G.J. Gyuriska v. UCBR

           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Georgina J. Gyuriska,                          :
                  Petitioner                   :
                                               :
              v.                               :   No. 1719 C.D. 2019
                                               :   Submitted: June 19, 2020
Unemployment Compensation Board                :
of Review,                                     :
               Respondent                      :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: October 14, 2020

              Georgina J. Gyuriska (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation (UC) Board of Review (Board)
holding Claimant ineligible for unemployment compensation benefits under Section
402(e) of the Unemployment Compensation Law (Law).1 In doing so, the Board
affirmed the Referee’s determination that Claimant’s repeated use of foul language
constituted willful misconduct. Claimant contends she did not use foul language
and, even if she did, she was entitled to a written warning prior to termination. For
the following reasons, we affirm.
              On April 22, 2016, Claimant began employment with Allied Services
Foundation (Employer) as a full-time custodian at a federal courthouse. On May 7,

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 her unemployment is due to her discharge from work for willful misconduct
connected with her work.
2019, Employer discharged Claimant for violating its policy against insubordination
and the use of obscene language.
            Claimant applied for UC benefits, claiming she was fired because she
cannot read well and refused to sign a document she could not comprehend.
Employer responded that Claimant was fired for continually using foul language
toward her supervisor, despite being warned to stop.       Based on the evidence
presented, the UC Service Center issued a Notice of Determination finding Claimant
ineligible for benefits for swearing at her supervisor, an insubordinate act
constituting willful misconduct. Claimant appealed, and a hearing was conducted
by a Referee.
            At the hearing, Employer presented the testimony of Robert Bruce, its
project manager and Claimant’s supervisor. He testified that Claimant worked for
Employer under a “federal contract” for persons with disabilities.       Notes of
Testimony, 8/2/2019, at 6 (N.T. __); Reproduced Record at 7 (R.R. __). As such,
she received a base rate of $11.41 per hour and “$4.48 [per hour through a] health
and welfare benefit.” N.T. 5; R.R. 6. Claimant was assigned to work from 6:00 a.m.
to 2:30 p.m., cleaning offices and restrooms in the courthouse.
            Bruce had supervised Claimant for two years. During that time, he gave
Claimant several verbal warnings regarding her job performance. These warnings
stated that Claimant was spending too much time on her cellphone and chatting to
security workers, which resulted in her not performing her job duties. Bruce had
never heard Claimant use foul language in the workplace until approximately two
weeks before her discharge. He then began correcting her “[a]ll the time.” N.T. 10;
R.R. 11.




                                         2
             On May 6, 2019, Bruce received an e-mail from his supervisor stating
that the employees needed a refresher course on protocols at the courthouse.
Specifically, the employees needed to be reminded to knock before entering offices
and explain why they were there. Bruce was also asked to warn the employees about
using their cellphones during work hours.
             Bruce discussed the refresher course with Claimant and four other
employees in the “break room.” N.T. 8; R.R. 9. He then asked them to sign a
document acknowledging receipt of the information. The other four employees read
and signed the document. Claimant responded that she did not understand the
document. Bruce read it to her and Claimant stated, “I ain’t signing no fucking
paper.” N.T. 8; R.R. 9.
             A few hours later Bruce encountered Claimant standing by a restroom,
and he described their conversation as follows:

             I asked her what she was doing. And she said I just got done
             cleaning the fucking courtroom. What do you think I was doing
             here? And I said you cleaned that earlier. She said well, I’m
             fucking doing it again. I said knock off the language. And that’s
             when she told me. She says I’m only telling you what I’m doing.
             I said no, you’re using that foul language. I don’t want it
             anymore. And she said well, I just got fucking done. So I says
             – that’s when I terminated her. I said I’m not going to put up
             with that language anymore. She said well, I don’t give a fuck.

N.T. 9; R.R. 10.
             Bruce stated that Employer has a discipline and discharge policy
(Policy) prohibiting insubordination and the use of foul language. When employees
are hired, they receive a copy of the Policy and must sign a document agreeing to
abide by its terms. The Policy states:


                                         3
                 While [Employer] generally subscribes to the notion of
                 progressive discipline, the specific disciplinary action taken in
                 each instance will be determined by the supervisor or manager
                 responsible for imposing the discipline, who may take into
                 account, among other things, the nature of the infraction, the
                 employee’s prior work record, including the number and types of
                 prior disciplinary actions taken against him/her, and the impact
                 of the employee’s infraction on others.

Service Center Exhibit 12, Policy at 1; R.R. 41. The Policy lists “[i]nsubordination”
as a violation of the “Rules Relating To Attitude And Performance On The Job.” Id.
at 2; R.R. 42. The Policy further prohibits the “[u]se of obscene and/or profane
language or personally insulting behavior toward anyone, at any time, on
[Employer’s] premises.” Service Center Exhibit 12, Policy at 3; R.R. 43.
                 Claimant testified2 that Bruce entered the break room and told everyone
to read and sign a piece of paper. The other employees signed it without even
reading it. Claimant looked it over and told Bruce she did not understand it because
she does not read well. Bruce advised her she would be discharged if she did not
sign it. When she responded that Bruce had threatened a violation of her civil
liberties, he took the paper from her and left the room.
                 “[T]wo minutes later,”3 Bruce entered the courtroom where Claimant
was working. N.T. 15; R.R. 16. She had just finished cleaning the courtroom and
was washing her hands. He said she was insubordinate for not signing the paper.
She again declined to sign the paper because she did not understand it. She testified
that she did not use profane language. Claimant also stated she did not remember
ever using profane language in the workplace, or being warned by Bruce to stop


2
    Claimant’s father participated as a non-legal representative.
3
 Claimant was questioned whether her interaction with Bruce occurred hours or minutes after the
break room meeting; she insisted it occurred minutes later.
                                                   4
using profane language. Even on the day Bruce discharged Claimant, she left quietly
without using profane language.
              The Referee affirmed the UC Service Center’s determination that
Claimant was ineligible for benefits under Section 402(e) of the Law because she
had engaged in willful misconduct. In so holding, the Referee stated that an
employee’s use of profane language, where not tolerated by an employer, may
constitute willful misconduct. The Referee credited the testimony of Bruce that
Claimant continued to use profanity after being warned to stop and was, ultimately,
terminated for that conduct.
              Claimant appealed to the Board. She asserted that Employer did not
establish willful misconduct because Bruce testified falsely. Further, Claimant
argued that Employer failed to provide her with a written warning to which she was
entitled prior to being discharged.
              The Board affirmed the Referee. The Board explained that Employer’s
Policy permits, but does not require, progressive discipline. The Policy authorized
Claimant’s supervisor to evaluate the nature of the infraction and the repeated verbal
warnings made to Claimant. Claimant ignored Bruce’s directives and continued to
use foul language. The Board rejected as not credible Claimant’s testimony denying
the use of foul language. The Board held Employer established that Claimant was
aware of Employer’s Policy regarding insubordination and the use of profane
language and, therefore, established she committed willful misconduct.
              Claimant now petitions for this Court’s review of the Board’s
adjudication.4 Claimant argues that Bruce’s testimony is insufficient to prove willful


4
 Our review determines whether constitutional rights were violated, whether an error of law was
committed, or whether necessary findings of fact are supported by substantial competent evidence.
                                               5
misconduct because it was perjured testimony. Claimant argues that no evidence
was offered to substantiate Bruce’s testimony and the Board should have known his
testimony was not credible. Further, she did not receive any prior warnings about
using foul language.
             We begin with a review of the applicable law. In UC cases, the initial
burden of proving willful misconduct lies with the employer.               Oyetayo v.
Unemployment Compensation Board of Review, 110 A.3d 1117, 1121 (Pa. Cmwlth.
2015). Although not defined in the Law, willful misconduct has been interpreted to
include:

             (i) wanton and willful disregard of the employer’s interests; (ii)
             a deliberate violation of the employer’s rules; (iii) a disregard of
             the standards of behavior that the employer rightfully can expect
             from its employees; and (iv) negligence that manifests
             culpability, wrongful intent or evil design, or an intentional and
             substantial disregard of the employer’s interests or the
             employee’s duties and obligations.

Id. Where an employer seeks to deny UC benefits based on a work rule violation,
the employer must show that the rule existed; that the rule was reasonable; and that
the claimant was aware of and violated the rule. Id. If the employer makes that
showing, the burden shifts to the claimant to show good cause for her conduct. Id.
             The Board’s findings of fact must be supported by “[s]ubstantial
evidence [which] is defined as ‘such relevant evidence which a reasonable mind
would accept as adequate to support a conclusion.’” Western and Southern Life
Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334
n.2 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation Board of


Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa.
Cmwlth. 1995).
                                          6
Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). “The Board’s findings are
conclusive on appeal so long as the record, when viewed in its entirety, contains
substantial evidence to support the findings.” Western and Southern Life Insurance
Co., 913 A.2d at 334 n.2. This Court is bound “to examine the testimony in the light
most favorable to the party in whose favor the Board has found, giving that party the
benefit of all inferences that can logically and reasonably be drawn from the
testimony” to determine if substantial evidence exists for the Board’s findings.
United States Banknote Co. v. Unemployment Compensation Board of Review, 575
A.2d 673, 674 (Pa. Cmwlth. 1990) (quoting Taylor v. Unemployment Compensation
Board of Review, 378 A.2d 829, 831 (Pa. 1977)). Moreover, “even if there is
contrary evidence of record, the Board’s findings of fact are binding upon the Court
where supported by substantial evidence.” Borough of Coaldale v. Unemployment
Compensation Board of Review, 745 A.2d 728, 731 (Pa. Cmwlth. 2000).
             Further, “it is well-settled that the Board is the ultimate fact finder and
is, therefore, entitled to make its own determinations as to witness credibility and
evidentiary weight.” Serrano v. Unemployment Compensation Board of Review,
149 A.3d 435, 439 (Pa. Cmwlth. 2016) (citing Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1388 (Pa. 1985)). “The Board is also empowered
to resolve conflicts in the evidence.” Serrano, 149 A.3d at 439 (citation omitted).
“Questions of credibility and the resolution of evidentiary conflicts are within the
sound discretion of the Board, and are not subject to re-evaluation on judicial
review.” Id. (quoting Peak, 501 A.2d at 1388). Accordingly, “[t]his 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 Community Mental Health




                                           7
and Retardation Center v. Unemployment Compensation Board of Review, 134 A.3d
1165, 1173 (Pa. Cmwlth. 2016).
             Here, Claimant argues that she was discharged due to her inability to
comprehend a document Bruce told her to sign. She argues that Bruce lied when he
testified he read the document to her and when he testified that she used profanity.
Further, Employer presented no evidence she was previously disciplined for using
foul language.
             Claimant’s arguments lack merit.      As the Board aptly observes,
Claimant’s testimony on the above points was found incredible. Instead, the Board
credited Bruce’s version of events. The Board’s credibility determinations are
binding on appeal. Serrano, 149 A.3d at 439.
             Claimant also contends that Employer did not establish she had used
foul language prior to the day of her termination. In support, Claimant argues that
Bruce offered perjured testimony about her prior reprimands, which were made
verbally, not in writing, and to which Bruce was the only witness.      Claimant’s
argument again fails because it is the Board, not this Court, that decides the
truthfulness of the witnesses. Chartiers Community Mental Health and Retardation
Center, 134 A.3d at 1172-73. Moreover, Employer’s Policy does not require that an
employee receive a written reprimand prior to termination. Service Center Exhibit
12, Policy at 1; R.R. 41.


             For the foregoing reasons, we affirm the Board’s adjudication that
Claimant was ineligible for benefits under Section 402(e) of the Law.


                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge

                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Georgina J. Gyuriska,                :
                  Petitioner         :
                                     :
            v.                       :   No. 1719 C.D. 2019
                                     :
Unemployment Compensation Board      :
of Review,                           :
               Respondent            :


                                ORDER

            AND NOW, this 14th day of October, 2020, the adjudication of the
Unemployment Compensation Board of Review dated October 18, 2019, is hereby
AFFIRMED.
                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge

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