                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kyle Rogers,                                 :
                     Petitioner              :
                                             :    No. 1238 C.D. 2016
              v.                             :
                                             :    Submitted: August 4, 2017
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: September 26, 2017


              Kyle Rogers (Claimant) petitions for review of the June 21, 2016, order
of the Unemployment Compensation Board of Review (Board) which reversed a
referee’s decision and denied him benefits under section 402(e) of Pennsylvania’s
Unemployment Compensation Law (Law).1

       1
        Section 402(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(e). Section 402(e) provides that “an employe 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 this work, irrespective of whether or
not such work is ‘employment’ as defined in this act.” 43 P.S. §802(e). The Board did find
Claimant able and available to work under section 401(d) of the Law, 43 P.S. §801(d)(1).
                                Facts and Procedural History
               Claimant was hired by the City of Wilkes Barre (Employer) as a full-
time police officer on February 6, 2014. (Board’s Finding of Fact No. 1.)
               Employer found Claimant to be in violation of General Order 1.8 of its
Code of Conduct, (Certified Record (C.R.) at Item No. 9, Exhibit C-1), on three
occasions spanning from March 2015 to October 2015.2 Loudermill hearings were
held on each occasion.3 On March 12, 2015, Employer suspended Claimant for two
days for violating sections 4.03, 4.04, 4.07, and 5.07 of the Code of Conduct by
arguing with a superior officer. (Board’s Finding of Fact No. 2.) On July 7, 2015,
Employer issued Claimant a written reprimand for violating sections 1.11, 4.06, and
4.09 of the Code of Conduct after failing to appear at three preliminary hearings.
(Board’s Finding of Fact No. 3.) On October 16, 2015, Employer again suspended
Claimant for two days, finding him to be in violation of section 4.02 of the Code of
Conduct because he fell asleep behind the wheel of his patrol car while on duty.
(Board’s Finding of Fact No. 4)
               Employer found Claimant to be in violation of the Code of Conduct for a
fourth time after a Loudermill hearing on December 28, 2015. (C.R. at Item No. 9.)
The violation arose from an incident occurring on December 15, 2015. (Board’s
Finding of Fact No. 8.) While standing together in a bidding room, two fellow

       2
        The record reflects that Claimant stipulated to each of these violations before the referee at
the March 23, 2016 hearing.

       3
         In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the United States
Supreme Court held that “an employee with a constitutionally protected property interest in his
employment” is entitled to “some form of pretermination hearing” pursuant to the requirements of
the Due Process Clause of the United States Constitution. 470 U.S. at 542.



                                                  2
officers joked with Claimant about the possibility of his reassignment to the night
shift under the supervision of his former lieutenant. (Board’s Finding of Fact No. 9.)
In response to the jokes, Claimant raised his firearm and pointed it at the bid board,
stating that he would kill himself if he was reassigned to the night shift. (Board’s
Finding of Fact No. 10.) Claimant acknowledged his inappropriate actions and
explained that he neither pointed his gun at his co-workers, nor threatened them in
any way. (Board’s Finding of Fact No. 11.) Claimant’s conduct violated section 5.06
of the Code of Conduct, which prohibits the flagrant misuse, handling, or display of
firearms and, by itself, is punishable with a maximum five-day suspension. (Board’s
Finding of Fact Nos. 12-13.)
            On January 8, 2016, Employer terminated Claimant’s employment
pursuant to section 1.11 of the Code of Conduct, which allows for discharge after
“repeated violations of the departmental Code of Conduct, or any other course of
intentional misconduct indicating that a member has little or no regard for their [sic]
responsibility as a member of the department.” (Board’s Finding of Fact Nos. 1, 5;
C.R. at Item No. 9, Exhibit C-1.)
            Claimant filed an initial claim for unemployment compensation benefits
on January 10, 2016.     (C.R. at Item No. 2.)     Following receipt of Employer’s
separation information, the local service center denied Claimant benefits under both
sections 402(e) and 401(d) of the Law. (C.R. at Item No. 5.)
            Claimant appealed and the matter was assigned to a referee.           At a
hearing on March 23, 2016, the referee reversed the decision of the local service
center, and granted Claimant unemployment compensation benefits. (C.R. at Item
No. 10.) Employer appealed to the Board, which concluded that Claimant was




                                          3
ineligible for benefits under section 402(e) of the Law.4 (C.R. at Item No. 17.)
Claimant filed a timely appeal to this Court.
              On appeal,5 Claimant argues that: (1) Employer is estopped as a matter
of law from contesting liability because (a) the letter dated January 8, 2016,
terminating Claimant is not a reasoned decision entitled to the presumption of
correctness under the hearsay rules of evidence; (b) the city government violated
Claimant’s Loudermill hearing due process civil rights; and (c) the city government
concealed relevant evidence; (2) the Board erred in reversing the referee’s decision
dated April 1, 2016, because there was no substantial evidence of record to support a
finding of willful misconduct; and (3) the Board erred by creating an “absurd result
that rewards and encourages a public employer’s violation of the employee’s civil []
and constitutional rights.” (Petitioner’s brief at 3.)
                                    Willful Misconduct
              We begin with Claimant’s second issue. Section 402(e) of the Law
provides that “an employe 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 this work, irrespective of whether or not such
work is ‘employment’ as defined in this [Law].” 43 P.S. §802(e). We have 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

       4
          Claimant requested reconsideration of the Board’s decision, but his request was denied.
(C.R. at Item Nos. 17, 18.)

       5
         On appeal, our scope of review is limited to determining whether constitutional rights
have been violated, whether an error of law has been committed, and whether findings of fact are
supported by substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review,
125 A.3d 122, 126 n.3 (Pa. Cmwlth. 2015).



                                               4
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.” Johns v. Unemployment Compensation Board of Review, 87 A.3d
1006, 1009 (Pa. Cmwlth. 2014). The initial burden is on the employer to demonstrate
the existence of a work rule, Yost v. Unemployment Compensation Board of Review,
42 A.3d 1158, 1162 (Pa. Cmwlth. 2012), and to establish that the claimant engaged in
willful misconduct in violation of that rule. Johns, 87 A.3d at 1010. Once the
employer meets its burden, the burden then shifts to the claimant to establish that the
violation occurred for good cause. Yost, 42 A.3d at 1162.
            “Whether a claimant’s actions constitute willful misconduct is a question
of law fully reviewable on appeal.” Johns, 87 A.3d at 1010. Claimant argues that
Employer failed to present competent and credible evidence to sustain its burden of
demonstrating that Claimant engaged in willful misconduct.
            However, the record contains substantial evidence to support the Board’s
determination of “willful misconduct.” This Court has previously explained that “if
[a claimant’s] conduct clearly discloses breaches of duties and obligations which are
inimical to the employer’s best interests, such acts on the part of the employee may
constitute willful misconduct.” Loder v. Unemployment Compensation Board of
Review, 296 A.2d 297, 300 (Pa. Cmwlth. 1972). An actual intent to wrong the
employer is not necessary. See Eyring v. Unemployment Compensation Board of
Review, 407 A.2d 86, 87 (Pa. Cmwlth. 1979). Instead, a claimant’s “conscious
indifference to his duty can support a finding of willful misconduct.” Id. (internal
quotation marks omitted).
            The record herein reflects that Claimant was disciplined four times for
various violations of Employer’s Code of Conduct. On March 12, 2015, Claimant



                                          5
was suspended for two days for arguing with a superior officer. (Board’s Finding of
Fact No. 2.)    Four months later, on July 7, 2015, Claimant received a written
reprimand for failing to appear at multiple preliminary hearings. (Board’s Finding of
Fact No. 3.) On October 16, 2015, Claimant again faced a two-day suspension for
sleeping in his patrol car. (Board’s Finding of Fact No. 4.) Claimant does not
dispute these violations.
             The record also demonstrates that Claimant violated section 5.06 of the
Code of Conduct in December 2015 when he “removed his loaded firearm from its
holster, pointed it at the bid board, and stated, ‘If I have to go back to night shift, I
would shoot myself.’” (Board’s Finding of Fact No. 10.) Claimant’s statement in
response to the related Loudermill notice acknowledges:

             Around 1600 hours, I walked into the room where bidding
             was being held. Officer Hilpp and Officer Homza were in
             the room. Officer Hilpp was standing next [to] the window
             of [the] room or the left of the bid board. Officer Homza
             was sitting to the right of the bid board on the desk. I was
             standing directly in front of the bid board about 3 to 4 feet
             away. Both were talking about bidding. As they were
             talking, I attempted to make light of my situation by
             quickly removing my weapon from my holster and pointing
             it at [the] bid board. At no time did I directly point my
             weapon at either Officer Hilpp or Homza. I joked that “If I
             have to go back to night shift, I would have to shoot
             myself.” Both Officer[s] Hilpp and Homza explained that
             what I did was inappropriate and I agreed. None of the
             above excuses my actions on December 15, 2015. I am just
             trying to explain why I did what I did. I know that handling
             a firearm safely is a serious matter and something that
             should not be joked with. I realize that my impulsive action
             [] could have resulted in someone being seriously injured or
             killed. I apologize for this momentary lapse of judgment
             and expect there to be consequences.


                                           6
(C.R. at Item No. 9, Exhibit E-5.)
              The Board found Claimant’s testimony that he neither pointed his
weapon at another officer nor assaulted another officer to be credible. (Board’s op. at
3.)
              Claimant was ultimately discharged for violation of sections 5.06, 1.11,
and 1.19 of the Code of Conduct. (Board’s Finding of Fact No. 14.) The Board
correctly explained that when a claimant is discharged for numerous reasons, he is
not entitled to benefits if only one of those reasons constitutes willful misconduct.
See Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1172
(Pa. Cmwlth. 2007) (“[A] claimant who has been discharged for multiple reasons is
disqualified from receiving benefits even if only one of those reasons amounts to
willful misconduct.”).
              Here, with four violations of the Code of Conduct by Claimant within a
one-year period, the record contains substantial evidence to support the Board’s
finding of willful misconduct. As such, Employer met its burden of demonstrating
the existence of work rules and establishing that Claimant engaged in willful
misconduct in violation of those rules. Moreover, we note that Claimant failed to
present any evidence to demonstrate that the violations of the Code of Conduct
occurred for good cause. Accordingly, we find that the Board did not err in reversing
the referee’s decision dated April 1, 2016.6




       6
         We find no merit in Claimant’s allegation that his termination was due to Employer’s
personal bias. Such an objection was previously rejected by the referee. (C.R. at Item No. 9.)




                                              7
                                     Absurdity of Results
               Claimant also argues that the Board’s decision creates an “absurd result”
because it “reward[s] injustice by withholding and sandbagging gamesmanship,”
“supplants additional federal employment law civil rights,” and fosters “piecemeal
determinations.” (Claimant’s brief at 60-62.) The facts asserted in support of this
argument are not clear. Claimant seems to rely heavily upon inapplicable doctrines
and case law, including authority related to the spoliation of evidence and the
Workers’ Compensation Act (Act).7 This reliance is misplaced.
               In his brief, Claimant alleges that Employer withheld documents and
failed to produce relevant documents throughout the course of this proceeding;
however, the record is devoid of any evidence to support such allegations.
(Claimant’s brief at 60.) To support his argument, Claimant cites two decisions of
our Supreme Court: McHugh v. McHugh, 40 A. 410 (Pa. 1898), and Petrone v.
Moffat Coal Co., 233 A.2d 891 (Pa. 1967). Neither is applicable to the matter at
hand. While the McHugh case does stand for the proposition that, where evidence
which is within the control of the party in whose interest it would naturally be to
produce it, and, without satisfactory reasons he fails to do so, the jury may draw an
inference that it would be unfavorable to him, Petrone considers “whether a claimant
for compensation [under the Act] is entitled to benefits under the heading of total
disability if the only work he can perform is light work of a general nature, when no
evidence has been presented that light work, considering the worker’s physical
disability, his limited education and vocational background, is available.” Petrone,
233 A.2d at 892.

      7
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.




                                                 8
               With respect to his allegation that his discharge “supplants additional
federal employment law civil rights,” Claimant argues that he “did not receive his
Pennsylvania Workers’ Compensation Act’s work-related injury relevant state law’s
triggered and mandated disability investigation public policy decision-making
notices.” (Claimant’s brief at 61.) We find this argument to be meritless, as the facts
of this case do not in any way implicate the Act and Claimant’s rights thereunder. 8
Though Employer expressed concern regarding the mental state of Claimant,
suggesting that a mental health examination be conducted (C.R. at Item No. 9,
Exhibit C-1), Claimant was not diagnosed with a work-related injury that would
entitle him to benefits under the Act.
               Finally, Claimant argues that the Board’s decision “fosters piecemeal
determinations.” (Claimant’s brief at 61.) He alleges that “the complete lack of
transparency by [] Employer has caused unnecessary piecemeal controversies and a
drain on judicial resources contrary to Pennsylvania’s public policy law.”
(Claimant’s brief at 62.) However, Claimant fails to cite, and the Court is not aware
of, any other litigation or active proceedings pending between Claimant and
Employer. We cannot fathom how the progression of this matter through the
appropriate processes afforded under the Law constitutes “piecemeal controversies”
or a “drain on judicial resources.”




       8
         Claimant appears to contend that a work-related injury occurred on December 15, 2015.
For example, Claimant avers that his written statement dated December 28, 2015, put Employer on
notice and triggered his substantive rights under the protections of the Act. (Claimant’s brief at 11.)
However, we find no evidence of record to indicate that a claim was filed under the Act.




                                                  9
                                              Estoppel
               Claimant’s final argument contends that Employer is estopped as a
matter of law from contesting liability because: (a) the letter dated January 8, 2016,
terminating Claimant was not a reasoned decision entitled to the presumption of
correctness under the hearsay rules of evidence; (b) the city government violated
Claimant’s Loudermill hearing due process civil rights; and (c) the city government
concealed relevant evidence.9 Claimant essentially argues that Employer did not
have just cause to terminate Claimant, but did so for biased reasons. We find this
argument to be without merit.              The issue currently before us “is not whether
[Employer] had the right to discharge for the questioned conduct of [Claimant], but
rather whether the State is justified in reinforcing that decision by denying benefits
under this [Law] for the complained of conduct.”                    Frumento v. Unemployment
Compensation Board of Review, 351 A.2d 631, 634 (Pa. 1976) (footnote omitted). In
other words, we are not in the position to consider whether Employer’s termination of
Claimant was invalid or violated any agreement between the parties. Regardless, we
will briefly address Claimant’s arguments.
               First, with respect to estoppel as a matter of law, Claimant fails to state
facts sufficient to satisfy each of the required elements to support application of the
doctrine of estoppel.10

       9
          We addressed this argument earlier in this decision, determining that no evidence of record
exists to suggest that Employer improperly withheld evidence from Claimant. See supra p. 8.
        10
           In J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002), we held:

               [C]ollateral estoppel bars a subsequent lawsuit where (1) an issue
               decided in a prior action is identical to one presented in a later action,
               (2) the prior action resulted in a final judgment on the merits, (3) the
               party against whom collateral estoppel is asserted was a party to the
               prior action, or is in privity with a party to the prior action, and (4),
(Footnote continued on next page…)

                                                  10
             Again, Claimant’s heavy reliance on the Act and related case law is
misplaced. As we explained above, such an analysis is inapplicable in Claimant’s
case because the violations leading to his discharge, and the ultimate denial of
unemployment benefits, did not involve either a workers’ compensation disability or
benefits awarded under the Act.
             Finally, Claimant contends that he was denied his constitutional due
process rights with respect to his Loudermill hearings. In Yost, this Court previously
explained:

             Whether Employer provided Claimant with an adequate
             Loudermill hearing was not for the Board to decide. The
             General Assembly established the unemployment
             compensation system “for the benefit of persons
             unemployed through no fault of their own.” Section 3 of
             the Law, 43 P.S. §752. In following that mandate the
             unemployment compensation system is designed to provide
             benefits to workers who become unemployed through no
             fault of their own. The General Assembly did not include
             in the Law any provisions for the Board to review whether
             a government worker was afforded procedural due process
             before he was fired.
Yost, 42 A.3d at 1162. The issue before us is limited to whether Claimant is entitled
to benefits under the Law. Because we are not considering the validity of Claimant’s
discharge, rather only his entitlement to unemployment compensation benefits,
Claimant’s due process argument regarding his Loudermill hearings must fail.




(continued…)

             the party against whom collateral estoppel is asserted had a full and
             fair opportunity to litigate the issue in the prior action.



                                              11
                                     Conclusion
             Because substantial evidence supports the Board’s decision concluding
that Claimant’s pattern of conduct reflected a conscious indifference to his duty to
Employer, and Claimant has failed to establish good cause for his multiple violations
of Employer’s Code of Conduct, the Board did not err in reversing the referee’s
decision and holding that Claimant was ineligible for benefits under section 402(e) of
the Law.
             Accordingly, the Board’s decision is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge


Judge Cosgrove did not participate in this decision.




                                          12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kyle Rogers,                       :
                 Petitioner        :
                                   :    No. 1238 C.D. 2016
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                ORDER


            AND NOW, this 26th day of September, 2017, the order of the
Unemployment Compensation Board of Review dated June 21, 2016, is hereby
affirmed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
