                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michele Marie Drayer,                          :
                 Petitioner                    :
                                               :
              v.                               :
                                               :
Unemployment Compensation                      :
Board of Review,                               :    No. 1212 C.D. 2019
                 Respondent                    :    Submitted: January 10, 2020


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: February 7, 2020

              Michele Marie Drayer (Claimant) petitions this Court pro se1 for review
of the Unemployment Compensation (UC) Board of Review’s (UCBR) August 23,
2019 order affirming the Referee’s decision denying Claimant UC benefits under
Section 402(e) of the UC Law (Law).2 The sole issue before this Court is whether the
UCBR erred by denying Claimant UC benefits under Section 402(e) of the Law.3
After review, we affirm.



       1
          Claimant was represented by counsel at the Referee hearing. At all other times, Claimant
acted pro se.
        2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
        3
          In her “Statement of Question[s] Involved,” Claimant presents two issues: (1) whether the
UCBR erred because “there was insufficient evidence” to find that Claimant “willfully verbally
abused the customer under a normal situation[;]” and (2) whether the UCBR erred by concluding
that Claimant is ineligible for UC benefits under “Section 402(b) of the [Law].” Claimant Br. at 7.
Because the UCBR found Claimant ineligible for UC benefits under Section 402(e) of the Law, not
Section 402(b) of the Law, and Claimant’s first issue is subsumed in this Court’s restatement of the
issue, Claimant’s first issue will be addressed therein.
              Claimant was employed by Boscov’s Department Store LLC (Employer)
as a part-time sales associate from September 2016 until she was discharged on June
5, 2019. Employer has a policy against abusive or threatening language to customers,
supervisors, or co-workers (Policy).          The discipline for violating the Policy is
immediate dismissal without a warning. Employer informed Claimant of the Policy.
On June 4, 2019, a customer approached Claimant and asked to pay a bill. Claimant
asked the customer if she had her credit card or her statement. Because the customer
had only her driver’s license, Claimant informed the customer she would have to go
to customer service for assistance. The customer called Claimant a f*****g dyke and
walked away. Claimant was upset, went upstairs to the customer service department
and asked if the customer had paid her bill. Claimant was told no, and Claimant left
to return to her department. On her way back to her department, Claimant ran into
the customer and told the customer to never call someone a f****** d***. The
customer began speaking to Claimant in Spanish, and Claimant told the customer to
go back to Mexico. On June 5, 2019, Employer called Claimant into a meeting and
discharged Claimant for her verbal altercation with the customer that violated the
Policy.
              Claimant applied for UC benefits. On June 20, 2019, the Scranton UC
Service Center determined that Claimant was not eligible for UC benefits under
Section 402(e) of the Law. Claimant appealed and a Referee hearing was held. On
July 25, 2019, the Referee affirmed the UC Service Center’s determination. Claimant
appealed to the UCBR. On August 23, 2019, the UCBR affirmed the Referee’s
decision. Claimant appealed to this Court.4

       4
          “‘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).” Talty v. Unemployment Comp. Bd. of Review, 197 A.3d 842, 843 n.4 (Pa.
Cmwlth. 2018).

                                               2
             Claimant argues that the UCBR erred by denying her UC benefits.
             Initially,

             Section 402(e) of the Law provides that an employee is
             ineligible for [UC] 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 a[] [UC] 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.

Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747
n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added)).

             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 employer meets this burden, the burden
             shifts to the claimant to prove that the rule was
             unreasonable or that he had good cause for violating the
             rule.

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Review, 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)).
             Claimant contends that Employer’s Policy only focuses on the customer
and not the employee. Claimant asserts that Employer should not have fired her
because she was not trained regarding how to deal with abusive customers and she
was very upset at the time of the incident.




                                              3
                At the Referee hearing, Claimant described:

                C[laimant’s] L[awyer] What was the discussion between
                you and [Employer’s Human Resource Manager] Nicole?[5]
                What did you say to her, what did she say to you, et cetera?
                C[laimant] I went in there and I told her, I said something
                really bad happened the night before. I said I had a
                customer that came up -- a customer came up to the
                window, and I had -- in the meantime, I was getting
                something for another customer in the fitting room. I went
                to get a pair of trousers for the customer that was in the
                fitting room and the woman came after me -- well, followed
                me. She followed me. She said, I want to pay my bill. I
                said to her, I will be right there I’m waiting on another
                customer, getting her a pair of pants. I proceeded to bring
                the pants back and the customer wanted to pay her bill. . . .
                I said to the lady, I said, you don’t have your credit card,
                can I have your credit card. She said, well, this is my
                driver’s license, take it. I said, I’m not sure I can really take
                it. I said could you please go up to customer service, and
                they’ll take your bill, and also they will help you get your
                credit card. She said she never received a credit card. She
                said I was already up there. I said okay, but please, I just
                don’t want to -- I don’t think I can take this card. I said I’m
                really busy and I had no backup to help me do anything.
                She turned around and she called me this f*****g dyke, and
                I -- we’re called a lot of names in the store by customers, a
                lot of names. I just couldn’t handle this. I was so stressed.

Certified Record (C.R.) Item 10, Notes of Testimony, July 24, 2019 (N.T.) at 11-12.
                Claimant continued:

                [Claimant] There was no help on the floor, the manager, I
                don’t know where she was, I don’t know whether [the other
                manager] Kirk [Dawson] was down in his own department,
                because they’re not store managers. They are department
                managers that run the store. So they are in their department
                as well as running the store. I just froze. I mean, I just
                froze. I couldn’t do anything. I left the floor. When I left
                the floor and I went upstairs, and I said did anybody come
                up there and report me? I said, did anybody come up to
                want to pay a bill, and they said no. I was calm then, I was

      5
          Nicole’s last name does not appear in the record.
                                                  4
             overwhelmed, I had customers. I came down the escalator
             and there was this lady. I went up to her . . .
             R[eferee] Which lady?
             C[laimant] The lady that called me the name. I went up to
             her and I said to her, I said, don’t ever you [sic] call
             anybody a f****** d***. I said that is so not right, you
             can’t do those things. Then she proceeded to speak in
             Spanish, I don’t know what she was saying to me, and I was
             on my way down -- I said, I’m on my way down to the
             register, I have to ring up stuff, and I said just go back to
             Mexico. I did say that. I was so -- I didn’t know how to
             retaliate. I was upset and I was never called that before in
             my life. Then she proceeded to say, well, I’m not from
             Mexico, I’m from Columbia. Well, I -- then I went down
             there and in the meantime I was crying, waiting on
             customers, and finally the manager shows up. There was no
             witness. There was nobody there, no help for five and a
             half hours. We only get a half an hour lunch and ten-
             minute break. I was there with nothing. I didn’t have any
             recourse. . . .

N.T. at 12 (emphasis added).
             This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in
[UC] matters[.] . . . Where substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.” Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008)
(citations omitted)).   “Substantial evidence is relevant evidence upon which a
reasonable mind could base a conclusion.” Sipps, 181 A.3d at 484 (quoting Sanders
v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999)).
             Here, the UCBR adopted the Referee’s findings and conclusion:

             In the present case, [] [E]mployer[’s] witness did not have
             any firsthand testimony as to what happened in the final
             incident, but was able to establish that [] [E]mployer has a
             [P]olicy that prohibits abusive or threatening language to
             customers. Here, [] [C]laimant admitted that she did get
             into a verbal altercation with the customer after the
             customer made an unprovoked, abhorrent comment to []
             [C]laimant. As such, however unfair [] [E]mployer’s
                                           5
             [P]olicy may be towards its employees, [] [C]laimant’s
             admission to the verbal altercation with the customer has
             met [] [E]mployer’s burden to show the [P]olicy was
             violated. Accordingly, the Referee concludes that []
             [E]mployer has met its burden of proof in establishing that
             [] [C]laimant’s discharge from employment was for reasons
             which rise to the level of willful misconduct in connection
             with the work, and benefits are denied in accordance with
             Section 402(e) of the Law.

Referee Dec. at 2. The UCBR added: “[A]lthough the customer’s comments may
have been hurtful and unwarranted, this does not excuse [] [C]laimant’s retaliatory
statement. Consequently, she failed to prove good cause for her actions.”6 UCBR
Dec. at 1.
             Based upon this Court’s review of the record, there is substantial
evidence to support the UCBR’s findings and conclusions. Thus, this Court holds
that the UCBR properly concluded Claimant violated Employer’s Policy without
good cause for doing so. Accordingly, the Court discerns no error or abuse of
discretion by the UCBR in denying Claimant UC benefits under Section 402(e) of the
Law.
             For all of the above reasons, the UCBR’s order is affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge




       6
        This statement is especially true here, where there was time and distance between the
customer’s comments and Claimant’s response thereto.
                                             6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michele Marie Drayer,                 :
                 Petitioner           :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1212 C.D. 2019
                 Respondent           :



                                   ORDER

            AND NOW, this 7th day of February, 2020, the Unemployment
Compensation Board of Review’s August 23, 2019 order is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge
