          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

C. D. B.,
                              Petitioner        :
                                                :
               v.                               :    No. 811 C.D. 2018
                                                :    Submitted: February 11, 2019
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: March 7, 2019

               C.D.B. (Claimant) petitions for review from an order of the
Unemployment Compensation Board of Review (Board). The Board affirmed a
referee’s decision finding Claimant ineligible for unemployment compensation
(UC) benefits on the basis of willful misconduct under Section 402(e) of the
Unemployment Compensation Law.1 Upon review, we affirm the Board’s order.

                                        I. Background
               Claimant was employed for about two years as a housekeeper at a hotel
(Employer). Claimant suffers from mental health issues including bipolar disorder,
manic depression, antisocial disorder, and panic attacks.                  He requested, and
Employer granted, an accommodation in the form of approved intermittent leave
under the Family and Medical Leave Act of 1993 (FMLA),2 excusing him from work

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

      2
          29 U.S.C. §§2601-2654.
as needed.    Of significance, Claimant did not request any other form of
accommodation.


             In September 2017, Claimant suffered a panic attack while at work. He
reported to the housekeeping manager, who was new to her position and was not
familiar with Claimant. Although Claimant had difficulty articulating his problem
at first, he stated he had mental health issues and was “not safe to be [t]here.”
Certified Record (C.R.), Item #3 at 17; C.R., Item #13 at 5; Referee’s Hr’g Notes of
Testimony (N.T.), 11/20/17, at 16. He was visibly agitated, red in the face, and
stuttering. While the housekeeping manager waited with him for the elevator in
order to escort him out, Claimant began complaining about his immediate supervisor
(Supervisor), stating she was “always on his case” and he would like to punch her
or throw her out the window, but the window would not open. C.R., Item #3 at 17.


             Another employee approached and asked whether Claimant was okay.
He responded by asking whether he could bite her.


             Employer has a zero tolerance anti-violence policy that provides, in
part: “We believe associates should work in an environment without intimidation,
threats or violence. Associates must refrain from making bizarre or offensive
comments regarding violent events and/or behavior.” C.R., Item #3 at 5, 9; N.T. at
10 & Ex. Employer 2.




                                         2
             After investigating the September 2017 incident, Employer concluded
Claimant violated the anti-violence policy. Employer therefore terminated
Claimant’s employment.


             Claimant applied for UC benefits. In his claimant questionnaire, he
acknowledged he was or should have been aware of Employer’s anti-violence
policy. As additional information, Claimant explained:

             The workplace has becom[e] increasing[ly] frustrating
             because we are having an audit and there were no supplies
             available. I am getting calls from [Supervisor] on my
             personal phone. She is telling me that we need rooms done
             because there are customers waiting for early check outs. I
             started to have a panic attack and I asked to leave. I am given
             permission to leave and on my way out, I made a comment
             out [] loud to myself, that I wish I coul[d] punch [Supervisor]
             in the face or push her out the window. Then I laughed and
             said the window doesn’t open ….

C.R., Item #2 at 1.


             In his oral interview concerning his application for UC benefits,
Claimant excused his comment about Supervisor by stating: “I didn’t direct my
comments to [Supervisor], I was leaving the premises. I don’t feel that I violated
the rule because I didn’t say it directly to [Supervisor].” C.R., Item #4 at 1.


             UC benefits were denied, and Claimant filed a petition for appeal. He
stated, “[I] didn’t directly threaten anyone. They knew I have [mental health] issues
and I asked to leave after having a panic attack from being harassed – will explain
more at hearing.” C.R., Item #6 at 1.


                                           3
              At the hearing, Claimant was represented by counsel.         Employer
appeared with its tax consultant representative. Claimant testified, as did two
witnesses for Employer.


              Claimant recalled and admitted making the statements at issue,
although he denied an intent to threaten anyone. He acknowledged that Employer’s
policy prohibits any threatening statements. Claimant stated he did not realize the
policy forbade his indirect comments about Supervisor. However, he conceded: “I
realized if I would, if I would have said that directly to [Supervisor], that’s
completely inappropriate.” N.T. at 24. Further, Claimant agreed that Employer’s
policy did not state it was limited to threats made directly to the person being
referenced. Claimant also agreed that asking a coworker if he could bite her was
bizarre or inappropriate, and it violated Employer’s policy.


              Claimant described his feelings during a panic attack: “[I] get really
overwhelmed with like, it feels like my heart’s going to jump out of my chest, I can’t
concentrate. That at most of the times, I get to shaking. I just can’t calm down.
Like, shortness of breath, dizzy, just messed up, not good.” N.T. at 19. Notably,
Claimant did not suggest he had trouble controlling the content of his speech during
panic attacks, was unable to stop himself from making the statements at issue, or
suffered a lapse in judgment rendering him unable to recognize the import of his
statements.


              The referee affirmed the initial determination of ineligibility. The
referee concluded: “Claimant’s language and statements made in reference to



                                          4
[Supervisor] which were stated in the presen[ce] of the housekeeping manager
included a clear and explicit threat communicating a desire to engage in physical
violence towards [Supervisor].” Ref.’s Dec., 11/22/17, at 4. Further, the referee
found the context of Claimant’s statements, made while he was “highly agitated and
physically upset,” clearly indicated “threatening language in violation of the
Employer’s reasonable policies.”      Id.       Accordingly, the referee determined
Employer met its burden of proving willful misconduct.


             The referee further concluded Claimant did not meet his burden of
demonstrating good cause for his conduct. Of import to Claimant’s petition for
review, the referee stated that, because Claimant offered mental illness as good cause
for his rule violation, expert testimony was necessary to establish that Claimant’s
conduct was beyond his control. Claimant offered no such evidence. Thus, the
referee determined Claimant failed to meet his burden of showing good cause for
willful misconduct.


             Claimant appealed. The Board affirmed, adopting and incorporating
the referee’s findings and conclusions. The Board credited Claimant’s evidence of
treatment for mental health issues, but found Claimant “failed to establish that his
mental illness was the cause of his willful misconduct.” Bd. Dec., 5/14/18 at 1.




                                            5
                                            II. Issues
               On appeal,3 Claimant raises three interrelated issues. First, he contends
the Board erred in finding he committed willful misconduct, because the conduct
complained of was not willful. Second, he argues the Board erred in finding he
lacked good cause for his conduct, because his outburst was caused by mental illness.
Finally, he asserts the Board applied an arbitrary legal standard and disregarded
evidence of his mental illness.


                                       III. Discussion
                                    A. Willful Misconduct
               In determining eligibility for UC benefits, willful misconduct is: (1)
wanton and willful disregard of the employer’s interest; (2) deliberate violation of
rules; (3) disregard of standards of behavior an employer rightfully expects; or (4)
negligence manifesting culpability, wrongful intent, evil design, or intentional and
substantial disregard for the employer’s interests or the employee’s duties and
obligations. Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159 (Pa.
Cmwlth. 2013). Whether specific conduct constitutes willful misconduct is a
question of law, which is reviewable by this Court. Klampfer v. Unemployment
Comp. Bd. of Review, 182 A.3d 495 (Pa. Cmwlth. 2018).




       3
          Our review is limited to determining whether the Board lacked substantial evidence for
a material finding of fact, made an error of law, violated the petitioner’s constitutional rights, or
failed to follow agency procedures. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Substantial evidence is relevant evidence sufficient
to allow a reasonable mind to reach a conclusion. Kauffman Metals, LLC v. Dep’t of Labor &
Indus., 126 A.3d 1045 (Pa. Cmwlth. 2015), appeal denied, 135 A.3d 588 (Pa. 2016).
        The Board is the ultimate finder of fact, resolving all issues of credibility, conflicting
evidence, and evidentiary weight. Ductmate.


                                                 6
             The employer has the burden of proving willful misconduct. Id. If the
misconduct consists of violating a rule, the employer must show that the rule existed,
the rule was reasonable, the employee was or should have been aware of the rule,
and the employee violated the rule. Johns v. Unemployment Comp. Bd. of Review,
87 A.3d 1006 (Pa. Cmwlth. 2014).


             Here, all four requisite factors are present. Claimant acknowledged the
existence of Employer’s anti-violence policy. C.R., Item #2 at 1. A workplace
policy against threats is reasonable. Johns. Claimant specifically admitted he knew
or should have known about Employer’s anti-violence policy. N.T. at 23. Moreover,
regarding his threat against Supervisor, Claimant conceded he knew he would
violate the anti-violence policy if he made such a statement directly to her. Id. at 24.
He also acknowledged the anti-violence policy did not distinguish between
statements made indirectly about someone and statements made directly to the
person. Id. Claimant agreed his comment about Supervisor was threatening in
nature if made to someone (such as the new housekeeping manager) who did not
know him. Id. This Court holds that a threat of harm toward a supervisor or
coworker constitutes willful misconduct.       Johns.    Further, Claimant expressly
admitted that asking another employee if he could bite her was bizarre or
inappropriate and violated Employer’s policy. N.T. at 24-25.


             Nonetheless, Claimant suggests his statements were not willful because
he was not able to control them, and they were not threatening because he did not
intend to harm anyone. Neither argument has merit.




                                           7
                       1. Control over Threatening Statements
              At the hearing, Employer’s counsel argued: “What [Claimant] said,
where he was when he said it, leads one to believe that he was within his senses and
control at the time.” Id. at 26. Claimant did not contradict this argument at the
hearing. Nonetheless, Claimant now insists he did not act willfully. He argues that
he has a serious mental illness that Employer acknowledged by granting intermittent
FMLA leave. He contends his comments were not intended as threats, and he did
not intend to harm anyone. He now posits in his brief what he did not assert at the
hearing, that because he was “in the throes of a panic attack,” he “was incapable of
intentionally violating (or, for that matter, complying with) Employer[’s] policy.”
Br. for Pet’r at 14.


              More importantly, both Claimant’s argument and the record are bare of
any averment, much less any evidence, that Claimant was unable to control himself
to an extent that made his statements involuntary. Claimant described his mental
state during a panic attack as “a blackout at times.” N.T. at 19. However, he
explained during the hearing that what he termed “a blackout” was simply
uncertainty about the timing of events; he remembered his comments themselves
very clearly. Id. at 19, 23-24. Contrary to Claimant’s suggestion, nothing in the
record supports an inference that his subsequent inability to recall the specific
timetable of events indicated an inability to control his spoken comments at the time
he made them.


              Notably, Claimant does not suggest that he made involuntary
statements during any previous panic attack. His request for an accommodation of
his mental condition by Employer involved only intermittent FMLA leave.

                                         8
Although Claimant used his allotted intermittent FMLA leave on previous
occasions, nothing in the record indicates any of those occasions involved statements
in violation of Employer’s anti-violence policy. Importantly, Claimant did not seek
any leniency in Employer’s zero tolerance anti-violence policy as an accommodation
based on a contention that he was unable to control his verbal comments during a
panic attack.


                There is no evidence in the record from which either an expert witness
or a finder of fact could infer that Claimant’s panic attack caused his comments
concerning Supervisor and a coworker. Accordingly, the Board did not err in
concluding Claimant acted willfully.4


                           2. Context Indicating a True Threat
                Claimant also argues his comments about Supervisor did not violate
Employer’s policy because Supervisor was not present, he was not speaking to
Supervisor, he did not intend his comments as a threat, and he would not actually
harm anyone. We discern no merit in this argument.


                A UC claimant makes a threat constituting willful misconduct where
his statement conveys intent to inflict harm on another. Johns. “In addition to the
words used in a threat, this Court is mindful of the effect the statement has on the


       4
          Claimant also implies Employer somehow failed to expedite his departure from work
during his panic attack, and thereby failed to provide him with the agreed accommodation.
However, nothing in the record indicates Claimant’s departure was delayed for more than the time
required for him to tell the housekeeping manager he needed to leave and for her to escort him to
the elevator. Claimant does not point to any record evidence that there was a faster way to exit the
building, or that there was any undue delay by the housekeeping manager in responding to his
request.

                                                 9
hearer, and the reasonableness of construing the statement as a credible threat in
context.” Id. at 1010.


             In Johns, the claimant suffered from an emotional disability, which his
employer accommodated by assigning him a workplace advocate. On one occasion,
the claimant became upset and frustrated when he could not reach his advocate. He
stated to his supervisor that if his advocate were in the building, he would hurt her.
The claimant was red in the face, twitching, and bouncing in his seat. His supervisor
observed the claimant was very frustrated and upset, giving rise to concern that he
might actually have hurt his advocate if she were in the building.


             The claimant, however, insisted he did not intend to threaten or harm
anyone. In considering the totality of the circumstances, this Court acknowledged
several factors suggesting the claimant’s statement was not a true threat: “The
statement was somewhat conditional; it was not communicated directly to the
[a]dvocate; the [a]dvocate was not aware that the statement had been made; and, it
was physically impossible for the [c]laimant to immediately act on the statement
because the [a]dvocate was not at the workplace that day.” Id. at 1012.


             Nonetheless, this Court concluded the evidence, especially the words
used, the claimant’s demeanor, and the effect on his supervisor, demonstrated a true
threat, indicating “a serious expression of intent to inflict harm.” Id.


             Here, the circumstances closely parallel those in Johns. Claimant was
red in the face, twitching, stuttering, and visibly frustrated. C.R., Item #3 at 17. He



                                          10
told the housekeeping manager, “I’m not safe to be here.” C.R., Item #3 at 17; N.T.
at 16. He complained that Supervisor was always on his case and stated he wanted
to punch her or throw her out the window. C.R., Item #3 at 17. The housekeeping
manager was surprised and taken aback by Claimant’s comments. N.T. at 14.
Although Supervisor was not aware of Claimant’s statement about her, and Claimant
could not immediately act on his statement, his words, his demeanor, and the effect
of his statement on the hearer all demonstrated a threat in the form of a statement of
intent to inflict harm.


             Moreover, and of importance, Claimant here also violated Employer’s
anti-violence policy separately from any threat against Supervisor, when he
admittedly asked a coworker if he could bite her. N.T. at 24-25. Without regard to
whether his statement about Supervisor constituted a true threat, Claimant still
violated Employer’s policy.


             Thus, the Board correctly concluded Employer met its burden of
proving willful misconduct.


                                  B. Good Cause
             Once an employer sustains its burden of establishing willful
misconduct, the burden shifts to the claimant to prove there was good cause for the
misconduct. Klampfer. A claimant has good cause where his actions are justifiable
and reasonable under the circumstances. Id.




                                         11
              Claimant argues good cause may arise from mental illness, and
demonstrating good cause does not necessarily require expert medical testimony.
Claimant cites Seneca Valley School District v. Unemployment Compensation
Board of Review (Pa. Cmwlth., No. 267 C.D. 2008, filed September 9, 2008), 2008
Pa. Commw. Unpub. LEXIS 384 (unreported),5 where despite the absence of expert
medical testimony, the claimant’s psychotic episode constituted good cause for her
profanity and threats to report her concerns about her employer to the newspapers.


              The claimant in Seneca Valley, an elementary teacher, was arrested and
involuntarily committed to a psychiatric unit for several days after a meeting in
which she used escalating profanity and threatened to contact the newspapers about
issues concerning the school. According to the record in Seneca Valley, the claimant
“testified that she ‘could tell what was happening in [her] head but couldn’t stop it’”;
she “admitted that using profanity was unacceptable, but testified that she ‘couldn’t
stop it that day.’” Slip Op. at 5; 2008 Pa. Commw. Unpub. LEXIS 384 at *5-*6.
Thus, the claimant in Seneca Valley expressly testified she was unable to control her
statements.


              Here, by contrast, Claimant offered no testimony or other evidence that
his panic attack or other mental health issues rendered him unable to stop himself
from making threatening and bizarre comments. Seneca Valley is therefore
distinguishable. Accord Cameron v. Unemployment Comp. Bd. of Review (Pa.
Cmwlth., No. 367 C.D. 2012, filed March 8, 2013), 2013 Pa. Commw. Unpub.
LEXIS 182 (unreported) (claimant did not offer testimony, expert or otherwise,

       5
         Under this Court’s internal operating procedures, an unpublished decision may be cited
as persuasive, but not as binding authority. 210 Pa. Code §69.414(a).


                                              12
establishing a link between mental disorder and failure to correctly perform job
functions; testimony that she was stressed and suffering from mental disorder was
insufficient to prove good cause based on mental health issues).


             As discussed further below, Claimant also argues the Board applied an
incorrect legal standard by requiring expert medical evidence to establish Claimant
was unable to control his comments because of his mental condition. However, there
is no record evidence to support a threshold factual finding that Claimant could not
control his statements. Thus, it is irrelevant whether he offered expert testimony that
such a purported loss of control resulted from a panic attack. Accordingly, the Board
correctly rejected Claimant’s argument of good cause.


                                C. Expert Evidence
             Finally, Claimant argues the Board erred by requiring expert medical
testimony. Claimant contends the Board improperly stated a blanket requirement
that expert medical testimony is always required to support a UC claimant’s
averment of mental illness. Claimant insists his own testimony and other evidence
of record may suffice to meet his burden of proof, without the need for an expert.
However, we need not reach that issue. Regardless of whether Claimant’s legal
argument might have some merit as a general proposition, it is inapplicable in the
circumstances of this case.


             At the hearing, Claimant submitted a letter from his treating therapist
describing his diagnoses and the treatments he was receiving. C.R., Item #1. After
Employer’s counsel objected on the basis of hearsay, Claimant’s counsel explained
the letter was not offered for the truth of the matters asserted therein, other than

                                          13
showing Claimant was receiving treatment. The referee admitted the letter for that
limited purpose. N.T. at 21-22. Claimant presented no medical evidence of a causal
connection between his mental health issues and his comments concerning
Supervisor and a coworker; nor did he offer any medical evidence that he lacked the
ability to control his comments at the time he made them.


             In Brady v. Unemployment Compensation Board of Review, 539 A.2d
936 (Pa. Cmwlth. 1988), the employer terminated the claimant’s employment after
he assaulted another employee without provocation. The claimant, a Vietnam
veteran, argued his assault on his coworker, who was Vietnamese, was not willful.
Rather, it was “an impulsive manifestation of Post-Traumatic Stress Disorder
(PTSD), an anxiety disorder from which he suffer[ed] as a result of his combat
experiences in Vietnam, and beyond his limits of self-control.” Id. at 938. This
Court found expert medical testimony was required to establish a causal connection
between claimant’s PTSD and his assault on his coworker, because it was “less than
obvious that the assault committed by the claimant was attributable to the mental
disorder he was laboring under, so that the causal connection between the two could
be inferred by the fact-finder, without the aid of expert testimony.” Id. at 939.


             In Jordan v. Unemployment Compensation Board of Review, 684 A.2d
1096 (Pa. Cmwlth. 1996), a head injury left the claimant with permanent
impairments including a mood disorder, physical imbalance, depression, and
emotional outbursts. The employer terminated his employment for failing to comply
with absence reporting requirements. The claimant argued his mental state rendered
him incapable of getting out of bed some mornings, even to call off work. This



                                         14
Court observed that, although the claimant was arguably an expert on his own
condition, he was not an expert on mental disorders. His statement of his diagnosis
and his description of his mood disorder could not establish good cause so as to
negate willful misconduct.


              The claimant’s physician in Jordan certified that the claimant’s mood
disorder could cause him to miss work. However, this Court found that statement
insufficient to show the claimant was incapable of calling in on the days he did not
report to work. Thus, it did not support a finding of good cause for the claimant’s
failure to comply with the employer’s absenteeism policy. As this Court explained,
“without further elaboration from the physician who filled out the certification, for
example, there is simply no evidence from a qualified person concerning the
relationship between the mood disorder and its effect on [the] [c]laimant’s ability to
report either to work or off work.” Id. at 1100 (citing Brady).


              Here, Claimant asserted neither that his comments were an impulsive
manifestation of a panic attack, nor that they were beyond the limits of his self-
control. Thus, the causal connection between Claimant’s comments and his panic
attack was even less obvious than the alleged causal connections in Brady and
Jordan, both of which required expert medical evidence to support the claimants’
alleged lack of control over their conduct. Accordingly, assuming the Board
erroneously stated a blanket requirement of expert medical evidence in cases of
mental illness, it did not err in requiring such evidence in this case.6

       6
         This Court may affirm on a different basis from that on which the Board relied, provided
the correct basis for affirmance is clear from the record. Butler Twp. Bd. of Sup’rs v. Dep’t of
Envtl. Res., 513 A.2d 508 (Pa. Cmwlth. 1986).


                                               15
                                  IV. Conclusion
             Employer does not dispute that Claimant suffers from several
significant mental health issues. Nonetheless, Employer met its burden of proving
it terminated Claimant’s employment because of willful misconduct. Claimant
failed to establish that his mental health issues caused his threatening, bizarre, and
inappropriate comments concerning Supervisor and a co-worker. Specifically, he
failed to establish he could not control his statements at the time he made them.
Claimant’s argument of legal error by the Board in requiring expert medical
evidence is insufficient to overcome the total absence of record evidence to
demonstrate good cause for his willful misconduct.


             Therefore, we affirm the Board’s order declaring Claimant ineligible
for UC benefits.




                                       ROBERT SIMPSON, Judge




                                         16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

C. D. B.,
                      Petitioner     :
                                     :
            v.                       :   No. 811 C.D. 2018
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER

            AND NOW, this 7th, day of March, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    ROBERT SIMPSON, Judge
