Woodring v. Unemployment Comp. Bd. of Review
| Decision Date | 04 October 2022 |
| Docket Number | 218 C.D. 2019 |
| Parties | Markus J. WOODRING, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent |
| Court | Pennsylvania Commonwealth Court |
Mark D. Schwartz, Bryn Mawr, for Petitioner.
Adam L. Santucci, Harrisburg, for Intervenor Republican Caucus of the Pennsylvania House of Representatives.
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge
OPINION BY JUDGE DUMAS
Marcus J. Woodring (Claimant) has petitioned this Court to review the adjudication of the Unemployment Compensation Board of Review (Board), which affirmed a Referee's decision that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law) relating to willful misconduct.1 Upon review, we affirm.
Claimant worked full time as an information technology (IT) hardware technician for the House of Representatives Republican Caucus (Employer) from December 21, 2005, to March 2, 2018. As such, Claimant was subject to Employer's email policy, which requires employees to use its email system with common sense, common decency, and civility, and which prohibits the transmission of any message for the purpose of intimidating, harassing, or abusing others, or which is offensive or defamatory in nature.
On February 22, 2018, Claimant sent an email to a fellow employee, stating, Notes of Testimony (N.T.) from Referee's Hr'g, 4/24/18, Ex. E-1. Thereafter, Employer terminated Claimant for violation of its email policy.
Claimant applied for, but was denied, unemployment compensation benefits under Section 402(e) of the Law. Claimant appealed to a Referee, who denied Claimant's appeal following a hearing.3 Claimant then appealed to the Board, which affirmed. Claimant now appeals to this Court.
Claimant asserts that Employer failed to prove that Claimant committed willful misconduct. According to Claimant, because Employer was absent from the hearing, Employer could not sustain its burden of proof or authenticate its documentary evidence. See Claimant's Second Am. Br. at 19-20. Further, Claimant suggests, his email and other correspondence constitute speech protected by the First Amendment.4 See id. at 20-22. For these reasons, Claimant concludes, this Court should reverse the Board's decision and find that Claimant is eligible for benefits. Id. at 23.
For its part, Employer rejects these arguments.5 According to Employer, its counsel was present at the hearing and elicited from Claimant all facts necessary to establish that he is ineligible for benefits under Section 402(e) of the Law. Intervenor's Br. at 13. Further, according to Employer, Claimant has waived any argument that his conduct was constitutionally protected. Intervenor's Br. at 13-14. In the alternative, Employer suggests that Claimant's email related to internal matters outside of the public interest and, therefore, was not constitutionally protected. Id. at 14-16.
This Court's review is "limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Comp. Bd. of Rev. , 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014). It is well settled that, in unemployment compensation cases, the Board is the ultimate fact-finder and its findings are conclusive on appeal, provided there is substantial evidence to support them.
Cambria Cnty. Transit Auth. ("CamTran") v. Unemployment Comp. Bd. of Rev. , 201 A.3d 941, 947 (Pa. Cmwlth. 2019). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Scott v. Unemployment Comp. Bd. of Rev. , 36 A.3d 643, 647 n.4 (Pa. Cmwlth. 2012).
Claimant asserts that Employer did not meet its burden of proving that Claimant committed willful misconduct because Employer failed to appear at the evidentiary hearing. This claim is without merit.
Section 402(e) of the Law provides that an employee shall be ineligible for unemployment compensation benefits for any week "in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected to his work[.]" 43 P.S. § 802(e). It is well established that "[w]hether conduct rises to the level of willful misconduct is a question of law to be determined by this Court." Brown v. Unemployment Comp. Bd. of Rev. , 49 A.3d 933, 937 (Pa. Cmwlth. 2012).
Although undefined in the Law, our courts have defined "willful misconduct" to mean (1) "an act of wanton or willful disregard of the employer's interest," (2) "a deliberate violation of the employer's rules," (3) "a disregard for standards of behavior which the employer has a right to expect of an employee," or (4) "negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer." Scott v. Unemployment Comp. Bd. of Rev. , 105 A.3d 839, 844 (Pa. Cmwlth. 2014). The initial burden rests with the employer to prove willful misconduct on the part of the employee. Adams v. Unemployment Comp. Bd. of Rev. , 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012).
An employer, seeking to prove willful misconduct based on the violation of its policies, must prove the existence of the policy, its reasonableness, and the fact of its violation. Halloran v. Unemployment Comp. Bd. of Rev. , 188 A.3d 592, 597 (Pa. Cmwlth. 2018). Upon doing so, the burden of proof shifts to the employee to prove that he had good cause for his actions. Id . The employee can establish good cause where his actions are "justified or reasonable under the circumstances." Chapman v. Unemployment Comp. Bd. of Rev. , 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Finally, an employer's burden of proof may be carried, in whole or in part, by the claimant's own testimony. Walker v. Unemployment Comp. Bd. of Rev. , 202 A.3d 896, 902-03 (Pa. Cmwlth. 2019) (accepting claimant's testimony as corroboration of employer's hearsay evidence); Moore v. Unemployment Comp. Bd. of Rev. , 134 Pa.Cmwlth. 274, 578 A.2d 606, 608-09 (1990) ().
At the hearing in this matter, Claimant acknowledged the existence of the policy and that he was aware of it. See N.T. at 15-16. Claimant also admitted that he sent the email disparaging the newly hired HR Director and accusing Employer of not following its rules. Id. at 22. Finally, the letter from Employer terminating Claimant's employment, which advised Claimant that he was terminated for violating Employer's email policy, was admitted into evidence without objection. See id. at 3.6
Based on this substantial evidence, the Board properly found that Claimant had committed willful misconduct and, therefore, was ineligible for unemployment benefits under Section 402(e) of the Law. 43 P.S. § 802(e) ; Halloran , 188 A.3d at 597 ; see also Cambria Cnty. Transit Auth. , 201 A.3d at 947. Thus, although Employer was not present, Claimant's testimony, along with the documentary evidence submitted by the parties, carried Employer's burden of establishing willful misconduct. See Walker , 202 A.3d at 902-03 ; Moore , 578 A.2d at 608-09.
Claimant also asserts that his conduct is protected under the First Amendment. In perfunctory remarks, Claimant asserts that "it should be clear that [Claimant's] emails and postings were speech coming from a citizen on a matter of public concern." Id. at 22.7 In response, Employer contends that Claimant has waived this issue on appeal and, alternatively, that this claim is without merit because the content of Claimant's email does not constitute speech of public concern.
We decline to find this issue waived. Pennsylvania Rule of Appellate Procedure 1513(d) provides that a petition for review shall contain "a general statement of the objections to the order or other determination, but the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record. " Pa.R.A.P. 1513(d) (emphasis added). Although Claimant omitted from his petition for review any specific objection to the Board's adjudication on the ground that his conduct was protected under the First Amendment, Claimant made such assertions to the Board, and there is sufficient evidence of record to inform our analysis. See Claimant's Pet. for Appeal from Referee's Decision/Order, 5/8/18, Ex. (Notice of Appeal, ¶ 3); see generally N.T.
Nevertheless, we agree with Employer that this claim lacks merit. "The denial of unemployment compensation benefits cannot be based on an individual's exercise of First Amendment rights absent a compelling State interest." McCall v. Unemployment Comp. Bd. of Rev. , 717 A.2d 623, 625 (Pa. Cmwlth. 1998). The first step in any constitutional inquiry is to determine whether the employee engaged in protected speech activity, i.e. , whether the speech addressed a matter of public concern. Connick v. Myers , 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ; Frigm v. Unemployment Comp. Bd. of Rev. , 164 Pa.Cmwlth. 282, 642 A.2d 629, 633 (1994) ; Bala v. Unemployment Comp. Bd. of Rev. , 42 Pa.Cmwlth. 487, 400 A.2d 1359, 1364 (1979).
Speech implicates a matter of public concern if it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick ,...
To continue reading
Request your trial