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 revi ew 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 Co mpensation 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, w e affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §8 02(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 T hings (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 deter mined

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 w as n ot 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 “g ot 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, Cl aimant was terminated from employment because of his use of

(1) t he 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 culpabil ity, 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,

w hen 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 sto mach when Fyock found him

.

Id. Cla imant 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 worke d for Employer. Id. at 33a

34a.

After considering the testimony presented, t he referee resolved all

cr edibility 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. No s

. 8 , 1 0. The r eferee found that

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

workplace

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

willful misconduct, disqualifying Clai mant from receiving UC benefits per section

402(e) of the Law

. Id. at 6a

- 7a.

Claimant , with counsel, appealed to the B oard, 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 i nformed of his right to counsel and noted t hat 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’s4

findings and conclusions and affirmed a denial of UC benefits be cause 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 ther efore

incapable of suppo rting findings of fact without corroborating evidence. Claimant

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

history of misconduct or even one incident of disrespectful behavior towards

management. Employer did not pr oduce 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 th e record taken as a whole

contains substanti al evidence to support them. ” Henderson v. Unemployment

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

Cl aimant’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 wer e committed, or whether constitutional rights were violated. Johns v. Unemployment Compensation Board of Review , 87

A.3 d 1006, 10 09 n.2 (Pa. Cmwlth.) appeal denied , 97 A.3d 746 (Pa. 2014).5

Compensation Board of Review , 77 A. 3 d 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 th at party the benefit of any inference s 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). T his 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. Unemp loyment 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 Bo ard of Review , 20 A.3d 603, 605 (Pa. Cmwlth.

2011). Good cause is established where the employee demonstrates that h is 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. No s. 8, 10. The s e finding s 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. The6

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

determinat ions are within the Board’s exc l usive 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 give n by a witness

wh o 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.”

B LACK ’ S L AW D ICTIONARY 790 (9th e d. 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 proceeding s where “all relevant evidence of reasonably probative value may be received.” Section 505 of t he Administrative Agency Law, 2 Pa. C.S. §505. In administrative proceedings, it has long been established as

follows:

(1) Hearsay evidence

, p roperly objected to , is not competent

evidence to support a finding of the Board

.

(2) Hearsay evidence, a dmitted 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

r ecord , but a finding of fact based s olely on hearsay will not

stand.

Walker v. Unemployment Compensation Board of Review , 367 A.2d 366, 3 70 (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, JudgeIN 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 25 th day of October , 201 9

, the order of the

Unemployment Comp ensation Board of Review dated September 12, 2018, is

AFFIRMED.

MICHAEL H. WOJCIK, Judge