            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gordon Terminal Service Co.,                   :
                       Petitioner              :
                                               :
                 v.                            :   No. 1603 C.D. 2018
                                               :   Submitted: May 6, 2019
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY JUDGE BROBSON                           FILED: June 3, 2019


                 Gordon Terminal Service Co. (Employer) petitions for review of an
order of the Unemployment Compensation Board of Review (Board), which
affirmed a Referee’s decision, thereby granting unemployment compensation
benefits to Dante J. Bohannon (Claimant). We now affirm.
                 Claimant filed for unemployment compensation benefits subsequent to
his discharge from employment with Employer. The Duquesne Unemployment
Compensation Service Center (Service Center) issued a notice of determination,
denying benefits to Claimant based on Section 402(e) of the Unemployment
Compensation Law (Law),1 relating to willful misconduct. (Reproduced Record
(R.R.) at 16a.) Claimant appealed the Service Center’s determination, and a Referee
conducted a hearing. Claimant testified on his own behalf. Employer presented the

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
testimony of Robert Gordon, Employer’s Vice President. At the start of the hearing,
the parties agreed that Claimant started working for Employer as a pumper in
February 2015, and Employer terminated his employment on June 6, 2018.
(R.R. at 39a.)
             Mr. Gordon testified that prior to the termination of Claimant’s
employment, Employer warned Claimant that utilizing his cellular device while on
duty during his working hours was not permissible. (Id.) Mr. Gordon testified that
Employer terminated Claimant’s employment because Claimant was using his cell
phone while at work. Mr. Gordon also testified that Claimant did not perform a job
he was assigned to do because “the supervisor took his cell phone away from him.”
(Id. at 40a.) Mr. Gordon did not see Claimant using his cell phone and did not have
any personal knowledge regarding Claimant’s alleged failure to perform a job, and
Employer did not have any witnesses at the hearing other than Mr. Gordon.
(Id. at 39a-40a.)
             Claimant testified that he is “not the only one on their phone” in
Employer’s plant, as “everybody in the plant is on their phone.” (Id. at 40a.)
Claimant testified that he is being singled-out. (Id.) Claimant testified that on the
day at issue his supervisor became upset with him because Claimant was waiting on
some paperwork and everyone was standing around.            (Id. at 40a-41a.)    The
supervisor came over and told Claimant that “we got to work sometime” and took
Claimant’s phone, put it in his pocket, and proceeded to walk away. (Id. at 41a.)
Claimant walked with the supervisor and asked the supervisor two or three times to
give the cell phone back to him. (Id.) The supervisor returned the phone and told
Claimant to clock out and go home. (Id.)




                                         2
              On cross-examination, Claimant acknowledged that Employer’s work
rules prohibit insubordination and that insubordination may result in termination.
(Id. at 42a.) As to the job assignment, Claimant testified that his supervisor told him
to “go gauge.” (Id.) When the supervisor grabbed his phone, he told the supervisor
to give it back. (Id.) Claimant did not say he was not going to do the assignment.
(Id.) All Claimant said was “give me my phone.” Claimant was concerned that
Employer expected him to “go up on the hill with no phone or line of
communication, by [him]self” because something could “have happened to [him]
while [he] was up there on those tanks.” (Id.) He did not do the job that his
supervisor asked him to do because the supervisor told him to clock out. (Id.)
              Mr. Gordon asked Claimant if he was familiar with a letter dated
May 25, 2017,2 regarding a similar earlier infraction, and Claimant responded that
he had not seen the letter until Employer showed it to him on his last day of work.
(Id. at 42a-43a.) Claimant acknowledged that he was aware of the memo posted on
Employer’s bulletin board since September 26, 2016, stating that use of cell phones
was not permissible without special approval. (Id. at 43a.) When asked if “[he] and
others [were] in fact watching the NBA finals on June 6th, the night of the incident,”
Claimant responded: “Yeah. And we watched the Superbowl and numerous other
games.” (Id.) Claimant explained that “[e]verybody in that section has their phones
at all times. And they’re constantly . . . on their phones.” (Id.) Claimant stated that
even the supervisor came over and sat there and watched the game. (Id.)
              Mr. Gordon asked Claimant whether watching television on his phone
while in the plant constituted a safety violation. Claimant explained that it was not


       2
         Although Mr. Gordon did not initially identify the year in which Employer issued the
warning letter, he later stated that the letter had been issued the year before. (R.R. at 46a.)

                                              3
like they were walking around while looking at their phones, and, “[a]t this particular
time, no one was doing nothing and they [were] using their phone[s]. Everybody
had their phone[s] out.” (Id. at 44a.) Mr. Gordon confirmed for the Referee that
other people look at their phones while at work but under different circumstances.
(Id.) Mr. Gordon explained:
                It’s not just about . . . using the phone. It’s about the fact
                that [Claimant] was watching the NBA finals, distracting
                other employees while doing so and refused to do the job
                that he was assigned to do. And that’s why the supervisor
                took the phone away because he wasn’t doing the work he
                was supposed to do.

(Id. at 44a-45a.) Claimant responded by stating that he feels like he is being
singled-out, and he reiterated that he had not received the previous letter.
(Id. at 46a.)        Furthermore, he questioned how he would have been able to
communicate if he did not have his phone and was to have injured himself while
working outside on the tanks in the dark. (Id.)
                Following the hearing, the Referee issued a decision, granting
unemployment compensation benefits. The Referee made the following relevant
findings of fact:
                1.      The claimant worked for the employer . . . as a
                        pumper, fulltime, from February 2015 until his last
                        day of work, June 6, 2018. . . .

                2.      The employer discharged the claimant because he
                        allegedly refused to perform a job which he was
                        ordered to perform, and because he was allegedly
                        watching an NBA basketball game on his cell
                        phone.

                3.      The claimant did not refuse to do a job which he was
                        ordered to perform.


                                              4
             4.     While the claimant watched an NBA game on his
                    cell phone, it was a common practice for employees
                    of the employer to watch sporting events and other
                    things on their cell phones.

(Id. at 48a-49a.) Based on those findings, the Referee concluded that Employer did
not meet its burden to prove that Employer discharged Claimant for willful
misconduct. In so doing, the Referee reasoned, in part:
                    The employer’s witness testified that the claimant
             was watching an NBA basketball game on his cell phone
             at work and that he refused to perform a task in which [sic]
             he was assigned by his supervisor. However, his
             testimony was based upon statements of the supervisor
             whom the employer chose not to bring to the hearing.
                    The claimant testified that the supervisor took his
             cell phone out of his hand. The claimant repeatedly asked
             for his cell phone back, and then the supervisor told him
             to clock out and go home. As to a prior warning regarding
             cell phone usage, the claimant stated that he never
             received it until either the day he was discharged or the
             prior day. The warning was supposedly given in May of
             2017. As for cell phone usage, the claimant stated that if
             they were going to fire someone for using their cell phone
             at work, they would have to fire everyone, including the
             claimant’s supervisor.
                    The Referee notes that the allegation of
             insubordination in refusing to perform an assigned job is
             based upon hearsay, what the supervisor allegedly told the
             vice president who appeared at the hearing . . . .

                   The employer’s witness admitted that others had
             used cell phones in the work place without being
             discharged, but stated that it was, “under different
             circumstances.”
(Id. at 49a-50a.)




                                          5
              Employer appealed to the Board. The Board adopted and incorporated
the Referee’s findings of fact and conclusions of law and affirmed the Referee’s
decision. (Id. at 123a-24a.)
              On appeal,3 Employer argues that the Board erred as a matter of law by
concluding that the Employer failed to establish willful misconduct, given
Claimant’s testimony that he was aware of Employer’s work rules regarding
insubordination and cell phone usage and violated those rules. Employer also argues
that the Board erred as a matter of law in concluding that Claimant carried his burden
to establish “disparate treatment” with respect to Employer’s decision to terminate
his employment, because Claimant’s testimony in the form of bare allegations that
other unnamed employees engaged in similar misconduct was not sufficient to
support his burden of proof.
              Section 402(e) of the Law provides, in part, that “[a]n employe shall be
ineligible for compensation for any week . . . [i]n which his employment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work.”       “Whether or not an employee’s actions amount to willful
misconduct is a question of law subject to review by this Court.”                    Nolan v.
Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). The
employer bears the burden of proving that the claimant’s unemployment is due to
the claimant’s willful misconduct. Walsh v. Unemployment Comp. Bd. of Review,
943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful misconduct” is not
defined by statute. The courts have defined “willful misconduct” as follows:


       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.

                                               6
              (a) wanton or willful disregard for an employer’s
              interests; (b) deliberate violation of an employer’s
              rules; (c) disregard for standards of behavior which an
              employer can rightfully expect of an employee;
              or (d) negligence indicating an intentional disregard of the
              employer’s interest or an employee’s duties or obligations.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003)
(quoting Navickas v. Unemployment Comp. Bd. of Review, 787 A.2d 284, 288 (Pa.
2001)).
              An employer seeking to prove willful misconduct by showing that the
claimant violated the employer’s rules or policies must prove the existence of the
rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. Where an
employer, however, admittedly tolerates violations of its rule or policy, an employer
may fail to establish willful misconduct based upon a violation of that rule or policy.
Great Valley Publ’g v. Unemployment Comp. Bd. of Review, 136 A.3d 532, 537
(Pa. Cmwlth. 2016). An employee’s refusal, without good cause, to follow an
employer’s reasonable directive may also constitute willful misconduct. Bailey v.
Unemployment Comp. Bd. of Review, 457 A.2d 147, 149 (Pa. Cmwlth. 1983). In the
event that the court finds that a claimant’s conduct constitutes willful misconduct, a
claimant can still receive benefits if he can show that he had good cause for his
willful misconduct.4 Walsh, 943 A.2d at 369. A claimant bears the burden of
proving good cause for his actions. Id.

       4
         The Board cites Chapman v. Unemployment Compensation Board of Review,
20 A.3d 603, 607 (Pa. Cmwlth. 2011), for the proposition that a claimant may establish good cause
by “demonstrating that uneven enforcement has rendered a policy unreasonable.” That quote,
however, does not appear in Chapman. Nevertheless, the Court, inexplicably, has attributed this
reasoning and quote to Chapman several times in unreported opinions. See Colon v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 10 C.D. 2017, filed April 2, 2018);
Lancaster Emergency Med. Servs. Ass’n v. Unemployment Comp. Bd. of Review (Pa. Cmwlth.,
No. 1749 C.D. 2014, filed June 4, 2015); Holtslander v. Unemployment Comp. Bd. of Review (Pa.


                                               7
              Employer argues that the Board erred in concluding that Employer
failed to prove willful misconduct, because Claimant violated Employer’s policies
prohibiting insubordination and using a cell phone during work hours without
special approval. Employer does not dispute any of the factual findings, and,
therefore, those findings of fact are binding on appeal.5 Campbell v. Unemployment
Comp. Bd. of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).
              As to insubordination, Employer argues that Claimant’s own testimony
confirms that Employer had a policy against insubordination and that Claimant’s
failure to obey his supervisor’s directive to “gauge” the tank constituted
insubordination in violation of Employer’s policy. The Board, however, through its
adoption and incorporation of the Referee’s factual findings, found that Claimant
“did not refuse to do a job which he was ordered to perform.” (R.R. at 48a.) Thus,
based on that finding, Employer failed to meet its burden to prove that Claimant
violated Employer’s work rule against insubordination.
              As to whether Claimant violated Employer’s policy prohibiting use of
cell phones during working hours without special approval, Employer again
contends that Claimant’s testimony is sufficient to satisfy Employer’s burden. The
Board, however, found that “it was a common practice for employees of the
employer to watch sporting events and other things on their cell phones,” reasoning
that Employer’s own witness admitted that other employees used cell phones in the

Cmwlth., No. 1655 C.D. 2014, filed April 28, 2015); and Angeleri v. Unemployment Comp. Bd. of
Review (Pa. Cmwlth., No. 442 C.D. 2012, filed October 9, 2012). These unreported opinions,
while persuasive, are not binding precedent on this Court.
       5
          Although Employer does not challenge any findings on appeal, we note that Employer
also offered no admissible evidence regarding the circumstances surrounding Claimant’s
termination, as Employer did not present any witness who had personal knowledge of what
transpired between Claimant and his supervisor during the incident at issue. Thus, the findings
related to the incident are necessarily based on Claimant’s testimony alone.

                                              8
work place without being discharged. (R.R. at 49a-50a.) It is apparent from the
Referee’s and Board’s decisions that although Employer may have had a written
policy prohibiting the use of cell phones without special approval, in reality the
Board found that, if Employer had such a policy, Employer engaged in “inconsistent
enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence
of a rule that could support a finding of willful misconduct. See Great Valley
Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated
violations of its policy governing employees’ internet use, employer failed to
establish that claimant’s use of internet amounted to willful misconduct); Penn
Photomounts, Inc. v. Unemployment Comp. Bd. of Review, 417 A.2d 1311, 1314-15
(Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting
absences and employer was aware that its employees followed less formal practice
to report absences and tolerated less formal reporting practice, use of less formal
practice did not constitute willful misconduct). Thus, Employer failed to meet its
burden to prove that Claimant violated Employer’s work rule.
              Employer also argues that the Board erred in concluding that Claimant
carried his burden to establish disparate treatment. “Disparate treatment is an
affirmative defense by which a claimant who has engaged in willful misconduct may
still receive benefits . . . .”6 Geisinger Health, 964 A.2d at 974. We disagree with


       6
          An employee seeking to prove disparate treatment must make an initial showing that:
“(1) the employer discharged claimant, but did not discharge other employees who engaged in
similar conduct; (2) the claimant was similarly situated to the other employees who were not
discharged; and (3) the employer discharged the claimant based upon an improper criterion.”
Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 (Pa.
Cmwlth. 2009) (en banc). Further, this Court has stated that “the mere fact that one employee is
discharged for willful misconduct and others are not discharged for the same conduct does not
establish disparate treatment.” Am. Racing Equip., Inc. v. Unemployment Comp. Bd. of Review,
601 A.2d 480, 483 (Pa. Cmwlth. 1991).

                                               9
Employer’s characterization of the Board’s decision. The Board did not determine
that Employer engaged in disparate treatment but rather that Employer did not meet
its burden to establish willful misconduct due to its inconsistent enforcement of a
work rule. The Board, in support of its decision, wrote:
             The Board is unable to substantiate any error in the
             Referee’s willful misconduct analysis. The employer
             contends that the claimant’s testimony is insufficient to
             establish disparate treatment regarding cell phone usage in
             the workplace. Nonetheless, the claimant’s testimony was
             more than sufficient to establish inconsistent enforcement
             of an alleged work rule stating that cell phone use is not
             permissible without special approval.

(Id. at 123a.) The distinction between the two concepts—i.e., disparate treatment
and inconsistent enforcement of an alleged work rule—is nuanced and subtle.
Disparate treatment is applicable where an employer enforces a rule in different
manners, whereas inconsistent enforcement occurs where an employer enforces a
rule so inconsistently that it no longer appears to be a rule that employees must
follow.   Furthermore, disparate treatment is an affirmative defense to willful
misconduct, while inconsistent enforcement of a rule results in an employer’s
inability to prove willful misconduct. In situations of inconsistent enforcement, an
employer cannot prove the “deliberate violation” required by Grieb necessary for a
determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying
“deliberate violation of an employer’s rules” as a form of willful misconduct). Here,
the Board concluded that Employer failed to establish a violation of Employer’s
rules due to Employer’s inconsistent enforcement of its cell phone prohibition and,
therefore, failed to prove willful misconduct. As a result, the affirmative defense of
“disparate treatment” is inapplicable.



                                         10
Accordingly, we affirm the order of the Board.




                           P. KEVIN BROBSON, Judge




                           11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gordon Terminal Service Co.,          :
                       Petitioner     :
                                      :
           v.                         :   No. 1603 C.D. 2018
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


           AND NOW, this 3rd day of June, 2019, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.




                                      P. KEVIN BROBSON, Judge
