K.A. Bixler v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth A. Bixler, :
:
Petitioner :
:
v. : No. 968 C.D. 2021
: Submitted: February 18, 2022
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 4, 2022
Kenneth A. Bixler (Claimant), pro se, petitions for review of the July
6, 2021 order of the Unemployment Compensation (UC) Board of Review (Board),
which affirmed a Referee’s decision and held that Claimant was ineligible for UC
benefits under Section 402(e) of the UC Law (Law),1 relating to willful misconduct.
On appeal, Claimant argues that the Board erred by concluding that Elite Sportswear
LP (Employer) met its burden of proving that Claimant’s unemployment was due to
willful misconduct. For the following reasons, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e) (providing that an employee shall be ineligible for compensation when his separation from
employment is due to willful misconduct connected with his work).
Claimant worked full-time as a distribution center (DC) team lead for
Employer from October 23, 2017, until his last day of work on July 29, 2020, earning
$13.00 per hour. Board’s 7/6/2021 Decision & Order, Finding of Fact (F.F.) No. 1.
On July 29, 2020, Claimant’s DC supervisor overheard him speaking loudly and
swearing on the dock and directed him to stop swearing, after which Claimant told
the supervisor, “It’s f*cking hot in here. I hope I’m the one to have a heat stroke so
then I can sue the Indian bastard and own this company.” Id., F.F. Nos. 2-4.
Claimant was told to clock out and go home, and he was thereafter terminated by
phone based on the July 29, 2020 incident. Id., F.F. Nos. 5-6.
Claimant then applied for UC benefits. Certified Record (C.R.) at 3-4.
The local UC service center found Claimant ineligible for UC benefits under Section
402(e) of the Law because, although there was insufficient evidence that Claimant
had previously been warned about his use of profanity while working at Employer,
Claimant’s actions on July 29, 2020, were serious enough to warrant his dismissal
without a warning. C.R. at 33.
Claimant appealed the service center’s determination, asserting that it
was common for employees and even supervisors to use profanity at the workplace.
C.R. at 39. A Referee conducted a hearing via telephone on February 5, 2021, on
the issue of whether Claimant’s discharge was due to willful misconduct. Id. at 67.
Claimant appeared pro se and testified on his own behalf, and presented the
testimony of his coworker, James Paul Barrett (Barrett). Id. Kelly Adams (Adams),
Employer’s DC Supervisor, and Danielle Linderman (Linderman), Employer’s
Human Resources (HR) Specialist, appeared and testified on Employer’s behalf. Id.
at 67, 71.
2
Linderman primarily testified to Claimant’s start and end dates and rate
of pay with Employer, and the reason for Claimant’s discharge, i.e., misconduct.
C.R. at 73-75. Linderman also testified that there is a policy concerning swearing
and misconduct on work property and that Claimant received that policy in the
employee handbook when he first started working at Employer in 2017. Id. at 76.
Linderman further explained that the discipline associated with violations of this
policy included verbal warnings, then written warnings, and potentially termination.
Id. at 77-78. Finally, Linderman testified that Claimant’s offense was terminable
because not only was he swearing loudly, which is not permitted, but he also
threatened to sue the company and then called the Chief Executive Officer (CEO)
an “Indian bastard.” Id. at 78.
Next, Adams testified regarding the July 29, 2020 incident, stating that
she was in her office when she heard Claimant swearing out on the warehouse dock.
C.R. at 75.2 Adams then went out on the dock and asked Claimant to stop swearing,
to which he responded, “it’s fucking hot in here. I hope I’m the one to have a heat
stroke so then I can sue the Indian bastard and own this company.” Id. at 76. Adams
testified that she reported this incident to her head manager, who told her to have
Claimant “clock out and leave for the day.” Id. Adams also testified that there have
been multiple episodes where a supervisor had to talk to Claimant about his swearing
but that he had only ever been given verbal warnings, no written warnings. Id. at
75-78.
Claimant admitted that he used profanity at work and made a comment
about the heat and Adams working in an air-conditioned office, but asserted that he
did not call anyone an “Indian bastard” or threaten to sue Employer. C.R. at 79.
2
Because the Referee went back and forth in his questioning of Linderman and Adams,
the transcript of their testimony is not in numerical order.
3
When asked why he used profanity towards Adams, Claimant stated, “[t]hat’s the
way we communicated I would say sometimes. I mean, it was a dock, that’s the way
we talk to each other sometimes.” Id. at 80. Claimant admitted that he was told
once before not to swear around the DC manager because she “does not like it”;
however, Claimant stated that he was never issued any warnings about using
profanity. Id at 80. The Referee asked Claimant whether he knew of any policy
against swearing, to which Claimant responded that it could have been in the
handbook and that he does not “really remember the handbook[.]” Id. at 80.
Claimant then presented his witness, Barrett, asking if Barrett had heard
Claimant say any of the things Adams claimed. C.R. at 80. Barrett responded that
while he was walking through the dock area, he heard Claimant complain of the heat
and mention something about air conditioning, but he “was not in the building when
that part of the conversation [involving Adams] allegedly happened. [He] had
walked through the dock prior to that actual exchange of words.” Id. at 80-81.
Barrett also testified that he had previously heard profanity being used in that area.
Id. at 81.
Following the hearing, the Referee issued a decision on March 17,
2021, affirming the local UC service center’s determination and denying Claimant
benefits under Section 402(e) of the Law. In doing so, the Referee made the
following findings of fact:
1. Claimant was last employed by [Employer] from October 23,
2017[,] until July 29, 20[20], as a full-time DC team lead,
with a final rate of pay of $13 an hour.
2. [] Employer has a policy against swearing and misconduct on
work property.
4
3. Violations of the policy lead[] to discipline up to, and
including, termination of employment.
4. In the final incident on July 29, 2020, [] Claimant was talking
loudly and swearing on the dock.
5. [Adams] heard [] Claimant, and went out to the warehouse
dock.
6. [Adams] told [] Claimant to stop swearing.
7. [] Claimant responded, “It’s f****** hot in here. I hope I am
the one who gets heatstroke so I can sue that Indian bastard
and own this company.”
8. [Adams] called the head manager, who informed [] Claimant
to clock out and leave.
9. On this day, [] Employer telephoned [] Claimant, and
terminated [] Claimant for his language and conduct during
the final incident.
Referee’s 3/17/2021 Decision/Order, F.F. Nos. 1-9. The Referee resolved all
conflicts in the testimony in favor of Employer and did not find the testimony of
Claimant to be credible. Id. at 2. The Referee determined that, although Claimant
testified that the use of profanity is commonly used at Employer, Claimant could not
show that calling Employer’s CEO a racial slur is commonly used language.
Moreover, he did not establish good cause for using “the derogatory phrase in front
of” Adams. Id. Accordingly, the Referee affirmed the UC service center’s
determination and concluded that Claimant was ineligible for benefits under Section
402(e) of the Law.
Claimant appealed to the Board, arguing that his testimony that he did
not use a racial slur was credible; that the Referee ignored Barrett’s testimony that
he did not hear Claimant utter any racial slur, which proves Claimant did not commit
willful misconduct; that Adams was “a biased witness” while Barrett was not; that
5
Linderman’s testimony was untrue; and that all witnesses agreed profanity was
commonplace in Employer’s place of business. C.R. at 103. By decision and order
mailed on July 6, 2021, the Board affirmed the Referee’s decision. Board’s 7/6/2021
Decision & Order, at 3. In doing so, the Board made its own findings of fact, as
follows:
1. [] [C]laimant was last employed as a full-time DC team lead
by [Employer] from October 23, 2017, at a final rate of $13.00
per hour[,] and his last day of work was July 29, 2020.
2. On July 29, 2020, the supervisor [(Adams)] overheard []
[C]laimant speaking loudly and swearing on the dock while
the supervisor was in her office. The supervisor left her office
to investigate.
3. The supervisor went to the dock and directed [] [C]laimant to
stop swearing.
4. [] [C]laimant told the supervisor, “It’s f*cking hot in here. I
hope I’m the one to have a heat stroke so then I can sue the
Indian bastard and own this company.”
5. The supervisor reported [] [C]laimant’s conduct to a head
manager and then told [] [C]laimant to clock out and go home.
6. [] Employer discharged [] [C]laimant based on the July 29,
2020 incident.
Board’s 7/6/2021 Decision & Order, F.F. Nos. 1-6. Based on the above findings,
the Board resolved the conflicts in the testimony in favor of Employer and found
credible Adams’ testimony that Claimant made a racial slur about Employer’s CEO
after being directed by Adams to stop swearing on the dock. Id. at 2. The Board did
not credit Claimant’s testimony that swearing was commonplace at Employer and
that he did not use a racial slur or threaten to sue the CEO. Id. The Board
acknowledged that, while swearing may be common at Employer, Claimant’s
6
conduct went beyond simply swearing when he called Employer’s CEO an “Indian
bastard.” Id. Concluding that Claimant’s conduct in this case fell below reasonable
standards of behavior that Employer had a right to expect of Claimant in the
workplace, the Board determined that Employer met its burden of proving that
Claimant committed willful misconduct and denied benefits under Section 402(e) of
the Law. Id. at 2-3.3 Claimant now petitions this Court for review of the Board’s
order.4
On appeal, Claimant argues that: (1) Employer failed to meet its burden
of proving that Claimant committed willful misconduct; (2) the Board ignored
Barrett’s testimony; (3) the Board made its decision without any testimony from the
individual who terminated Claimant; (4) Employer’s reason for terminating
Claimant is not supported by the testimony; (5) the Board allowed a fake email to
be entered into the record by Employer; and (6) although Claimant did not say it,
“Indian bastard” is not a racial slur. Claimant’s Brief at 3.5 The Board responds that
3
On July 19, 2021, Claimant filed a request for reconsideration, asking the Board to
reconsider its decision and grant him a new hearing. Supplemental Record (S.R.) at 4. By letter
dated July 22, 2021, the Board acknowledged its receipt of the request. Id. at 6 (incorrectly stating
that the Board’s decision was dated 6/28/2021). The Board thereafter informed Claimant that it
would not issue a ruling on the request because it lost jurisdiction to do so; however, the request
was deemed denied by operation of law because the Board did not act on it within the prescribed
time period. C.R. at 114. Claimant did not appeal the Board’s deemed denial of reconsideration
to this Court, so we need not address it further.
4
“Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
5
Although these six statements are the full extent of Claimant’s Argument section in his
brief, we note that Claimant is proceeding pro se and that we are able to discern the legal issues
raised. “Moreover, this Court is generally inclined to construe pro se filings liberally.” Smithley
(Footnote continued on next page…)
7
Claimant is merely challenging its credibility determinations, and further, that its
findings are conclusive on appeal because they are supported by substantial
evidence.
At the outset, we note that Claimant did not raise issues (3), (5),6 and
(6) in his appeal to the Board. C.R. at 103. Thus, they are waived. See Hubbard v.
Unemployment Compensation Board of Review, 252 A.3d 1181, 1186-87 (Pa.
Cmwlth. 2021) (holding that “issues not raised before the Board have not been
preserved for appellate review and are deemed waived”).
As for Claimant’s contention that the Board erred by ignoring Barrett’s
and Claimant’s testimony that Claimant did not use a racial slur, we note that it is
well established that “[q]uestions of credibility and the resolution of conflicts are
within the sound discretion of the Board, and are not subject to re-evaluation on
judicial review.” Serrano v. Unemployment Compensation Board of Review, 149
A.3d 435, 439 (Pa. Cmwlth. 2016) (quoting Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1386 (Pa. 1985)). Here, Claimant essentially
alleges that the Board erred in its decision in this case because it relied on
Employer’s biased witnesses’ testimony that Claimant used a racial slur, despite the
fact that both Barrett and Claimant testified that Claimant did not use a racial slur.
As the Board notes in its brief, however, Barrett did not testify that he heard Claimant
v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.6 (Pa. Cmwlth. 2010). We
therefore decline to find waiver based solely on Claimant’s failure to develop his arguments in his
brief.
6
While we agree with the Board’s statement in its brief that Claimant waived this issue,
we note that the Referee overruled Claimant’s objection to this document at the hearing. See C.R.
at 73. Moreover, the document to which Claimant objected appears in the record, see id. at 26,
and is clearly dated July 29, 2020, and timestamped on September 1, 2020, as received by the UC
service center. Id.
8
say what Adams alleges Claimant said, but rather, Barrett testified that he did not
hear that part of the conversation because he was not in the building when the
exchange between Claimant and Adams took place. C.R. at 80-81. According to
the Board, because Barrett did not witness what happened, his testimony does not
corroborate Claimant’s testimony that he did not use a racial slur and, therefore, is
irrelevant. We agree with the Board that Barrett’s testimony in this regard is
irrelevant, and thus was not ignored, because he was not testifying that Claimant did
not say something; rather, he was testifying to not being in the building to hear the
exchange at all. The Board specifically noted the conflict between Employer’s
witnesses’ and Claimant’s testimony regarding what Claimant said on the dock that
day and resolved such conflict in favor of Employer, which it was permitted to do.
See Serrano, 149 A.3d at 439. We therefore decline to overturn the Board’s
credibility determinations on appeal.
We also cannot agree with Claimant’s argument that the Board did not
base its findings on substantial evidence. In UC cases, 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 & 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 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 & Southern Life Insurance Co. 913 A.2d at 334 n.2. 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.
9
Unemployment Compensation Board of Review, 745 A.2d 728, 731 (Pa. Cmwlth.
2000).
Claimant argues that Employer’s reason for terminating Claimant was
not supported by the testimony. The Board argues that the testimony of Employer’s
witnesses amply supports the Board’s findings that Claimant made the comment and
was terminated for making a racial slur regarding Employer’s CEO. We again agree
with the Board. Adams testified that she heard Claimant on the dock swearing, went
to the dock and asked him to stop when he said to her, “It’s fucking hot in here. I
hope I’m the one to have a heat stroke so then I can sue the Indian bastard and own
this company.” C.R. at 76. Linderman testified that Employer terminated Claimant
because “he had threatened . . . to sue the CEO, which indicates he was addressing
our CEO as an Indian bastard. We don’t accept that, especially if you’re talking
about a CEO on the floor to other employees that can hear you.” Id. at 78. While
Claimant denies referring to the CEO in such a manner or threatening to sue the
company, the Board resolved this conflict in the testimony in favor of Employer and
found Claimant’s denial not credible. As such, Employer’s testimonial evidence is
sufficient to support the Board’s findings that Employer terminated Claimant for
making a racial slur regarding Employer’s CEO.
Finally, we reject Claimant’s argument that Employer did not meet its
burden of proving that Claimant committed willful misconduct. Section 402(e) of
the Law provides that a claimant is ineligible for UC benefits when “his
unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected to his work . . . .” 43 P.S. §802(e). The Law does not define
the term “willful misconduct”; however, our Supreme Court defined that term in
Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452,
10
456 (Pa. 1997), as (1) “wanton or willful disregard for an employer’s interests,” (2)
“deliberate violation of an employer’s rules,” (3) “disregard for standards of
behavior which an employer can rightfully expect of an employee,” or (4)
“negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations.” It is well established that “[w]hether conduct
rises to the level of willful misconduct is a question of law to be determined by this
Court.” Brown v. Unemployment Compensation Board of Review, 49 A.3d 933, 937
(Pa. Cmwlth. 2012). The initial burden rests with the employer to prove willful
misconduct on the part of the employee. Adams v. Unemployment Compensation
Board of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012).
Where willful misconduct is based on a violation of an employer’s
policy or work rule, the employer must establish the rule’s existence, its
reasonableness, and that the employee was aware of the rule when the employee
violated it. Brown, 49 A.3d at 937. Even absent an employer policy or work rule,
an employee’s use of vulgar and abusive language toward a superior, when
unprovoked and greater than de minimis, can constitute willful misconduct. Id.;
Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450-51 (Pa.
Cmwlth. 1994). We have also “recognized that words referencing nationality are
offensive” and “that even a single incident of offensive language can constitute
willful misconduct.” Witkowski v. Unemployment Compensation Board of Review,
633 A.2d 1259, 1260 (Pa. Cmwlth. 1993); see also Poplin v. Unemployment
Compensation Board of Review, 690 A.2d 781, 783 (Pa. Cmwlth. 1997) (citing
Witkowski).7 However, “whether such comments are willful misconduct must be
7
In its brief, the Board cites Witkowski for the proposition that “an employer has a right to
expect that its employees will not engage in racist conduct of any type” and asserts that racial slurs,
(Footnote continued on next page…)
11
evaluated on a case[-]by[-]case basis and should be considered in the context in
which they were made.” Poplin, 690 A.2d at 784. Once the employer makes a
showing of willful misconduct, the burden shifts to the employee to establish that
good cause justified his conduct. Brown, 49 A.3d at 937.
Here, Employer presented the testimony of Linderman, which the
Board found entirely credible, that Employer has a policy concerning swearing and
misconduct on work property and that Claimant received that policy in the employee
handbook when he first started working at Employer in 2017. C.R. at 76. The Board,
in its decision, specifically relied upon Linderman’s testimony that Employer does
not accept that type of conduct in the workplace, “especially if you’re talking about
a CEO on the floor to other employees that can hear you.” Board’s 7/6/2021
by their very nature, constitute offensive conduct. Board’s Br. at 9 (citing Witkowski, 633 A.2d at
1260 (emphasis in original)). However, in Poplin, this Court declined to construe that holding
from Witkowski to mean that any statements relating to the race of an employee’s coworker, or
which are racially insensitive, amount to per se willful misconduct. Poplin, 690 A.2d at 783.
Instead, as the Board acknowledges, we stated that such statements should be considered on a case-
by-case basis and should be considered in the context in which they were made. Id. at 784.
The Board then appears to assert, again citing Poplin, that there is no work rule or policy
regarding the use of profanity or racial slurs at issue in this case. Thus, according to the Board,
the standard set forth in Poplin governs our consideration of whether Claimant committed willful
misconduct. We disagree. In Poplin, we stated that in the absence of any evidence of a work rule
or policy in the case, “in order for Claimant’s comments to be deemed willful misconduct, either
they must be of such a character that any reasonable person would know that they were offensive
or inappropriate under the circumstances in which they were made, or the credited facts must
establish that claimant actually knew or intended them to be so.” Id. at 784. Here, however, the
Board credited the entirety of Employer’s witnesses’ testimony, including Linderman’s statement
that Employer does not accept the type of conduct Claimant exhibited in the workplace, “especially
if you’re talking about a CEO on the floor to other employees that can hear you.” Board’s 7/6/2021
Decision & Order, at 2. Linderman also credibly testified that Employer had a policy prohibiting
profanity and that Claimant acknowledged the policy when he began working at Employer in 2017.
C.R. at 76. Claimant did not deny Linderman’s statements. Accordingly, we conclude that the
standard from Poplin, erroneously cited by the Board in its brief, is not the standard under which
we must determine whether Claimant committed willful misconduct in this case.
12
Decision & Order, at 2; C.R. at 76. Linderman further explained Employer’s
disciplinary process, and that Claimant’s offense in this case was terminable because
not only was he swearing loudly, which is not permitted under the policy, but he also
threatened to sue the company and then called the CEO an “Indian bastard.” Id. at
77-78. Thus, Employer’s testimony, found entirely credible by the Board,
established both the existence of a work policy and that Claimant was aware of that
policy. Employer also established, and the Board specifically found, that Claimant
violated that policy when he stated to Adams, after she already directed him to stop
swearing, that: “it’s f*cking hot in here. I hope I’m the one to have a heat stroke so
then I can sue the Indian bastard and own this company.” Board’s 7/6/2021 Decision
& Order, at 2, & F.F. Nos. 4, 6; C.R. at 76. The Board determined, and we agree,
that Employer met its burden of showing that Claimant’s use of such vulgar and
offensive language toward his superior for seemingly no reason was conduct that
fell below reasonable standards of behavior that Employer had a right to expect of
him in the workplace and, therefore, constituted willful misconduct. The Board did
not err in so concluding.
Accordingly, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth A. Bixler, :
:
Petitioner :
:
v. : No. 968 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 4th day of August, 2022, the order of the
Unemployment Compensation Board of Review dated July 6, 2021, is hereby
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge