                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian Buher,                                      :
                          Petitioner              :
                                                  :
                   v.                             :
                                                  :
Unemployment Compensation                         :
Board of Review,                                  :   No. 654 C.D. 2017
                 Respondent                       :   Submitted: February 2, 2018



BEFORE:            HONORABLE ROBERT SIMPSON, Judge
                   HONORABLE CHRISTINE FIZZANO CANNON, Judge
                   HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: March 5, 2018



                   Brian Buher (Claimant) petitions for review of the March 31, 2017
order of the Unemployment Compensation Board of Review (Board) that affirmed
the referee’s decision finding Claimant ineligible for benefits under section 402(e)
of the Unemployment Compensation Law (Law),1 which provides that a claimant
shall be ineligible for benefits in any week in which his unemployment is due to
willful misconduct connected with his work. We affirm.




          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
                                  I.    Background

             Claimant worked for PMHCC CTT Inc. (Employer) from September
29, 2015 through August 24, 2016. Board Findings of Fact (F.F.) No. 1; Notes of
Testimony (N.T.) 10/14/2016 at 5. Employer discharged Claimant for willful
misconduct and disregard for standards of behavior an employer can rightfully
expect of an employee following Claimant’s disruptive behavior after a request that
he consider a demotion based on subpar job performance. F.F. Nos. 5-11; N.T.
10/14/2016 at 8.
             Claimant applied for unemployment compensation (UC) benefits,
which the UC Service Center denied pursuant to section 402(e) of the Law on
September 14, 2016. Claimant appealed to a referee, and a hearing was held on
October 14, 2016, at which both parties testified.
             At the hearing, Employer, who was represented by counsel, presented
three witnesses and documentary evidence. Claimant, proceeding pro se, testified
on his own behalf. Based on the testimony and other evidence presented, the referee
determined Claimant’s behavior violated Employer’s Rules of Conduct against
disruptive activity and willful misconduct in the workplace and fell below the
standards of behavior Employer had the right to expect. Therefore, the referee
concluded Claimant was ineligible for UC benefits under section 402(e) of the Law
for willful misconduct.
             Claimant appealed to the Board, which affirmed the referee’s decision
by Decision and Order filed March 31, 2017. See Board Decision and Order, March
31, 2017 (Board Decision). Based on the record created by the referee, the Board
made the following findings.



                                          2
              Employer maintains Rules of Conduct which prohibit, inter alia,
disruptive activity and willful misconduct in the workplace, including employee
disregard of standards of behavior that an employer can rightfully expect of an
employee. F.F. No. 2; see also PMHCC Policy Manual (Employer Exhibit 1) at 1.
Non-compliance with Employer’s Rules of Conduct can result in discipline up to
and including termination of employment. F.F. No. 2; see also Employer Exhibit 1
at 1; N.T. 10/14/2016 at 9. Claimant signed an acknowledgement of Employer’s
Rules of Conduct and accordingly was aware, or should have been aware, of the
Rules of Conduct. F.F. No. 3; see also PMHCC Policies and Procedures Manual
Acknowledgement, dated September 29, 2015 (Employer Exhibit 2) at 1.
              By August 2016, Claimant held the full-time position of Team Leader
for the Extended Care Act Team, a position that included oversight of fifteen
employees (fourteen team members and a full-time staff psychiatrist) and which paid
Claimant an annual salary of $62,207.08. F.F. Nos. 1, 4; see also N.T. 10/14/2016
at 4-5, 8. As a Team Leader, Claimant coordinated team activities to provide
services to “at-risk” individuals requiring extensive support services. F.F. No. 4. To
provide these services, Claimant’s responsibilities included ensuring that his team’s
clients were seen by a team member three times a week. N.T. 10/14/2016 at 11-12.
Despite this mandate, three clients under Claimant’s team’s care had not been seen
by a team member for a month.2 F.F. 5; see also N.T. 10/14/2016 at 11-12.
              On August 19, 2016, Employer’s Executive Director met with Claimant
to discuss his subpar job performance. F.F. Nos. 5 – 6. During the meeting, the
Executive Director suggested that Claimant consider accepting a demotion from his


       2
         Employer’s Executive Director explained that, in addition to risking the clients’ well-
being, such action could compromise Employer’s license. N.T. 10/14/2016 at 12.

                                               3
role as Team Leader to a clinician position. F.F. No. 6; see also N.T. 10/14/2016 at
12. Claimant declined the demotion to a clinician position, and the Executive
Director asked that Claimant further consider the matter over the weekend. F.F. No.
6; see also N.T. 10/14/2016 at 12, 14-15. The Executive Director neither terminated
Claimant nor placed him on probation during the August 19, 2016 meeting. N.T.
10/14/2016 at 10-11, 13.
             Later on August 19, 2016, Claimant met with his team, explained the
Executive Director’s suggestion and his refusal thereof, and expressed his beliefs
that the staff psychiatrist was a “snitch” and that Claimant was being “scapegoated”
and pushed aside in favor of an employee returning from medical leave. F.F. No. 7;
see also N.T. 10/14/2016 at 14-16.
             Thereafter, Employer received reports of Claimant’s comments at the
August 19, 2016 team meeting and began an investigation. F.F. No. 8; see also N.T.
10/14/2016 at 7-8, 10, 16. On August 23, 2016, Claimant asked a case management
clinician on his team to lie about his comments regarding the possible snitch and his
being pushed out in favor of a returning employee. F.F. No. 9; see also N.T.
10/14/2016 at 16-17.
             On August 24, 2016, the Executive Director questioned Claimant as
part of the investigation. F.F. No. 10. Claimant admitted to the Executive Director
that he told his team he felt he was being “scapegoated” and pushed aside for the
returning employee. Id. As a result of its investigation, Employer terminated
Claimant’s employment on August 26, 2016 for disruptive behavior in violation of
its Rules of Conduct. F.F. No. 11; see also N.T. 10/14/2016 at 5.
             The Board found that Employer established the existence of its Rules
of Conduct warranting employee discharge for disruptive behavior in the workplace


                                         4
and/or disregard for standards of behavior an employer can rightfully expect of an
employee.     Board Decision at 3. The Board noted that Claimant provided no
testimonial or documentary evidence beyond his own testimony to support his
explanations regarding his job performance deficiencies. Id. Further, the Board
found that Claimant’s testimony did not credibly explain his disruptive actions,
especially considering Claimant’s request that another employee lie if questioned,
which the Board stated evidenced a consciousness of wrongdoing. Id.
             Ultimately, the Board affirmed the referee’s determination that
Claimant was ineligible for UC benefits under section 402(e) of the Law for willful
misconduct. Claimant then petitioned this Court for review.3

                                      II.    Issues

             Claimant contends the Board erred in affirming the referee’s
determination that Claimant was ineligible for UC benefits under section 402(e) of
the Law. See Claimant’s Brief at 6. Specifically, Claimant argues Employer failed
to meet its burden of proving willful misconduct that would make him ineligible for
benefits under section 402(e). See id. at 13-16.

                                     III.   Discussion

             Initially, we note:

             the Board, not the referee, is the ultimate fact finding body
             and arbiter of credibility in UC cases. Questions of
             credibility and the resolution of evidentiary conflicts are
      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 Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).

                                            5
            within the discretion of the Board and are not subject to
            re-evaluation on judicial review. The Board ... may reject
            even uncontradicted testimony if it is deemed not credible
            or worthy of belief. We are bound by the Board’s findings
            so long as there is substantial evidence in the record, taken
            as a whole, supporting those findings.

Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, 173 A.3d
1224, 1227–28 (Pa. Cmwlth. 2017) (internal citations, quotations, and brackets
omitted).
            Section 402(e) of the Law provides that an employee will be ineligible
for UC benefits for any week in which “his unemployment is due to his discharge or
temporary suspension from work for willful misconduct connected with his work[.]”
43 P.S. § 802(e). The question of whether an employee’s actions constitute willful
misconduct is a question of law subject to review by this Court. Reading Area Water
Authority v. Unemployment Compensation Board 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 Compensation Board
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.


                                          6
Waverly Heights, 173 A.3d at 1228 (quoting Johns v. Unemployment Compensation
Board 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 Compensation Board
of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006).
             “Where an employer seeks to deny UC benefits based on a work-rule
violation, the employer must prove the existence of a work rule, the reasonableness
of the rule and the employee’s violation of the rule.” Waverly Heights, 173 A.3d at
1228 (internal citation omitted).     An inadvertent or negligent violation of an
employer’s rule may not constitute willful misconduct. Chester Community Charter
School v. Unemployment Compensation Board of 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 Compensation Board 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.
             As the prevailing party below, Employer is entitled to the benefit of all
reasonable inferences drawn from the evidence on review. See Ductmate Industries,
Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008).
             Here, Employer terminated Claimant’s employment because Claimant
engaged in disruptive behavior in violation of Employer’s Rules of Conduct after




                                          7
the Executive Director asked him to consider accepting a demotion due to subpar
performance. Employer’s Rules of Conduct prohibits, in pertinent part:

                 Disruptive activity in the workplace[;]

                                         ...

                 Unsatisfactory performance or willful misconduct –
                  Defined as: a.) Wanton or willful disregard for an
                  employer’s interests; b) deliberate violation of an
                  employer’s rules; c) disregard for standards of
                  behavior [that] an employer can rightly expect of an
                  employee; or d) negligence indicating an intentional
                  disregard of the employer’s interests or an
                  employee’s duties or obligations.

Employer’s Exhibit 1 at 1. Claimant signed an acknowledgement and was aware of
the Rules of Conduct. See Employer’s Exhibit 2. However, on August 19, 2016,
Claimant informed members of his team that he was being demoted and
“scapegoated” in favor of another employee. See N.T. 10/14/2016 at 10, 14. After
investigation and determining his comments amounted to disruptive behavior
contrary to the standards of behavior an employer can rightly expect of an employee,
Employer discharged Claimant for willful misconduct. Id. at 5, 8-10.
             Claimant admitted he made the comments in question.                  N.T.
10/14/2016 at 13. Additionally, Claimant conceded that, despite the fact that it was
his job to maintain team cohesion, his actions may have been disruptive. Id. at 19.
He further conceded that, in retrospect, he should have handled the situation
differently by not expressing his thoughts about a possible snitch and/or the returning
employee. Id. Finally, Claimant conceded that he did, in fact, tell the case



                                          8
management clinician that he felt his job was in jeopardy and asked that she not give
an account of his behavior in response to Employer’s questions. Id.
               The facts adduced from Employer’s witnesses, together with the
documentary evidence presented before the referee, established a prima facie case
for Claimant’s willful misconduct by disruptive behavior. Far from proving good
cause for his actions, Claimant’s own testimony, to the extent the Board found it
credible, substantiated Employer’s conclusions and reasons for Claimant’s
termination.
               Based on the above evidence, we conclude that substantial evidence
existed to support the Board’s necessary findings of fact upon which it affirmed the
referee’s denial of UC benefits. Accordingly, we affirm the Board’s decision finding
Claimant ineligible for UC benefits under section 402(e) of the Law.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Brian Buher,                     :
                Petitioner       :
                                 :
           v.                    :
                                 :
Unemployment Compensation        :
Board of Review,                 :   No. 654 C.D. 2017
                 Respondent      :


                              ORDER


           AND NOW, this 5th day of March, 2018, the order of the
Unemployment Compensation Board of Review dated March 31, 2017 is
AFFIRMED.




                               __________________________________
                               CHRISTINE FIZZANO CANNON, Judge
