but also…whether similarly situated people are treated differently
based upon an improper criteria.” Remcon Plastics, Inc. v. Unemployment Comp.
Bd. of Review, 651 A.2d 671, 673 (Pa. Cmwlth. 1994).


            “[T]he [Board] is the ultimate fact-finder in [UC] matters....” Sipps v.
Unemployment Comp. Bd. of Review, 181 A.3d 479, 484 (Pa. Cmwlth. 2018)
(quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d
338, 342 (Pa. Cmwlth. 2008)). As the factfinder, the Board is entitled to make its
own credibility determinations regarding witnesses. Serrano v. Unemployment
Comp. Bd. of Review, 149 A.3d 435 (Pa. Cmwlth. 2016).             These credibility
determinations are not questioned on appellate review. Id. “[T]he law is well-
settled that the Board, as the ultimate factfinder, need not observe the demeanor of
witnesses in order to make credibility determinations.” County of Dauphin v.
Unemployment Comp. Bd. of Review, 637 A.2d 699, 702 (Pa. Cmwlth. 1994). “It



                                         3
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.” Ductmate Indus., 949 A.2d at 342.3


                Based on the record before it, the Board found Claimant was
employed as a full-time carpenter instructor with Employer who last worked on
February 14, 2019. Bd. Op., 6/26/19, Finding of Fact (F.F.) No. 1, 2. Claimant’s
most recent job description listed various functions and responsibilities, including
practicing worksite safety in classrooms and labs and ensuring safety procedures
are being followed by students at all times.4 F.F. No. 3. Claimant attended a
training session on safety violations on August 7, 2018. F.F. No. 4. Prior to the
incident which led to Claimant’s separation from employment, Employer had
issued Claimant progressive discipline, some of which was for purported safety
violations.5 F.F. Nos. 5, 6. On February 7, 2019, Claimant was scheduled to teach

       3
          In addition, Section 504 of the Law states, in pertinent part: “The board shall have
power…to… 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
department or referee on the basis of the evidence previously submitted in the case, or direct the
taking of additional evidence.”

43 P.S. §824.

       4
         Claimant’s signed job description also provided that he would “[e]nsure that all safety
protocols are in place” and that he was “[r]esponsible to notify supervisors immediately of safety
violations or unsafe conditions.” C.R., Item No. 5.

       5
         Claimant had been disciplined as follows: a written warning on June 7, 2011; a written
warning on March 27, 2012, which referenced student safety concerns, including the need to
supervise students under his care; a written warning on June 27, 2013; and a final written
warning on June 25, 2018. C.R., Item Nos. 5, 11.



                                                4
a carpentry lab for a group of young adult students from 9:30 a.m. to 11:00 a.m.,
and Claimant and his students were scheduled to go to lunch at 11:00 a.m.       F.F.
Nos. 8, 9. Teachers are expected to keep their assigned schedule and do not have
discretion to release students early. F.F. No. 9. However, Claimant released his
students at approximately 10:30 a.m. F.F. No. 10. Shortly thereafter, the director
of school operations was notified of a student safety issue and was asked to
intervene. She looked out an office window and saw four of Claimant’s students
standing inside a garbage dumpster, which was overflowing with construction
materials. These students were involved in an effort to compact the materials in
the dumpster. F.F. Nos. 11, 12. The director saw Claimant and another instructor
standing by watching the students. F.F. No. 13. The director came out and
approached the Claimant who was only a few feet away from the dumpster. F.F.
No. 14.    The director noticed the dumpster contained pieces of wood with
protruding nails. F.F. No. 15. The director noted that this was unsafe, and the
students left the dumpster. F.F. Nos. 16, 17. Employer reviewed the incident, and
because Claimant was on a final warning, it discharged him for failing in his duty
to maintain a safe environment for his students. F.F. No. 18.


            The Board determined that the facts, including Employer’s witnesses’
credible testimony, established that Claimant’s actions rose to the level of willful
misconduct. The Board concluded:


                   [C]laimant was previously warned for student safety-
            related issues and he was on a final warning prior to the final
            incident. Even if the [C]laimant did not instruct his students to
            get up into the dumpster and compact the debris, he clearly did
            nothing to stop them and he stood there observing them without
            intervening. The [C]laimant admitted that the whole situation


                                         5
              was in fact unsafe. Moreover, the students were supposed to be
              in the [C]laimant’s carpentry lab at the time and they were in
              the area of the dumpster only because the [C]laimant had
              improperly released them to lunch early. The [E]mployer did
              not have an ulterior move in discharging the [C]laimant nor was
              the [C]laimant subjected to disparate treatment, as there is no
              evidence the other instructor was on a final warning. Moreover,
              the other instructor denied any allegation that he asked the
              students to get into the dumpster. Under these circumstances,
              the Board concludes that the [C]laimant is ineligible for
              benefits under Section 402(e) of the Law.


Bd. Op., “Discussion” section at 3.


              Claimant filed a petition for review,6 arguing the Board erred by
disregarding the findings of the UC referee who had the opportunity to listen to the
testimony in the case and was able to observe the demeanor of the witnesses.
Claimant argues that the Board should be bound by the UC referee’s findings
because the referee had the opportunity to determine the credibility and demeanor
of Claimant and Employer’s witnesses. In addition, Claimant asserts the Board
erred because its findings of willful misconduct were not supported by the

       6
          Our review is limited to determining whether the Board’s findings were supported by
substantial evidence, whether the Board committed an error of law, or whether constitutional
rights were violated. Dep’t. of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011 (Pa.
Cmwlth. 2008). The Board’s findings of fact are conclusive on appeal as long as they are
supported by substantial evidence. Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422
(Pa. 2003). “Substantial evidence is defined as evidence a reasonable mind might accept as
sufficient to support the conclusion reached.” Frimet v. Unemployment Comp. Bd. of Review, 78
A.3d 21, 26 n.7 (Pa. Cmwlth. 2013). “In determining whether there is substantial evidence to
support the Board’s findings, this Court must examine the testimony in the light most favorable
to the prevailing party, giving that party the benefit of any inferences which can logically and
reasonably be drawn from the evidence.” Resp’t’s Br. at 7 (citing Johnson v. Unemployment
Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986)).




                                               6
evidence of record and because it did not determine the UC referee had committed
an error of law. Claimant also asserts that the Board exceeded its authority by
issuing an order and making findings of fact that were not supported by the
evidence previously submitted in the case.


              In his brief, Claimant acknowledges receiving two prior safety
violations but argues that his final warning had not been safety-related7 and that no
student had ever been injured during his 8½ years on the job. See Pet’r’s Br. at 9.
Claimant asserts that he released his students at 10:50 a.m. and that the students are
routinely dismissed at 10:45 a.m. for lunch. He added that, after he dismissed his
students for lunch, another teacher, Mr. Conner (Conner) “shouted that he needs
volunteers to climb in and pack the dumpster.” Pet’r’s Br. at 10. Claimant asserts
that he met Conner at the dumpster.                However, he contends that when the
Employer’s director approached the scene, Conner had “disappeared into the
building.” Pet’r’s Br. at 10. Claimant maintains that the director asked him if he
thought the situation was safe and that he responded “I will get them out of there.”
Id. Claimant notes that the UC referee’s findings indicate that he, i.e., Claimant,
observed the students in the dumpster for approximately 15 to 30 seconds, while
the Board found that Claimant observed the students for over one minute.
Claimant also contends that he did not tell Conner he was wrong because Conner




       7
         Claimant asserts that his final warning was related to having power tools repaired “with
the director not recalling he endorsed the idea.” Pet’r’s Br. at 9.




                                               7
was his “superior.”8 Pet’r’s Br. at 11. Claimant asserts that he merely asked
Conner why the students were in the dumpster instead of leaving for lunch. Id.


                 Claimant references certain Board findings as “new entr[ies].” Pet’r’s
Br. at 9-10. However, there is documentary and/or testimonial evidence in the
record in regard to each of these matters. It is simply that the Board made findings
in regard to this evidence that was not included in the UC referee’s decision/order.
One such “new entry” was a Board finding that the Employer did not have an
ulterior motive in regard to its decision to terminate Claimant’s employment. F.F.
No. 20.9


                 On review, the record supports the Board’s findings that Claimant’s
employment was terminated due to willful misconduct.                      Claimant had been
disciplined on multiple occasions, some of which involved safety-related issues,
including specific admonishment for failure to properly supervise students.10 As a


       8
          Other than this assertion, the record does not indicate that the other instructor, i.e.,
Conner, was Claimant’s superior. In fact, Claimant himself identifies Conner as “another
instructor.” C.R., Item No. 4 (“Claimant’s Statement”).

       9
           Claimant alludes to Employer inappropriately considering his age as part of its decision
to terminate his employment. However, he does not directly make this assertion, and the Board
credited the Employer’s testimony otherwise, specifically the testimony of Mr. Kimpan that he
had heard from a former student that Claimant was retiring and then asked Claimant if that was,
in fact, true. The record reveals that Mr. Kimpan testified before the UC referee that one of his
responsibilities is to ensure Employer is adequately staffed, so he was concerned, from a staffing
perspective, that Claimant might be contemplating retirement. Mr. Kimpan further testified that
this matter had nothing to do with his decision to terminate Claimant’s employment. C.R., Item
11 at 23.

       10
            C.R., Item No. 11, “Notice of Discipline,” 3/27/12.



                                                  8
result, Claimant was on a final warning status at the time of his last infraction.
Further, Employer had specific rules in place, of which Claimant was, or should
have been, aware. In addition to an employee handbook which addressed safety
matters, Claimant was provided safety training. Claimant was responsible for his
students up to 11:00 a.m. and had released them to lunch in advance of this time.
Subsequently, when he arrived at the garbage dumpster and found his students in
it, he appears, minimally, to have been slow to react to the situation.     Claimant
takes issue with the Board’s determination that Claimant observed his students in
the dumpster for approximately one minute, whereas the referee had found that
Claimant observed same for approximately 15-30 seconds. However, we find little
merit in Claimant’s contention where Claimant, himself, testified that his students
were in the dumpster for “less than two minutes” and where Claimant was
responsible for the students until 11:00 a.m. C.R., Item 11 at 17.


             Claimant’s appeal is, at its essence, an attack on the Board’s findings
and credibility determinations. However, as noted previously, “the [Board] is the
ultimate fact-finder in [UC] matters. . . .” Sipps, 181 A.3d at 484. As the fact-
finder, the Board is entitled to make its own credibility determinations regarding
witnesses.   Serrano.    These credibility determinations are not questioned on
appellate review. Id. Although Claimant takes issue with the Board’s findings
where they differ from those of the referee, “it is well settled that the Board is the
ultimate finder of fact in unemployment compensation proceedings.” Chapman v.
Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
“[I]ssues of credibility are for the Board which may either accept or reject a




                                          9
witness’ testimony whether or not it is corroborated by other evidence of record.”
Id.


            The Board notes a number of specific examples where Claimant
challenges the Board’s findings but where the challenges lack merit. As the Board
asserts: “Claimant questions Finding of Fact Number 4, that he attended a safety
violations training on August 7, 2018, arguing that all employees are required to
attend the training. . . . However, while true, Claimant does not explain how this
fact helps him.” Resp’t’s Br. at 7. The Board notes that:


             Claimant also asserts that Finding of Fact Number 5 is
            incorrect because the final written warning he received on June
            25, 2018, was not for a safety violation, and the Board failed to
            acknowledge his testimony that neither himself nor any
            students were ever injured on his watch…. However, Finding
            of Fact Number 5 states only that some of Claimant’s prior
            discipline was related to safety violations, not all of it. The
            purpose of the final warning was to place Claimant on notice
            that any further violations of Employer’s policy would result in
            further disciplinary actions, up to discharge…. Further, the
            Board is not required to make a finding on irrelevant testimony.
            The fact that neither Claimant nor his students were actually
            injured does not mitigate a safety violation that was stopped by
            the [d]irector before anyone got hurt. Therefore, this testimony
            is irrelevant.

Resp’t’s Br. at 7-8. Claimant makes additional arguments that have no support in
the record and other arguments in which he merely challenges the Board’s
credibility determinations. However, Claimant may not now add to his argument,
and this Court will not second-guess the Board’s credibility determinations on
appeal.




                                        10
              Due to Claimant’s track record, as reflected in prior discipline for
safety-related violations, as well as his training relative to safety matters, Claimant
should have been more conscientious than he was when it came to Employer’s
safety concerns. Given Employer’s interest in maintaining its reputation as a
technical school, it was, and is, not unreasonable for it to place a high priority on
safety. Further, we cannot say that Claimant was unaware of the importance of
these concerns, as Employer had made him well aware of same through its
handbook,11 safety training, and through a number of individual warnings about his
lack of careful attention to safety issues.              In addition, Claimant, himself,
acknowledged that his job description required him to ensure the safety of his
students and to comply with Employer’s safety policies. Claimant also agreed that
students being on top of debris in a dumpster created an unsafe situation. C.R.
Item 11, hearing transcript, at 18. Given the totality of the evidence before us, we
cannot escape the conclusion that: (1) Claimant was aware of Employer’s rules;
(2) those rules were reasonable in light of Employer’s business concerns; (3)
Claimant disregarded the standards of behavior which Employer had a right to
expect of its employees (or, alternatively, was negligent, indicating an intentional
disregard of Employer’s interests or Claimant’s own duties and obligations to
Employer); and (4) Claimant’s employment was properly terminated due to willful




       11
          In addition to notifying employees of the possibility for disciplinary action, up to
dismissal, for various rule violations, the employee handbook specifically states that
“committing a safety violation” is a type of infraction which may lead to such discipline. C.R.,
Item No. 5, Employee Handbook at 7-2.



                                              11
misconduct, as that term is understood in UC law. Accordingly, we affirm the
Board’s order denying Claimant’s claim for UC benefits.



                                     ______________________________
                                     J. ANDREW CROMPTON, Judge




                                       12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles J. Gigliotti,                   :
                        Petitioner      :
                                        :
              v.                        :    No. 1183 C.D. 2019
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :

                                     ORDER

             AND NOW, this       12th       day of   May   2020, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                             ______________________________
                                             J. ANDREW CROMPTON, Judge
