           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Infante,                                 :
                     Petitioner               :
                                              :
              v.                              :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 1711 C.D. 2016
                 Respondent                   :   Submitted: January 20, 2017


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                 FILED: June 8, 2017


              Gary Infante (Claimant) petitions for review of the September 29,
2016 order of the Unemployment Compensation (UC) Board of Review (Board),
which denied Claimant unemployment benefits. Upon review, this Court affirms.

              Claimant worked as a package handler for FedEx Ground (Employer)
in Allentown from October 2015 until his termination on June 8, 2016.1 On that
day, Claimant had a verbal disagreement with his supervisor, Jaslyn Figueroa
(Figueroa), when he complained about a co-worker throwing packages on a
conveyor in front of him. Claimant told Figueroa that she did nothing to help him


       1
        Unless noted otherwise, the facts are taken from the findings of fact set forth in the
Referee’s decision dated September 1, 2016.
and complained that no other employees help him, no one understood English, and
no one knew how to do their jobs. The verbal altercation was observed by the
Dock Operations Manager, Victor Soto (Soto), who instructed the Claimant to
calm down. Soto eventually escorted Claimant into an office.                The discussion
between Claimant and Soto was overheard by the General Manager, Brian Gallow,
and Senior Human Resources Manager, Norene Beaver (Beaver), and they entered
the office to intervene. Claimant reiterated his complaints about his co-workers,
and was repeatedly asked to calm down.               After approximately half-an-hour,
Claimant was terminated because he was not willing to listen to Soto and would
not calm down.

              Claimant applied for unemployment compensation on July 8, 2016.
(Certified Record (C.R.) Item 2, Claimant Separation Information, at 1.) In a
Notice of Determination dated July 21, 2016, UC Representative Micucci found
that Employer had not met its burden to show Claimant was terminated for willful
misconduct, and Claimant must be allowed benefits under Section 402(e) of the
Unemployment Compensation Law (Law).2 Id. Employer appealed. Following a
hearing held August 20, 2016, a Decision and Order dated September 1, 2016 was
issued, finding Claimant had been terminated for willful misconduct and was
ineligible for unemployment compensation under Section 402(e). (C.R. Item 10,
Referee’s Decision/Order, at 3.) On September 29, 2016, the Board adopted the



       2
          We note that Section 402(e) of the Law governs ineligibility for compensation when a
claimant is discharged or temporarily suspended from work for willful misconduct. Act of
December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). We
construe the UC Representative’s Notice of Determination as providing claimant was not
ineligible for benefits under Section 402(e).

                                              2
Referee’s findings and conclusions and affirmed the decision of the Referee.
Claimant now appeals the decision of the Board.3

              The sole issue presented to this Court is whether the Board’s findings
of fact were supported by substantial evidence.

              Claimant contends the Referee misrepresented Claimant’s testimony
in the findings of fact, and the Referee’s findings did not properly reflect the facts.
Additionally, Claimant argues that the third finding of fact, regarding what
Claimant said to Figueroa, was based on the hearsay testimony of his managers, as
Figueroa did not testify.

              Employer argues the findings of fact were supported by substantial
evidence. While conflicting testimony was presented, the Referee resolved that
conflict in favor of Employer based on her evaluation of witness credibility. Citing
Peak v. Commonwealth, 501 A.2d 1383 (Pa. 1985), Employer argues that, when
testimony is conflicting, it is within the discretion of the Board to resolve
evidentiary conflicts, and the court is not empowered to re-evaluate that resolution
on review.
                                        Discussion

              Upon appeal, the Board’s findings of fact are taken as conclusive, “so
long as the record, taken as a whole, contains substantial evidence to support those
findings.”    Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984).                   When

       3
         This Court’s review in an unemployment compensation case is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment
Compensation Board of Review, 637 A.2d 695, 697 (1994).

                                              3
conflicting testimony is presented, the court is bound by the findings of the Board
so long as the findings are based on substantial evidence.               Astarb v.
Commonwealth, 413 A.2d 761, 763 (Pa. Cmwlth. 1980). Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.    Peak v. Commonwealth, 501 A.2d 1383, 1387 (Pa. 1985).            The
Commonwealth Court has long established that “[h]earsay evidence, [a]dmitted
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 [s]olely on hearsay will not stand.”         Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976).

              Willful misconduct in the unemployment context has been held to
mean a wanton or willful disregard for an employer’s interests, a deliberate
violation of the employer’s rules, a disregard for standards of behavior which an
employer can rightfully expect from an employee, or negligence indicating an
intentional disregard for the employer’s interest or the employee’s duties and
obligations. Navickas v. Unemployment Compensation Board of Review, 787 A.2d
284, 288 (Pa. 2001). The burden of proving willful misconduct lies with the
employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596,
597 (Pa. Cmwlth. 1984). A determination of whether an action constitutes willful
misconduct requires a consideration of all circumstances, including the reasons for
an employee’s noncompliance with an employer’s directives.                Grieb v.
Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003).




                                         4
             The Referee recognized a conflict in testimony between the Claimant
and Employer witnesses and resolved the conflict in favor of Employer. (C.R.
Item 10 at 2.) Claimant was terminated for insubordination after failing to calm
down as instructed by various managers after a verbal conflict with his supervisor,
Figueroa. Id. at 3. Beaver testified that she and Soto tried to get Claimant to calm
down and come to a resolution. (C.R. Item 9, Transcript of Testimony (T.T.), at
5.) She further testified that, when it became clear Claimant could not be calmed
down and was not in a mind to continue, the decision was made Claimant needed
to be discharged. Id. Claimant’s behavior was described as a “circle of words. It
just – you know, we addressed one thing and then he’d bring up something else
and we’d address that. Then he’d go back to the same thing we just addressed.”
Id. at 6.

             Soto testified he saw Claimant “in a very aggressive way, almost
charging at [Figueroa] who stands maybe 4’9” and yelling with his arms up.”
(T.T. at 7.) Soto asked Claimant “three or four times” to leave with him to “get
him away from the other employees since he was yelling, insulting people, saying
they don’t know how to speak English.” Id. Soto testified that, when he was able
to get Claimant to go to the front office, his intention was to write Claimant up for
insubordination. Id. Claimant continued, however, to claim his co-workers didn’t
know what they were doing, and that they didn’t know English and all spoke
Spanish. Id. at 7-8. Soto characterized Claimant’s behavior as insubordinate to
him, to Figueroa, and to Brian Gallow, and disrespectful to his peers. Id. at 8.
Security was eventually called to escort Claimant from the property. Id.




                                         5
             Claimant admitted he was upset by the behaviors of his co-workers
and testified no one wanted to help him and almost everyone spoke little to no
English. (T.T. at 11.) Claimant testified that “people” like to pick fights with him,
including managers, reiterating his assertion that no one on the floor spoke
English. Id. at 12. He asserted that he was intimidating-looking because “maybe
they point blank don’t have much education, aren’t very mature, have maybe a
little work experience, et cetera.” Id. He was on the floor of the warehouse
arguing with Figueroa and Soto for half-an-hour before going into the office,
where they spent another half hour. Id. at 13. While it is not clear from the
transcript to whom he was speaking, Claimant testified he said, “…you’re going to
give me that garbage, you’re going to disrespect me like that, forget about it. You
don’t treat me – talk to me that way.” Claimant told Soto “straight to his face, not
to sound smart.” Id.

             When provided his belongings, Claimant was handed a bag of Fritos
by Soto or a security guard, a gesture at which Claimant took apparent umbrage.
(T.T. at 16.) “Now Fritos make me thing [sic], since the place is predominantly
Latin [inaudible] little bag of chips, Fritos. That’s how I took it.” Id. Claimant
retrieved his phone from his car and began to record conversations in the belief his
former coworkers might later accuse him of stalking or harassment. Id. In closing,
Claimant stated that, on his last day, he “did [his] job.        There is no willful
misconduct. There is no insubordination.” Id. at 20. He was working one of the
busiest parts of the building and nobody would help out. Id. Claimant then
reverted to his prior assertions that his co-workers spoke little or no English. Id.




                                          6
              The Referee found Claimant was terminated for insubordination after
failing to calm down as instructed and his actions constituted a disregard of
standards of behavior an employer has a right to expect of an employee and those
actions rose to the level of willful misconduct. (C.R. Item 10 at 3.) On this record,
we are compelled to agree.4

              For these reasons, the decision of the Board is affirmed.




                                            ___________________________
                                            JOSEPH M. COSGROVE, Judge




       4
        Among the many issues Claimant raises regarding the conditions he endured while
working for Employer prior to June 8, 2016, is that his manager treated him in a hostile manner.
Whether Claimant has or may pursue a claim based on an allegation of hostile work
environment, such a claim is not germane to the present matter.

                                               7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Infante,                     :
                 Petitioner       :
                                  :
            v.                    :
                                  :
Unemployment Compensation         :
Board of Review,                  :   No. 1711 C.D. 2016
                 Respondent       :


                              ORDER


            AND NOW, this 8th day of June, 2017, the Order of the
Unemployment Compensation Board of Review dated September 29, 2016, is
hereby AFFIRMED.




                                ___________________________
                                JOSEPH M. COSGROVE, Judge
