             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Victor Nieves,                 :
                               :
                    Petitioner :
                               :
               v.              : No. 1333 C.D. 2018
                               : Submitted: September 10, 2019
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :

BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: October 25, 2019


                Victor Nieves (Claimant) petitions for review of the September 12,
2018, order of the Unemployment Compensation Board of Review (Board)
affirming a referee’s determination and holding that Claimant is ineligible for
unemployment compensation (UC) benefits under Section 402(e) of the
Unemployment Compensation Law (Law).1 Claimant argues that the Board’s
findings are not supported by substantial evidence and the evidence in the record
does not establish willful misconduct.2 Upon review, we affirm.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). This section provides that an employee shall be ineligible for compensation for any week
in which his unemployment is due to his discharge from work for willful misconduct connected
with his work.
       2
           This Court has defined willful misconduct as:
             Claimant worked as a dock worker for Olde Goode Things (Employer)
from June 25, 2015, until April 12, 2018. Findings of Fact (F.F.) No. 1. After his
separation from employment, Claimant applied for unemployment compensation
(UC) benefits. Reproduced Record (R.R.) at 2a. The local service center determined
that Claimant was ineligible for UC benefits under Section 402(e) of the Law
because he was discharged for willful misconduct. Id. Claimant appealed, and a
referee held a hearing.
             At the hearing, Employer offered the testimony of Alvin Fyock,
Employer’s warehouse manager, who was Claimant’s direct supervisor. Fyock
testified that Claimant’s work schedule was from 9:00 a.m. to 5:30 p.m., Monday
through Friday. R.R. at 25a. Fyock stated that on Thursday, April 12, 2018,
Claimant was not at his work area at 9:00 a.m. Id. at 26a. Fyock began to look for
Claimant and found him in the bathroom. Id. Fyock directed Claimant to report to
his office for a meeting. Id. Fyock testified that during the meeting with Claimant,
Claimant “got nasty,” so Fyock sent him home for the rest of the day. Id. Fyock
testified that Claimant called him a “shithead” after being told to go home. Id. at
26a-27a. Fyock further testified that on Monday, April 16, 2018, when Claimant
returned to work, Claimant was terminated from employment because of his use of



                (1) the wanton and willful disregard of the employer’s interests;
                (2) the deliberate violation of [employer’s] rules; (3) the
                disregard of standards of behavior that an employer can
                rightfully expect from his 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.

Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07 (Pa. Cmwlth.
2011).
                                              2
vulgar language towards Fyock the previous week. Id. at 30a. According to Fyock,
when Claimant was informed of his termination, he called Fyock a “faggot.” Id.
             Claimant appeared pro se and, with the aid of a Spanish-English
interpreter, testified that he did not use vulgar language on either Thursday, April
12, 2018, or Monday, April 16, 2018. R.R. at 33a. He said that on Thursday, April
12, 2018, he was in the bathroom due to an upset stomach when Fyock found him.
Id. Claimant stated that Fyock sent him home that day because he was spending too
much time in the bathroom. Id. Claimant asserted that he had no disciplinary history
for disrespectful behavior during the three years he worked for Employer. Id. at 33a-
34a.
             After considering the testimony presented, the referee resolved all
credibility issues in favor of Employer. R.R. at 7a. The referee found that Claimant
used vulgar language towards his supervisor on Thursday, April 12, 2018, when
Claimant was directed to go home for the day, and again on Monday, April 16, 2018,
after he was terminated from employment. F.F. Nos. 8, 10. The referee found that
Claimant failed to provide any justifiable cause for his use of vulgar language in the
workplace. R.R. at 7a. The referee concluded that Claimant’s behavior constituted
willful misconduct, disqualifying Claimant from receiving UC benefits per section
402(e) of the Law. Id. at 6a-7a.
             Claimant, with counsel, appealed to the Board, requesting a remand
hearing. Claimant argued that he had appeared before the referee pro se and that the
referee based his entire decision on credibility determinations. The Board found that
Claimant was informed of his right to counsel and noted that the referee is permitted
to base his decision on the credibility of witnesses. The Board denied Claimant’s
request for a remand hearing. The Board adopted and incorporated the referee’s


                                          3
findings and conclusions and affirmed a denial of UC benefits because Claimant was
discharged for willful misconduct.3 Claimant then petitioned this Court for review.4
              Claimant contends that the Board’s decision is not supported by
substantial evidence because the findings of fact were based “solely on Employer’s
statements without any other evidence to support and/or corroborate the conflict in
testimony” between Claimant and Employer. Claimant’s Brief at 10. Claimant
appears to argue that Fyock’s testimony constitutes hearsay and is therefore
incapable of supporting findings of fact without corroborating evidence. Claimant
also complains that, in the three years he worked for Employer, he did not have a
history of misconduct or even one incident of disrespectful behavior towards
management.       Employer did not produce any other witnesses or evidence of
Claimant’s misconduct. Claimant contends this absence of evidence, coupled with
Claimant’s own testimony regarding the incident on April 12, 2018, renders the
evidence of record insufficient to support a finding of willful misconduct.
              It is well-settled law that the Board is the ultimate factfinder in
unemployment compensation proceedings. Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1385 (Pa. 1985). Thus, issues of credibility are
for the Board, which may either accept or reject a witness’ testimony regardless of
whether or not it is corroborated with other evidence of record. Id. The Court is
bound by the Board’s findings of fact “so long as the record taken as a whole
contains substantial evidence to support them.”             Henderson v. Unemployment

       3
        The Board modified F.F. No. 1 to correct a typographical error, correcting the date of
Claimant’s last day of work.

       4
          Our scope of review is limited to determining whether necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth.) appeal denied, 97 A.3d 746 (Pa. 2014).
                                              4
Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 2013).                  “In
determining whether there is substantial evidence to support the Board’s findings,
this Court must examine the testimony in the light most favorable to the [previously]
prevailing party, giving that party the benefit of any inferences that can logically and
reasonably be drawn from the evidence.” Id.
             The employer bears the burden of proving willful misconduct. Guthrie
v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth
1999). This Court has held that abusive language directed at a supervisor evidences
a disregard of the standard of behavior that an employer has the right to expect of an
employee. Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450,
453 (Pa. Cmwlth. 1987). “Even a single instance of vulgarity addressed to and
unprovoked by a supervisor may support a finding of willful misconduct.” Id. at
453; see also Losch v. Unemployment Compensation Board of Review, 461 A.2d
344, 346 (Pa. Cmwlth. 1983).
             Once the employer has met its burden, “the burden of proof shifts to the
employee to prove that [he] had good cause for [his] actions.”            Chapman v.
Unemployment Compensation Board of Review, 20 A.3d 603, 605 (Pa. Cmwlth.
2011). Good cause is established where the employee demonstrates that his actions
were “justified or reasonable under the circumstances.” Id. Offensive language
directed towards an employer by an employee may be justified if it is provoked by
the employer and the employee’s response is de minimis in nature. Id.
             In this case, the Board found that Claimant used vulgar language
towards the warehouse manager twice. F.F. Nos. 8, 10. These findings are
supported by Fyock’s testimony. Claimant did not offer a reason for using vulgar
language, but instead denied using vulgar language at all. R.R. at 33a-34a. The


                                           5
Board resolved the conflict in testimony in favor of Employer. Such credibility
determinations are within the Board’s exclusive purview and are beyond the review
of this Court. See Peak, 501 A.2d at 1385.
              To the extent Claimant asserts that Fyock’s testimony constitutes
hearsay, he is incorrect. Hearsay is defined as “testimony that is given by a witness
who relates not what he or she knows personally, but what others have said and that
is therefore dependent on the credibility of someone other than the witness.”
BLACK’S LAW DICTIONARY 790 (9th ed. 2009).5 Testimony based on an individual’s
personal knowledge and observations is not hearsay. See Baird v. Unemployment
Compensation Board of Review, 372 A.2d 1254, 1257 (Pa. Cmwlth. 1977).
              In this case, Fyock’s testimony was based on his own first-hand
observations and knowledge of the events at issue, falling outside the definition of
hearsay. Consequently, Claimant’s argument concerning a lack of corroborating
evidence is without merit. Fyock’s testimony in and of itself constitutes substantial
evidence supporting the Board’s findings of fact.


       5
         The rules of evidence are relaxed in administrative proceedings where “all relevant
evidence of reasonably probative value may be received.” Section 505 of the Administrative
Agency Law, 2 Pa. C.S. §505. In administrative proceedings, it has long been established as
follows:

                 (1) Hearsay evidence, properly objected to, is not competent
                 evidence to support a finding of the Board.

                 (2) Hearsay evidence, admitted without objection, will be given
                 its natural probative effect and may support a finding of the
                 Board, if it is corroborated by any competent evidence in the
                 record, but a finding of fact based solely on hearsay will not
                 stand.

Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)
(citations omitted and emphasis in original).
                                             6
            Fyock’s credited testimony constitutes substantial evidence that
supports the Board’s findings that Claimant used vulgar language towards his
supervisor and Claimant failed to rebut that evidence with credible testimony.
Consequently, the Board correctly held that Claimant was discharged under Section
402(e) of the Law for willful misconduct.
            Accordingly, we affirm the Board’s order.




                                      MICHAEL H. WOJCIK, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Victor Nieves,                 :
                               :
                    Petitioner :
                               :
               v.              : No. 1333 C.D. 2018
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                              ORDER


            AND NOW, this 25th day of October, 2019, the order of the
Unemployment Compensation Board of Review dated September 12, 2018, is
AFFIRMED.




                                MICHAEL H. WOJCIK, Judge
