IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven P. Joncas, II, :

Petitioner :

:

v. : No. 997 C.D. 2016

: Submitted: November 4, 2016

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: February 1, 2017

Steven P. Joncas, II (Claimant), proceeding pro se, petitions for review of an 

Order of the Unemployment Compensation (UC) Board of Review (Board) finding 

Claimant ineligible for benefits due to willful misconduct pursuant to Section 

402(e) of the UC Law (Law).1 Finding no errors of law, abuse of discretion, or 

procedural infirmities, we affirm.

 

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

802(e).
2

I. BACKGROUND

Claimant was employed as a full-time Security Officer with UPMC 

Presbyterian/Shadyside (Employer) until February 2, 2016, when he was 

discharged for using profane and inappropriate language in violation of 

Employer’s progressive disciplinary policy. (Board Decision, Findings of Fact 

(FOF) ¶¶ 1, 2, 7.) Claimant filed for UC benefits, which were denied by the UC 

Service Center pursuant to Section 402(e) of the Law. Claimant, represented by 

counsel, appealed, and a hearing was held before a UC Referee (Referee). 

Claimant testified on his own behalf, and Employer presented the testimonies of 

Joyleene Baldonieri, Human Resources Consultant for Employer; Leo Dicesare, 

the Security Manager for Employer; and Donald Charley, the Assistant Vice 

President of Parking and Security Centers for Employer. 

Ms. Baldonieri testified that Employer has a Corrective Action and 

Discharge Policy (Policy) that provides for a “progressive disciplinary process that 

starts from a verbal warning, to written, final written suspension, and then as a last 

resort, a discharge.” (Hr’g Tr. at 8, C.R. at Item 11.) The Policy is reviewed 

during an employee’s orientation and posted on Employer’s internal computer 

network. (Id.) Ms. Baldonieri testified that Claimant attended orientation and had 

access to the internal computer network on which the Policy was stored. (Id.) 

According to Ms. Baldonieri, Claimant received a final written warning pursuant to 

the Policy on December 1, 2015. (Id.; Employer’s Hr’g Ex. 2, C.R. at Item 11.) 

The instant incident occurred after Claimant received the December 1, 2015 final 

written warning, and, pursuant to the Policy, resulted in Claimant’s discharge. 

(Hr’g Tr. at 8.) 
3

Mr. Dicesare testified that he served as Claimant’s manager and personally 

witnessed the behavior that led to Claimant’s termination. (Id. at 11.) Mr.

Dicesare testified that Claimant approached him and was enraged with how 

Employer’s operations were run and the actions of other employees. (Id. at 12.) 

According to Mr. Dicesare, Claimant, with a “very heightened voice,” made 

statements such as “this is f**ked up, and what’s the big f**king deal,” and 

pounded his fists on the desk. (Id.) Mr. Dicesare was concerned about Claimant’s 

mental state and felt a duty to report Claimant’s actions. (Id.) He testified that the 

only appropriate use of profanity for security officers at Employer’s facilities is 

quoting someone else’s profanity when reporting an incident to a supervisor. (Id.

at 14.) 

Mr. Charley testified that he is responsible for all security and parking 

services for Employer. (Id. at 15.) He testified that he was present when Claimant 

received the final written warning on December 1, 2015, and that he told Claimant 

at that time “that any subsequent violation of [the Policy] or performance issues 

could result in up to and including termination of his employment.” (Id.) Mr. 

Charley further testified that other employees have been disciplined for using 

profanity in his department. (Id.) 

Claimant testified as follows. The incident occurred when he saw Mr. 

Dicesare writing a note on a white board that another employee was going to be 

late. (Id. at 16.) Claimant jokingly asked Mr. Dicesare why he was noting that the 

other employee was arriving late when the other employee is typically late. (Id.) 

Mr. Dicesare responded by asking if that was true, and after a brief discussion on 

the other employee’s conduct, the conversation ended without any use of profanity. 

(Id.) Claimant was not aggressive and used a normal tone of voice. (Id. at 17.) 
4

Claimant is in the police academy and was, at the time of the incident, looking for 

other work. (Id. at 18.) Claimant assumed that the fact that he was looking for 

work got back to Employer and that Employer decided to push him out of his job. 

(Id.)

Claimant further testified that profanity is common at his workplace and that 

its use is not limited to quoting others when reporting an incident. (Id.) Claimant 

acknowledged that the use of profanity is prohibited by the Policy but understood 

the Policy to only prohibit such language in proximity of patients or visitors. (Id.

at 20.) When asked to name others who used profanity at the workplace, Claimant 

could not identify any specific person because, in Claimant’s view, profanity was

just so common. (Id. at 19.) At no point in the disciplinary process did Claimant 

tell his supervisors that profanity was commonplace or that he was being treated 

differently than other similarly situated employees. (Id. at 21-22.)

After reviewing the evidence presented, the Referee made the following 

findings of fact.

1. [C]laimant was employed full-time as a Security Officer with 

[Employer] from April 8, 2013 through February 2, 2016 at a final 

rate of pay of $14.25 per hour. 

2. [E]mployer has a Corrective Action and Discharge policy providing 

for termination from employment for future violation of any UPMC 

or Department policy.

3. [E]mployer Corrective Action and Discharge policy provides for 

corrective action for profane or inappropriate language.

4. [C]laimant was aware of [E]mployer[’s] policies and the potential 

consequence of their violation.

5. On December 1, 2015, [E]mployer provided [C]laimant with a Final 

Written Warning for work Negligence or Carelessness.

6. On February 2, 2016, [C]laimant voiced dissatisfaction with his 

coworkers and hospital operations to the Security Manager.

7. During the above incident, [C]laimant raised his voice, pounded his 

fists on a desk, and used profanity with the Security Manager 

including “this is f**ked up” and “what’s the big f**king deal”.
5

(FOF ¶¶ 1-7.) Based on the above factual findings, the Referee concluded that 

Claimant was ineligible for UC benefits because his discharge was for reasons 

considered to be willful misconduct. (Board Op. at 3.) According to the Referee: 

[E]mployer provided credible testimony to demonstrate that 

[C]laimant was on a final written warning and subject to termination 

for violation of [the P]olicy. [E]mployer further provided credible 

testimony to demonstrate a policy prohibiting profanity or 

inappropriate language and [C]laimant’s violation of this policy. 

[C]laimant denies using profanity but also argues that profanity was 

commonplace. [C]laimant failed to cite any specific examples when 

profanity was previously used in the workplace. [Mr. Dicesare]

provided credible testimony that the only acceptable use of profanity 

was repeating language used by someone else when necessary to 

report an incident. Credibility on the issues is found in favor of 

[E]mployer[’s] witness. [C]laimant’s testimony is found to be selfserving and not credible. There is no evidence of record to 

demonstrate that [E]mployer’s policies are unreasonable or to show 

that [C]laimant had good cause for violating the [E]mployer’s 

policies. [C]laimant’s actions are found to demonstrate a willful 

disregard of [E]mployer’s interests rising to the level of misconduct 

and [C]laimant’s request for UC benefits must be denied in 

accordance with Section 402(e) of the Law.

(Id.)

Claimant appealed to the Board, which adopted the Referee’s findings and 

conclusions of law in their entirety in an Order issued May 9, 2016. (Board Op. at 

1.) The “Board specifically discredit[ed] that the [C]laimant did not use 

profanity.” (Board Op. at 1.) Claimant, now proceeding without the assistance of 

counsel, sought reconsideration by the Board arguing that the Board misinterpreted 

the Policy, that the Board’s findings of fact were incorrect and prejudicial, and that 

the Board erred in concluding that Employer met its burden. (Request for 
6

Reconsideration, C.R. at Item 17.) The Board denied reconsideration on June 3, 

2016. Claimant timely filed this appeal from the May 9, 2016 merits order.

2

 

II. CLAIMANT’S APPEAL

On appeal, Claimant makes a variety of procedural and substantive 

arguments. Claimant argues: (1) that the Board abused its discretion by denying 

his request for reconsideration; (2) that the UC Service Center staff and Referee 

inaccurately recorded Claimant’s statements; (3) that the Referee did not provide 

Claimant with an opportunity to argue that his actions were justified by good 

cause; (4) that the Board erred in making its credibility determination and findings 

of fact; (5) that Employer did not meet its burden to show willful misconduct; and 

(6) that the Board erred by not finding Claimant’s conduct de minimis in nature 

and that Claimant was subject to disparate treatment. We will first address 

Claimant’s arguments related to the procedural issue and then proceed to the 

substance of the Board’s Opinion.

A. Claimant’s Procedural Arguments

We will first address Claimant’s procedural arguments, starting with his 

contention that the Board abused its discretion by not granting reconsideration. 

Claimant did not appeal the Board’s June 3, 2016 Order denying reconsideration, 

and only appealed the Board’s May 9, 2016 Order. Thus, the only Order under 

 

2

This Court’s scope of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of facts are 

supported by substantial evidence. Chapman v. Unemployment Compensation Board of Review, 

20 A.3d 603, 606 n.3 (Pa. Cmwlth. 2011). 
7

review is the May 9, 2016, and we cannot consider Claimant’s arguments related to 

the Board’s June 3, 2016 Order denying reconsideration.

3

Claimant next argues that the UC Service Center staff and the Referee’s staff

inaccurately recorded his statements. Claimant specifically focuses on his initial 

interview with UC Service Center staff and argues that he does not recall making 

the exact statements documented in the interview notes. Claimant contends that 

the inaccurate notes damaged his credibility with the Referee, but does not identify 

any specific portion of the interview notes he finds objectionable. However, 

Claimant testified directly to the Referee and had the opportunity, at that time, to 

explain that his statements had been inaccurately recorded or to clarify his previous 

statements. However, he did not do so. Because Claimant did not raise these 

 

3 We note that, if Claimant had appealed the June 3, 2016 Order, we would have 

concluded that the Board did not abuse its discretion by denying Claimant’s request for 

reconsideration. The Board’s “decision to grant or deny a request for reconsideration is a matter 

of administrative discretion.” Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779 

(Pa. Cmwlth. 1999). As such, our review is limited to determining whether the Board abused its 

discretion. Id. The Board’s regulations provide that it may grant reconsideration if there is 

“good cause” to do so. Id. (citing 34 Pa. Code § 101.111). “In determining whether ‘good 

cause’ exists, the Board must consider whether the party requesting reconsideration has 

presented new evidence or changed circumstances or whether it failed to consider relevant law.” 

Id.

Claimant argues that reconsideration was warranted because his circumstances changed 

when he assumed pro se status. Claimant argues that he was ineffectively represented by counsel 

at the hearing before the Referee and in his appeal to the Board, and that he was unable to 

represent himself in the earlier stages in the process. In his request for reconsideration and in his 

brief to this Court, Claimant does not contend that reconsideration is required so that new 

evidence can be presented. The only new information he seeks to present is his personal 

perspective of the case independent of his attorney. Claimant’s decision to represent himself is 

not the type of changed circumstances that establishes good cause for reconsideration when no 

new evidence is presented and the arguments made could have been made to the Referee and 

Board. Bushofsky v. Unemployment Comp. Bd. of Review, 626 A.2d 687, 690 (Pa. Cmwlth. 

1993). 
8

issues to the Referee or the Board when he had the opportunity to do so, he cannot 

raise them for the first time on appeal. Chapman v. Unemployment Comp. Bd. of 

Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (citing Section 703(a) of the 

Administrative Agency Law, 2 Pa. C.S. § 703(a)). 

In his final procedural argument, Claimant contends that he was not 

provided with an opportunity to present evidence of good cause for his actions. 

Review of the record reveals no instances where Claimant was restrained from 

showing good cause. On the contrary, Claimant testified to the Referee that he did 

not use profanity in the instance alleged by Employer, and that if he did use 

profanity in other conversations, such use was common at the work environment. 

(Hr’g Tr. at 19.) It is not clear to this Court how Claimant could have shown good 

cause for an act he testified that he did not commit.4

B. Claimant’s Challenges to the Substance of the Board’s Decision

Claimant next raises a series of objections to the substance of the Board’s 

Decision. Claimant’s first challenge to the Board’s Decision is that the Board’s 

credibility determinations and findings of fact were biased against him. Nothing in 

the record, Claimant argues, validates the Board’s decision to believe Employer’s 

witnesses over Claimant’s testimony. 

“This Court’s review of a decision by the Board does not permit it to 

reweigh the evidence or substitute its own findings for those made by the Board.” 

Chartiers Cmty. Mental Health & Retardation Ctr. v. Unemployment Comp. Bd. of 

 

4

To the extent that Claimant’s argument that profanity was common at the workplace can 

be construed as a good cause argument, this argument was rejected by the Board when it credited 

Mr. Dicesare’s testimony showing that profanity was only appropriate when reporting an 

incident over Claimant’s contrary testimony.
9

Review, 134 A.3d 1165, 1173 (Pa. Cmwlth. 2016). Credibility determinations are 

the province of the Board, “which may either accept or reject a witness’ testimony 

whether or not it is corroborated by other evidence of record.” Chapman, 20 A.3d 

at 607. Findings of fact made by the Board “are conclusive upon review provided 

that the record, taken as a whole, contains substantial evidence to support the 

findings.” Id. In determining whether the findings of fact are supported by 

substantial evidence, this Court examines “the evidence in the light most favorable 

to the party who prevailed before the Board, and to give that party the benefit of all 

inferences that can be logically and reasonably drawn from the testimony.” Id. 

Here, Claimant does not point to any specific finding not supported by substantial 

evidence. Instead, he asks this Court to reweigh the evidence, which we cannot do. 

Accordingly, we will not disturb the Board’s credibility determinations and 

findings of fact. 

While the Board is the ultimate fact finder and its findings are conclusive 

upon review if supported by substantial evidence, “[w]hether an employee’s 

conduct constitutes willful misconduct is a question of law subject to this Court’s 

review.” Id. at 606. Section 402(e) of the Law provides, “[a]n employe shall be 

ineligible for compensation for any week . . . [i]n which his unemployment is due 

to his discharge or temporary suspension from work for willful misconduct 

connected with his work.” 43 P.S. § 802(e). The Law does not define willful 

misconduct; however, numerous decisions of this Court have defined the term as:

(1) the wanton and willful disregard of the employer’s interests; (2) 

the deliberate violation of 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.
10

Chapman, 20 A.3d at 606-07. The employer bears the burden of proving willful 

misconduct. Id. at 606. Should the employer meet its burden, the burden shifts to 

the claimant to prove that he had good cause for his actions. Id. at 607.

Claimant contends that the Board erred in concluding that Employer met its 

burden to show willful misconduct. Claimant’s argument in this regard rests on an 

incorrect understanding of willful misconduct. In his brief, Claimant treats the 

four-part definition of willful misconduct detailed above as four elements that must 

all be met and argues that Employer did not present evidence to satisfy every 

element. However, the use of the word “or” to separate the four parts of the 

definition of willful misconduct is given its normal disjunctive meaning. As such, 

the four-part definition above provides four separate examples of willful 

misconduct, not four necessary elements. 

The Board concluded that Claimant’s actions “demonstrate a willful 

disregard of the employer’s interests rising to the level of misconduct . . . .” 

(Board Op. at 3.) We agree. Employer has a policy against using profanity, and 

the Board found that Claimant used profanity directed at his supervisor after 

receiving a final disciplinary warning pursuant to the Policy. Claimant does not 

argue, and has not presented any evidence showing, that Mr. Dicesare provoked his 

use of profanity. As this Court has held that “[e]ven a single instance of vulgarity 

addressed to and unprovoked by a supervisor may support a finding of willful 

misconduct,” Viglino v. Unemployment Comp. Bd. of Review, 525 A.2d 450, 453 

(Pa. Cmwlth. 1987), we see no error in the Board’s conclusion.

Claimant argues that even if he did use profanity, it was a de minimis

violation of the Policy, and that other employees were not terminated for similar 

conduct. With regard to Claimant’s disparate treatment defense, “[t]he essence of 
11

disparate treatment is that similarly situated people are treated differently, based 

upon an improper criterion.” American Racing Equipment, Inc. v. Unemployment 

Comp. Bd. of Review, 601 A.2d 480, 482 (Pa. Cmwlth. 1991). We have 

explained:

Disparate treatment is an affirmative defense by which a claimant who 

has engaged in willful misconduct may still receive benefits if he can 

make an initial showing that: (1) the employer discharged [the] 

claimant, but did not discharge other employees who engaged in 

similar conduct; (2) the claimant was similarly situated to the other 

employees who were not discharged; and (3) the employer discharged 

the claimant based upon an improper criterion.

Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 

(Pa. Cmwlth. 2009). The burden is on the claimant to prove the elements of a 

disparate treatment defense. 

When asked to identify any other employees who used profanity but were 

treated differently, Claimant could not identify any other employees by name. 

(Hr’g Tr. at 17.) Instead, he testified that “every individual that I’ve worked with 

has used profanity at some point.” (Id.) The Board found Claimant’s testimony 

not credible and credited Mr. Charley’s testimony that others were disciplined for 

using profanity. Because Claimant did not present any credible evidence showing 

that other employees who engaged in similar conduct were not disciplined pursuant 

to the Policy, he cannot avail himself of the disparate treatment defense. 

Finally, Claimant argues that even if he did use profanity, such use was de 

minimis. The use of vulgar language in the workplace will generally not be 

considered willful misconduct if the offensive language was provoked or de 

minimis. Cundiff v. Unemployment Comp. Bd. of Review, 489 A.2d 948, 951 (Pa. 
12

Cmwlth. 1985). To that end, this Court assesses whether the conduct was 

“reasonable under the circumstances.” Id. Here, the credited evidence is that 

Claimant, dissatisfied with the conduct of other employees and Employer’s 

policies, “raised his voice, pounded his fists on a desk, and used profanity with 

[Mr. Dicesare].” (FOF ¶¶ 6-7.) Claimant’s conduct was so aggressive that Mr. 

Dicesare grew concerned over Claimant’s mental state. (Hr’g Tr. at 12.) We agree 

with the Board that such behavior was not reasonable under the circumstances. 

This conduct was unprovoked, vulgar, and aggressive. We, therefore, affirm the 

Board’s conclusion that Claimant’s violation was not de minimis and that

Employer met its burden of showing willful misconduct. 

For the reasons stated above, the Order of the Board is affirmed. 

________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven P. Joncas, II, :

Petitioner :

:

v. : No. 997 C.D. 2016

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

NOW, February 1, 2017, the Order of the Unemployment Compensation 

Board of Review, entered in the above-captioned matter, is AFFIRMED.

________________________________

RENÉE COHN JUBELIRER, Judge