                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lionel B. Dolphin,                                :
                          Petitioner              :
                                                  :
                   v.                             :
                                                  :
Unemployment Compensation                         :
Board of Review,                                  :   No. 817 C.D. 2019
                 Respondent                       :   Submitted: November 15, 2019


BEFORE:            HONORABLE MARY HANNAH LEAVITT, President Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: February 4, 2020


                   Lionel B. Dolphin (Claimant), pro se, petitions for review of the June
10, 2019 order of the Unemployment Compensation Board of Review (Board)
affirming the decision of the referee to deny Claimant unemployment compensation
benefits (benefits) under Section 402(e) of the Unemployment Compensation Law
(Law),1 which provides that an employee shall be ineligible for compensation for
any week in which his unemployment is due to discharge or temporary suspension
from work for willful misconduct connected with his work. Upon review, we affirm.
                   Claimant was employed as a salesperson by EJB Motors, Inc., doing
business as Brenner Pre-Owned (Employer), from January 2, 2017 to March 3, 2019.

          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
Referee’s Decision & Order at 1, Finding of Fact (F.F.) 1, Certified Record (C.R.)
at 126.2 Employer had a policy prohibiting removal of company property without
permission, violation of which warranted severe disciplinary action, including
discharge. F.F. 2-3. Claimant was aware of Employer’s policy. F.F. 4. Employer
discharged Claimant for theft after Claimant used Employer’s windshield washer
fluid to fill the reservoir in his personal vehicle. F.F. 5-6. The Unemployment
Compensation (UC) Service Center deemed Claimant eligible for benefits, finding
that Employer failed to show that Claimant committed willful misconduct under
Section 402(e) of the Law, 43 P.S. § 802(e). UC Service Center Determination at 1,
C.R. at 24. Employer appealed to a referee, who held a hearing at which Claimant
and two witnesses for Employer testified. See Transcript of Testimony (T.T.), C.R.
at 51. The referee reversed, determining that “the credible testimony of [E]mployer
establishes that it has a policy which prohibits the taking of company property
without permission.” Referee’s Decision & Order at 2, C.R. at 127. The referee
found that Claimant was aware of this policy and that Claimant acknowledged he
used Employer’s windshield washer fluid for his own car. Id. Thus, the referee
concluded that Employer terminated Claimant for willful misconduct connected
with his work under Section 402(e) of the Law, 43 P.S. § 802(e). Id.
              Claimant appealed to the Board, which affirmed, adopting and
incorporating the referee’s findings and conclusions. Board’s Decision & Order at
1, C.R. at 137. The Board further noted that Claimant’s assertion that he did not
steal from Employer “cannot be accepted because [] [C]laimant acknowledged at the



       2
          Our citations to the Certified Record reference the page numbers of the PDF document,
as the record is not paginated.

                                              2
hearing that he may not have replaced the fluid if the individual who gave it to him
had not asked him to.” Id. Claimant then petitioned this Court for review.
              Before this Court,3 Claimant argues that “[m]any employees have used
[w]indshield wiper fluid,” and that Employer terminated him “out of spite.”
Claimant’s Brief at 11. Claimant contends that Employer “was prejudice[d] and did
not like [him].” Id. Claimant asserts that Employer “show[ed] respect toward” and
had “a totally different attitude toward the Caucasian sales[men],” and that
Employer’s general manager stated before quitting that there were too many blacks
working in the store. Id. at 9 & 11. Claimant maintains that the general manager
“displayed on a daily basis his dislike for [Claimant] and did everything that he could
to make [Claimant] uncomfortable.” Id. at 12. Claimant points out that the
technician who supplied him with the windshield washer fluid was not accused of
theft. Id. at 11. Further, Claimant maintains that Employer’s “true standard” was to
discipline employees through verbal warnings or suspensions from work. See id. at
10. Claimant also contends that he had “a necessitous and compelling reason for
asking to use the [w]indshield [w]iper fluid,” as “it was in the dead of winter on a
[]day that there was snow and salt on the roads,” and “it was a safety concern.” Id.
at 10.
              Section 402(e) of the Law provides that “[a]n employe shall be
ineligible for compensation for any week . . . []in which his unemployment is due to
discharge or temporary suspension from work for willful misconduct connected with
his work[.]” 43 P.S. § 802(e). Whether an employee’s actions constitute willful

         3
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).

                                             3
misconduct is a question of law subject to review by this Court. Reading Area Water
Auth. v. Unemployment Comp. Bd. of Review, 137 A.3d 658, 661 (Pa. Cmwlth.
2016).   For purposes of determining a discharged employee’s eligibility for
unemployment compensation, the employer bears the burden of proving that the
employee engaged in willful misconduct connected with his work. See Section
402(e) of the Law, 43 P.S. § 802(e); Adams v. Unemployment Comp. Bd. of Review,
56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). This Court has defined willful misconduct
as:


             (1) wanton and willful disregard of an employer’s
             interests; (2) deliberate violation of rules; (3) disregard of
             the standards of behavior which an employer can
             rightfully expect from an employee; or, (4) negligence
             showing an intentional disregard of the employer’s
             interests or the employee’s duties and obligations.


Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review, 173 A.3d 1224, 1228
(Pa. Cmwlth. 2017) (quoting Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 (Pa. Cmwlth. 2014)). Once the employer establishes a prima facie case
of willful misconduct, the burden shifts to the claimant to prove good cause for his
actions. Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa.
Cmwlth. 2006).
             “When an employee is discharged for violating a work rule, the
employer must prove the existence of the work rule, the reasonableness of the rule,
the claimant’s awareness of the rule, and the fact of its violation.” Adams, 56 A.3d
at 79. An inadvertent or negligent violation of an employer’s rule may not constitute
willful misconduct. Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of

                                           4
Review, 138 A.3d 50, 55 (Pa. Cmwlth. 2016). “Thus, a determination of what
amounts to willful misconduct requires a consideration of all of the circumstances,
including the reasons for the employee’s noncompliance with the employer’s
directives.” Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943, 947-48
(Pa. Cmwlth. 2004) (internal quotation marks and citation omitted). Where the
employee’s action is justifiable or reasonable under the circumstances, it cannot be
considered willful misconduct. Id. at 948.
             Here, Claimant’s argument that Employer’s “true standard” was to
discipline employees through verbal warnings or suspensions from work may be
construed as both a challenge to Finding of Fact number three, which states that
violation of Employer’s policy prohibiting theft could result in discharge, and a
disparate treatment argument (which will be addressed later).          To the extent
Claimant is challenging the fact that Employer’s discipline policy includes
termination, we note Employer presented evidence that its handbook states,
“dishonesty or removal of another employee’s or customer’s property or the
Company’s property without permission” will “result in severe disciplinary action,
including discharge.” Employer’s Handbook at 17, C.R. at 84; see also F.F. 2-3.
Employer’s general manager testified that theft warrants termination “in all cases.”
See T.T. at 7, C.R. at 59. The Board credited Employer’s testimony regarding its
policy. See F.F. 2-3 & Referee’s Decision at 2. “The [Board] . . . is the ultimate fact
finding body and arbiter of credibility in [UC] cases.” Deal v. Unemployment Comp.
Bd. of Review, 878 A.2d 131, 133 n.2 (Pa. Cmwlth. 2005). Further, “it is not the
Board’s province to usurp the management prerogative of the employer, which must
decide on a case-by-case basis what discipline to impose when a work rule infraction
occurs.” Allen v. Unemployment Comp. Bd. of Review, 189 A.3d 1128, 1136 (Pa.


                                          5
Cmwlth. 2018). Thus, substantial evidence supports the Board’s finding that an
employee could be discharged for violating Employer’s policy.
              Claimant further contends that he did not actually steal the windshield
wiper fluid because one of Employer’s technicians granted him permission to use
the windshield wiper fluid. See Claimant’s Brief at 6 & 11. However, in adopting
the referee’s conclusions, the Board rejected Claimant’s assertion that he in fact
received this permission. Referee’s Decision & Order at 2, C.R. at 127; Board’s
Decision & Order at 1, C.R. at 137. Again, as the Board is the “arbiter of credibility
in [UC] cases[,]” Deal, 878 A.2d at 133 n.2, Claimant’s argument lacks merit.
              Given that Employer established the existence of its work policy
prohibiting removal of company property without permission, that Claimant was
aware of the policy, and that Claimant violated Employer’s policy, thereby
committing willful misconduct,4 the burden shifted to Claimant to demonstrate good
cause for his misconduct. See Downey, 913 A.2d at 353. Claimant in essence argues
he had good cause to use the windshield washer fluid due to safety concerns
necessitated by weather conditions. See Claimant’s Brief at 10. However, “where
the employer sustains its burden of proof with substantial evidence that the employee
engaged in theft, directly or indirectly, of the employer’s property, such conduct
constitutes willful misconduct as a matter of law and is not subject to the rationale
of good cause.” Temple Univ. of Commonwealth Sys. of Higher Educ., 772 A.2d
416, 418 (Pa. 2001) (quoting Dep’t of Navy, Naval Air Warfare Ctr., Aircraft Div.
Warminster v. Unemployment Comp. Bd. of Review, 632 A.2d 622, 630 (Pa. Cmwlth.
1993)). Claimant further asserts that he has “worked in the [i]ndustry over 30 years


       4
         See F.F. 2-5; Referee’s Decision & Order at 2, C.R. at 127; Board’s Decision & Order at
1, C.R. at 137.

                                               6
[and has] never been accused of stealing.” Claimant’s Brief at 11. However, “even
a single instance of theft from an employer can constitute willful misconduct.”
Walker v. Unemployment Comp. Bd. of Review, 202 A.3d 896, 901–02 (Pa. Cmwlth.
2019).     Thus, we find no error in the Board’s determination that Employer
discharged Claimant for willful misconduct connected with his work.
              Finally, to the extent Claimant’s arguments that he was terminated out
of spite and because of a personal animus towards him, which appeared to be racial
in nature, may be construed as the affirmative defense of disparate treatment,5
Claimant cannot prevail. Initially, we note the Board implicitly rejected Claimant’s
testimony regarding personal animus as the reason for Claimant’s termination,
instead crediting Claimant’s theft as the reason. See Referee’s Decision at 2, C.R.
at 127; Board’s Decision at 1, C.R. at 137. Further, as the Board points out, Claimant
failed to testify about whether coworkers were similarly situated or about differing
racial identities and, therefore, failed to develop any record evidence regarding this
issue. Additionally, Claimant failed to raise any argument that could be construed
as disparate treatment in his appeal to the Board. See generally Claimant’s Petition
for Appeal from Referee’s Decision & Order, C.R. at 132-35. Accordingly, we are
precluded from performing appellate review of this issue. See Pa.R.A.P. 1551(a)
(stating review of quasijudicial orders “shall be conducted by the court on the record
made before the government unit” and that “[n]o question shall be heard or
considered by the court which was not raised before the government unit”).

       5
          In Geisinger Health Plan v. Unemployment Compensation Board of Review, 964 A.2d
970, 976 (Pa. Cmwlth. 2009), this Court noted “[d]isparate treatment is an affirmative defense by
which a claimant who has engaged in willful misconduct may still receive benefits if he can 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.”
                                               7
            For the foregoing reasons, we find no error in the Board’s determination
that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S.
802(e). Accordingly, we affirm.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                        8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lionel B. Dolphin,                    :
                     Petitioner       :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 817 C.D. 2019
                 Respondent           :

                                  ORDER


            AND NOW, this 4th day of February, 2020, the June 10, 2019 order of
the Unemployment Compensation Board of Review is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
