B. Phenneger v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Badra Phenneger, :
Petitioner :
v. : No. 1413 C.D. 2021
: Submitted: September 9, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: January 23, 2023
Badra Phenneger (Claimant)1 petitions for review of the December 13, 2021
order of the Unemployment Compensation Board of Review (Board), affirming the
referee’s decision and deeming her ineligible for unemployment compensation (UC)
benefits under Section 402(e) of the Unemployment Compensation Law (Law)2 due
to her discharge from employment for willful misconduct. After careful review, we
affirm.
1
Claimant’s first name appears in the record as both “Badra” and “Paula.” Claimant described
“Badra” as her birth name but stated she “changed it to Paula three years ago.” Certified Record
(C.R.), Item No. 11, Notes of Testimony (N.T.), 5/21/21, at 3.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
I. Background and Procedural History
The Indiana UC Service Center issued notices of determination on April 2,
2021, deeming Claimant eligible for UC benefits. The notices indicated Claimant’s
employer, Unique Inns of Lancaster (Employer), discharged Claimant for allegedly
violating its unlawful discrimination and harassment policy. The notices concluded
that Claimant was aware or should have been aware of the policy, but that Employer
had not met its burden of proving Claimant violated the policy.
Employer appealed to a UC referee, who held a telephone hearing on May 21,
2021. Employer presented testimony from four witnesses: general manager, Jennifer
Buchter (Buchter); a.m. supervisor, Richard Chaput (Chaput); assistant manager,
Iliana Mendez (Mendez); and general partner, Stephen Sikking (Sikking). Claimant
participated in the hearing with counsel and also testified on her own behalf.
Buchter testified that Claimant worked full time for Employer as an executive
chef from April 4, 2017, until her discharge on February 16, 2021. C.R., Item No.
11, N.T., 5/21/21, at 12-13. Buchter explained Employer discharged Claimant after
an investigation revealed Claimant used a racial slur at work on February 6, 2021.3
Id. at 13-14. Buchter expounded that using a slur violated Employer’s unlawful
discrimination and harassment policy. Id. at 13.
Regarding the events of February 6, 2021, Chaput testified he was “at work
that day. . . . working on the line” when Claimant “had to run out to the store.” Id.
at 16. After Claimant returned, Chaput testified that she “came back onto the line
and said to me, [‘T]here was [sic] a lot of n[****]rs at the store.[’] And I didn’t know
if I heard something wrong. I looked at her and I said, [‘W]hat?[’] And she said,
3
Buchter testified she became aware of the alleged February 6, 2021 incident after she received a
report from the restaurant manager, Dustin Doster (Doster). C.R., Item No. 11, N.T., 5/21/21, at
12-13. Employer did not present Doster’s testimony.
2
[‘T]here was [sic] a lot of people at the store.[’]” Id. Chaput noted he later spoke to
Mendez “to clarify if what I heard was true,” because Mendez was also present when
Claimant used the slur. Id. at 16.
On cross-examination, Chaput acknowledged that he engaged in “either a text
message or Facebook message conversation” with Claimant after her discharge, in
which Claimant asked him whether he ever heard her use “racial slurs in the kitchen
since she returned to work after being sick in January.” Id. at 17-18. Chaput replied
he had not heard Claimant use racial slurs, saying: “na, just keep faith. Remember,
God works weird and does everything for a reason.”4 Id. He testified his statement
to Claimant was different than what he reported to Employer because he “wanted to
avoid conflict.” Id. at 18.
Mendez also described Claimant’s use of the racial slur on February 6, 2021.
Mendez testified that she was “standing on the other side of the line, returning food
for people” while Claimant stood “behind the line” and spoke with Chaput. Id. at
19. She continued: “I heard [Claimant] use the N word. And I quickly looked up at
[Chaput] to make sure I heard what I thought I heard. And I heard him say,
[‘W]hat,[’] to her, and she rephrased[] herself saying that [‘T]here was [sic] a lot of
people at the store.[’]” Id. Mendez testified that she reported the incident to her
manager, Doster, “as soon as he came in” on February 6, 2021, and that she spoke
to Chaput about the incident the next day. Id.
4
This conversation appears in the record along with similar text or Facebook messages Claimant
allegedly exchanged with four other former coworkers. C.R., Item No. 3, Claimant Questionnaire
with Attachments, 3/29/21. The referee admitted the messages into the record without objection.
C.R., Item No. 11, N.T., 5/21/21, at 8-12.
3
Additionally, Sikking testified regarding a separate incident in 2019, during
which Claimant was alleged to have made “disparaging and racial remarks.”5 Id. at
20. He explained that Claimant signed a document indicating she understood the
severity of her actions, and that, if she made further “racially or sexually insensitive”
remarks during her work shift, Employer would terminate her without further notice.
Id. at 21. Sikking testified Claimant did not deny making the remarks in 2019. Id.
Rather, Claimant explained the remarks “were in reference to songs that she had
heard. And certainly, she did not intend them to be racially made and understood
that if she were [sic] to do that again . . . that would be jeopardizing her job and
promised she would not do that again.” Id.
Claimant testified, conversely, that she did not go to the store or use a racial
slur on or around February 6, 2021. Id. at 22, 25. She maintained her only trips
around that time were to purchase supplies to make a birthday cake for Sikking on
February 11, 2021, and to the post office. Id. at 25. Claimant testified that she first
learned of the allegation she used a racial slur when Employer terminated her, and
that Employer did not give her the opportunity to rebut or refute the allegation. Id.
at the 22-23.
On May 24, 2021, the referee issued a decision concluding that Claimant was
ineligible for UC benefits based on willful misconduct. C.R., Item No. 12, Referee’s
Decision and Order, 5/24/21, at 1-3 (unpaginated). Importantly, the referee credited
the testimony of Employer’s witnesses that Claimant used a racial slur and rejected
Claimant’s testimony to the contrary. Id. at 2. The referee found that Claimant was
5
Claimant’s counsel made a hearsay objection regarding the 2019 incident, as individuals involved
in the incident were not present to testify. C.R., Item No. 11, N.T., 5/21/21, at 20. The referee
sustained the objection but permitted Employer to present testimony “to enable [] Employer to
develop the record . . . . to get to where [] Employer’s involvement with this action took place.”
Id.
4
aware of Employer’s discrimination and anti-harassment policy and had received a
written warning after violating the policy in 2019, which informed her any further
violations would result in termination. Id. at 2. The referee found that Employer’s
policy was reasonable, and that Claimant failed to provide good cause for violating
the policy. Id. Moreover, the referee reasoned that Claimant’s conduct was contrary
to the standards of behavior Employer had the right to expect. Id. at 3. The referee
therefore reversed the Service Center’s determination.
Claimant appealed to the Board, which issued an order on December 13, 2021,
affirming the referee. The Board concluded the referee’s determination was proper
and adopted and incorporated her findings and conclusions. Claimant filed a petition
for review in this Court. She now requests that we reverse the Board’s determination
of ineligibility for UC benefits due to willful misconduct or, in the alternative, that
we remand for the taking of additional testimony.
II. Discussion
This Court reviews orders granting or denying UC benefits for violations of
the petitioner’s constitutional rights, violations of agency practice and procedure, or
other errors of law. 2 Pa.C.S. § 704. We also review whether substantial evidence
supports the findings of fact necessary to sustain the decision. Id. The Board is the
ultimate factfinder in these cases and is entitled to assess witness credibility and
weight of the evidence. Hubbard v. Unemployment Comp. Bd. of Rev., 252 A.3d
1181, 1185 n.2 (Pa. Cmwlth. 2021) (citing Peak v. Unemployment Comp. Bd. of
Rev., 501 A.2d 1383, 1388 (Pa. 1985)). Thus, we view the evidence in a light most
favorable to the party that prevailed before the Board, drawing all logical and
reasonable inferences to determine if substantial evidence exists. Sweeney v.
Unemployment Comp. Bd. of Rev., 74 A.3d 1175, 1177 n.1 (Pa. Cmwlth. 2013)
5
(citing Taylor v. Unemployment Comp. Bd. of Rev., 378 A.2d 829, 831 (Pa. 1977)).
If substantial evidence supports the Board’s findings, they are binding on appeal.
Allen v. Unemployment Comp. Bd. of Rev., 189 A.3d 1128, 1133 (Pa. Cmwlth. 2018)
(citing Kelly v. Unemployment Comp. Bd. of Rev., 776 A.2d 331, 336 (Pa. Cmwlth.
2001)).
Section 402(e) directs that a claimant will be ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work, irrespective of whether or not such work is
‘employment.’” 43 P.S. § 802(e). Case law defines “willful misconduct” as:
an act of wanton or willful disregard of the employer’s interest, a
deliberate violation of the employer’s rules, a disregard of standards of
behavior which the employer has a right to expect of an employee, or
negligence indicating an intentional disregard of the employer’s interest
or of the employe[e]’s duties and obligations to the employer.
Myers v. Unemployment Comp. Bd. of Rev., 625 A.2d 622, 625 (Pa. 1993) (quoting
McLean v. Unemployment Comp. Bd. of Rev., 383 A.2d 533, 535 (Pa. 1978)).
The employer generally bears the burden of proving that a claimant engaged
in willful misconduct. Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479,
481 (Pa. Cmwlth. 2018) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of
Rev., 755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000)). When willful misconduct is due
to an alleged violation of a work rule, “the employer must establish the existence of
the rule, its reasonableness, and that the employee was aware of the rule. Once [the]
employer meets this burden, the burden shifts to the claimant to prove that the rule
was unreasonable or that he had good cause for violating the rule.” Id. at 482
(quoting Weingard v. Unemployment Comp. Bd. of Rev., 26 A.3d 571, 574-75 (Pa.
Cmwlth. 2011)). Further, even when an employer does not have a work rule in place,
6
this Court has characterized the use of racial slurs as clearly contrary to the standards
of behavior an employer has the right to expect from an employee. See Witkowski
v. Unemployment Comp. Bd. of Rev., 633 A.2d 1259, 1260-61 (Pa. Cmwlth. 1993)
(affirming the Board’s willful misconduct determination where the claimant stated
to two African American coworkers that the employer was “working [the claimant]
like a n[****]r,” because the statement was “so offensive that it should have been
obvious that its use was inimical to [the e]mployer’s best interest, and in complete
disregard of the standards of behavior which [the e]mployer has a right to expect
from its employees”).
In this matter, Claimant does not dispute that using a racial slur in Employer’s
workplace would constitute willful misconduct. She instead focuses on challenging
the finding that she used a slur. Claimant argues Employer did not present competent
evidence6 to support this finding, because Chaput was unsure of what he heard until
he spoke to Mendez, and Mendez was unsure of what she heard until she spoke to
Chaput. Claimant’s Br. at 14. In addition, she argues she submitted text or Facebook
messages from five former coworkers, including Chaput, indicating she did not use
a slur. Id. at 15.
Claimant’s argument does not warrant relief. As we summarized above, both
Chaput and Mendez testified they heard Claimant use a racial slur on February 6,
2021. C.R., Item No. 11, N.T., 5/21/21, at 16, 19. It was within the Board’s purview
as the factfinder to credit their testimony. Hubbard, 252 A.3d at 1185 n.2 (citing
Peak, 501 A.2d at 1388). Although Claimant urges this Court to view the evidence
6
Although Claimant argues Employer did not present “competent evidence,” her argument is more
accurately that Employer did not present “substantial evidence.” See Frimet v. Unemployment
Comp. Bd. of Rev., 78 A.3d 21, 26 n.7 (Pa. Cmwlth. 2013) (citing Bruce v. Unemployment Comp.
Bd. of Rev., 2 A.3d 667 (Pa. Cmwlth. 2010)) (explaining that substantial evidence is “evidence
that a reasonable mind might accept as sufficient to support the conclusion reached”).
7
in a manner favorable to her, and characterizes Chaput’s and Mendez’s testimony as
uncertain, we must view the evidence in the light most favorable to Employer as the
prevailing party before the Board. Sweeney, 74 A.3d at 1177 n.1 (citing Taylor, 378
A.2d at 831).
Claimant’s text or Facebook messages with her alleged former coworkers do
not compel a different result. None of those coworkers testified during the hearing,
other than Chaput, whose testimony contradicted his statement in the message that
Claimant did not use racial slurs. C.R., Item No. 11, N.T., 5/21/21, at 16-18. The
messages are also very general in character, with most of the coworkers stating they
did not “ever” hear Claimant use racial slurs or make racist statements, and only one
of the messages appears to focus on February 6, 2021. C.R., Item No. 3, Claimant
Questionnaire with Attachments, 3/29/21. Ultimately, it is for the Board to resolve
conflicts in the evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev.,
949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citing Dumberth v. Unemployment Comp.
Bd. of Rev., 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc)).
Claimant argues in the alternative that this Court should remand for the taking
of additional testimony. Claimant argues she did not go to the store on February 6,
2021, and so did not realize before the hearing that her alleged racial slur involved
people at the store. Id. at 16. After the hearing, Claimant continues, she obtained
“evidence that directly rebuts the witnesses[’] testimony” and proves she did not go
to the store on that day. Id. Claimant directs our attention to the Board’s regulations,
which permit a remand to the referee for the taking of additional testimony “if in the
opinion of the Board, the previously established record is not sufficiently complete
and adequate to enable the Board to render an appropriate decision.” 34 Pa. Code §
8
101.104(c).7 Relevantly, Claimant relies on provisions in the regulations directing
that a remand is “required” where (1) the appeal to the Board “involves a material
point on which the record below is silent or incomplete or appears to be erroneous”
or where (2) “[i]t appears that there may have been a denial of a fair hearing under
the rules.” 34 Pa. Code § 101.104(c)(1)-(2).
The regulations Claimant cites do not require that we remand this case. These
regulations govern the Board’s ability to remand a case pending before it to a referee,
not this Court’s ability to remand a case the Board already decided. Notably, our
review of the record does not reveal that Claimant requested a remand while her case
was pending before the Board, or that she informed the Board she had any additional
evidence. Although this Court retains the ability to remand if necessary,8 we see no
reason to do so here. Claimant does not explain with specificity what new evidence
she would like to present on remand, and the record belies her assertion that she was
initially unaware her alleged racial slur described people at the store. At the start of
the hearing, the referee asked Claimant’s counsel whether he had “an opportunity to
review” the exhibits in the case with Claimant, and Claimant’s counsel answered in
the affirmative. C.R., Item No. 11, N.T., 5/21/21, at 6. The referee then described
the exhibits, including the signed witness statements of Chaput and Mendez. Id. at
8-10. These statements indicate Claimant used the racial slur to describe people at
the store. See C.R., Item No. 4, Employer Questionnaire with Attachments, 3/31/21
(including Chaput’s statement that Claimant said “[t]here were a lot of ‘N[****]rs’
7
The regulations cite Section 504 of the Law, which provides that the Board shall have the power
to, among other things, review cases after decision by the referee “on the basis of the evidence
previously submitted in the case, or direct the taking of additional evidence.” 43 P.S. § 824.
8
See Ruffner v. Unemployment Comp. Bd. of Rev., 172 A.3d 91, 97 (Pa. Cmwlth. 2017) (reversing
and remanding for a new evidentiary hearing, because the record lacked the information necessary
to resolve the case).
9
at the store,” and Mendez’s statement that Claimant “use[d] the word ‘N[****]rs’ to
describe the crowd” at the store); C.R., Item No. 6, Employer’s Petition for Appeal
with Attachments, 4/15/21 (same). As a result, we are satisfied that Claimant knew
the substance of the allegations against her before the hearing, and that she received
a full and fair opportunity to present her case.
III. Conclusion
For all of the above reasons, we affirm the Board’s December 13, 2021 order,
which affirmed the referee and deemed Claimant ineligible for UC benefits due to
willful misconduct under Section 402(e) of the Law.
______________________________
STACY WALLACE, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Badra Phenneger, :
Petitioner :
v. : No. 1413 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of January 2023, the December 13, 2021
order of the Unemployment Compensation Board of Review is AFFIRMED.
______________________________
STACY WALLACE, Judge