Reading Sch. Dist. v. Unemployment Comp. Bd. of Review

• Decision Date: 20 January 2023
• Docket Number: 1644 C.D. 2019
• Parties: Reading School District, Petitioner v. Unemployment Compensation Board of Review, Respondent
• Court: Pennsylvania Commonwealth Court

Reading School District, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

No. 1644 C.D. 2019

Commonwealth Court of Pennsylvania

January 20, 2023

OPINION NOT REPORTED

Submitted: August 19, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE LORI A. DUMAS, Judge

MEMORANDUM OPINION

LORI A. DUMAS, JUDGE

Reading School District (Petitioner) has petitioned this Court to review the adjudication of the Unemployment Compensation Board of Review (Board), which affirmed a Referee's decision that Tsehay A. Jackson (Claimant) was eligible for unemployment compensation under the Unemployment Compensation Law (Law).^[1] Because the Board erred as a matter of law by holding that Claimant was justifiably provoked, we reverse the Board.

I. BACKGROUND^[2]

Claimant was a full-time teacher with Petitioner from 2008 to 2019. In

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2019, Claimant was at work and "experienced a personal and embarrassing mishap in the restroom between classes." Referee's Decision/Order at 1 (unpaginated). The parties dispute some or all of the following, but the Board found that Claimant was upset and discussing the mishap with two female security guards when the janitor interjected himself into the discussion. Id. at 2. A verbal exchange ensued between Claimant and the janitor, with the Board finding that the janitor made a crude remark that resulted in Claimant shoving the janitor. Id.; see also Notes of Testimony (N.T.) Hr'g, 7/26/19, at 21.^[3] A video camera recorded the incident.^[4]

As a result of this incident, Petitioner suspended Claimant, pending further investigation. Referee's Decision/Order at 2. While on suspension, Claimant emailed Petitioner from her personal email address, objecting to her suspension and alleging "that she had been told" the janitor bought drugs from a student. Id.; accord Hr'g Ex. E-5 (reflecting the email, which stated, "I don't deserve to sit for a Loudermill Hearing related to the janitor with whom I had an altercation (who I've been told is buying drugs from a student).").^[5]

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Petitioner charged Claimant with violating Board Policy 417 (Conduct/Disciplinary Procedures), the Employee Handbook (Conduct Standards and Discipline, Workplace Violence, and Whistleblower Protection), and the then-existing versions of Sections 235.4 to .5 of the Code of Professional Practice and Conduct for Educators (Code). Hr'g Ex. E-7; see also 22 Pa. Code §§ 235.4-.5 (2020).^[6] Essentially, the Board Policy and Employee Handbook prohibit fighting and other acts of violence. Section 235.4 of the Code lists "behaviors and attitudes" by which "professional educators . . . are expected to abide ...." 22 Pa. Code § 235.4. Section 235.5 of the Code states that "[individual professional conduct reflects upon the practices, values, integrity and reputation of the profession." Hr'g Ex. E-8. Petitioner subsequently fired Claimant.

Claimant applied for, but was initially denied, unemployment compensation benefits under Section 402(e) of the Law. Notice of Determination, 6/18/19. Claimant appealed to the Referee, who held a hearing at which only Claimant and Petitioner's compliance officer testified. See generally N.T. Hr'g. Petitioner showed the silent video footage of the incident. Id. at 5-6.

The Referee ruled in Claimant's favor, finding that Claimant was provoked and had good cause for shoving the janitor. Referee's Decision/Order at 2. The Referee also held that Claimant's email was not willful misconduct. Id. Petitioner timely appealed to the Board, which affirmed the Referee and added an additional finding of fact quoting the janitor's crude remark. Bd.'s Order at 1.

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Petitioner timely filed a petition for review with this Court.

II. ISSUES^[7]

On appeal, Petitioner raises two issues. First, Petitioner claims that the record does not support several of the Board's findings of fact. Pet'r's Br. at 2-4. Specifically, Petitioner claims no record support for the following: the janitor interjected himself into the discussion; the janitor's crude remark; Claimant was upset and shoved the janitor; and the email required Claimant to meet with the janitor at the Loudermill hearing. Id. Second, Petitioner argues that the Board erred as a matter of law by finding that Claimant's shove of the janitor and email were not acts of willful misconduct. Id. at 4-6, 18-19.

III. DISCUSSION

A. Challenges to the Findings of Fact

Before summarizing Petitioner's arguments, we state the Referee's findings of fact at issue, which were adopted by the Board. First, Claimant "went to a lobby area and was discussing her issue with two female security guards, when the janitor interjected himself into the discussion. After learning of the problem, the janitor made a crude remark to [Claimant], as if to make light and humiliate [Claimant]." Referee's Decision/Order at 2. Second, Claimant "became upset with the janitor's response and shoved him." Id. Third, "[w]hile still on suspension, . . . [Claimant sent an email to the employer, protesting the fact that she had to participate in a hearing with the janitor with whom she had the confrontation. In this email, . . . [Claimant indicated that she had been told that this janitor had been

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buying drugs from a student." Id.

1. Arguments

On appeal, Petitioner argues the video establishes that Claimant did not speak with the two female guards but directly approached the janitor, where she "berated" the janitor for 13 seconds before shoving him. Pet'r's Br. at 13.^[8] Petitioner argues that the Board's finding that the janitor made a crude remark is based solely "upon [Claimant's] unsupported testimony" and that Claimant "provided no evidence or corroborating witnesses." Id. at 14. Petitioner reasons that Claimant could have testified as to the janitor's remark at her Loudermill hearing. Id. at 15. Petitioner opines that Claimant's failure to do so undermines her credibility. Id.

With respect to the Board's findings regarding the email, Petitioner argues that the email did not state that Claimant had to meet with the janitor. Id. at 16. Petitioner also contends that the Board's conclusion, i.e., Claimant repeated a rumor and did not directly accuse the janitor of buying drugs, is a factual distinction unsupported by the record. Id. at 17. Petitioner claims that the Board should have concluded that Claimant "engaged in reckless rumor mongering about a co-worker for the expressed purpose of impugning his character." Id. at 18.

2. Discussion

We view the record in the light most favorable to the prevailing party, including the benefit of all logical and reasonable inferences, to determine if substantial evidence exists for the Board's conclusion. Begovic, 234 A.3d at 929 n.6. "Substantial evidence is such relevant evidence that a reasonable mind might

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accept as adequate to support a conclusion." Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022) (citation omitted). "Substantial evidence" does not necessarily require eyewitness testimony because a factfinder may resolve an unemployment compensation claim based solely on circumstantial evidence. See Blicha v. Unemployment Comp. Bd. of Rev., 876 A.2d 1077, 1082 (Pa. Cmwlth. 2005). As long as substantial evidence supports the Board's findings of fact, it is immaterial that the record could support a contrary finding. Morgan v. Unemployment Comp. Bd. of Rev., 108 A.3d 181, 185 (Pa. Cmwlth. 2015) (en banc). In addition to resolving conflicts of evidence, the Board also resolves witness credibility. Lowman v. Unemployment Comp. Bd. of Rev., 235 A.3d 278, 286 n.8 (Pa. 2020); see generally Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1389 (Pa. 1985) (rejecting argument that Referee should have the exclusive power to resolve credibility). Finally, it is well settled that an unsupported finding of fact that is unnecessary to the adjudication "constitutes harmless error." Borough of Schuylkill Haven v. Prevailing Wage Appeals Bd, 6 A.3d 580, 585 (Pa. Cmwlth. 2010) (Borough).

Here, the Board considered the video and testimony of all of the witnesses. See generally N.T. Hr'g. Viewing the record, as we must, in Claimant's favor, the video apparently was inconclusive at best as to whether Claimant spoke with the two female guards and whether the janitor made a crude remark to Claimant. See Woodring, 284 A.3d at 964. Because the law does not require Claimant to present corroborative testimony or evidence, we disagree with Petitioner's criticism of the Board's reliance on Claimant's testimony alone. See Blicha, 876 A.2d at 1082. Finally, with respect to Petitioner's argument that Claimant could have testified about the janitor's statement at the Loudermill hearing, such an argument

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goes to her credibility, which is left to the Board's discretion. See Lowman, 235 A.3d at 286 n.8.

Next, we address whether the record supports the Board's finding that Claimant's email protested that she "had to participate in a hearing with the janitor with whom she had the confrontation." Referee's Decision/Order at 2; see also Hr'g Ex. E-5 ("I don't deserve to sit for a Loudermill Hearing related to the janitor with whom I had an altercation . . . ."). Here, viewing the email and all reasonable inferences therefrom in Claimant's favor, Claimant's email could be construed as reflecting her belief that she had to participate in the hearing with the janitor. See Morgan, 108 A.3d at 185. But even if the record viewed in Claimant's favor could not support such a finding, Petitioner did not explain how it was reversible error. See Borough, 6 A.3d at 585. In other words, even if the Board was incorrect about the email, Petitioner did not explain how the error was material. See id. For these reasons, Petitioner's challenges to the Board's findings of fact lack merit.

B. Justifiable Provocation of the Shove

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