IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garrett Jr., :

Petitioner :

:

v. : No. 735 C.D. 2018

: Submitted: September 28, 2018

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: November 15, 2018

Robert Garrett Jr. (Claimant) petitions, pro se, for review of an order of 

the Unemployment Compensation Board of Review (Board) affirming the 

determination by a Referee that Claimant was ineligible for unemployment 

compensation benefits under Section 402(e) of the Unemployment Compensation 

Law1(Law) because he was discharged from his employment with Colonial Electric 

Supply (Employer) for willful misconduct. For the reasons that follow, we affirm. 

Claimant began working at Employer on March 6, 2017 as a warehouse 

associate in the receiving department, and his last day of work with Employer was 

on November 2, 2017. (Record (R.) Item 10, Referee Decision and Order, Finding 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). 

Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any 

week in which his or her unemployment is due to willful misconduct connected to his or her work. 

Id.
2

of Fact (F.F.) ¶1.) On November 7, 2017, Claimant filed an initial claim with the 

Department of Labor and Industry for unemployment compensation benefits; in 

response, Employer submitted a questionnaire indicating that Claimant was 

discharged for leaving an inappropriate note on his supervisor’s desk. (R. Item 1, 

Claim Record; R. Item 2, Employer Questionnaire.) The Unemployment 

Compensation Service Center issued a determination on November 28, 2017 finding 

that Claimant’s actions constituted a willful disregard for Employer’s interests and 

therefore he was ineligible for benefits under Section 402(e) of the Law. (R. Item 4, 

Notice of Determination.) Claimant appealed and a hearing was held before a 

Referee on January 22, 2018. At the hearing, Claimant represented himself and 

testified on his own behalf. Two witnesses, a Human Resources Manager and a 

Supervisor, testified for Employer. On January 26, 2018, the Referee issued a 

decision and order determining that Claimant engaged in willful misconduct and was 

ineligible to receive benefits pursuant to Section 402(e) of the Law. Claimant 

appealed the Referee’s decision to the Board.

On May 1, 2018, the Board issued an opinion and order affirming the 

Referee’s decision and order. The Board adopted the Referee’s findings of fact, 

amending the text of finding 6 and adding finding 15:

2. On November 2, 2017, the morning supervisor found a 

note on his desk when he arrived at work.

3. The note was addressed to “Jimmy from the devil”.

4. The note contains the drawing and the statement “four 

eyes b****”.

5. The note also states “F*** you Jim” and depicts a raised 

middle finger.

6. The note also read “F*** you, Jim, gay a** [p****”.]
3

7. The morning supervisor informed human resources of 

the note and gave it to them.

8. The supervisor also informed human resources that the 

claimant called him “the devil”.

9. Human resources conducted an investigation into the 

incident.

10. As part of the investigation, human resources reviewed 

video surveillance footage which depicted the claimant 

placing the note on the supervisor’s desk on November 1, 

2017.

11. Human resources also compared the handwriting on 

the note with the handwriting provided to human resources 

when the claimant completed paperwork at the time of 

hire.

12. The human resource representative saw that the 

handwriting on the note matched the claimant’s

handwriting.

13. On November 2, 2017, the employer suspended the 

claimant pending the outcome of [its] investigation.

14. On November 7, 2017, the employer discharged the 

claimant for leaving an inappropriate note on a

supervisor’s desk.

[15.] The employer maintains a policy against harassment. 

Violation will result in disciplinary actions including 

possible termination.

(R. Item 13, Board Opinion and Order at 1; R. Item 10, Referee’s Decision and 

Order, F.F. ¶¶2-14.) The Board also adopted the Referee’s credibility 

determinations and resolved the conflict in testimony regarding whether Claimant 

authored the note or only delivered it in favor of Employer. (R. Item 13, Board 

Opinion and Order at 1; R. Item 10, Referee’s Decision and Order, Reasoning at 2.) 

The Board further concluded that Claimant’s action of placing a note on the desk of 
4

a supervisor containing profanities, insults and crude drawings was beneath the 

standards of behavior that an employer would expect of its employee and that, in any 

event, Employer had a policy against harassment and Claimant’s conduct constituted

harassment under the policy. (R. Item 13, Board Opinion and Order at 1.) Claimant 

petitioned this Court for review of the Board’s opinion and order.2

On appeal, Claimant argues that Employer did not prove at the hearing

that he engaged in willful misconduct that would bar him from receiving 

unemployment compensation benefits. In unemployment cases, the Board is the 

ultimate finder of fact and is empowered to resolve all issues of credibility, 

conflicting evidence and evidentiary weight. Kelly v. Unemployment Compensation 

Board of Review, 172 A.3d 718, 725 (Pa. Cmwlth. 2017). In making credibility 

determinations, the Board may accept or reject the testimony of any witness in whole 

or in part. Doyle v. Unemployment Compensation Board of Review, 58 A.3d 1288, 

1291 n.4 (Pa. Cmwlth. 2013). When the Board’s findings of fact are supported by 

substantial evidence,3those findings are conclusive on appeal. Henderson v. 

Unemployment Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 

2013); Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 

(Pa. Cmwlth. 2010). 

Willful misconduct is defined by the courts as (i) an act of wanton or 

willful disregard of the employer’s interest; (ii) a deliberate violation of the 

employer’s rules; (iii) a disregard of standards of behavior which the employer has 

 

2 Our scope of review of the Board’s decision is limited to determining whether errors of law were 

committed, constitutional rights or agency procedures were violated, and necessary findings of 

fact are supported by substantial evidence. Henderson v. Unemployment Compensation Board of 

Review, 77 A.3d 699, 710 n.4 (Pa. Cmwlth. 2013).

3 Substantial evidence is defined as the evidence that a reasonable mind might accept as adequate 

to support a conclusion. Henderson, 77 A.3d at 718.
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a right to expect of an employee; or (iv) negligence indicating an intentional 

disregard of the employer’s interest or of the employee’s duties and obligations to 

the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 

703 A.2d 452, 456 (Pa. 1997); Scott v. Unemployment Compensation Board of 

Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012). The employer bears the burden of 

proving that the claimant engaged in willful misconduct leading to the discharge. 

Caterpillar, Inc., 703 A.2d at 456; Scott, 36 A.3d at 647. If the employer makes that 

showing, the burden shifts to the claimant to show good cause for her conduct. 

Henderson, 77 A.3d at 719; ATM Corporation of America v. Unemployment 

Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 2006). Whether 

a claimant’s actions constitute willful misconduct is a question of law that is fully 

reviewable on appeal. Caterpillar, 703 A.2d at 456; Henderson, 77 A.3d at 718 

n.10.

Employer submitted into evidence portions of its employee manual that 

prohibit workplace harassment, an acknowledgement form signed by Claimant on 

March 6, 2017 that he received and understood the employee manual and an 

acknowledgement form signed by Claimant that he received and understood the 

harassment policy. (R. Item 2, Service Center Exhibits 7-9.) The employee manual 

states that workplace harassment can take many forms, including cartoons, pictures 

and notes and that such conduct could result in “disciplinary action, up to and 

including termination.” (Id., Service Center Exhibit 7 at 14, 16, 17.) Employer also 

submitted a copy of the note, which, as set forth above in the findings of fact, is 

addressed on the outside to “Jimmy,” the Supervisor, “from the devil,” and when 

opened up contains vulgar drawings, obscenities and insults directed towards the 

Supervisor. (R. Item 2, Service Center Exhibits 5, 6.)
6

The Supervisor testified at the hearing that he discovered the note on 

his desk when he arrived at work when his shift started at 7:00 a.m. on November 2, 

2017. (R. Item 9, Hearing Transcript (H.T.) at 6-7.) The Supervisor testified that 

when he saw “the devil” written on the note, he knew that the note was from 

Claimant because Claimant – who worked in a different area of the workplace, 

worked the evening shift and did not report to the Supervisor – frequently referred 

to him as “the devil” during their limited interactions at work. (Id. at 6-8.) The 

Supervisor testified that he also recognized the note as being Claimant’s 

handwriting. (Id. at 7-8.) 

The Human Resources Manager testified that the Supervisor brought 

her the note but did not report to her that he believed Claimant had written it. (R. 

Item 9, H.T. at 4, 12.) The Human Resources Manager then reviewed security 

camera video to determine who left the note on the Supervisor’s desk. (Id. at 4.) 

The footage revealed that apart from another supervisor, no one else besides

Claimant had been at the Supervisor’s desk between the time the Supervisor left 

work on November 1 and when he arrived on November 2, 2017. (Id.) The Human 

Resources Manager also compared the handwriting on the note to a form that 

Claimant filled out when he began his employment and determined that the 

handwriting on the two documents was similar. (Id. at 13.) The Human Resources 

Manager testified that, when she interviewed Claimant on November 2, 2017, he at 

first denied leaving the note and then admitted that he was near the desk but someone 

else had left the note. (Id. at 4.) 

During his testimony, Claimant confirmed that he had at first denied 

leaving the note to the Human Resources Manager. (R. Item 9, H.T. at 9-10, 14.) 

Claimant’s account of the events at issue at the hearing, however, was that he had 
7

placed the note on the Supervisor’s desk at the request of a co-worker and that he 

did not open up the note to see the insults or drawings inside but had only read the 

outside of the note showing that the note was addressed to the Supervisor and “from 

the devil.” (Id.) Claimant testified that he did not know the name of the co-worker, 

and that the co-worker had told Claimant that he and the Supervisor had been 

involved in an altercation and there were “funny pictures in there.” (Id. at 10, 14.) 

When asked by the Referee why he had agreed to put his job at risk by placing a note 

on his Supervisor’s desk, Claimant testified that he and his team were “a target” at 

the workplace. (Id. at 10.)

We conclude that there was abundant evidence at the hearing to 

demonstrate that Claimant authored the note. This evidence includes the Human 

Resource Manager’s testimony that the security camera video showed Claimant in 

the vicinity of the Supervisor’s desk during the time the note was left, the testimony 

from the Human Resources Manager and the Supervisor that the handwriting on the 

note matched Claimant’s handwriting, and Claimant’s admission that he left the note 

on the Supervisor’s desk. While Claimant testified that he only delivered the note 

and did not know its contents, the Board resolved the evidentiary dispute regarding 

the authorship of the note in favor of Employer. In addition, the fact that Employer 

did not produce direct evidence that Claimant authored the note does not preclude 

such a finding. Circumstantial evidence, if substantial, is sufficient to support a 

conclusion of willful misconduct. Ruiz v. Unemployment Compensation Board of 

Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005); Letterkenney Army Depot v. 

Unemployment Compensation Board of Review, 648 A.2d 358, 360 (Pa. Cmwlth. 

1994).
8

Furthermore, it is clear that this conduct constitutes willful misconduct 

that barred his receipt of benefits under the Law. Where a violation of a work rule 

is the basis for dismissal, the employer must show the existence of the policy, that 

the rule was reasonable and that the claimant was aware of the rule and violated it. 

Oyetayo v. Unemployment Compensation Board of Review, 110 A.3d 1117, 1121 

(Pa. Cmwlth. 2015); Williams v. Unemployment Compensation Board of Review, 

926 A.2d 568, 571 (Pa. Cmwlth. 2007). The employer must further show that the 

claimant’s actions were intentional or deliberate, rather than an inadvertent violation 

of the work rule. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 

422, 425-26 (Pa. 2003); Henderson, 77 A.3d at 719. Employer demonstrated that it 

maintained a harassment policy that banned offensive material in written form 

directed at a co-worker, that Claimant was aware of this policy and that violation of 

this policy could lead to discharge. We agree with the Board’s conclusion that the 

note’s graphic drawings, obscenities and insults directed towards the Supervisor 

were plainly prohibited by Employer’s harassment policy.

In addition, there was substantial evidence to support the Board’s 

conclusion that Claimant’s conduct was beneath the standard of behavior that an 

employer can reasonably expect from its employees. An employer may terminate 

the employment of a worker in the absence of the violation of an established work 

rule “where the behavioral standard is obvious and the employee’s conduct is so 

inimical to the employer’s best interests that discharge is a natural result.” Umedman 

v. Unemployment Compensation Board of Review, 52 A.3d 558, 562 (Pa. Cmwlth. 

2012) (quoting Biggs v. Unemployment Compensation Board of Review, 443 A.2d 

1204, 1206 n.3 (Pa. Cmwlth. 1982)). This Court has held that “[a]n employee’s use 

of abusive, vulgar or offensive language with a superior is a form of insubordination 
9

that can constitute willful misconduct, even if the employer has not adopted a 

specific work rule prohibiting such language.” Brown v. Unemployment 

Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012); see also 

Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa.

Cmwlth. 2005) (“An employee’s use of abusive, vulgar or offensive language 

evidences a disregard of standards that an employer can rightfully expect of its 

employees.”); Allen v. Unemployment Compensation Board of Review, 638 A.2d 

448, 451 (Pa. Cmwlth. 1994). “[V]ulgarity, even in a single instance, can constitute 

willful misconduct when the vulgarity is unjustified, unprovoked, unnecessary, or 

uncalled for under the circumstances.” Williams v. Unemployment Compensation 

Board of Review, 531 A.2d 88, 89 (Pa. Cmwlth. 1987); see also Allen, 638 A.2d at

451; Dodson v. Unemployment Compensation Board of Review, 437 A.2d 1080, 

1082 (Pa. Cmwlth. 1981). 

Claimant further argues that the Referee did not provide him with the 

opportunity to submit evidence on his behalf at the hearing. In unemployment 

proceedings, Board regulations provide that “[w]here a party is not represented by 

counsel the tribunal before whom the hearing is being held should advise him as to 

his rights, aid him in examining and cross-examining witnesses, and give him every 

assistance compatible with the impartial discharge of its official duties.” 34 Pa. Code 

§ 101.21(a). Pursuant to this regulation, referees are required to reasonably assist a 

pro se claimant in adequately developing the record necessary to render a decision 

but should not assume the role of the claimant’s advocate or provide advice on 

specific evidentiary issues or points of law. Vann v. Unemployment Compensation 

Board of Review, 494 A.2d 1081, 1085-86 (Pa. 1985); Hackler v. Unemployment 

Compensation Board of Review, 24 A.3d 1112, 1115-16 (Pa. Cmwlth. 2011). Board 
10

regulations further provide that “[w]ithin the discretion of the tribunal, the parties 

shall be permitted to present evidence and testimony which they believe is necessary 

to establish their rights.” 34 Pa. Code § 101.21(b). In addition, due process requires 

that a party at an administrative hearing be permitted to present evidence on the 

pertinent issues. Air-Serv Group, LLC v. Commonwealth, 18 A.3d 448, 456 n.8 (Pa. 

Cmwlth. 2011).

Our review of the transcript demonstrates that the Referee conducted a 

fair and impartial proceeding and discharged her obligations to Claimant under the 

Board’s regulations. At the outset of the hearing, the Referee explained that 

Claimant had the right to be represented by an attorney or non-legal advisor, to 

present testimony, documents and other evidence on his behalf and to cross-examine 

Employer’s witnesses. (R. Item 9, H.T. at 2.) The Referee asked Claimant whether 

he wanted to object to the exhibits submitted at the hearing, asked him whether he 

understood the format of the hearing, advised Claimant that he could ask questions 

of Employer’s witnesses after their testimony and gave Claimant ample opportunity 

to explain his account of the events at issue. (Id. at 2-3, 5, 7-10, 12-14.)

Claimant attached two text conversations to his petition for review that 

he argues support his case, one conversation with his girlfriend on November 1, 2017 

that Claimant contends shows that he was not working the date he was alleged to 

have left the note and a second conversation with another supervisor at Employer 

who states that she had never heard Claimant address the Supervisor who received 

the note as “the devil.” However, no attempt was made to submit these text 

conversations into evidence nor did Claimant even reference them at the hearing. 

Therefore, we may not address the text conversationsin this opinion. As an appellate 

court, our review is confined to evidence contained in the certified record, and any 
11

evidence not submitted to the Referee will not be considered. Tener v. 

Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 

1990); see also Pugh v. Workers’ Compensation Appeal Board (Transpersonnel, 

Inc.) 858 A.2d 641, 645 n.7 (Pa. Cmwlth. 2004).

The order of the Board is affirmed. 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garrett Jr., :

Petitioner :

:

v. : No. 735 C.D. 2018

: 

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 15th day of November, 2018, the order of the 

Unemployment Compensation Board of Review in the above-captioned case is

AFFIRMED.

____________________________________

JAMES GARDNER COLINS, Senior Judge