               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frances M. Rodriguez,                      :
                 Petitioner                :
                                           :
             v.                            :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 845 C.D. 2019
                 Respondent                :   Submitted: February 21, 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: April 17, 2020

             Frances M. Rodriguez (Claimant) petitions this Court pro se for review
of the Unemployment Compensation (UC) Board of Review’s (UCBR) May 8, 2019
order affirming the Referee’s decision denying UC benefits under Section 402(e) of
the UC Law (Law).1         The sole issue before this Court is whether SupportSoft
(Employer) met its burden of proving that Claimant committed willful misconduct.
After review, we affirm.
             Employer employed Claimant as a full-time remote services technician
from June 18, 2018 to November 14, 2018. Employer operates a work from home
virtual call center. Employer has a customer interaction policy (Policy) and code of
conduct which states that the use of profanity, screaming or other inappropriate tone


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
leads to immediate employment termination because there is a zero tolerance for such
conduct. Claimant was aware or should have been aware of Employer’s Policy and
code of conduct. Employer provided Claimant with six weeks of training, including
training on how to de-escalate from a call where the customer is irate and how and
when to contact a supervisor.
              On November 13, 2018, Claimant was on a customer call for 45 minutes.
During the call, Claimant was rude and did not contact a supervisor. Claimant made
sarcastic remarks about the customer’s English and grammar, and made derogatory
comments about his education based thereon.                 The customer complained about
Claimant’s conduct. As a result, Employer conducted an investigation. Employer
listened to the call in its entirety. Employer found Claimant’s conduct shocking,
condescending and disrespectful, and determined that Claimant challenged the
customer, corrected his English and pretended to hang up on the customer which led
to the customer getting angry. Employer discharged Claimant on November 14,
2018, for her unprofessional behavior.
              Claimant applied for UC benefits. On January 29, 2019, the Erie UC
Service Center determined that Claimant was eligible for UC benefits under Section
402(e) of the Law. Employer appealed and a Referee hearing was held. On March
27, 2019, the Referee reversed the UC Service Center’s determination. Claimant
appealed to the UCBR. On May 8, 2019, the UCBR affirmed the Referee’s decision.
Claimant appealed to this Court.2




       2
         “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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).



                                                 2
              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 and emphasis omitted)).
              Essentially, Claimant argues that this Court should believe her version of
the facts, i.e., she did nothing wrong.3 Employer rejoins that it established Claimant
was discharged because she violated the Policy when she was rude and sarcastic to a
customer and that Claimant did not prove good cause for her conduct.
              This Court has held:

              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)).


       3
         Claimant erroneously frames her argument with respect to Section 402(b) of the Law, 43
P.S. § 802(b) (referring to voluntary termination of employment), and asserts that she had a
necessitous and compelling reason to act as she did. See Claimant Br.
                                              3
            Here, Employer’s Human Resources Manager Katherine Parr (Parr)
related that in a recorded phone call with a customer, Claimant

            was very offensive to the customer. He was calling in
            because he had not had the technician out. So, . . . he was
            already at the point of frustration, and he stated to
            [Claimant], I have homework that I have to do online
            tonight. As [Claimant] is going through and checking the
            notes on the account, she says to him, well, not for nothing,
            sir, but why would you wait until the last minute to do your
            schoolwork, and he’s just kind of flabbergasted by this and
            says kind of, thank for you telling me how to run my life, I
            really just need my Internet fixed. And so, that’s an
            escalation point in the call. What [Claimant] was trained to
            do was if there was a situation where a customer -- her
            primary job is to de-escalate the customer, right, and
            provide a well [sic] customer experience. And, so, her job
            was to keep the call moving forward, find a solution for the
            customer, not engage in inflammatory remarks. As we
            proceed through the call, [Claimant] also talks over the
            customer. He requests a supervisor. At the 23-minute mark
            of the call, he requests a supervisor, and [Claimant’s] in the
            middle of creating another work order for another
            technician to come, and she just keeps talking over him and
            says, when do you want the work order? And her tone of
            voice is escalating and higher, almost to a yelling point.
            And says well, I’ll just go ahead and cancel this work order.
            And he’s just like, I just want to speak to a supervisor, you
            do not have to speak to me anymore. At this point,
            [Claimant] cancels the work order, and he says, no, I don’t
            want you to cancel the work order, I want to speak to your
            supervisor, but you don’t have to cancel the work order.
            [Claimant] continues to escalate through her tone of voice,
            through her actions. She at this point, threatens to
            disconnect the call.
            R[eferee:] Did [Claimant] disconnect the call?
            [Parr:] She did not. She did not. [sic] And she told him,
            she said, it’s too late, I’ve already cancelled the order. So
            she was trained that if she did have a customer situation,
            even if the customer were [sic] being disrespectful, she’s to
            follow the escalation procedure. Place the customer on
            hold, and reach out to a supervisor, and follow the
                                          4
              escalation process. [Claimant] did not do that, she
              continue[d] to talk to the customer, not place him on hold.
Notes of Testimony March 21, 2019 (N.T.) at 11-12. Parr continued:
              The call goes on. About 23 minutes, they again are
              discussion [sic] – I’m sorry, about 30 minutes, [Claimant]
              says . . . [speaks] to him in Spanish, then they have a – the
              customer says, oh, look whose [sic] cursing now. Look
              whose [sic] cussing now. [Claimant] said I’m not cussing,
              I’m cursing [sic], the correct word is cussing. She tells the
              customer that she’s correcting his English, and states
              sarcastically to him, he must be in a real [sic] good
              university there, meaning since she had to correct his
              English.
              R[eferee:] So she was being sarcastic?
              [Parr:] Yeah, she [spoke to] him in Spanish and then was
              sarcastic and corrected his English and said you must be in
              a real good university, meaning if I have to correct your
              English, you must not be in a very good school. A totally
              inappropriate comment to make.
N.T. at 12.

              In her brief, Claimant appears to argue that she had good cause to act as
she did because she was written up twice that day when she should not have been
disciplined, and therefore “was over[]whelmed.” Claimant Br. at 5.4 Consequently,
she argues, she behaved in the same manner as a reasonable person would have acted
in her circumstances. Further, Claimant asserts that she “kept apologizing to the
caller even though after such a long time to get a supervisor for the caller he was
irritated and upset from the first minute of the call [and] my co-worker Jose took over
the call 40 minutes later.” Claimant Br. at 6.
              This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in
[UC] matters[.] . . . Where substantial evidence supports the [UCBR’s] findings, they


      4
       The pages of Claimant’s brief are not numbered; thus, for ease of reference, the Court
numbered the pages beginning with the page after the table of contents.
                                             5
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 determined:

             On appeal, [] [C]laimant acknowledged that she had
             bickered with the customer, but argues that she did not
             curse and that [E]mployer did not assist her in transferring
             the caller when he was angry. . . . [T]he [UCBR] credits []
             [C]laimant that she did not curse in Spanish. However, []
             [C]laimant’s conduct was still violative of [] [E]mployer’s
             standards in that she was rude and sarcastic to the customer.
             Even if [] [E]mployer was unable to accept the call transfer,
             [] [C]laimant’s actions are still not justified under the
             circumstances.
             Therefore, the [UCBR] amends,[5] adopts, and incorporates
             the Referee’s findings and conclusions[.]
UCBR Dec. at 1. The Referee concluded:
             In the present case, [] [C]laimant testified that the customer
             was rude and talked about her accent. [] [C]laimant’s
             testimony was not credible.
             Based on the competent and credible first-hand testimony
             provided by [] [E]mployer’s witnesses, the Referee finds
             that [] [C]laimant’s conduct indicated a disregard of the
             standards of behavior that an employer has the right to
             expect of an employee.           Here, [] [C]laimant was
             disrespectful, aggravated the customer, and even cursed in
             Spanish. As such, the Referee finds that [] [C]laimant’s
             conduct indicated a disregard of her duties to [] [E]mployer,
             and rose to the level of willful misconduct as contemplated
             under Section 402(e) of the Law. Therefore, the Referee
             finds that [] [C]laimant is ineligible for benefits under
             Section 402(e) of the Law.
      5
       The Referee had found as a fact that Claimant cursed at the customer. Hence, the UCBR
amended that finding.
                                             6
Referee Dec. at 3.

            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 committed willful misconduct 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




                                         7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frances M. Rodriguez,                 :
                 Petitioner           :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 845 C.D. 2019
                 Respondent           :


                                   ORDER

            AND NOW, this 17th day of April, 2020, the Unemployment
Compensation Board of Review’s May 8, 2019 order is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge
