           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian A. Dietrich,                           :
                            Petitioner       :
                                             :
                     v.                      :    No. 488 C.D. 2015
                                             :    SUBMITTED: September 11, 2015
Unemployment Compensation                    :
Board of Review,                             :
                    Respondent               :


BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER                                 FILED: November 24, 2015


              Brian A. Dietrich (Claimant) petitions for review of the order of the
Unemployment Compensation Board of Review (Board) that denied him
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law).1 Claimant challenges the Board's conclusion that he
was ineligible for benefits under Section 402(e) of the Law because he was
discharged for making insolent remarks to his supervisor in violation of Employer's
policy prohibiting insubordination.        Because the record supports the Board's
conclusion, we affirm.

    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides, in pertinent part, that an employee 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 …."
            Claimant was employed by Samuels and Son Seafood Co., Inc.
(Employer) as a full-time lobby attendant performing administrative and clerical
work from March 1, 1998, until he was discharged on October 17, 2014. The Erie
UC Service Center granted Claimant's application for benefits, determining that he
was not ineligible for benefits under Section 402(e) of the Law. After a hearing, at
which Claimant and Employer's witnesses, represented by counsel, appeared and
testified, the referee concluded that Claimant was discharged for violating
Employer's policy prohibiting insubordination and was, therefore, ineligible for
benefits under Section 402(e) of the Law.
            The Board's findings and the undisputed evidence in the record reveal
the following circumstances surrounding the termination of Claimant's
employment. On October 17, 2014, Employer's general manager and Claimant's
supervisor, Mark Falcone, met with Claimant in his office and gave Claimant a
written warning for failing to clock in and out for lunch breaks and eating lunch at
the work station in violation of Employer's meal break policy. Claimant had
previously received four oral and written warnings in 2012 and 2013 for the same
policy violations. Employee Warning Report; Reproduced Record (R.R.) at 17a.
            Falcone testified that as Claimant signed the warning and handed it
over to him, Claimant asked him, "don't you have better things to do … [a]round
here[?]" December 29, 2014 Hearing, Notes of Testimony (N.T.) at 8; R.R. at 73a.
Claimant further asked: "What about the ten minute breaks I didn’t get for the last
five years, how am I going to … get paid for that?" Id. Falcone testified: "I had
told him no one ever kept him from taking a break. And he says well, we'll have to
see about that. I'm going to have to … get in touch with the NLRB [National
Labor Relations Board]." Id. Falcone further testified:
            We proceeded over to the copy machine.           I was …

                                         2
              making a copy of the written warning for [Claimant].
              And I said to him, don't tell me how to do my job. And
              that's when he said somebody ought to be telling you
              how to do your job around here. And he said it in the
              office setting, but [Claimant] has a fairly loud voice. I'm
              not saying he was yelling, but he does have a loud
              speaking manner and there was [sic] probably 15 to 20
              people in that office, in the accounting office within
              earshot.
Id.
              After Falcone discussed the incident with Employer's chief financial
officer and Employer's owner, Employer discharged Claimant for violating its
written policy prohibiting insubordination. Under Employer's policy, an employee
may be subject to disciplinary action, up to discharge, for "[i]nsubordination or
refusal to follow management instructions on legitimate job-related matters." R.R.
at 31a. The Board determined that Claimant's insolent remarks to his manager
amounted to insubordination and that his action was not justified. The Board
concluded that Claimant was discharged for willful misconduct and was, therefore,
ineligible for benefits under Section 402(e) of the Law. Claimant's appeal to this
Court followed.
              Claimant argues that the record does not support the Board's
conclusion that he was insubordinate. He maintains that he was merely raising
legitimate questions about unpaid break time to his supervisor and that his action
did not rise to the level of willful misconduct.2

      2
       In his brief, Claimant attempts to establish that Falcone incorrectly testified before the
referee that he asked Falcone, "don't you have better things to do?" According to Claimant, he
instead nicely stated to Falcone that "I would think you have better things to do around here."
Claimant's Brief at 11. In support, Claimant cites Falcone's deposition testimony taken in his
action against Employer filed in the United States District Court for the Eastern District of
Pennsylvania. He included in the reproduced record Falcone's deposition testimony (85a-153a)
and the deposition testimony of the owner of Employer, Samuel D'Angelo, (154a-165a) taken in
(Footnote continued on next page…)


                                               3
               An employer contesting an employee's eligibility for benefits under
Section 402(e) of the Law has the initial burden of proving that the employee
engaged in willful misconduct.3 Patla v. Unemployment Comp. Bd. of Review, 962
A.2d 724, 727 (Pa. Cmwlth. 2008). Once the employer establishes a prima facie
case of willful misconduct, the burden then shifts to the employee to demonstrate
good cause for his or her conduct. Id. Where a charge of willful misconduct is
based on a violation of a work rule, the employer must prove the existence of the
rule, the reasonableness of the rule and its violation. Ellis v. Unemployment Comp.
Bd. of Review, 59 A.3d 1159, 1162 (Pa. Cmwlth. 2013). Whether the claimant's
conduct rose to the level of willful misconduct is a question of law subject to our
plenary review. Scott v. Unemployment Comp. Bd. of Review, 105 A.3d 839, 844
(Pa. Cmwlth. 2014), appeal denied, ___A.3d ___ (Pa., No. 22 WAL 2015, filed
August 21, 2015).
               Employer's policy does not define the term "[i]nsubordination."
BLACK'S LAW DICTIONARY 814 (8th ed. 2004) defines "insubordination" to
include "[a]n act of disobedience to proper authority." The definition of the term

_____________________________
(continued…)
that action after the Board's decision in this matter. This Court granted the Board's motion and
struck their deposition testimony from the reproduced record, stating that it cannot be considered
in this appeal because it was not admitted into the record at the referee's hearing and is not a part
of the certified record under Rule 1921 of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1921. See Welsh v. Bulger, 698 A.2d 581, 586 n.12 (Pa. 1997) (holding that appellate
courts cannot consider any matter which is not part of the record).
     3
       The term "willful misconduct" has been defined as: (1) the wanton and willful disregard of
the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of
behavior which an employer can rightfully expect of its employee; or (4) negligence which
manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the
employer's interests or the employee's duties and obligations. Glatfelter Barber Shop v.
Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008).



                                                 4
"insubordinate" includes "unwilling to submit to authority, … infraction of rules,
or a generally disaffected attitude toward authority." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1172 (2002).             An employee's "use of abusive,
vulgar or offensive language with a supervisor is a form of insubordination that can
constitute willful misconduct, even if the employer has not adopted a specific work
rule prohibiting such language." Brown v. Unemployment Comp. Bd. of Review,
49 A.3d 933, 937 (Pa. Cmwlth. 2012).
            An employee's remarks questioning an employer's authority and
veracity in an insolent manner can also constitute willful misconduct. Sargent v.
Unemployment Comp. Bd. of Review, 630 A.2d 534, 536 (Pa. Cmwlth. 1993). In
Sargent, the claimant demanded the employer's explanation for discharging her
coworkers and accused the employer of spreading rumors as to the cause of the
discharge. When the employer denied the accusation, the claimant expressed her
skepticism as to the employer's truthfulness.       The employer discharged the
claimant for her insolent remarks questioning its authority and veracity. The Board
concluded that the claimant's behavior of openly and directly questioning the
employer's veracity and accusing the employer without cause was "insolence"
which was in disregard of the standards an employer could reasonably expect from
an employee and rose to the level of willful misconduct. Id. at 535. We agreed
that the claimant's "manner was insolent" and constituted willful misconduct. Id.
at 537.
            Claimant first stated that his supervisor should have better things to do
than issuing a warning to him for violating a meal break policy. Claimant then told
the supervisor that someone should tell him how to do his job in a loud voice
where 15 to 20 employees in the office could hear. Those remarks questioned the



                                         5
supervisor's authority to enforce Employer's policy and his competency to do his
job in an insolent manner. Under Sargent, such behavior was in disregard of the
standards Employer could rightfully expect from its employees and rose to the
level of willful misconduct. See also Strong v. Unemployment Comp. Bd. of
Review, 459 A.2d 57, 59 (Pa. Cmwlth. 1983) (holding that the claimant's behavior
of describing his foreman and the mine superintendent as timorous on the subject
of mine safety and calling the superintendent a greenhorn, a person who is
inexperienced and unsophisticated in the art of mining, was "no mere peccadillo"
and constituted willful misconduct).
            Claimant cites Luketic v. Unemployment Compensation Board of
Review, 386 A.2d 1045 (Pa. Cmwlth. 1978), for the proposition that an employee's
raising of legitimate questions about an employer's action does not constitute
willful misconduct, even when coupled with the employee's bad attitude.         In
Luketic, the claimant, a caseworker for the local agency, stated at a staff meeting
that the local agency was misleading its employees by telling them that they were
laid off due to the alleged funding problems. She indicated that she intended to
check with the Department of Welfare as to the necessity for the layoffs. Two
days later, she was discharged for, inter alia, insubordination. We concluded that
the claimant's conduct did not rise to the level of willful misconduct because her
comments were reasonable and neither vulgar nor abusive. Claimant also cites
Dincher v. Unemployment Compensation Board of Review, 502 A.2d 797 (Pa.
Cmwlth. 1986), to argue that merely talking back to a supervisor is not willful
misconduct absent abusive language.
            This case is factually distinguishable from Luketic and Dincher.
Unlike in those cases, Claimant's action went beyond merely raising legitimate



                                        6
questions about Employer's meal break policy or talking back to the supervisor.
Claimant questioned the supervisor's authority to enforce the written policy and his
ability to do his job in an insolent manner in front of the coworkers. Such behavior
constitutes insubordination and willful misconduct under Sargent and Strong.
            Accordingly, the Board's order is affirmed.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian A. Dietrich,                        :
                          Petitioner      :
                                          :
                     v.                   :     No. 488 C.D. 2015
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :


                                       ORDER


            AND NOW, this 24th day of November, 2015, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
AFFIRMED.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge
