           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dominic Broxton,                              : No. 2155 C.D. 2015
                                              : Submitted: July 15, 2016
                            Petitioner        :
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: August 18, 2016

              Dominic Broxton (Claimant) petitions for review of the October 13,
2015 order of the Unemployment Compensation Board of Review (Board),
affirming a referee’s determination that Claimant is ineligible for benefits under
Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm.
              Claimant worked for C&D Security (Employer) as a protective
security officer (PSO) from June 3, 2011, to July 4, 2015. Employer has a policy
that prohibits unprofessional behavior. Pursuant to company policy, Employer


       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 in which his unemployment is due to his discharge or temporary suspension from work for
willful misconduct connected with his work.
reserves the right to terminate employees for “[g]ross abuse of a client or employee
(physical, verbal, or otherwise), including fighting or disorderly conduct on or near
Company/Client property . . . .” Record Item 3, Ex. 12. The policy also forbids
leaving one’s post without permission of a supervisor. Id.
             During his employment, Claimant had an ongoing issue with a fellow
employee and believed that his coworker was continually going into his locker and
touching his belongings.      Claimant believed that his coworker had wanted
Claimant’s post for a long time and was trying to get Claimant fired. Although
Claimant discussed this situation with his supervisors, he never documented the
issue because he ultimately felt it was a trivial matter. Findings of Fact, Nos. 2-7.
             On July 4, 2015, the coworker accused Claimant of taking items from
his locker, and the two engaged in a verbal argument at the security desk. The
conversation ended, and the coworker left the security desk and walked into the
breakroom. Claimant followed the coworker into the breakroom and the coworker
scratched Claimant’s cheek in an attempt to punch him in the face. Claimant
responded by punching the coworker in the face. A physical altercation ensued
between Claimant and the coworker until two employees intervened and stopped
the fight. That same day, Claimant was discharged for fighting at work and
abandoning his post. Findings of Fact Nos. 8-15. Claimant’s coworker also was
fired.
             The local service center determined that Claimant was ineligible for
benefits under section 402(e) of the Law and denied Claimant’s application for
benefits. Claimant appealed, and the matter was assigned to a referee, who held a
hearing on August 21, 2015.




                                          2
             Employer presented the deposition testimony of Captain Stanley
Crommardy, who testified that PSOs are required to call the command center and
notify their shift supervisor whenever they are involved in an altercation. Captain
Crommardy stated that Claimant should have notified the onsite supervisor of the
argument with his coworker instead of leaving the security desk and following his
coworker into the breakroom. Captain Crommardy further noted that Claimant
signed Employer’s policy and was aware that fighting was prohibited. Captain
Crommardy testified that while PSOs are allowed to counter force with equal force
when arresting or restraining a felon, the same policy is not appropriate to use with
a coworker. Notes of Testimony (N.T.) at 5-9; 28.
             Captain Crommardy testified that at the moment Claimant had been
scratched in the face, he had the opportunity to leave the breakroom and report the
incident to his supervisor. Captain Crommardy noted that it is not approved
protocol to respond to a scratch to the cheek with a punch to the face, and he did
not believe that Claimant’s actions constituted self-defense. Captain Crommardy
testified that Claimant was discharged for fighting and abandoning his post. N.T.
at 4-9; 27. Captain Crommardy also offered into evidence a written statement that
Claimant provided on the day of the incident. Record Item No. 8, Employer Ex. 1.
             Employer also presented the testimony of Lieutenant Joseph McLeod,
who also testified that Claimant knew or should have known to call and inform the
shift supervisor of his argument with the coworker at the security desk and should
not have followed his coworker into the breakroom. Lieutenant McLeod stated
that after the fight, the breakroom was in disarray; a table had been overturned,
there was coffee on the floor, and the coworker had sustained a bloody lip. N.T. at
10, 14.


                                         3
              Claimant testified that prior to the July 4, 2015 incident he had
reported his ongoing issue with the coworker to two supervisors, Lieutenant Lemos
and Lieutenant Conway. Claimant stated that he had observed Lieutenant Lemos
speak to his coworker about the situation and believed that it had been resolved.
N.T. at 15.
              Claimant testified that the July 4, 2015, incident began when his
coworker approached the security desk and accused Claimant of touching his
belongings. The coworker then told Claimant that he was going to break into his
locker and destroy his things. Claimant testified that he followed his coworker into
the breakroom to record and prevent the commission of a burglary. Claimant said
he did not expect to be assaulted in the breakroom because his coworker had a
tendency of being “a jokester.” Claimant stated that when he reached the
breakroom, he found his coworker breaking into his locker. N.T. at 15-20, 24-26.
              Claimant testified that he filmed his coworker for approximately ten
seconds, and then the coworker assaulted him and attempted to destroy his phone.
Claimant insisted that he reacted in self-defense after the coworker scratched him
in the face. Claimant stated that he did not retreat when the coworker attacked him
because he is trained to react first in the face of imminent danger and to meet force
with an equal amount of force. Claimant explained that he responded to his
coworker as he would a burglar, and not a fellow employee, because he was
committing an act of burglary. N.T. at 15, 20-21.
              Claimant testified that he was held hostage in the breakroom by his
coworker but was finally able to escape and frantically called for help. Claimant
said that because his coworker was armed, it was essential to maintain “visibility
on [coworker’s] hands and his whereabouts” as Claimant was trying to escape. As


                                         4
a result of the July 4, 2015 incident, Claimant filed criminal charges against his
coworker. N.T. at 14-16, 23, 30.
              The referee issued the findings summarized above, relying primarily
on Claimant’s written statement. The referee determined that if Claimant had
wanted to defend himself, he would have reported the incident to his supervisor
and would not have followed his coworker into the breakroom. The referee further
concluded that Claimant’s behavior was “particularly unacceptable” because
Claimant and the coworker were armed and could have endangered those around
them. Thus, the referee affirmed the service center’s decision that Claimant’s
conduct rendered him ineligible for benefits under Section 402(e) of the Law.
Claimant appealed to the Board, which affirmed the referee’s decision, adopting
the referee’s findings and conclusions of law.
              On appeal to this Court,2 Claimant argues that the Board failed to
consider relevant evidence demonstrating that he acted in self-defense. Claimant
also asserts that leaving his post did not amount to willful misconduct.
              An employer bears the burden to prove that a claimant is ineligible for
unemployment compensation benefits due to willful misconduct. Holomshek v.
Unemployment Compensation Board of Review, 395 A.2d 708, 709 (Pa. Cmwlth.
1979). The Law does not define “willful misconduct,” but our courts have defined
it as including: an act of wanton or willful disregard of the employer’s interest; a
deliberate violation of the employer’s rules; a disregard of standards of behavior
that the employer has a right to expect from an employee; and negligence

       2
          Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, or whether necessary findings
of fact are supported by substantial evidence. Miller v. Unemployment Compensation Board of
Review, 83 A.3d 484 (Pa. Cmwlth. 2013).


                                              5
indicating an intentional disregard of the employer’s interest, or of the employee’s
duties and obligations to the employer. Altemus v. Unemployment Compensation
Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1995). Where the allegation of
willful misconduct is based on a violation of the employer’s work rule, the
employer must show the existence of a reasonable work rule and the claimant’s
violation of the rule. Williams v. Unemployment Compensation Board of Review,
926 A.2d 568, 571 (Pa. Cmwlth. 2007). Once the employer meets its burden, the
burden shifts to the claimant to establish good cause for his conduct. Henderson v.
Unemployment Compensation Board of Review, 77 A.3d 699, 719 (Pa. Cmwlth.
2013).
            Additionally, the Board is the factfinder in unemployment
compensation cases, empowered to determine the credibility of witnesses and
resolve conflicts in evidence. Curran v. Unemployment Compensation Board of
Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The Board’s findings are binding
and conclusive on appeal if the record, when examined as a whole, is supported by
substantial evidence. Mathis v. Unemployment Compensation Board of Review, 64
A.3d 293, 299 (Pa. Cmwlth. 2013).         “Substantial evidence is such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion.”
Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa.
Cmwlth. 1999). We view the record in the light most favorable to the party
prevailing before the Board and afford that party the benefit of all reasonable
inferences that can be drawn from the evidence to determine if substantial evidence
exists. Big Mountain Imaging v. Unemployment Compensation Board of Review,
48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).




                                         6
            We have previously addressed the question of whether fighting in the
workplace constitutes willful misconduct.          In Wolfe v. Unemployment
Compensation Board of Review, 425 A.2d 1218 (Pa. Cmwlth. 1979), the
employer’s policy provided that fighting would result in an employee’s discharge.
The claimant and her coworker had ongoing problems with one another. One day,
the claimant and her coworker got into an argument and the coworker hit the
claimant on the side of the head. The claimant “automatically turned…and hit her
back,” injuring the coworker. Id. at 1219. The claimant was discharged for
fighting. The claimant argued that she had good cause for her conduct because she
acted in self-defense. However, the Board concluded that the claimant’s conduct
was “a willing entry into the fray,” rather than an act of self-defense. On appeal,
we acknowledged the claimant’s right to defend herself from physical assault, but
we held that the Board did not err in finding that the claimant’s action was in
retaliation rather than self-defense. Accordingly, we affirmed the Board’s denial
of benefits under Section 402(e).
            In Rivera v. Unemployment Compensation Board of Review, 526 A.2d
1253, 1254 (Pa. Cmwlth. 1985), the claimant worked in an upholstery plant. One
day, a coworker shot the claimant with a staple gun.       The claimant told his
coworker to stop, but the coworker continued and shot the claimant three times in
the chest. The claimant then shot the coworker once in the leg and the coworker
responded by pushing the claimant over a skid. The claimant was discharged for
violating the employer’s rule prohibiting fighting in the workplace. The referee
concluded that the claimant was ineligible for benefits, finding his response of
shooting the coworker’s leg to be more calculated than reflexive because he could
have retreated and sought assistance. The Board upheld the denial of benefits


                                        7
under Section 402(e). On appeal, we affirmed the Board’s order, concluding that
the claimant’s choice to stay and escalate the fight was neither reasonable nor
justifiable and that the facts did not establish good cause for violating the
employer’s policy.
             Claimant argues that his conduct is similar to that of the claimants in
Miller v. Unemployment Compensation Board of Review, 83 A.3d 484 (Pa.
Cmwlth. 2013), Peeples v. Unemployment Compensation Board of Review, 522
A.2d 680 (Pa. Cmwlth. 1985), and Sun Oil Co. v. Unemployment Compensation
Board of Review, 408 A.2d 1169 (Pa. Cmwlth. 1978), in which the court found the
use of reasonable force to be justified.
             The claimant in Miller was an electrician and was installing a radio in
a customer’s vehicle when he got into an argument over the use of a bay with his
coworker. The claimant explained that his job would only take half an hour and
stated, “We don’t need to fight right now, I have a customer waiting.” 83 A.3d at
486. The coworker grabbed the claimant by the shirt, shoved him into a cart and
said, “You want to live?” Id. After taking initial steps to avoid physical conflict,
the claimant eventually responded by pushing the coworker back.            He was
discharged for fighting in the workplace, and the Board concluded that he was
ineligible for benefits due to willful misconduct. On appeal, this Court held that
the claimant’s actions were justifiable under the circumstances because he acted to
protect himself against the coworker’s imminent physical assault.
             In Peeples, the claimant was operating a forklift when he got into an
argument with a coworker who wanted to use it. The coworker then slapped
claimant, grabbed his clothes, and directed vulgarities at him. The claimant was
trapped inside the forklift and the coworker continued to slap him. The claimant


                                           8
attempted to resolve the disagreement verbally but after his words and lack of
physical reaction were ineffective, he began to strike the coworker back. We
concluded that under those circumstances, the claimant was justified in using
reasonable force in self-defense and was not ineligible for benefits based on willful
misconduct.
              In Sun Oil, the claimant, following orders, refused to give a paycheck
to a subordinate. The subordinate approached the claimant, making gestures, using
racial slurs and obscenities, and threatening to kill the claimant if he did not get his
check. The Court considered the totality of circumstances and determined that the
claimant maintained a reasonable belief of imminent bodily harm. Id. at 1172.
The Board determined that the claimant acted in self-defense and was justified in
using reasonable retaliatory force.     We affirmed the Board’s holding that the
claimant’s actions did not render him ineligible for benefits under section 402(e) of
the Law.
              We conclude that those cases are distinguishable from the
circumstances presented here and that this matter is controlled by our decisions in
Rivera and Wolfe. As we observed in Wolfe, “[r]econstructing the facts of an
emotionally charged incident is a difficult task and belongs to the Board.” Wolfe,
425 A.2d at 1219. In this case, the Board determined that, following an angry
verbal exchange with his coworker, Claimant could have reported his concerns to a
supervisor; instead, he followed his coworker to the breakroom, and, after being
scratched in the face, retaliated by striking his coworker and continuing to engage
in a physical fight. Our review of the record confirms that the Board’s findings are
supported by substantial evidence, including Claimant’s written statement, his
testimony, and the testimony of Employers’ witnesses.            Consequently, those


                                           9
findings are binding on appeal. Mathis. Based on the facts as found by the Board,
Claimant’s actions constituted willful misconduct, and Claimant failed to establish
good cause for his conduct. Rivera; Wolfe.
            Having so decided, we need not address whether Claimant committed
willful misconduct by leaving his post. “[A] claimant who has been discharged for
multiple reasons is disqualified from receiving benefits even if only one of those
reasons amounts to willful misconduct.” Glenn v. Unemployment Compensation
Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2006).
            Accordingly, we affirm the Board’s order.




                                      MICHAEL H. WOJCIK, Judge


Judge Brobson dissents.




                                        10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dominic Broxton,                        : No. 2155 C.D. 2015
                                        :
                        Petitioner      :
                                        :
                   v.                   :
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                        Respondent      :


                                     ORDER


             AND NOW, this 18th day of August, 2016, the order of the
Unemployment Compensation Board of Review, dated October 13, 2015, is
affirmed.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
