J. Kruise v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jay Kruise, :
Petitioner :
:
v. : No. 1715 C.D. 2019
: SUBMITTED: June 12, 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 JUDGE CEISLER FILED: July 29, 2020
Jay Kruise (Claimant) petitions for review, pro se, of the October 7, 2019
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to deny Claimant unemployment compensation (UC) benefits.
The Board concluded that Claimant was ineligible for UC benefits under Section
402(e) of the Unemployment Compensation Law (Law)1 because he was discharged
for willful misconduct. We affirm the Board’s Order.
Background
Claimant worked for Tobyhanna Army Depot (Employer) from September
2007 through November 29, 2018, most recently as a full-time information
technology specialist. Bd.’s Finding of Fact (F.F.) No. 1. On November 29, 2018,
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 states that an employee shall be ineligible for UC benefits 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).
Claimant was involved in a verbal altercation with a co-worker in the workplace. Id.
No. 2. After the altercation, Claimant stated to his manager, “They have guns, I have
guns, if they want to take this off post I will.” Id. No. 3. Later that day, Employer
placed Claimant on paid administrative leave for making the statement to his
manager and for threatening others in the workplace. Id. No. 4. On March 20, 2019,
after conducting an investigation, Employer discharged Claimant for conduct
unbecoming a federal employee and for making statements that caused anxiety and
disruption in the workplace on November 29, 2018. Id. No. 5; see Record (R.) Item
No. 3.
Claimant filed a claim for UC benefits, which the local UC Service Center
denied. The Service Center found that Claimant was discharged for conduct
unbecoming a federal employee and for making statements that caused anxiety and
disruption in the workplace, which was a disregard of the standards of behavior that
Employer had the right to expect of its employees. R. Item No. 4. Although
Claimant asserted that he made the statements because “he was provoked and
exercised his [F]irst [A]mendment [right] to stand up against a bully,” the Service
Center found that he did not have good cause for his conduct. Id. Therefore, the
Service Center determined that Claimant was ineligible for UC benefits under
Section 402(e) of the Law. Id.
Claimant appealed to the Referee, who held an evidentiary hearing on June
21, 2019. Claimant testified on his own behalf and presented the testimony of David
Javitz, one of his co-workers at the time of his discharge. Employer presented the
testimony of five witnesses: Cathy Fulk, Chief of Employer’s Information
Management Division and Claimant’s direct supervisor; William Moody, Chief of
Employer’s Network Operations Branch; James Redline, Claimant’s co-worker with
2
whom he had the November 29, 2018 altercation; William Grimaldi, an employee
who witnessed the November 29, 2018 altercation; and Jeffrey Goldfarb,
Employer’s Lead Network Operations Technician.2
Ms. Fulk testified that she recommended that Claimant be removed from
federal service based on Employer’s investigation into the November 29, 2018
incident, including Claimant’s statement to Mr. Moody, witness reports describing
the altercation, the investigation by law enforcement officials, and “at least 14
statements” by other employees. Notes of Testimony (N.T.), 6/21/19, at 6. Ms. Fulk
testified to the reasons for Claimant’s discharge as follows:
[Claimant] had made a statement that he knew they had guns, he had
guns and he wanted to settle the confrontation that he had with the
individuals outside and then he proceeded to say if they don’t want to
do it here and now, I will look their addresses up on Google Earth or
Google Map[s] and I’ll find out where they live. Then the other
testimonies that were provided to me through the investigation revealed
other confrontations that he had with employees that he worked with,
and it was along the same lines, where he was aggressive, he was
challenging, he was constantly looking for confrontations and wanting
to pick fights with personnel.
Id. at 7.
Mr. Moody testified that on the afternoon of November 29, 2018, another
employee came into his office and said, “It’s happening again out on the floor,” and
Mr. Moody “knew he meant there was an argument, most likely involving
[Claimant].” Id. at 24. Mr. Moody left his office and observed Claimant and Mr.
Redline having a verbal dispute. After Mr. Moody returned to his office, Claimant
2
Given the large number of witnesses who testified at the Referee’s hearing and the length
of the hearing transcript (75 pages), we will summarize only the portions of testimony relevant to
the issues on appeal.
3
appeared and admitted to purposefully approaching Mr. Redline’s desk and
coughing on him. Id. Mr. Moody testified:
As we’re talking about the situation, [Claimant] gets to the point where
he gets more upset. He says well, I have guns, they have guns, if they
want to take this off post, I’m going to do that. I know how to use
Google to find out where people live.
Id. at 24-25. Mr. Moody notified Ms. Fulk of Claimant’s remark, and then they
called security, got a[]hold of the desk sergeant, told him we had an
incident. He said he’d have an officer come down momentarily. At
which point I went back to my office and I’m not sure – it was roughly
about 5 or 20 minutes, but in a short period of time, an officer showed
up and I gave a . . . handwritten statement.
Id. at 26-27.
With regard to Claimant’s overall behavior in the workplace, Mr. Moody
testified as follows:
[Employer’s Counsel:] . . . Regarding [Claimant’s] conduct in the
months prior to the incident, did you notice any effect on the workplace
based on [Claimant’s] conduct?
[Mr. Moody:] During that timeframe and even before that timeframe,
yes.
[Employer’s Counsel:] What’s that?
[Mr. Moody:] Just, you know, negative, hostile environment where
people as well as myself were cautious about what we say around
[Claimant] and the belief that someone there would become violent, if
there was an active shooter, myself included, I’ve always felt
[Claimant] would be the source of that violence.
[Employer’s Counsel:] Did his conduct make you fear for your safety
at work?
4
[Mr. Moody:] Yes, sir.
[Employer’s Counsel:] How about after work?
[Mr. Moody:] After work, yes. Especially after this incident, I made
certain to inform my family members to be cautious when they come
around the house, and if approached by a certain individual to not
engage.
Id. at 30.
Mr. Redline testified that on November 29, 2018, he had no contact with
Claimant until the altercation. Mr. Redline testified that he gave a statement to
security immediately after the incident, in which he stated:
[A]t approximately [1:45 p.m.] on 29 November 18[,] I sat at my desk
. . . . Approximately 30 seconds to [one] minute later, [Claimant] left
his desk approximately 30 feet from where I was seated and approached
the backside of my co[-]worker[/]cubemate, [Gavin] Walker[,] seated
to my left. [Claimant] proceeded to lean over the center desk between
myself and [Mr. Walker] and with an open and uncovered mouth
coughed. At this point I fully looked up towards him, at which point
[Claimant] started into a profanity[-]laced tirade, saying fuck you while
pointing at me and fanning his arms as if . . . to hold a posture to give
someone a large hug. [Claimant’s] aggressive demeanor only escalated
further to threats of physical altercation by inviting me outside several
times while continuing to yell expletives. . . . I stood from my chair
without taking any steps from my area to ensure a non[-]aggressive
posture and proceeded to ask [Claimant] if I’m clear on what I’m
hearing, that he wants to go outside for a physical altercation.
[Claimant] further yelled fuck you, motherfucker, and extended his
invitation to further go outside by inviting me to meet him off base
anytime, anywhere, that he will be there.
Id. at 36-37 & Ex. E-6.
Mr. Grimaldi testified that he witnessed the altercation between Claimant and
Mr. Redline on November 29, 2018. Mr. Grimaldi confirmed that Claimant
5
approached Mr. Redline, coughed at him, used profanity, threatened him physically,
and asked him if he wanted to go outside to settle the matter. Id. at 43. He further
testified that Mr. Redline did not use profanity during his interaction with Claimant.
Id. at 47.
Claimant testified that prior to the November 29, 2018 incident, he filed
several complaints with Employer reporting harassment by his co-workers,
including Mr. Grimaldi and Mr. Redline. Claimant testified after filing the
complaint about Mr. Grimaldi, Mr. Grimaldi stopped harassing him. Id. at 56-57.
However, with regard to Mr. Redline, Claimant filed a complaint on November 8,
2018, but Employer did nothing. Id. at 57.
Claimant testified that on the afternoon of November 29, 2018, he was
preparing for a one-month leave of absence from work beginning the next day. Id.
at 57. According to Claimant, around 2:00 or 2:15 p.m., Mr. Redline walked by
Claimant and specifically came to his side of the aisle. Id. Claimant testified that
the aisle was 20 feet wide, so there was “no reason for [Mr. Redline] to come to [his]
side of the aisle at all.” Id. Claimant then testified as to what happened next:
[Mr. Redline] walked by my desk and coughed. Come on, man. I was
really, really, you know, annoyed by that. I walked by his desk and did
what I said I was going to do in my email.[3] I coughed, and then I
3
The “email” Claimant referenced is a November 8, 2018 email to Mr. Moody in which
Claimant complained that Mr. Redline had harassed him by intentionally coughing on him. See
N.T., 6/21/19, Ex. C-3. In that email, Claimant stated to Employer:
Today, when I asked [Mr. Redline] politely not to cough when walking by my desk,
his response was “I can cough wherever I want[.”] Please advise him to stop the
harassment and the hostility. I don’t like people spreading their germs around me
for health reason[s]. I take good care of my body and health and I do not want to
get sick.
If [Mr. Redline] refuses to respect my right to work free of harassment, I will treat
him the same way. I really hate to get down to his level by going over to his desk
6
walked away. Then he got out of his chair and said don’t come around
here coughing on me. I said I was not coughing on you, I was walking
by your desk, there’s no sign that says I cannot be around your desk.
....
I walked away and then [Mr.] Redline said something. He said I’m not
afraid of you. Then I turned around. By then I was halfway back to
my desk. I turned around and said well, we can settle this off post. He
looked at me, he said shut the F up, are you kidding me, and then he
chuckled. Are you serious? That’s what he said. We exchanged more
words. Then [Mr.] Walker, . . . the guy sitting next to [Mr. Redline,]
jumped in and said I don’t appreciate that you are coughing in my area,
and I asked him to stay out of it because it was between me and [Mr.]
Redline, and that was the only conversation I had with [Mr.] Walker.
Then I was at my desk and then [Mr.] Redline was at his desk. We were
15 feet apart. We were still exchanging – we were still conversing.
Then I noticed [Mr.] Moody behind me. I stopped conversing with
[Mr.] Redline.
Id. at 57-58.
Claimant testified after the confrontation with Mr. Redline, he met with Mr.
Moody privately in Mr. Moody’s office. Id. at 58. Claimant asked Mr. Moody if he
could “talk to [his] guys again and ask them to stop harassing me, because I was
really getting annoyed. I said if you don’t stop it at your level, I will escalate the
incident to the higher up[s].” Id. Claimant, however, denied making any statements
to Mr. Moody about having guns or being able to Google his co-workers to
determine where they live. Id.
and cough[ing] on him, but this work place harassment must stop. I will let you
resolve this at your level. If he doesn’t stop, I will elevate it to the Deputy Director.
If [Mr. Redline] coughs near me again, I will go cough near him and see if he will
like it. . . .
Id.
7
 On cross-examination, Claimant testified that when Mr. Redline told him to
“shut the fuck up,” he responded with “fuck you.” Id. at 62. Claimant further
explained that when he said to Mr. Redline that they can “handle this matter off
post,” he was not suggesting that they should fight; rather, he “just wanted to talk to
him off post, maybe [they] could have a beer or something” and “talk it out.” Id. at
63.
Following the hearing, the Referee affirmed the Service Center’s decision to
deny UC benefits. The Referee acknowledged the conflicting evidence presented
by the parties and expressly resolved the conflicts in the evidence in Employer’s
favor. The Referee concluded as follows:
[E]mployer[’s] witness testified that on March 20, 2019, [E]mployer
discharged [C]laimant for making a threatening statement to a manager
regarding other workers. Furthermore, on November 29, 2018,
[C]laimant said, “They have guns, I have guns, if they want to take this
off post I will.” As such, the Referee concludes that the Employer has
met its burden of proof in establishing that the Claimant’s discharge
from employment was for reasons which rise to the level of willful
misconduct in connection with the work and benefits are denied in
accordance with Section 402(e) of the Law.
Ref.’s Order, 6/24/19, at 2.
Claimant appealed to the Board, which adopted and incorporated the
Referee’s findings of fact and conclusions of law. In its decision, the Board noted
that in his appeal to the Board, Claimant attempted to introduce additional
documentary evidence that he claimed was unavailable to him at the time of the
hearing before the Referee. The Board declined to consider such evidence, however,
because “[m]ost of these documents predate[d] the hearing and [C]laimant [did] not
8
establish[] what diligence he exercised to obtain them before [the present appeal].”
Bd.’s Order, 10/7/19, at 1.4
With regard to the merits of the appeal, the Board made the following
additional findings and conclusions:
[C]laimant argues that [E]mployer’s [disciplinary] policy did not justify
discharge for the first offense. [E]mployer’s policy, however, provides
[the following] caveat:
A Table of Penalties, as stated previously, contains a
suggested range of penalties. It is a guide to discipline,
not a rigid standard. Deviations are allowable for a variety
of reasons. For example, when an employee is being
charged with multiple offenses at the same time, it may be
appropriate to exceed the maximum suggested penalty for
all of the individual offenses. Again, when an employee
has repeatedly committed the same offense, even though
the employee is being charged with the offense for the first
time, it may be appropriate to exceed the maximum
suggested penalty. When the offenses the employee
committed is especially serious, compared to normal
degree of the stated offense, there may be a basis for
exceeding the maximum suggested penalty.
[C]laimant had a history of discipline, albeit for unrelated offenses.
This does not mean this was [C]laimant’s first offense of this nature; he
was accused by his co[-]workers of similar past conduct, though it had
never been reported. This was also [a] severe offense. Therefore,
[E]mployer was justified in exceeding [its] guideline to discharge
[C]laimant for his conduct. Conversely, [C]laimant has not credibly
justified his conduct.
4
Because the Board declined to consider Claimant’s supplemental evidence, these
documents are not part of the certified record on appeal.
9
Id. at 1-2. Therefore, the Board affirmed the Referee’s decision. Claimant now
petitions this Court for review.5
Analysis
On appeal, Claimant asserts that the Board abused its discretion in failing to
consider the additional evidence he submitted with his appeal, which he claims was
“exculpatory” and contradicted the testimony of Employer’s witnesses at the hearing
before the Referee. Claimant also asserts that Employer failed to prove that he
committed willful misconduct under Section 402(e) of the Law.6
1. Board’s Failure to Consider Additional Evidence
Claimant asserts that the Board abused its discretion in refusing to consider
the additional documentary evidence he submitted with his appeal to the Board,
including a police report from the criminal investigation into Claimant’s allegedly
threatening statements at work.7 According to Claimant, “[t]wo law enforcement
officers conducted an investigation and [concluded that the November 29, 2018]
5
Our scope of review is limited to determining whether the necessary factual findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.
6
In his pro se Petition for Review, Claimant also asserts that: (1) Employer failed to prove
that he was aware of its policy prohibiting violence in the workplace and that he violated that
policy; and (2) Employer failed to comply with its progressive discipline policy for behavioral
offenses by discharging Claimant for a first offense. However, because Claimant has abandoned
these issues in his appellate brief, we will not address them.
7
Although Claimant avers that he received the police report on June 27, 2019, Claimant’s
Initial Br. at 2, he did not seek to introduce this additional evidence with either his Petition for
Appeal (filed July 1, 2019) or his brief filed with the Board (filed August 2, 2019). See R. Item
Nos. 10, 13. Claimant submitted the additional evidence via a supplemental filing with the Board
on August 28, 2019. See R. Item No. 16.
10
‘incident didn’t meet the elements of a crime this case will be closed’ and ‘the
elements were not met for the crime of harassment.’” Pet. for Review at 2.
On appeal, Claimant argues for the first time that he was unable to obtain the
additional evidence before the hearing because Employer refused to turn it over to
him in violation of his constitutional rights, citing Brady v. Maryland, 373 U.S. 83
(1963).8 However, Claimant did not argue a Brady violation in his appeal to the
Board, so this claim is waived. See Chapman v. Unemployment Comp. Bd. of
Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (holding that an allegation of error
that was not raised before the Board “has been waived for purposes of appeal[ and]
will not be addressed for the first time by this Court”); Pa. R.A.P. 1551(a).
Moreover, “[t]he legal requirement of a party to turn over exculpatory evidence,
commonly referred to as the ‘Brady Doctrine,’ is inapplicable to [UC proceedings],
as this doctrine is only applied in criminal, rather than civil, proceedings.” Medlen
v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2667 C.D. 2015, filed
September 15, 2016), slip op. at 6 n.4.9
Pursuant to its regulations, the Board “cannot review evidence that was not
submitted to the Referee, unless it directs the taking of additional evidence.”
Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558, 564 (Pa. Cmwlth.
2012) (citing 34 Pa. Code § 101.106). In declining to consider Claimant’s
supplemental evidence, the Board explained that “[m]ost of these documents
8
In Brady, the United States Supreme Court held that “the suppression by the prosecution
of evidence favorable to an accused upon request violated due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87.
9
Under Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a), we may cite an unreported panel decision of this Court, issued after January 15, 2008,
for its persuasive value.
11
predate[d] the hearing and [C]laimant [did] not establish[] what diligence he
exercised to obtain them before [the present appeal].” Bd.’s Order, 10/7/19, at 1. In
fact, Claimant offered no explanation in his multiple filings with the Board as to why
he did not obtain this supplemental evidence in a timely manner. See R. Item Nos.
10, 13, 15.
Furthermore, the Board’s regulation at 34 Pa. Code § 101.104(c)(1) states, in
relevant part, that “further appeal shall be allowed and additional evidence required
. . . [w]henever the further appeal involves a material point on which the record
below is silent or incomplete or appears to be erroneous.” Whether Claimant was
criminally charged for his conduct in the workplace is irrelevant to the issue of
whether he committed disqualifying willful misconduct under the Law.10 The Board
found that Claimant was discharged for making the threatening statement that he
would settle the matter off post with guns on November 29, 2018. Bd.’s F.F. Nos.
3, 5. Because Claimant does not specifically challenge the Board’s findings
regarding the basis for his discharge, they are conclusive on appeal. Munski v.
Unemployment Comp. Bd. of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011).
Claimant also argues for the first time on appeal that Employer violated his
due process rights by not providing him a constitutionally proper hearing as required
by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).11 In addition
to this issue being waived for Claimant’s failure to raise it before the Board, see
10
At the hearing, Claimant testified that he was not charged with a crime in connection
with the November 29, 2018 incident. N.T., 6/21/19, at 59-60. Thus, contrary to Claimant’s
contention on appeal, the Board was aware of the result of the criminal investigation into his
conduct.
11
“A Loudermill hearing is a pre-termination hearing given to a public employee that is
required by due process . . . .” Ray v. Brookville Area Sch. Dist., 19 A.3d 29, 31 n.2 (Pa. Cmwlth.
2011).
12
Chapman, 20 A.3d at 611, Claimant’s “assertion that [he received an] improper
Loudermill hearing has [no] bearing on his receipt of [UC] benefits,” Yost v.
Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012).
Therefore, we conclude that the Board did not abuse its discretion in refusing
to consider Claimant’s additional evidence submitted with his appeal to the Board.12
2. Willful Misconduct
Claimant does not specifically challenge the Board’s willful misconduct
determination in the body of his appellate brief. However, in his Petition for Review,
he avers that Employer failed to prove that he committed willful misconduct, and he
also references that issue in the Summary of Argument section of his brief.
Therefore, we will address this issue.
Our Court has defined “willful misconduct” as a wanton or willful disregard
of the employer’s interests, a deliberate violation of the employer’s rules, a disregard
of the standards of behavior that the employer has a right to expect of its employees,
or negligence indicating an intentional disregard of the employer’s interests or of the
employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Review,
83 A.3d 484, 486-87 (Pa. Cmwlth. 2014). The employer bears the burden of proving
12
In his reply brief filed with this Court, Claimant again asserts that the Referee and the
Board “did not have the ‘entire record’” because “[t]he record was missing the law enforcement
report of an investigation which is contrary to [E]mployer’s witnesses’ statements.” Claimant’s
Reply Br. at 2. Claimant also asserts that he recently filed a wrongful termination lawsuit against
Employer, claiming that “[E]mployer used the November 29, 2018 incident as a pretext to mask
disability discrimination and other prohibited personnel practices,” id., and attaches documents
from that lawsuit to his reply brief. However, we cannot and will not consider extra-record
evidence on appeal that was not part of the record before the Board. See Pa. Tpk. Comm’n v.
Unemployment Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009) (“This Court may
not consider any evidence that is not part of the certified record on appeal.”); Croft v.
Unemployment Comp. Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (“This Court may not
consider auxiliary information appended to a brief that is not part of the certified record on appeal
. . . .”).
13
that the claimant committed willful misconduct. Allen v. Unemployment Comp. Bd.
of Review, 189 A.3d 1128, 1134 (Pa. Cmwlth. 2018). Once the employer satisfies
its burden, the burden shifts to the claimant to establish good cause, i.e., that his
actions were justified and reasonable under the circumstances. Id.
Our Court has held that “a threat of violence or harm to a supervisor or co-
worker disregards the standards of behavior an employer can rightfully expect of an
employee.” Cummins v. Unemployment Comp. Bd. of Review, 207 A.3d 990, 996
(Pa. Cmwlth. 2019); see Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1010 (Pa. Cmwlth. 2014) (“It is well-settled that threats of harm toward a co-
worker or supervisor constitute willful misconduct under the Law.”); Sheets v.
Unemployment Comp. Bd. of Review, 708 A.2d 884, 884 (Pa. Cmwlth. 1998)
(holding that the claimant’s threat that he “may as well shoot” his co-workers was
willful misconduct). Further, “[t]hreats of harm, even if communicated only to a
third party, ‘create[] discord and interrupt[] the employer’s operation.’” Johns, 87
A.3d at 1013 (quoting Sheets, 708 A.2d at 885).
The Board found that, after engaging in a verbal altercation with Mr. Redline
in the workplace, Claimant stated to his manager, “They have guns, I have guns, if
they want to take this off post I will.” Bd.’s F.F. Nos. 2, 3. Ms. Fulk credibly
testified that Claimant’s behavior was “an extreme act of [threatened] violence that
required immediate measures. There was safety at risk with the employees when
those statements were being made. When someone says they have guns, I have guns,
that definitely warrants an immediate result.” N.T., 6/21/19, at 14. The Board
disbelieved Claimant’s testimony that when he said he wanted to “settle this off
post,” he meant that he wanted have a conversation with Mr. Redline after work over
a beer. Bd.’s Order, 10/7/19, at 1; see Guthrie v. Unemployment Comp. Bd. of
14
Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (stating that the Board is the ultimate
factfinder in UC cases and is empowered to resolve conflicts in evidence, determine
the weight to be accorded the evidence, and determine the credibility of witnesses).
We conclude, based on the credible evidence of record, that Claimant’s statement
that he would use guns to settle the matter off post with his co-workers was a
disregard of the standards of behavior that Employer had a right to expect of its
employees.
Because Employer met its burden of proving willful misconduct, the burden
shifted to Claimant to establish good cause. At the hearing, Claimant testified that
he was repeatedly harassed by his co-workers and that Mr. Redline provoked him
by intentionally coughing near Claimant’s desk three weeks before the incident and
on the day of the incident. However, Claimant admitted on the record that, with
regard to his purposeful coughing on Mr. Redline, “[i]t was not appropriate for me
to do that” and “two wrongs doesn’t [sic] make a right.” N.T., 6/21/19, at 67.
Claimant also testified that he said “settle this off post . . . because that was the only
words [sic] [he] could think of at the time.” Id. at 66. Resolving the conflicts in the
evidence in Employer’s favor, the Board determined that Claimant did not credibly
justify his conduct. Bd.’s Order, 10/7/19, at 1.
The record established that, after a verbal altercation and exchange of
profanities with Mr. Redline, Claimant made a threatening remark to his manager
about his co-workers, stating, “I have guns, I know they have guns, if they want to
take this off post I will.” Bd.’s F.F. Nos. 2, 3. Claimant did not establish good cause
for his conduct. Therefore, we conclude that Employer met its burden of proving
that Claimant committed disqualifying willful misconduct under Section 402(e) of
the Law.
15
Conclusion
Accordingly, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jay Kruise, :
Petitioner :
:
v. : No. 1715 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 29th day of July, 2020, the Order of the Unemployment
Compensation Board of Review, dated October 7, 2019, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge