           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna Carl,                                    :
                             Petitioner        :
                                               :
                      v.                       :    No. 959 C.D. 2017
                                               :    Argued: September 12, 2018
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE COLINS                                       FILED: November 20, 2018

              Donna Carl (Claimant) petitions this Court for review of an order of
the Unemployment Compensation Board of Review (Board) holding Claimant
ineligible to receive unemployment compensation benefits under Section 402(e) of
the Unemployment Compensation Law (the Law).1 We affirm.
              Until December 21, 2016, Claimant was employed by Sovereign
Commercial Services (Employer) as a housekeeping cleaner, assigned to a Big
Lots distribution center, where Employer provided contract cleaning services.
(Record Item (R. Item) 10, Referee’s Hearing: Transcript of Testimony (H.T.) at
5.)   On December 22, 2016, Claimant’s employment was terminated for, inter

1
 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 employee 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 his work . . . .” 43 P.S. § 802(e).
alia, her conduct during a telephone conversation between Claimant and
Employer’s regional operations manager (Regional Manager) on the previous day.
(R. Item 12, Board’s Decision and Order, Findings of Fact (F.F.) ¶ 6, Discussion.)
Claimant filed for unemployment benefits and the Unemployment Compensation
Service Center found Claimant ineligible due to willful misconduct. (R. Item 4,
Notice of Determination.) Claimant appealed and the Referee conducted a hearing
at which Claimant, represented by counsel, participated via telephone and
Employer presented the testimony of the Regional Manager. (H.T. at 1.)        The
Referee affirmed the decision of the Service Center and Claimant appealed to the
Board. On May 24, 2017, the Board issued its decision and order affirming the
decision of the Referee. Claimant timely filed a petition for review appealing the
Board’s order to this Court.
             In its Decision and Order, the Board made the following findings of
fact:
         1. Sovereign Commercial Services employed the claimant
            until December 21, 2016, as a cleaner.

         2. On December 21, 2016, the employer’s on-site manager
            attempted to issue the claimant a written warning for
            using incorrect cleaning solutions to clean a client’s
            floor, as well as for using a vacuum to clean a table top.

         3. The claimant refused to sign the warning, so the
            employer’s regional operations manager was called on
            the telephone.

         4. The regional operations manager attempted to explain the
            warning to the claimant; however, the claimant
            proceeded to yell at the regional operations manager,
            stating, “I cannot fu*king believe that I am being treated
            this way.”



                                        2
           5. After yelling at the regional operations manager, the
              claimant disconnected the phone call.

           6. On December 22, 2016, the employer discharged the
              claimant for, among other things, her conduct during the
              interaction with the regional operations manager on
              December 21, 2016.[2]

(R. Item 12, Board’s Decision and Order, F.F. ¶¶ 1-6.)
              Before this Court,3 Claimant argues that the Board erred in finding
willful misconduct because there was not substantial evidence to support its
findings of fact.4 She asserts that Employer’s on-site manager, whom she contends


2
  The Referee’s findings of fact also contained findings both that Claimant’s conduct in yelling
and cursing at the Regional Manager violated Employer’s policy of which she was aware, and
that Claimant approached Employer’s client after she had been warned previously not to do so.
(R. Item 10, Referee’s Decision/Order, Findings of Fact (F.F.) ¶¶ 3-4.) The Board did not adopt
this finding.

3
  Our scope of review of the Board’s decision is limited to determining whether errors of law
were committed, constitutional rights or agency procedures were violated, and necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of
Review, 772 A.2d 416, 418 n.1 (Pa. 2001).

4
  In unemployment compensation cases, the burden of proving willful misconduct is on the
employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452,
456 (Pa. 1997); Brown v. Unemployment Compensation Board of Review, 49 A.3d 933, 937 (Pa.
Cmwlth. 2012). To prove willful misconduct, the employer must show: (1) wanton or willful
disregard of the employer’s interests, (2) deliberate violation of the employer’s rules, (3)
disregard of standards of behavior that an employer can rightfully expect from an employee, or
(4) negligence that indicates an intentional disregard for the employer’s interests or the
employee’s duties or obligations. Temple University v. Unemployment Compensation Board of
Review, 772 A.2d 416, 418 (Pa. 2001); Caterpillar, Inc., 703 A.2d at 456; Brown, 49 A.3d at
936-37. Whether a claimant’s actions constitute willful misconduct is a question of law fully
reviewable on appeal. Temple University, 772 A.2d at 418 n.1; Caterpillar, Inc., 703 A.2d at
456; Brown, 49 A.3d at 937.




                                               3
had been demoted one day earlier and was not therefore authorized to evaluate her
performance, initiated a confrontation when he demanded that she sign a written
warning he had prepared and with which she disagreed, and became verbally
abusive when she refused to sign the warning.5 Claimant asserts therefore that her
behavior was justified and reasonable under the circumstances.                 She denies that
she used profanity in speaking with the Regional Manager and contends that
Employer established no rule or policy regarding its use. She asserts that the
Board did not properly consider her testimony and erred in determining that she
was not credible.
                 The Regional Manager testified that he visited the site approximately
twice each week. (H.T. at 6.) He stated that he was not at the site on the date of
the incident that precipitated Claimant’s termination from employment, but had
been called by the on-site manager when Claimant refused to sign the warning and
began to curse at, and “get loud” with, the on-site manager. (H.T. at 7.) When the
on-site manager put Claimant on the phone, the Regional Manager attempted to

5
    The warning that Claimant refused to sign states:

                 [The on-site manager and Regional Manager] have both heard
                 multiple complaints of [Claimant] being seen vacuuming the tables
                 in the break room. It has also been reported to [the on-site
                 manager] that [Claimant] was using laundry detergent to mop
                 floors throughout the warehouse. These are improper techniques
                 and unsanitary. [Claimant] is not to vacuum tables anymore. She
                 is also to only use the damp mop or DMQ as provided by
                 [Employer] or the pine oil or floor cleaner provided by Big Lots.
                 Proper cleaning is mandatory. Further training will be provided if
                 you are not sure how to handle.

(R. Item 3, Employer Separation Information.)




                                                  4
speak with Claimant and explain the procedures she was not following, but she
was yelling into the phone; he stated that he was trying to convey to her that she
was simply being given a warning for failure to follow proper procedures. (Id.)
He testified that he was trying to calm her down, but she “just started cursing,” and
said that she “couldn’t fu*king believe that she was being treated this way.” (H.T.
at 11.) The Regional Manager testified that he terminated Claimant’s employment
on the following day both for the manner in which she yelled and cursed at him on
the phone – what he characterized as disruptive behavior that the company, as
specified in its employee handbook, does not permit – and for her behavior in
contacting Employer’s client, the general manager of Big Lots, subsequent to the
telephone conversation. (H.T. at 7-8.) The Regional Manager stated that the on-
site manager was employed with Employer as on-site manager at the time of the
incident. (H.T. at 10.)
             Before the Referee, Claimant acknowledged she had used a vacuum
cleaner to clean tables in the breakroom and had used laundry detergent on the
floors. (H.T. at 25.) Claimant also acknowledged that the on-site manager did not
curse at her, although she asserted that he said “nasty” things to her, specifically
that he insulted her and told her that she was not doing her job correctly, and that
people were complaining about her. (H.T. at 26.)
             Based upon our review of the record, we conclude that there is no
merit to Claimant’s argument that the Board failed to properly consider her
testimony and erred when it found her not credible.             “In unemployment
compensation matters, ‘the Board is the ultimate fact finder and is empowered to
resolve conflicts in the evidence and to determine the credibility of witnesses.’”
Goppman v. Unemployment Compensation Board of Review, 845 A.2d 946, 947



                                         5
n.2 (Pa. Cmwlth. 2004) (quoting Owoc v. Unemployment Compensation Board of
Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002)). “Findings made by the Board are
conclusive and binding on appeal if the record, examined as a whole, contains
substantial evidence to support the findings.” Umedman v. Unemployment
Compensation Board of Review, 52 A.3d 558, 563–64 (Pa. Cmwlth. 2012)
(quoting Owoc, 809 A.2d at 443). “Substantial evidence is evidence which a
reasonable mind might accept as adequate to support a conclusion.” Id. at 564
(quoting Wheelock Hatchery, Inc. v. Unemployment Compensation Board of
Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994)).
               Here, there is ample evidence that the Board considered the transcript
of testimony and concluded that Claimant’s asserted defenses, i.e., that cleaning
tables was not her job, that another manager had authorized use of laundry
detergent on the floor, that she did not curse, and that she was provoked by the
abusive behavior of the on-site manager who had no authority over her, were not
credible and could not justify her behavior. The Board determined that Employer
had credibly established that after Claimant refused to sign the written warning, the
Regional Manager had been called on the telephone, and he had attempted to
explain the written warning to Claimant. (Board’s Decision and Order, F.F. ¶ 3,
Discussion.)     The Board further determined that after Claimant yelled at the
Regional Manager, using profanity, Claimant disconnected the telephone call. (Id.,
F.F. ¶ 5.) The Board specifically discredited Claimant’s assertions that the on-site
manager was being “nasty” to her and was yelling at her, and specifically
discredited Claimant’s denial that she cursed at the Regional Manager. (Id., F.F. ¶
4, Discussion.) The Board further discredited Claimant’s assertions that the on-site
manager did not possess supervisory authority over her. (Id., Discussion.)



                                           6
             The Board concluded that Claimant’s conduct was not provoked.
This Court has held that the use of abusive, vulgar, or offensive language directed
at a superior is a form of insubordination that can constitute willful misconduct
where the profanity is not provoked by the superior’s language or conduct toward
the claimant. Allen v. Unemployment Compensation Board of Review, 638 A.2d
448, 451 (Pa. Cmwlth. 1994); Losch v. Unemployment Compensation Board of
Review, 461 A.2d 344, 346 (Pa. Cmwlth. 1983); Fields v. Unemployment
Compensation Board of Review, 300 A.2d 310, 311 (Pa. Cmwlth. 1973).
Furthermore, we have held that an employee’s unprovoked use of abusive, vulgar
or offensive language directed at his or her supervisor evidences a disregard of the
standards that an employer can rightfully expect of its employees. Leone v.
Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth.
2005). We find no error in the Board’s conclusion that Claimant’s conduct fell
below the standards of behavior an employer has the right to expect of its
employees.
             For the foregoing reasons, we conclude that the Board did not err in
holding that Claimant committed willful misconduct. Accordingly, we affirm the
order of the Board.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna Carl,                             :
                        Petitioner      :
                                        :
                   v.                   :   No. 959 C.D. 2017
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


              AND NOW, this 20th day of November, 2018, the order of the
Unemployment Compensation Board of Review in this matter is hereby
AFFIRMED.



                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge
