Bat Conservation and Management, Inc. v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bat Conservation and :
Management, Inc., :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 559 C.D. 2022
Respondent : Argued: June 7, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: September 8, 2023
Bat Conservation and Management, Inc. (Employer) petitions this
Court for review of the Unemployment Compensation (UC) Board of Review’s
(UCBR) May 10, 2022 remand order reversing the Referee’s decision and finding
Julie Zeyzus (Claimant) eligible for UC benefits under Section 402(e) of the UC
Law (Law).1 Employer presents five issues for this Court’s review: (1) whether the
UCBR erred by reversing its prior decision and the Referee’s decision based upon
its creation of a new affirmative defense, retaliation, to a willful misconduct claim,
and in depriving Employer of the opportunity to rebut the new defense; (2) whether
the UCBR erred by concluding that Claimant met her burden of proving the
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
affirmative defense where the UCBR’s finding was not supported by substantial
evidence; (3) whether the UCBR failed to properly apply the burden-shifting
framework applicable to affirmative defenses when it did not consider whether
Employer demonstrated that it had a proper reason for discharging Claimant; (4)
whether the UCBR erred by applying the improper necessitous and compelling
standard in reaching its decision; and (5) whether the UCBR’s resolution of
credibility determinations in Claimant’s favor was contrary to the overwhelming
evidence demonstrating Employer had a proper reason for discharging Claimant.
After review, this Court vacates and remands.
Employer performs scientific surveys related to bats and manufactures
equipment. Employer employed Claimant as a wildlife biologist from February 12,
2018 to November 20, 2019. Claimant and Employer’s president (President) had
been acquainted since 2001. In June of 2017, President and Claimant began a
romantic relationship. Claimant ended the relationship on March 23, 2019.
President continued to initiate contact with Claimant in the form of attempted flirting
and sexual remarks.
For approximately one week in May of 2019, President attempted to
make physical advances towards Claimant, including touching, grabbing, and
kissing. Claimant rejected President’s advances. Because President’s conduct
persisted despite Claimant rejecting his advances, Claimant retained a lawyer near
the end of June 2019. Claimant’s counsel and President’s counsel engaged in
negotiations, as a result of which, President agreed that he would not directly
supervise Claimant.
Claimant was primarily responsible for the Little Brown Bat Migration
project (Project). As part of the Project’s requirements, Employer had to submit data
and a written report to the Pennsylvania Game Commission (Commission) that was
due within 120 days of completed field surveys. The Commission issued Employer
2
a permit to conduct a field survey from May 15, 2019 through October 31, 2019.
Employer’s report and data were due to the Commission sometime in February 2020.
Claimant was responsible for completing the report with data sheets for the Project.
President reneged on his word to not directly supervise Claimant.
President began demanding that Claimant submit her work within deadlines unlike
he had previously. President also began treating Claimant differently than other
employees - accusing her of doing things that she had not done, restricting her work
hours, and eliminating her employment benefits. By October 21, 2019 email,
President requested that Claimant submit a capture spreadsheet to him by October
24, 2019. President notified Claimant that he needed the data for archival purposes.
Claimant submitted a draft spreadsheet to President, which he claimed was in an
improper format and missing necessary components.
On October 24, 2019, Claimant filed a complaint against Employer
with the Pennsylvania Human Relations Commission (PHRC). President later
informed Claimant via email that the Project report and data had to be completed by
November 15, 2019, or she would suffer disciplinary consequences. Claimant
emailed President on November 13, 2019, declaring that she felt his actions were in
retaliation for the legal action she had taken against him. After Claimant did not
submit the Project report to President by the November 15, 2019 deadline, President
issued Claimant a final warning and instructed Claimant to provide the report by
November 18, 2019, at 3:00 p.m. Claimant timely submitted a draft report, which
President considered incomplete. President had also requested, on several
occasions, that Claimant return the bat detectors to Employer that Claimant had
borrowed for a personal project during the summer of 2019. Claimant did not timely
return those devices.
On November 19, 2019, Claimant emailed President that she was
stepping down from the Project, and that she would resume the work she had
3
performed prior to the Project. Claimant also warned President not to contact her
because he was not her supervisor. President responded to the email on the following
day, informing Claimant that her employment was terminated effective immediately
because of her refusal to complete her primary job duties. President noted that
Claimant’s refusal to communicate with him concerning work-related matters
constituted insubordination.
Claimant applied for UC benefits. On December 11, 2019, the Indiana
UC Service Center determined that Claimant was eligible for UC benefits under
Section 402(e) of the Law. Employer appealed, and a Referee held a hearing on
February 7, 2020. On March 12, 2020, the Referee reversed the UC Service Center’s
determination. Claimant appealed to the UCBR. On July 10, 2020, the UCBR
affirmed the Referee’s decision. On July 27, 2020, Claimant filed a Request for
Reconsideration and Submission of New Evidence (Request) with the UCBR. On
August 7, 2020, the UCBR denied Claimant’s Request. Claimant appealed to this
Court. Thereafter, the UCBR requested a remand to further develop the record. By
March 18, 2021 Order, this Court granted the UCBR’s remand request.2
The UCBR appointed a Referee to act as a Hearing Officer and
schedule a hearing to allow Claimant to testify regarding her motivation for filing
the PHRC complaint and her retaliation claim. See Reproduced Record (R.R.) at
302a (Remand Memo). On April 29, 2021, the UCBR remanded the matter to the
Hearing Officer to schedule a further hearing and take additional testimony pertinent
to the issues involved. The UCBR directed the Hearing Officer to submit a recording
of such further testimony to the UCBR at the earliest possible date. On August 13,
2021, the Hearing Officer held a hearing. On May 10, 2022, the UCBR reversed the
Referee’s decision and found Claimant was not disqualified under Section 402(e) of
2
Neither the UCBR’s remand request nor this Court’s order are included in the certified
record.
4
the Law because she proved that Employer’s decision to discharge her was
motivated by retaliation for her lodging complaints of sexual harassment against
President. Employer appealed to this Court.3
Employer first argues that the UCBR erred by reversing its prior
decision and the Referee’s decision based upon its creation of a new affirmative
defense, retaliation, to a willful misconduct claim, and in depriving Employer of the
opportunity to rebut the new defense. The UCBR rejoins that it correctly concluded
that, despite evidence of willful misconduct, the substantial motivating factor for
Claimant’s discharge was retaliatory animus for Claimant lodging complaints of
sexual harassment against President. The UCBR further retorts that the case law is
clear that the UCBR must address retaliation claims. The UCBR maintains that
Employer was provided specific notice via the UCBR’s Remand Memo that it would
be considering Claimant’s retaliation claims.
Addressing whether a claimant can be granted UC benefits, despite a
finding of willful misconduct, the Pennsylvania Supreme Court has explained:
Although we look to the reasonable standards of an
employer to determine whether an employee has engaged
in ‘willful misconduct,’ we cannot sanction the [UCBR’s]
acceptance of an employer’s standard which expects
certain conduct from black employees, but not from white
employees. The use of such a standard to determine [UC]
benefits constitutes state action based on the racially
discriminating policies of an employer. This is
prohibited.
3
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
5
Woodson v. Unemployment Comp. Bd. of Rev., 336 A.2d 867, 869 (Pa. 1975)
(emphasis added).
Thereafter, this Court in Geisinger Health Plan v. Unemployment
Compensation Board of Review, 964 A.2d 970 (Pa. Cmwlth. 2009), expounded:
Disparate treatment is an affirmative defense by which
a claimant who has engaged in willful misconduct may
still receive [UC] benefits if [she] 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. 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.
Id. at 974 (emphasis added; citations omitted).
As the UCBR described, the corollary of Woodson and Geisinger is that
(1) the UCBR must be conscientious of the motivation for an employer’s decision
to discharge an employee, and (2) claimants have an affirmative defense when the
employer’s motivation is based on unlawful criterion. Accordingly, precedential
case law provides for affirmative defenses, such as retaliation, to willful misconduct
claims.
This Court recognizes that Claimant is not alleging disparate treatment
herein but, rather, retaliation; thus, the Geisinger factors do not apply. However,
regarding retaliation, this Court has held:
In order to prove a prima facie case of retaliation, a
complainant must show that: 1) [she] was engaged in a
protected activity; 2) [her] employer was aware of the
protected activity; 3) subsequent to participation in the
protected activity, [she] was subjected to an adverse
employment action; and[] 4) there is a causal connection
between [her] participation in the protected activity and
the adverse employment action. Spanish Council of York
v. Pa. Hum[.] Rel[s.] Comm’n, 879 A.2d 391, 399 (Pa.
6
Cmwlth. 2005). Upon showing a prima facie case, the
burden then shifts to the employer to articulate a
legitimate, non-discriminatory reason for its action. Id.(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792. . . (1973)). Finally, the burden shifts back to the
complainant to show that the employer’s proffered reasons
are pretextual. Id.Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 367 (Pa. Cmwlth. 2005).
Employer argues it was not prepared to meet its shifting burden on
remand because it had no notice that it would have to defend itself against a
retaliation claim. The UCBR rejoins that the necessary notice was supplied by the
UCBR’s Remand Memo, which specified:
Please schedule another hearing in the above matter. The
purpose of this hearing is to allow [] [C]laimant to
testify to her motivation for filing a complaint to the
[PHRC] and to her claim of retaliation.
[] [E]mployer will have the opportunity to cross-examine
[] [C]laimant’s additional testimony and/or offer
testimony in rebuttal. The [UCBR] will render a decision
based upon all the evidence in the record.
The Referee should try to limit the introduction of
repetitious or irrelevant matters.
R.R. at 302a (emphasis added). However, the Remand Memo was an internal memo
sent “From: Legal Department [UCBR]” “To: Referee.” Id.The record reflects that the Referee sent the parties the following order:
AND NOW, April 29, 2021, an appeal having been filed
with the Commonwealth Court from the decision of the
[UCBR] dated[] July 10, 2020, and the case having been
remanded to the [UCBR] by the Commonwealth Court for
further consideration and appropriate action, said case is
remanded to [the] Referee . . . as a Hearing Officer for the
[UCBR], for the purpose of scheduling a further
hearing and taking additional testimony pertinent to
the issues involved. The Referee shall submit a recording
7
of such further testimony to the [UCBR] at the earliest
possible date.
R.R. at 345a (emphasis added). Thus, the Referee did not expressly notify Employer
that retaliation would be considered at the remand hearing.
This Court addressed an analogous scenario in Brett v. Unemployment
Compensation Board of Review (Pa. Cmwlth. No. 1666 C.D. 2012, filed Apr. 4,
2013),4 wherein the UC Service Center determined that the claimant had committed
willful misconduct by falsifying his time cards. The Referee and the UCBR affirmed
that determination. The claimant appealed to this Court arguing, inter alia, that the
UCBR erred by not addressing whether his discharge was in retaliation for his use
of leave pursuant to the Family and Medical Leave Act (FMLA).5 This Court held:
“Even if the findings of fact [which] establish that [the c]laimant committed willful
misconduct are supported by substantial evidence, [the c]laimant is correct that the
[UCBR] failed to address whether his termination was in retaliation for his use of
leave pursuant to the FMLA.” Brett, slip op. at 4.
The Brett Court ruled:
[T]he [o]rder of the [UCBR] must be vacated and this
matter remanded for the [UCBR] to make findings and
conclusions, on this record, whether [the c]laimant is
eligible for [UC] benefits under the Law in light of his
contention that he was discharged in retaliation for
utilizing leave pursuant to the provisions of the FMLA.
Brett, slip op. at 4. Similarly, here, because Employer had no notice that the Referee
would consider Claimant’s retaliation claim on remand, this Court must vacate the
UCBR’s order and again remand the matter to the UCBR to hold an evidentiary
hearing on the issue of “whether Claimant is eligible for [UC] benefits under the
4
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a). Brett is cited herein for its persuasive authority.
5
29 U.S.C. §§2601-2654.
8
Law in light of [her] contention that [she] was discharged in retaliation for [Claimant
lodging complaints of sexual harassment against President].”6 Id.For all of the above reasons, the UCBR’s order is vacated, and the
matter is remanded to the UCBR for further proceedings consistent with this
Opinion.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
Judge Dumas and Judge Wallace dissent.
6
Given this Court’s disposition of the first issue, this Court does not reach Employer’s
remaining issues.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bat Conservation and :
Management, Inc., :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 559 C.D. 2022
Respondent :
ORDER
AND NOW, this 8th day of September, 2023, the Unemployment
Compensation Board of Review’s (UCBR) May 10, 2022 order is VACATED. The
matter is REMANDED to the UCBR for further proceedings consistent with this
Opinion.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge