IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Victor Nieves, :

:

Petitioner :

:

 v. : No. 1333 C.D. 2018

: Submitted: September 10, 2019

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: October 25, 2019

Victor Nieves (Claimant) petitions for review of the September 12, 

2018, order of the Unemployment Compensation Board of Review (Board) 

affirming a referee’s determination and holding that Claimant is ineligible for 

unemployment compensation (UC) benefits under Section 402(e) of the 

Unemployment Compensation Law (Law).1 Claimant argues that the Board’s 

findings are not supported by substantial evidence and the evidence in the record 

does not establish willful misconduct.2 Upon review, we affirm. 

 

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

§802(e). This section provides that an employee shall be ineligible for compensation for any week 

in which his unemployment is due to his discharge from work for willful misconduct connected 

with his work. 

2 This Court has defined willful misconduct as: 
2

Claimant worked as a dock worker for Olde Goode Things (Employer) 

from June 25, 2015, until April 12, 2018. Findings of Fact (F.F.) No. 1. After his 

separation from employment, Claimant applied for unemployment compensation 

(UC) benefits. Reproduced Record (R.R.) at 2a. The local service center determined 

that Claimant was ineligible for UC benefits under Section 402(e) of the Law 

because he was discharged for willful misconduct. Id. Claimant appealed, and a 

referee held a hearing.

At the hearing, Employer offered the testimony of Alvin Fyock, 

Employer’s warehouse manager, who was Claimant’s direct supervisor. Fyock

testified that Claimant’s work schedule was from 9:00 a.m. to 5:30 p.m., Monday 

through Friday. R.R. at 25a. Fyock stated that on Thursday, April 12, 2018, 

Claimant was not at his work area at 9:00 a.m. Id. at 26a. Fyock began to look for 

Claimant and found him in the bathroom. Id. Fyock directed Claimant to report to 

his office for a meeting. Id. Fyock testified that during the meeting with Claimant, 

Claimant “got nasty,” so Fyock sent him home for the rest of the day. Id. Fyock 

testified that Claimant called him a “shithead” after being told to go home. Id. at

26a-27a. Fyock further testified that on Monday, April 16, 2018, when Claimant 

returned to work, Claimant was terminated from employment because of his use of 

 

(1) the wanton and willful disregard of the employer’s interests; 

(2) the deliberate violation of [employer’s] rules; (3) the 

disregard of standards of behavior that an employer can 

rightfully expect from his employee; or (4) negligence which 

manifests culpability, wrongful intent, evil design, or intentional 

and substantial disregard for the employer’s interests or the 

employee’s duties and obligations. 

Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07 (Pa. Cmwlth. 

2011). 
3

vulgar language towards Fyock the previous week. Id. at 30a. According to Fyock, 

when Claimant was informed of his termination, he called Fyock a “faggot.” Id. 

Claimant appeared pro se and, with the aid of a Spanish-English 

interpreter, testified that he did not use vulgar language on either Thursday, April 

12, 2018, or Monday, April 16, 2018. R.R. at 33a. He said that on Thursday, April 

12, 2018, he was in the bathroom due to an upset stomach when Fyock found him. 

Id. Claimant stated that Fyock sent him home that day because he was spending too 

much time in the bathroom. Id. Claimant asserted that he had no disciplinary history 

for disrespectful behavior during the three years he worked for Employer. Id. at 33a34a.

After considering the testimony presented, the referee resolved all 

credibility issues in favor of Employer. R.R. at 7a. The referee found that Claimant 

used vulgar language towards his supervisor on Thursday, April 12, 2018, when 

Claimant was directed to go home for the day, and again on Monday, April 16, 2018,

after he was terminated from employment. F.F. Nos. 8, 10. The referee found that 

Claimant failed to provide any justifiable cause for his use of vulgar language in the 

workplace. R.R. at 7a. The referee concluded that Claimant’s behavior constituted 

willful misconduct, disqualifying Claimant from receiving UC benefits per section 

402(e) of the Law. Id. at 6a-7a. 

Claimant, with counsel, appealed to the Board, requesting a remand 

hearing. Claimant argued that he had appeared before the referee pro se and that the 

referee based his entire decision on credibility determinations. The Board found that 

Claimant was informed of his right to counsel and noted that the referee is permitted 

to base his decision on the credibility of witnesses. The Board denied Claimant’s 

request for a remand hearing. The Board adopted and incorporated the referee’s 
4

findings and conclusions and affirmed a denial of UC benefits because Claimant was 

discharged for willful misconduct.

3 Claimant then petitioned this Court for review.4

Claimant contends that the Board’s decision is not supported by 

substantial evidence because the findings of fact were based “solely on Employer’s 

statements without any other evidence to support and/or corroborate the conflict in 

testimony” between Claimant and Employer. Claimant’s Brief at 10. Claimant 

appears to argue that Fyock’s testimony constitutes hearsay and is therefore 

incapable of supporting findings of fact without corroborating evidence. Claimant 

also complains that, in the three years he worked for Employer, he did not have a 

history of misconduct or even one incident of disrespectful behavior towards 

management. Employer did not produce any other witnesses or evidence of 

Claimant’s misconduct. Claimant contends this absence of evidence, coupled with 

Claimant’s own testimony regarding the incident on April 12, 2018, renders the 

evidence of record insufficient to support a finding of willful misconduct. 

It is well-settled law that the Board is the ultimate factfinder in 

unemployment compensation proceedings. Peak v. Unemployment Compensation 

Board of Review, 501 A.2d 1383, 1385 (Pa. 1985). Thus, issues of credibility are 

for the Board, which may either accept or reject a witness’ testimony regardless of 

whether or not it is corroborated with other evidence of record. Id. The Court is 

bound by the Board’s findings of fact “so long as the record taken as a whole 

contains substantial evidence to support them.” Henderson v. Unemployment 

 

3 The Board modified F.F. No. 1 to correct a typographical error, correcting the date of 

Claimant’s last day of work. 

4 Our scope of review is limited to determining whether necessary findings of fact were 

supported by substantial evidence, whether errors of law were committed, or whether 

constitutional rights were violated. Johns v. Unemployment Compensation Board of Review, 87 

A.3d 1006, 1009 n.2 (Pa. Cmwlth.) appeal denied, 97 A.3d 746 (Pa. 2014). 
5

Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 2013). “In 

determining whether there is substantial evidence to support the Board’s findings, 

this Court must examine the testimony in the light most favorable to the [previously]

prevailing party, giving that party the benefit of any inferences that can logically and 

reasonably be drawn from the evidence.” Id. 

The employer bears the burden of proving willful misconduct. Guthrie 

v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth 

1999). This Court has held that abusive language directed at a supervisor evidences 

a disregard of the standard of behavior that an employer has the right to expect of an 

employee. Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450, 

453 (Pa. Cmwlth. 1987). “Even a single instance of vulgarity addressed to and 

unprovoked by a supervisor may support a finding of willful misconduct.” Id. at 

453; see also Losch v. Unemployment Compensation Board of Review, 461 A.2d 

344, 346 (Pa. Cmwlth. 1983). 

Once the employer has met its burden, “the burden of proof shifts to the 

employee to prove that [he] had good cause for [his] actions.” Chapman v. 

Unemployment Compensation Board of Review, 20 A.3d 603, 605 (Pa. Cmwlth. 

2011). Good cause is established where the employee demonstrates that his actions 

were “justified or reasonable under the circumstances.” Id. Offensive language 

directed towards an employer by an employee may be justified if it is provoked by 

the employer and the employee’s response is de minimis in nature. Id.

In this case, the Board found that Claimant used vulgar language 

towards the warehouse manager twice. F.F. Nos. 8, 10. These findings are

supported by Fyock’s testimony. Claimant did not offer a reason for using vulgar 

language, but instead denied using vulgar language at all. R.R. at 33a-34a. The 
6

Board resolved the conflict in testimony in favor of Employer. Such credibility 

determinations are within the Board’s exclusive purview and are beyond the review 

of this Court. See Peak, 501 A.2d at 1385. 

To the extent Claimant asserts that Fyock’s testimony constitutes 

hearsay, he is incorrect. Hearsay is defined as “testimony that is given by a witness 

who relates not what he or she knows personally, but what others have said and that 

is therefore dependent on the credibility of someone other than the witness.” 

BLACK’S LAW DICTIONARY 790 (9th ed. 2009).5 Testimony based on an individual’s 

personal knowledge and observations is not hearsay. See Baird v. Unemployment 

Compensation Board of Review, 372 A.2d 1254, 1257 (Pa. Cmwlth. 1977).

In this case, Fyock’s testimony was based on his own first-hand 

observations and knowledge of the events at issue, falling outside the definition of 

hearsay. Consequently, Claimant’s argument concerning a lack of corroborating 

evidence is without merit. Fyock’s testimony in and of itself constitutes substantial 

evidence supporting the Board’s findings of fact. 

 

5 The rules of evidence are relaxed in administrative proceedings where “all relevant 

evidence of reasonably probative value may be received.” Section 505 of the Administrative 

Agency Law, 2 Pa. C.S. §505. In administrative proceedings, it has long been established as 

follows:

(1) Hearsay evidence, properly objected to, is not competent 

evidence to support a finding of the Board.

(2) Hearsay evidence, admitted without objection, will be given 

its natural probative effect and may support a finding of the 

Board, if it is corroborated by any competent evidence in the 

record, but a finding of fact based solely on hearsay will not 

stand.

Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)

(citations omitted and emphasis in original). 
7

Fyock’s credited testimony constitutes substantial evidence that 

supports the Board’s findings that Claimant used vulgar language towards his 

supervisor and Claimant failed to rebut that evidence with credible testimony.

Consequently, the Board correctly held that Claimant was discharged under Section 

402(e) of the Law for willful misconduct.

Accordingly, we affirm the Board’s order. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Victor Nieves, :

:

Petitioner :

:

 v. : No. 1333 C.D. 2018

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 25th day of October, 2019, the order of the 

Unemployment Compensation Board of Review dated September 12, 2018, is 

AFFIRMED. 

MICHAEL H. WOJCIK, Judge