Geisinger Health Plan v. Unemployment Compensation Board of Review

OPINION BY Judge COHN JUBELIRER.

Geisinger Health Plan (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the Unemployment Compensation Referee’s (Referee) decision granting John D. Buckeye (Claimant) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).² On appeal, Employer argues that the Board erred in determining that Employer disparately applied its work rule against sending pornographic e-mails and that Claimant was, therefore, eligible for benefits despite engaging in willful misconduct by violating that rule.

Claimant applied for unemployment compensation benefits after Employer discharged him from his employment. The Unemployment Compensation Service Center (Service Center) found Claimant ineligible for benefits because his discharge was a result of willful misconduct. Claimant then filed an appeal. An eviden-tiary hearing was subsequently held before a Referee on May 16, 2007.

At the hearing, Employer presented the testimony of its HR manager, Erin Winn (Winn). Winn testified that Claimant began working for Employer in October 2005 and that Employer discharged Claimant on February 20, 2007, for violating Employer’s electronic communication policy. More specifically, Winn testified that Employer’s internal audits department had uncovered as many as twenty-five e-mails that Employer considered to be in violation of its electronic communication policy. Winn stated that she discussed six of these e-mails with Claimant at the time Employer discharged him. Employer introduced these six e-mails into evidence at the hearing.³ Winn also testified regarding Employer’s electronic communication policy, which states:

Any access to pornography is strictly prohibited on Geisinger time or using Geisinger resources and is grounds for termination.

For the benefit of all of our employees, Geisinger’s policy prohibiting harassment applies in its entirety to the use of the electronic communication system including downloading, possession or transmission of materials. No one may use the electronic communications in a manner that may be construed by others as harassment or as offensive on the basis of sex, race, color, religion, national origin, ancestry, age, physical handicap, disability, marital status, veteran’s status or any other non-job-related factor.

(Employer’s Electronic Communication Policy, Service Center Ex. Nos. 10-11.) On cross-examination by Claimant, Winn stated that some of the twenty-five e-mails uncovered by Employer’s internal audit department had been sent to Claimant by other employees. When questioned by Claimant and the Referee as to whether Employer’s electronic communication policy was evenly applied, Winn responded that, while other individuals who sent emails to Claimant had not been terminated, Employer was continuing to investigate the matter, taking into account the “severity and the inappropriateness of the emails.” (Referee Hr’g Tr. at 12.) Of the six e-mails that formed the basis for Claimant’s termination, E-mail 3, entitled “Happy Halloween,” and E-mail 6, the joke about Tarzan, were sent to Claimant by Employer’s employees. On redirect, Winn explained that Claimant was terminated in lieu of some lesser discipline “because of the high frequency of the e-mails that were sent during work time to other Geisinger employees and also because of the severity which was [sic] the pornographic images that were forwarded on.” (Referee Hr’g Tr. at 14.) Winn also stated that Employer considered pornographic images to be more severe than sexually explicit jokes. (Referee Hr’g Tr. at 14-15.)

When Claimant’s turn to testify came, Claimant initially stated that he did not think Employer consistently applied its electronic communication policy. The Referee pointed out that this was an argument, not testimony. Other than stating that he believed he was denied a peer review, Claimant did not offer any testimony or documentary evidence.

The Referee reversed the Service Center’s determination and granted Claimant benefits. Employer appealed to the Board, which affirmed the Referee’s decision. In doing so, the Board made the following findings of fact:

1. The claimant was employed by Geis-inger Health Plan as a medicare sales representative having begun his employment in October 2005 on a full-time basis with a final rate of pay of $20.50 per hour.

2. The claimant’s last day of work was February 20, 2007.

3. The employer has an electronic communications policy that provides that access to pornography is prohibited and is grounds for termination.

4. The claimant knew and/or should have known the policy.

5. The employer learned through an internal audit that the claimant had been forwarding pornographic emails through its computer system to other employees.

6. Some of the e-mails had been sent to the claimant from other employees.

7. The employees who sent the e-mails to the claimant were not disciplined.

8. The claimant was discharged for violating the employer [sic] electronic communication policies.

(Board Decision, Findings of Fact (FOF) ¶¶ 1-8.) Based on these findings of fact, the Board concluded that Claimant was eligible for benefits under Section 402(e) of the Law because Employer did not uniformly enforce its policy. The Board con-eluded that Claimant had been “disciplined in a disparate manner from other similarly-situated employees.” (Board Decision at 2.) The Board noted that it had considered the volume and content of the e-mails sent by Claimant, but characterizing Employer’s policy as “zero-tolerance,” found that it made no allowance for violation. Claimant was the only employee who had been discharged at the time of the Referee’s hearing. In addition to finding that Claimant had been treated differently from other similarly-situated employees, the Board also determined that Employer failed to explain why Claimant had been fired while the two employees who had each sent Claimant one objectionable email were only being investigated. Since Employer offered no explanation as to why other employees were still only being investigated, the Board concluded that Claimant had shown that Employer had disparately enforced its electronic communication policy. Employer now petitions for review of the Board’s order.⁴

Employer argues that the Board erred when it determined that Employer disparately applied its electronic communication policy. We agree.

An employee is not eligible to receive unemployment compensation “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.” 48 P.S. § 802(e). This Court has defined the term “willful misconduct” to mean:

(1) the wanton and wilful disregard of the employer’s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which 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.

Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 90, 309 A.2d 165, 168-69 (1973). “The burden of proving willful misconduct rests with the employer.” Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa.Cmwlth.2008). If the employer seeks to satisfy its burden of proof by showing that a claimant violated the employer’s work rule, the employer must also show that the rule existed and that the claimant violated that rule. Id. at 369.

Disparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. See Department of Transportation v. Unemployment Compensation Board of Review, 755 A.2d 744, 748 (Pa.Cmwlth.2000) (“[T]he essence of disparate treatment is not only whether unlawful discrimination has occurred but also whether similarly situated people are treated differently, based upon improper criteria.”). Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.⁵ There are opinions of this Court that have been less than clear in applying the burden of proving disparate treatment. For example, in Remcon Plastics, Inc. v. Unemployment Compensation Board of Review, 651 A.2d 671 (Pa.Cmwlth.1994), this Court appeared to put the burden on the employer to show that it had a proper purpose for firing the claimant, but not another employee engaged in identical misconduct. Id. at 673 (“Employer offered no evidence of proper criteria such as business necessity to justify the disparate treatment of Claimant.”).⁶ However, in other cases, this Court has considered whether the claimant initially met the burden of showing the elements of disparate treatment. See, e.g., Walsh, 943 A.2d at 370 (“Claimant was required to establish that Employer treated similarly situated employees differently based upon improper criteria.” (emphasis added)); Workinger v. Unemployment Compensation Board of Review, 667 A.2d 436, 438 (Pa.Cmwlth.1995) (holding that the claimant had failed to rebut the employer’s showing of willful misconduct with evidence that other employees were not disciplined for similar misconduct); Palmer v. Unemployment Compensation Board of Review, 50 Pa.Cmwlth. 300, 412 A.2d 917, 918 (1980) (stating that the claimant’s disparate treatment argument “would have merit if claimant had alleged that enforcement of the company rules had been based on improper discrimination such as racial bias”). Moreover, it is important to remember that the disparate treatment defense to a finding of willful misconduct is not found in the Law, but has its genesis in the Pennsylvania Supreme Court’s decision in Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867 (1975). There, the Supreme Court refused to give the imprimatur of state action to the discriminatory conduct of an employer who discharged black employees for tardiness and absenteeism, but did not discharge white employees for similar tardiness and absenteeism.⁷ While decisions from this Court may have expanded the scope of the disparate treatment defense somewhat, they have not expanded the scope of the defense so far that the Board and this Court have become super-employers which must scrutinize every situation in which a claimant alleges merely that he was discharged while another employee was not. “[T]he mere fact that one employee is discharged for willful misconduct and others are not discharged for the same conduct does not establish disparate treatment.” American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 144 Pa.Cmwlth. 310, 601 A.2d 480, 483 (1991) (citing Bays v. Unemployment Compensation Board of Review, 62 Pa.Cmwlth. 421, 437 A.2d 72, 73 (1981)).

Here, the Board does not question or challenge the existence, and Claimant’s violation, of Employer’s rule, which prohibited employees from using electronic devices or “computing systems for the viewing, transmission, dating, downloading, or possession of any materials that ... includes pornography.” (Referee Hr’g Tr. at 7; FOF ¶¶ 3-5.). Thus, there is no dispute that the Claimant was discharged for willful misconduct. The Board argues that Claimant is entitled to benefits because it found that Employer disparately applied its policy, which the Board characterizes as “an absolute prohibition against accessing pornography on [Employer’s] computer system”⁸ by terminating Claimant and not disciplining other employees who were found to have also accessed pornography through Employer’s electronic communication systems. (Board’s Br. at 7.)

In applying the disparate treatment defense to the facts of this case, we must examine whether the Claimant has made an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. With regard to the first point, the Board found that some of the offensive e-mails that Claimant sent had been sent to him by other employees. This is not disputed by Employer and is supported by the record, insofar as two of the six e-mails entered into evidence at the hearing were sent to Claimant by other employees.

Next, we consider whether Claimant was similarly situated to the other employees who were not discharged. When the employees are not similarly situated, then denial of benefits is appropriate. Electric Material Co. v. Unemployment Compensation Board of Review, 664 A.2d 1112, 1115-16 (Pa.Cmwlth.1995). In arguing that Claimant and other employees were similarly situated, the Board relies on Remcon. In Remcon, the claimant and a coworker “freely entered into” a fight. Remcon, 651 A.2d at 672. The claimant was fired while the other employee who took part in the fight was not. Id. The Court ruled that, because the conduct each employee engaged in, the fight, was identical, the claimant and his coworker were similarly situated. Id. at 673. Therefore, this Court held that the claimant in Rem-con was entitled to benefits. We believe the current case is distinguishable from Remcon because, in determining whether Claimant and the employees involved were similarly situated, this Court will take into consideration the severity of Claimant’s conduct, as compared to the conduct of the other employees. See Johnson v. Unemployment Compensation Board of Review, 744 A.2d 817, 822 (Pa.Cmwlth.2000) (stating that other employees had talked about sexual subjects, but “[claimant’s behavior was of such egregious nature that he was not similarly situated” to the other employees). In this case, Claimant failed to show that he was similarly situated to other employees who were not terminated. Two of the e-mails at issue were received by Claimant from two other Geisinger employees, each employee sending him one email. However, Claimant neither testified nor presented evidence that either of the other employees forwarded as many inappropriate e-mails as he did, or that their emails were as inappropriate as some of the e-mails that Claimant sent. Claimant, therefore, failed to carry his burden of showing that he was similarly situated. Employer, however, presented evidence that Claimant violated the policy more frequently than other employees. The Board acknowledged, and did not discredit, Employer’s witness’s testimony that Claimant’s conduct occurred with more regularity and was more egregious than that of the other employees. (Referee Hr’g Tr. at 12, 14-15.) The Board’s Finding of Fact Paragraph 6 states that “[s]ome of the emails had been sent to the claimant from other employees.” (FOF ¶ 6.) This necessarily supports the inference that Claimant forwarded other pornographic e-mails that were not sent to him by other employees. Indeed, Employer’s witness testified as much, and the e-mails entered into evidence also demonstrate this. (Referee Hr’g Tr. at 12-13; Referee Hr’g Ex. Nos. E-l, E-4, and E-5.) Such a finding supports Employer’s argument that Claimant’s conduct was more pervasive and egregious than other employees’ conduct. Additionally, Claimant’s e-mails to other employees included commentary that increased the vulgarity of the e-mails. For example, in E-mail 2, Claimant told a coworker, “[s]omehow this reminded me of you.”⁹ (Referee Hr’g Ex. No. E-2.) The Board’s determination that Claimant was similarly situated to other employees is not supported by the facts on the record or the law.¹⁰

For these reasons, we reverse the order of the Board.

ORDER

NOW, February 5, 2009, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby REVERSED.

2 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

3 . E-mail 1 contained a picture depicting a topless woman stretching on a bed. (Referee Hr’g Ex. No. E-l.) E-mail 2, entitled "13 REASONS NOT TO DRINK ... EVEN WITH FRIENDS," contained a number of pictures, including one of a partially nude woman, apparently unconscious, lying facedown on a picnic table surrounded by empty bottles. (Referee Hr'g Ex. No. E-2.) E-mail 3, entitled "Happy Halloween,” contained a picture of a nude individual whose buttocks were painted to resemble a jack-o-lantern. (Referee Hr'g Ex. No. E-3.) E-mail 4, entitled "Resimay,” consisted of a joke about a woman with poor spelling skills being hired as a secretary due to her physical appearance, with an attached picture of a woman with large breasts wearing a bikini top. (Referee Hr'g Ex. No. E-4.) E-mail 5, entitled "HOW TO BE BANNED FROM DISNEYLAND,” contained a picture of two women with their breasts decorated to resemble Mickey Mouse. (Referee Hr’g Ex. No. E-5.) E-mail 6 consisted of a sexual joke about Tarzan. (Referee Hr’g Ex. No. E-6.)

4 . "The Court’s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Ins. Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n. 2 (Pa.Cmwlth. 2006).

5 . Requiring a claimant to make an initial showing of different treatment from similarly situated individuals due to improper criteria before shifting the burden to employer to justify the discharge is similar to the shifting burden articulated by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) for establishing employment discrimination. Under the McDonnell Douglas standard, a complainant alleging employment discrimination must make a prima facie case by showing that: 1) he “is a member of a protected class; 2) he was the object of adverse employment action; 3) he was qualified for the position in question; and 4) he was replaced by someone” who is not a member of the protected class referenced in (1). Associated Rubber, Inc. v. Pennsylvania Human Relations Commission, 915 A.2d 689, 695 n. 13 (Pa.Cmwlth.2007) (citing McDonnell Douglas). It is only after the complainant makes this prima facie showing, that the burden "shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions,” after which the complainant bears the burden of showing that the employer’s proffered reason is pretextual. Id. at 696.

6 . We note, however, that the facts in Remcon are consistent with a disparate treatment defense. In our recitation of the facts in Rem-con, this Court noted that “Claimant indicated he was informed that he was discharged for 'fighting' but that he did not agree with this because, ‘I was defending myself and the other guy was not fired. Also, I was on light-duty and they don't like people being on light-duty.' ” Remcon, 651 A.2d at 673 (internal citation omitted) (emphasis added). This Court also noted an age difference between the claimant in Remcon, who was fifty-two, and the co-worker who was not fired, who was twenty-three. Id. at 672.

7 . In doing so, the Supreme Court relied on the United States Supreme Court decision in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). In Moose Lodge, the Supreme Court stated that in order for discrimination to violate the Fourteenth Amendment, "the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination.” Id. at 172, 92 S.Ct. 1965.

8 . Employer’s policy and code of conduct, in fact, states that "[a]ny access to pornography is strictly prohibited on Geisinger time or using Geisinger resources and is grounds for termination.” (Employer's Electronic Communication Policy, Service Center Ex. Nos. 10-11, Record Item No. 4 (emphasis added).) We do not read such a policy as requiring that every employee who accesses pornography must be terminated.

9 . E-mail 2 is tided “13 REASONS NOT TO DRINK ... EVEN WITH FRIENDS” and depicts a topless woman lying face-down, and apparently passed out, surrounded by empty bottles on a picnic table. (Referee Hr'g Ex. No. E-2.)

10 . Due to our holding that Claimant was not similarly situated to the employees who were not discharged, we do not reach the third element of Claimant’s disparate treatment defense, that of whether Employer's discharge of Claimant was based upon an improper criterion. We note, however, that Claimant did not allege or prove that Employer discharged Claimant on account of any improper criterion.