B. Sponseller v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandi Sponseller, :
:
Petitioner :
:
v. : No. 1227 C.D. 2021
: Submitted: February 10, 2023
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 22, 2023
Brandi Sponseller (Claimant) petitions for review, pro se, of the Order
of the Unemployment Compensation Board of Review (Board), which affirmed a
Referee’s decision denying unemployment compensation (UC) benefits pursuant to
Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm.
Claimant was employed as a project manager and designer for Kolano
Design Company (Employer), from March 16, 2015, to June 15, 2020. In March
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 in relevant part: “[A]n employe shall be ineligible
for compensation for any week . . . [i]n which [her] unemployment is due to [her] discharge or
temporary suspension from work for willful misconduct connected with [her] work . . . .” 43 P.S.
§802(e).
2020, Employer determined that Claimant was failing to complete her work and
falling behind on her billable hours. Additionally, in April 2020, Employer learned
that Claimant was completing work on outside employment as a life coach and doing
so on an Employer-issued computer. On June 15, 2020, Employer terminated
Claimant’s employment. Certified Record (CR) at 21-22.
Claimant filed an application for UC benefits dated June 14, 2020. CR
at 12-15. Therein, Claimant specifically alleged that she was terminated because her
“use of ‘covid’ time was used for personal marketing.” Id. at 13. Specifically, she
“used the office Mac in place of her personal computer to work on [her] fitness
career.” Id. at 15. Although Employer cited Claimant’s “[repeated failure] to
complete assigned work tasks” as the basis of her unsatisfactory work performance,
Employer also characterized Claimant’s personal use of the office computer as
misconduct, because she used the “work computer to run her own business during
work hours.” Id. at 21-22.
The Duquesne UC Service Center (Service Center) found that Claimant
was not ineligible for benefits under Section 402(e) of the Law. CR at 27. The
Service Center reasoned that Employer bore the burden of proving that Claimant did
not work to the best of her ability, which Employer failed to do. Id. On January 8,
2021, Employer filed a timely appeal. Id. at 31-32.
In a Notice of Hearing mailed on January 14, 2021, Claimant and
Employer were notified of a telephone hearing scheduled for February 4, 2021, at
8:00 a.m. CR at 39-50. The notice identified “whether [C]laimant’s unemployment
was due to discharge . . . from work for willful misconduct connected with
employment” as the specific issue to be considered in the hearing. Id. at 39.
Moreover, the notice advised, in relevant part:
2
[T]he Referee will be calling parties on a telephone line
that will not display the originating telephone number.
Some telephones have the capability of blocking incoming
calls for which no originating number is displayed. If your
telephone blocks such calls and if you expect to participate
in the hearing by telephone, it is your responsibility to
ensure that you are able to accept the call to participate
in the hearing.
Id. (emphasis in original).
At approximately 8:00 a.m. on February 4, 2021, the Referee called
Employer’s telephone number and reached Employer and its witness. CR at 95.
However, when the Referee called Claimant’s telephone number, he received a
message stating: “Hi. You have reached Brandi Lynn. Sorry I am unable to answer
your call at the moment. If you can leave a detailed message, I will be happy to get
back to you. Thanks. Bye. The mailbox is full and cannot accept any messages at
this time. Goodbye.” Id. Thereafter, the Referee began to identify documentary
evidence to be entered into the claim file. Id. at 96-98. At this point, the Referee
called Claimant again, but received the same response and proceeded with the
hearing, notwithstanding Claimant’s nonappearance. Id. at 98. At approximately
8:13 a.m. on February 4, 2021, Claimant emailed the Board: “Hello [Referee], I
potentially missed your call as it showed spam and I was getting my kids ready for
school. I’d like to call back in.” Id. at 103.
Following the hearing, the Referee reversed the Service Center’s
determination of Claimant’s UC benefits eligibility in a Decision/Order mailed on
February 5, 2021. CR at 105-09. In relevant part, the Referee found as fact:
4. In April 2020, [Employer] realized that [Claimant] was
doing work as a life coach which didn’t have anything to
do with [Employer].
3
5. [Employer] found that she had all sorts of work on her
company computer, one of which she kept at home.
6. [Claimant] was aware this was a policy violation for
her, and [Employer] talked with [its] attorney about this to
get more insight.
***
10. [Claimant] was called twice but the Referee got
[Claimant’s] voicemail and her mailbox was full.
Id. at 105-06.
In his decision, the Referee reasoned:
Although duly notified of the date, time and place of the
[UC] hearing, [Claimant] failed to appear for the hearing
to present testimony and evidence on the issues under
appeal. The above findings represent the competent
evidence presented by [Employer], in addition to a careful
review of the documentary evidence.
CR at 106.
With respect to the merits, the Referee noted that “the Pennsylvania
[c]ourts have consistently held that the . . . deliberate violation of the employer’s
rules” amounts to willful misconduct. CR at 106. However, the Referee explained
that the employer bears the burden of providing evidence to establish the existence
of the employer’s rule and “the fact of its violation.” Id. If the employer is
successful in doing so, “then the burden shifts to the claimant to establish either good
cause for violating the employer’s policy and/or that the policy is unreasonable, or
that the policy is not fairly enforced or uniformly applied.” Id. at 106-07.
Ultimately, because Claimant “did work as a life coach in another business” during
her working hours for Employer, the Referee determined that Employer met its
burden of proving willful misconduct. Id. at 107. Thus, the Referee reversed the
Service Center’s determination of eligibility and denied benefits. Id.
4
On February 22, 2021, Claimant filed a timely appeal of the Referee’s
decision to the Board “plead[ing her] appeal and [the] reason for [her] lack of
appearance at the hearing on [February 4,] 2021.” CR at 114. With respect to her
lack of appearance, Claimant asserted: “My phone malfunctioned and I was not able
to resolve the issue until working with Apple Support. My voicemail was not full
but errored [sic] during the hearing. I was not able to dispute sharing my evidence[,]
which I have attached.” Id.
As a result, by Order mailed on April 16, 2021, the Board remanded the
case to the Referee “to receive testimony and evidence on [Claimant’s] reason for
her nonappearance at the previous hearing.” CR at 212.2 The Board permitted the
Referee to elicit new testimony and evidence on the merits. Id. The Board clarified,
however, that if it found that Claimant lacked proper cause for her nonappearance at
the February 4, 2021 hearing, it would not consider any of the new testimony or
evidence. Id. The remand hearing was conducted on May 27, 2021, via telephone.
Id. at 231-33, 235.
Both Claimant and Employer appeared at the May 27, 2021 remand
hearing. CR at 236-38. After identifying and entering Claimant and Employer’s
documentary evidence, the Referee turned to eliciting Claimant’s testimony
regarding the cause of her nonappearance at the February 4, 2021 hearing. Id. at
240. The transcript states, in relevant part:
[Referee:] . . . The first thing we’re going to go -- or the
first thing we’re going to do is have [Claimant] testify. I
need to know why she didn’t come to the last hearing, and
anything else she wants to say about that. . . . So
2
See Walthour v. Unemployment Compensation Board of Review, 276 A.3d 387 (Pa.
Cmwlth. 2022) (vacating and remanding to the Board to permit a claimant to explain her efforts
taken to ensure that her phone did not block a referee’s call for a telephonic hearing).
5
[Claimant], I have on page 1 of the transcript . . . the
seventh paragraph, I say, okay, I’m going to call
[Claimant], okay? And I have your number. And then I
have what you said on the phone. Why did you not -- why
weren’t you there?
[Claimant:] Yes. So my phone malfunctioned. It was --
I was not able to resolve the issue. I reached out to -- I
have an iPhone -- I reached out to Apple Support, and they
repaired the issue, but it was after the fact, and I was not
able to receive that phone call. My phone either did not
receive it or block[ed] it, and I was not able to answer that
call.
[Referee:] Well, you see my recording. It’s there.
[Claimant:] Um-hum.
[Referee:] What do you have to say about that?
[Claimant:] No, I see that you called me, and it looks like
-- it looks like my voicemail immediately responded. I
don’t understand why I wasn’t able to answer the phone.
[Referee:] Okay. Anything else you want to say about
that?
[Claimant:] That’s the only thing. No.
Id. at 240. Thereafter, Claimant and Employer offered testimony on the merits. Id.
at 240-52.
By Order mailed September 7, 2021, the Board affirmed the Referee’s
February 5, 2021 decision. CR at 254-61. Because Claimant’s nonappearance
resulted from “her iPhone ‘malfunction[ing],’ which [Claimant] believes was
because her phone did not receive the call or blocked the call,” the Board determined
that Claimant lacked “good cause” for her nonappearance at the February 4, 2021
hearing. Id. at 254. Specifically, the Board noted that “[C]laimant was instructed in
the hearing notice that it was her responsibility to ensure that her phone was able to
6
accept the Referee’s call to participate in the hearing.” Id. As a result, the Board
did not consider the additional testimony and documentary evidence that Claimant
presented at the remand hearing, and “conclude[d] that the determination made by
the Referee [was] proper under the [Law] . . . .” Id. at 254-55. Notably, in affirming
the Referee’s decisions, the Board adopted and incorporated the Referee’s findings
of fact and conclusions of law supporting his reversal of the Service Center’s
determination. Id. at 255. Claimant now petitions this Court for review.3
On appeal, Claimant asserts that the Board violated her due process
rights when it found that she lacked “good cause” for her nonappearance, because
“[i]t is due process to be heard, and due to a pandemic, we are relying on
technology[4] to function as we expect.” Petitioner’s Brief at 6. Moreover, Claimant
asserts, on the merits, that she had good cause for her alleged willful misconduct
3
Our scope of review is limited to determining whether constitutional rights were violated,
an error of law was committed, or the necessary factual findings are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
4
In the Statement of Questions portion of her appellate brief, Claimant asserts that “[h]ad
this hearing been in person, it would not have been an issue of a phone [being] able or not able to
receive ‘spam’ labeled phone calls.” Petitioner’s Brief at 6. To the extent Claimant challenges
the Board’s Order on the basis that the telephonic hearing violated due process, the record shows
that she failed to object to the telephonic hearing at the administrative level. Because “[i]ssues
raised below cannot be raised for the first time on appeal . . .[,] the propriety of the telephone
hearing itself may not be challenged.” Hoover v. Unemployment Compensation Board of Review,
509 A.2d 962, 963 (Pa. Cmwlth. 1986). Cf. O’Leary v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 984 C.D. 2020, filed October 27, 2021), slip op. at 6 (“[The c]laimant’s
new attorney objected to, and moved to strike, the testimony and exhibits offered by [the e]mployer
at the first hearing because of the ‘technology issues’ which were ‘not any fault of his own nor of
our office,’ stating that to permit the evidence was a due process violation. The [r]eferee overruled
[the c]laimant’s counsel’s objection . . . .”) (citations and footnote omitted); see also id. at 9 n.11
(“On appeal [to the Board], [the c]laimant did not challenge the decision of the [r]eferee to receive
[the e]mployer’s evidence without his participation. Therefore, we do not consider that issue.”).
7
because: (1) the COVID-19 pandemic required her to work from home; and (2) her
billing practices and computer use followed Employer’s common practice. Id.Put simply, “[d]ue process requires notice and an opportunity to present
evidence and legal argument.” Massie v. Unemployment Compensation Board of
Review, 255 A.3d 702, 708 (Pa. Cmwlth. 2021). To this extent, Section 101.51 of
the Board’s regulations provides in relevant part: “If a party notified of the date,
hour and place of a hearing fails to attend a hearing without proper cause, the hearing
may be held in his absence.” 34 Pa. Code §101.51.
Nevertheless, Section 101.24(a) states:
If a party who did not attend a scheduled hearing
subsequently gives written notice, which is received by the
tribunal prior to the release of a decision, and it is
determined by the tribunal that h[er] failure to attend the
hearing was for reasons which constitute “proper cause,”
the case shall be reopened.
34 Pa. Code §101.24(a); see also McNeill v. Unemployment Compensation Board of
Review, 511 A.2d 167, 169 (Pa. 1986) (parties failing to appear at a Referee’s
hearing “must set forth the reasons for failing to appear . . . and the [Board] must
make an independent determination that the reasons set forth constitute proper
cause”). As such, it is well established “that a claimant’s own negligence is
insufficient ‘proper cause,’ as a matter of law, to justify h[er] failure to appear at a
referee’s hearing and warrant a new hearing.” Savage v. Unemployment
Compensation Board of Review, 491 A.2d 947, 948 (Pa. Cmwlth. 1985).
In Eat ‘N Park Hospitality Group, Inc. v. Unemployment Compensation
Board of Review, 970 A.2d 492, 494-95 (Pa. Cmwlth. 2008), this Court reaffirmed
the holding of Savage. Therein, although the employer was “forthright and candid
about [failing to provide the referee with correct telephone directions],” it still
8
constituted an admission of fault for the employer’s nonappearance. Id. at 495.
Consequently, the employer lacked the requisite proper cause for its nonappearance,
and the Board correctly determined it was improper to reopen the hearing. Id. at
494-95.
Here, as in Eat ‘N Park Hospitality Group, Claimant’s testimony at the
remand hearing evidenced her fault for her nonappearance. The Hearing Notice
dated January 14, 2021, explicitly directed Claimant to “be by the telephone and
keep the line free at least fifteen (15) minutes before the scheduled time” and
clarified that “it [was Claimant’s] responsibility to ensure that [she was] able to
accept the call to participate in the hearing.” CR at 39. In her own e-mail sent 13
minutes after the appointed hearing time, Claimant acknowledged that she “missed
[the Referee’s] call as it showed spam and [she] was getting [her] kids ready for
school.” Id. at 103.5 In addition, she testified at the remand hearing that her phone
“either did not receive [the Referee’s call] or block[ed] it.” Id. at 103, 240.
Consequently, Claimant’s nonappearance was due to her own failure to follow the
explicit directions of the Hearing Notice. This Court has repeatedly held that “a
claimant’s own negligence is insufficient ‘proper cause,’ as a matter of law, to justify
[her] failure to appear.” Savage, 491 A.2d at 950. Thus, the Board correctly found
that Claimant lacked proper cause for her nonappearance.
With respect to the merits of the instant appeal, in UC matters, the
Board is the ultimate finder of fact, such that “[f]indings made by the Board are
conclusive and binding on appeal if the record, when examined as whole, contains
5
It is in this respect that the instant matter may be distinguished from our holdings in
Walthour and O’Leary. See, e.g., O’Leary, slip op. at 7 (“[The c]laimant’s undisputed testimony
was that he did what he could to remedy the situation ‘in real time,’ as the hearing was being
conducted in his absence.”).
9
substantial evidence to support those findings.” Kelly v. Unemployment
Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Substantial
evidence is a low bar; it need only be “relevant evidence which a reasonable mind
might accept as adequate to support a conclusion.” American General Life and
Accident Insurance Company v. Unemployment Compensation Board of Review,
648 A.2d 1245, 1248 (Pa. Cmwlth. 1994). Finally, “[t]his Court is bound ‘to
examine the testimony in the light most favorable to the party in whose favor the
[B]oard 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.” Morgan v. Unemployment Compensation Board of
Review, 108 A.3d 181, 185 (Pa. Cmwlth. 2015) (citing United States Banknote
Company v. Unemployment Compensation Board of Review, 575 A.2d 673, 674 (Pa.
Cmwlth. 1990)).
Under Section 402(e) of the Law, a claimant is ineligible to receive
benefits “for any week . . . [i]n which [her] unemployment is due to [her] discharge
or temporary suspension from work for willful misconduct connected with [her]
work.” 43 P.S. §802(e). As this Court has explained:
Although willful misconduct is not defined by statute, it
has been described as: (1) the wanton and willful
disregard of the employer’s interests; (2) the deliberate
violation of [work] rules; (3) the disregard of standards of
behavior that an employer can rightfully expect from his
employee; or (4) negligence which manifests culpability,
wrongful intent, evil design, or intentional and substantial
disregard for the employer’s interests or the employee’s
duties and obligations.
Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07
(Pa. Cmwlth. 2011) (citations omitted). Initially, the employer bears the burden of
10
establishing willful misconduct. Id. at 607. If an employer has discharged a claimant
for violating a work rule, the employer must establish the existence of the rule, the
claimant’s awareness of the rule, its reasonableness, and “the fact of its violation.”
Id. If the employer is successful in meeting its burden, the burden then shifts to the
claimant to demonstrate that she had good cause for her actions, which is satisfied
when “her actions are justified or reasonable under the circumstances.” Id.In considering the entirety of the certified record of this case,
substantial evidence exists to prove that Employer met its burden of establishing
willful misconduct. First, Employer had a policy prohibiting employees from using
its equipment for purposes unconnected with their employment. Employer’s office
manual states in relevant part:
The use of company[-]provided computers and the
resources associated with their use including but not
limited to e-mail and internet access are communications
tools provided by the company and are to be used only for
business communication. This equipment, software,
network and any data produced belong to [Employer] and
[Employer] maintains the right to monitor and review use
and data stored routinely and without prior notice. Use of
this equipment, software, network and data . . . should be
consistent with [the] employee’s current responsibilities
and for legitimate business purposes.
CR at 91. Similarly, regarding Claimant’s knowledge of this policy, Employer’s
documents admitted at the hearing state that “[e]very employee acknowledges
company policies and signs a statement attesting so,” and Employer’s owner
indicated that “we have an office manual that’s tangible, that everybody agrees to,
that says this equipment . . . is not to be used for anything other than company
business.” Id.11
In his decision, the Referee reasoned that “[Claimant] should have been
working for [Employer] when she was at work, but she didn’t do that and instead,
did work as a life coach in another business.” CR at 107. Indeed, Employer’s owner
testified that “[Claimant] was not working for us during the time she was putting on
timecards. She was running her own business.” Id. at 99. This included keeping
“[Claimant’s personal] business records on [Employer’s servers] . . . .” Id. at 101.
Employer’s documentary evidence also bears this out, demonstrating that Claimant
participated in non-work-related Zoom sessions, used social media, and stored non-
work-related data on her Employer-issued computer during Employer’s working
hours. Id. at 86-87.
As this Court has explained:
The Board correctly argues that [the c]laimant’s
conduct constituted willful misconduct because “it is
contrary to reasonable standards of behavior for an
employee to use company property for personal activities
without authorization, even absent a rule prohibiting such
conduct.” Smith v. Unemployment Compensation Board
of Review, [508 A.2d 1281, 1283 (Pa. Cmwlth. 1986)]; see
also Wetzel [v. Unemployment Compensation Board of
Review, 370 A.2d 415 (Pa. Cmwlth. 1977)]. Using
computers for personal, non-work purposes after being
instructed not to do so amounts to willful misconduct,
Baldauf v. Unemployment Compensation Board of
Review, 854 A.2d 689 (Pa. Cmwlth. 2004), and a lack of
prior warnings “is not a defense in willful misconduct
cases” regarding admitted misconduct. Placid v.
Unemployment Compensation Board of Review, [427
A.2d 748, 750 (Pa. Cmwlth. 1981)].
Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 165 (Pa.
Cmwlth. 2004); see also Department of Transportation v. Unemployment
Compensation Board of Review, 755 A.2d 744, 748 (Pa. Cmwlth. 2000) (holding
that the claimant’s violation of the employer’s work policy against using an
12
employer’s resources for supplemental employment constituted willful
misconduct).6 Thus, Employer’s policy was eminently reasonable and there is
substantial evidence demonstrating Claimant’s violation of this reasonable policy.
As Employer sufficiently demonstrated Claimant’s willful misconduct,
the burden shifted requiring her to show that she had good cause for her actions.
However, when a party fails to offer evidence before a referee, and it is not
“otherwise made a part of the certified record,” this Court cannot consider the
evidence on appeal. Rothstein v. Unemployment Compensation Board of Review,
114 A.3d 6, 10 (Pa. Cmwlth. 2015). Because Claimant failed to establish good cause
for her nonappearance, the Board did not consider her testimony or documentary
evidence offered at the remand hearing, and we cannot now consider her assertions
of fact in her appellate brief, or the documents appended to her brief, in disposing of
the instant appeal. See id.; see also Croft v. Unemployment Compensation Board 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.”). Consequently, there is no evidence in the record which demonstrates that
Claimant had good cause for her willful misconduct, and the Board correctly
determined that she is ineligible for UC benefits.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
6
But cf. Great Valley Publishing v. Unemployment Compensation Board of Review, 136
A.3d 532, 537 (Pa. Cmwlth. 2016) (“[W]here [an e]mployer admittedly tolerated violations of its
policy governing employees’ internet use, [the e]mployer failed to establish that [the c]laimant’s
use of the computer and internet . . . amounted to willful misconduct under Section 402(e).”)
(citation omitted).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandi Sponseller, :
:
Petitioner :
:
v. : No. 1227 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 22nd day of May, 2023, the order of the
Unemployment Compensation Board of Review dated September 7, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge