                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mbainai Narmbaye,                             :
                Petitioner                    :
                                              :   No. 1003 C.D. 2015
              v.                              :
                                              :   Submitted: November 25, 2015
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: March 9, 2016


              Mbainai Narmbaye (Claimant) petitions, pro se, for review of the April
22, 2015 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision that Claimant was ineligible for unemployment
compensation benefits pursuant to Section 402(e) of the Unemployment
Compensation Law (Law).2 For the following reasons, we affirm.




       1
          This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for
any week in which his unemployment is due to his discharge from work for willful misconduct
connected with his work.
                            Facts and Procedural History
             The Juvenile Justice Center (Employer) employed Claimant as a
counselor from December 17, 2012, through his last day of employment on
December 13, 2014. (Notes of Testimony (N.T.) at 7-8.)
             On or about December 15, 2014, Employer became aware of an incident
involving Claimant’s physical restraint of a juvenile client under Employer’s
supervision. (Finding of Fact No. 4.) After investigation, Employer determined that
Claimant’s restraint was inappropriate and excessive under the circumstances, and
discharged him for violating its policy pertaining to client restraints. (Finding of Fact
No. 6.) Claimant applied for benefits with the local service center, which determined
that Claimant’s actions constituted willful misconduct, rendering him ineligible for
unemployment compensation benefits. Claimant appealed the determination to a
referee, who held a hearing on February 12, 2015.
             Bridget Taylor (Taylor) testified that she was a program director for
Employer and was responsible for the program in which Claimant worked. Taylor
stated that on December 14, 2014, Wakina Howard (Howard), acting supervisor the
day of the incident, informed her that Claimant had used improper physical
restraint/force on a client.   Taylor explained that Howard advised her that the
Pennsylvania Department of Public Welfare (DPW) visited Employer’s facility to
perform an investigation of the incident, and that DPW indicated that Employer was
probably going to be cited for excessive force/improper restraint. (N.T. at 11-12, 16-
19.)
             Taylor testified that she reviewed surveillance video of the incident,
which occurred while the client was sitting on the second floor steps. According to
Taylor, the video showed Claimant walking over to the client, pushing him down and
backwards onto the steps, and placing a knee into his chest. Taylor stated that

                                           2
another staff member then climbed the steps and escorted the client downstairs. (N.T.
at 12-14.)
                Taylor testified that Employer trains all employees/counselors, including
Claimant, how to physically restrain clients. Taylor stated that physical restraint
would be appropriate where a client is threatening himself, threatening others, or
destroying property, but observed none of those circumstances on the video. While
there was no audio to the recording, Taylor noted that no reasonable use of physical
restraint would permit an employee to push a client to the floor and place a knee to
his chest. Based on her observation of the video, Taylor stated that she could discern
no reason for Claimant to physically restrain the client and concluded that Claimant’s
actions constituted excessive force. (N.T. at 13-14.)
                Taylor explained that there is a difference between excessive force and
child abuse in that one can use excessive force and not abuse a child. Taylor testified
that on December 15, 2014, she and Richard Chapman (Chapman), Employer’s
Executive Director, communicated with Claimant by phone to confirm the incident
and to inform Claimant that DPW had initiated an investigation. (N.T. at 15.)
                Theresa Bennett (Bennett), Employer’s acting Director of Human
Resources at the time of the incident, testified that, on December 15, 2014, a
supervisor informed her of a video showing that Claimant used the wrong type of
physical restraint on a client to calm him down.3                   In a January 9, 2015 oral
interview/statement that she provided to the service center, Bennett stated, in
pertinent part:
                The [Claimant] was terminated for excessive force while
                disciplining a client . . . while working in the group home
                . . . with kids that are confined by the state[.] A client filed a

      3
          Bennett did not review the video or see the incident in person.

                                                   3
             complaint of physical abuse against the [Claimant] and
             requested he be taken to the hospital due to pain in his
             chest. A review of the security video clearly showed the
             [Claimant] kneeing the client in the chest and restraining
             him. This is the third time the state has investigated the
             [Claimant] and this time [Employer] had all the proof to
             terminate him.
             The [Claimant] did not deny the allegation after seeing the
             video.

(N.T. at 10; Record at Exhibit SC-8.) When Claimant questioned Bennett about her
statement that “Claimant did not deny the allegation after seeing the video,” Bennett
testified that Taylor had informed her of the same. Bennett acknowledged that she
had no first-hand knowledge as to when Claimant was given an opportunity to review
the video and whether he denied the allegations. (N.T. at 8, 10-11.)
             Bennett testified that she was involved in the decision to terminate
Claimant for using excessive force in restraining a client and she confirmed
Employer’s policy regarding client restraints and abuse of a client, which is contained
in section F.3(I), item 1 of Employer’s Policy and Procedure Manual.            Bennett
explained that the policy pertains to “any issue that threatens the health and safety of
[Employer’s] children, destructs, interferes, or prevents [Employer’s] operation and
function, or seriously threatens [Employer’s] adherence to State and City
Regulations.” (N.T. at 9.) Bennett testified that Claimant was aware of the policy
because every employee receives a manual at the time of hire, and noted that
Claimant signed acknowledgements of his receipt of the manual on two occasions
prior to the incident. Bennett indicated that Claimant violated the policy due to his
use of excessive force in restraining a client, which is a terminable offense. (N.T. at
8-10; Record at Exhibit SC-12.)



                                           4
                Chapman testified that he became aware of the incident through Taylor.
He and Taylor discussed the DPW’s belief that Claimant’s actions may have
constituted illegal restraint, and determined that Claimant could not return to
employment because this was his third incident concerning inappropriate disciplinary
actions. (N.T. at 18.)
               Chapman acknowledged that he did not view the video, but spoke with
Claimant about the incident over the phone.                According to Chapman, Claimant
conceded that an incident occurred, but claimed that it was not as severe as Employer
described. Chapman testified that Claimant said he was out of town at the time of the
phone call and could not return to work.                 Chapman stated that, in the same
conversation, Claimant told him that “he wanted to come back to work for a week,
but he was looking for another job, so he only wanted to be employed for about
another five days or so.” (N.T. at 18.) Chapman told Claimant that he could not
return to employment due to the fact that DPW informed Employer that his actions
constituted an illegal restraint. (N.T. at 17-18.)
               Chapman testified that Claimant violated Employer’s policy contained in
the manual.        Chapman further testified that the manual contains policies and
procedures that all employees must follow, and each employee provides written
acknowledgment of receipt of the manual. (N.T. at 20-21.)
               Chapman noted that DPW can cite Employer for violating DPW
regulations4 and/or that the conduct may constitute inappropriate discipline in
violation of Employer’s polices, without that conduct rising to the level of child
abuse. Chapman testified that although DPW may conclude that no child abuse
occurred, Employer could still consider that conduct as evidencing a disregard of the


      4
          Employer never received a written citation from DPW for this incident. (N.T. at 19.)

                                                  5
standards of behavior it expects from its employee. Chapman testified that Claimant
was terminated based on his use of illegal restraint and excessive force, and not due
to the child abuse investigation. (N.T. at 19-20.)
             Claimant denied that the incident occurred as described by Employer’s
witnesses, and testified that he never placed his knee on the client’s chest. According
to Claimant, the client exhibited bad behavior throughout the day, not just at the time
of the incident. Immediately prior to the incident, Claimant instructed the client to sit
on the steps outside of the bedroom because the client was preventing others from
sleeping. Claimant explained that he walked over to the client and leaned over him to
find out what was wrong and calm him down. Claimant testified that the client began
to curse at him and spat in his face. Claimant stated that he responded by restraining
the client by his forearms, and continued the restraint as the client attempted to punch
him. Claimant indicated that a co-worker then appeared and escorted the client to
another floor of the facility.    According to Claimant, surveillance video of the
incident would corroborate his testimony. (N.T. at 22-25.)
              Claimant stated that Taylor and Chapman informed him that he
violated the restraint rule and he was being terminated because Employer needed to
protect its license. Claimant agreed that pushing a client to the floor and kneeing the
client would constitute either an illegal restraint or excessive force.       However,
Claimant described his restraint of the client as acceptable, in accordance with how
he was trained, and not in violation of Employer’s policy. (N.T. at 7-8, 24-25, 28.)
             Claimant submitted a letter from DPW finding that the child abuse
allegation was unfounded.      Claimant contended that DPW’s finding mandates a
determination that he did not violate Employer’s policy regarding excessive
force/improper restraints.    Claimant argued that because DPW’s investigation



                                           6
resulted in a finding of unfounded child abuse, the incident must have occurred as he
described. (N.T. at 27-28.)
            By decision and order dated February 19, 2015, the referee affirmed the
local service center’s determination and found Claimant ineligible for benefits. The
referee found that Employer had a policy regarding restraints and abuse of clients;
Claimant was or should have been aware of Employer’s prohibition against client
abuse; Taylor reviewed video of the incident which showed Claimant placing his
knee on the client’s chest; and Claimant was discharged for violating the policy when
he used excessive force. (Findings of Fact Nos. 2-6.) Further, the referee found that
Claimant had previously been warned about improper use of force against a client.
(Finding of Fact No. 7.)
            The referee noted that the parties presented conflicting testimony and
resolved all such conflicts in Employer’s favor.     The referee credited Taylor’s
testimony regarding her observations of Claimant’s conduct on the video, and noted
Bennett’s witness statement that Claimant “had been investigated three times and this
time [the Employer] had all the proof to terminate [Claimant].” (Decision at 2.) The
referee concluded that Claimant’s violation of Employer’s policy constituted willful
misconduct and that Claimant failed to demonstrate that he had good cause for his
actions. Claimant appealed the referee’s decision to the Board, requesting a remand
hearing to offer additional evidence. By decision dated April 22, 2015, the Board
affirmed the referee’s decision, adopted and incorporated the referee’s findings and
legal conclusions, and denied Claimant’s request for a remand.




                                         7
                                        Discussion
              On appeal to this Court,5 Claimant argues that the Board erred in
affirming the referee’s decision because Taylor’s testimony describing what she
observed on the surveillance video was hearsay. Claimant also contends that the
Board erred because he presented credible testimony denying the allegations of
willful misconduct and the investigative findings of DPW prove the incident did not
occur as Employer’s witnesses described.
              Section 402(e) of the Law provides that an employee shall be ineligible
for benefits for any week in which his unemployment is due to his discharge from
work for willful misconduct connected with his work. 43 P.S. §802(e). While willful
misconduct is not defined in the Law, our courts have defined it as:

              (1) a wanton or willful disregard for an employer’s
              interests; (2) a deliberate violation of an employer’s rules;
              (3) a disregard for standards of behavior which an employer
              can rightfully expect of an employee; or (4) negligence
              indicating an intentional disregard of the employer’s
              interest or an employee’s duties or obligations.

Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d
186, 190 (Pa. Cmwlth. 2012).
              Whether Claimant’s conduct constitutes willful misconduct is a question
of law subject to this Court’s review. Ductmate Industries, Inc. v. Unemployment

       5
         Our scope of review in an unemployment compensation appeal is limited to determining
whether constitutional rights were violated, whether an error of law was committed, or whether
necessary findings of facts are supported by substantial evidence. Leace v. Unemployment
Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014). Substantial evidence
is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman
v. Unemployment Compensation Board of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012). Where
substantial evidence supports the Board’s findings, they are conclusive on appeal. Ductmate
Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth.
2008).

                                              8
Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Employer,
as the prevailing party below, is entitled to the benefit of all reasonable inferences
drawn from the evidence. Id. However, it must be noted that the Board is the
ultimate fact-finder in unemployment compensation proceedings.            Chapman v.
Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth.
2011). Issues of credibility are solely for the Board, which may either accept or
reject a witness’s testimony, regardless of whether it is corroborated by other record
evidence. Id.
             Where, as here, the determination of willful misconduct is based on the
violation of a work rule, employer must establish the existence of the rule, the
reasonableness of the rule, the claimant’s knowledge of the rule, and its violation.
Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1162 (Pa.
Cmwlth. 2012). If employer meets its burden, the burden shifts to claimant to show
good cause for his conduct.       Philadelphia Parking Authority v. Unemployment
Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010).
             Generally, a conclusion that the employee has engaged in disqualifying
willful misconduct is especially warranted in cases where the employee has been
warned and/or reprimanded for prior similar conduct.           Ellis v. Unemployment
Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) (quoting
Department of Transportation v. Unemployment Compensation Board of Review, 479
A.2d 57, 58 (Pa. Cmwlth. 1984)). However, we have previously held that “the
existence of a specific rule is not necessary where the employer has a right to expect a
certain standard of behavior, that standard is obvious to the employee, and the
employee’s conduct is so inimical to the employer’s interests that discharge is a
natural result.” Id. at 1162.



                                           9
                                           Hearsay
              Claimant first argues that the Board erred in affirming the referee’s
determination because the testimony of Taylor upon which the referee relied
constituted hearsay. We disagree.
              The Pennsylvania Rules of Evidence define hearsay as a statement made
by a declarant that is offered to prove the truth of the matter asserted in the statement.
Pa.R.E. 801(c). A statement is defined by the Pennsylvania Rules of Evidence as “a
person’s oral assertion, written assertion, or nonverbal conduct, if the person intended
it as an assertion.” Pa.R.E. 801(a) (emphasis added). Hearsay evidence, properly
objected to, is not competent evidence to support a finding of the Board. Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976). Hearsay evidence admitted without objection, however, will be given its
natural probative effect and may support a finding of the Board if corroborated by
any competent evidence in the record. Id.
              In the present case, Claimant failed to make an objection to this
testimony at the time of the hearing, and, therefore, any hearsay objection is waived.6
Phoebus v. Unemployment Compensation Board of Review, 573 A.2d 649, 651 (Pa.
Cmwlth. 1990) (a claimant’s failure to raise an objection before the referee
constitutes waiver of the issue on appeal).
              However, assuming arguendo that Claimant had timely objected to
Taylor’s testimony, we conclude that it was not hearsay. This Court previously


       6
         The Claimant asserts that he made a “de facto” objection by presenting testimony and
evidence contrary to that submitted by Employer’s witnesses. (Petitioner’s Amended Br. at 12).
The Claimant’s submission of conflicting evidence, standing alone, is insufficient to preserve and
make a hearsay objection to his opponent’s evidence.

                                               10
rejected an identical argument in Yost v. Unemployment Compensation Board of
Review, 42 A.3d 1158, 1162-64 (Pa. Cmwlth. 2012). In Yost, police car video
recorded the claimant striking a suspect in the chest three times with his flashlight
when the suspect was already handcuffed and on the ground. The police chief was
not present when the incident occurred, but had reviewed the videotape and testified
to his observations of the video.         The claimant objected that the police chief’s
testimony was hearsay because he had no personal knowledge of the incident and
because the video was not introduced into evidence. We held that neither the police
chief’s testimony about what he observed on the tape nor the video itself was hearsay.
Rather than testifying as to any statements made by the suspect, the police chief
testified only as to his observations of the conduct that appeared on the video. This
Court concluded that the police chief’s testimony pertained to non-assertive conduct,
which does not constitute hearsay. Accordingly, we concluded that the Board was
required to make a credibility determination as to the testimony, and it found the
police chief’s testimony credible. See also Davis v. Civil Service Commission of the
City of Philadelphia, 820 A.2d 874, 879 n.3 (Pa. Cmwlth. 2003) (videotape was not
hearsay because nonverbal conduct is hearsay only if intended as an assertion).7



       7
          Our Superior Court reached a similar result in Commonwealth v. Lewis, 623 A.2d 355 (Pa.
Super. 1993). In Lewis, the defendant appealed a conviction for retail theft. The defendant’s
actions had been recorded on surveillance video, which was subsequently reviewed by local police.
At trial, an officer testified regarding what he observed on the tape, even though he had not
observed the defendant’s actions contemporaneously with the crime.
        On appeal, the defendant contended that the officer’s testimony concerning his actions on
the tape was hearsay and should not have been admitted. The Superior Court held that such
testimony was not hearsay and noted that the alleged “statement” was the conduct of defendant as
recorded on the video. The Superior Court found that defendant’s actions did not fall within the
category of assertive conduct, which it described as conduct intended to convey a message.
Accordingly, the Lewis court held that the officer’s testimony was not hearsay.



                                               11
               Consistent with Yost, even if Claimant had timely objected to Taylor’s
testimony regarding what she saw on the videotape, this testimony would not
constitute hearsay.8


                    Claimant’s Testimony and DPW Investigation
               Next, the Claimant argues that the Board erred because he presented
credible testimony denying the allegations of willful misconduct, and DPW
investigative findings prove that the incident did not occur as Employer’s witnesses
described. We disagree.
               The present case included conflicting testimony from Claimant and
Employer’s witnesses regarding the specific details of Claimant’s interaction with the
client. The Board credited Employer’s witnesses’ testimony over that of Claimant.
The law is well-settled that issues of credibility are solely for the Board to resolve.
Chapman, 20 A.3d at 607, 610.
               Because the findings are supported by substantial evidence, the fact that
Claimant may have adduced evidence to the contrary is immaterial and not a basis for
reversal. Ellis, 59 A.3d at 1164 n.4 (“The fact that a claimant may have given a
different version of events, or . . . might view the testimony differently than the
Board, is not grounds for reversal if substantial evidence supports the Board’s
findings.”).
               Additionally, we note that the results of DPW’s investigation are
irrelevant to the outcome of this case. The fact that DPW found the child abuse


      8
         We note that Employer was not required to submit the video in evidence. The best
evidence rule, a technical rule of evidence, does not apply to unemployment compensation
proceedings. 2 Pa. C.S. §505; DiLucente Corporation v. Prevailing Wage Appeals Board, 692
A.2d 295, 298 (Pa. Cmwlth. 1997).

                                           12
allegations unfounded is irrelevant to a determination of whether Claimant committed
willful misconduct under Section 402(e) of the Law. We have previously held that a
finding of child abuse is not required for a determination of willful misconduct under
the Law.9 Woods Services v. Unemployment Compensation Board of Review, 885
A.2d 630, 634 (Pa. Cmwlth. 2005); see also Watkins v. Unemployment Compensation
Board of Review, (Pa. Cmwlth., No. 687 C.D. 2013, filed September 5, 2013), slip
op. at 7 n.5 (“a finding by ChildLine is not required for a determination of willful
misconduct under the Law”).10


                                           Conclusion
              Because Employer presented competent evidence that Claimant violated
its policy by using excessive force/restraint on a client, and Claimant failed to
establish just cause for his actions, the Board did not err in affirming the referee’s
decision that Claimant committed willful misconduct, thereby rendering him
ineligible for benefits under section 402(e) of the Law.




                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge




       9
          Furthermore, we note that Employer was not required to await the outcome of DPW’s
investigation of child abuse to make a determination that Claimant’s conduct violated its policy
prohibiting the use of excessive force.

       10
          An unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent. See Pa.R.A.P. 3716(b); Commonwealth Court
Internal Operating Procedures, §414.

                                                13
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mbainai Narmbaye,                    :
                Petitioner           :
                                     :    No. 1003 C.D. 2015
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                 ORDER


           AND NOW, this 9th day of March, 2016, the April 22, 2015 order of
the Unemployment Compensation Board of Review is affirmed.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
