noting that this Court is bound by the Board’s findings where those findings are supported by substantial evidence
How later courts described this case
- noting that this Court is bound by the Board’s findings where those findings are supported by substantial evidence
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Waverly Heights, Ltd., :
:
Petitioner :
:
v. : No. 312 C.D. 2017
: Argued: October 17, 2017
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION
BY JUDGE WOJCIK FILED: November 13, 2017
Waverly Heights, Ltd. (Employer) petitions for review from a final
order of the Unemployment Compensation Board of Review (Board), which
reversed a decision of a referee and granted unemployment compensation (UC)
benefits to Kathleen M. Jungclaus (Claimant) upon determining Claimant was not
ineligible for UC benefits under Section 402(e) of the Unemployment Compensation
Law (Law)1 for willful misconduct based on a tweet she sent regarding the 2016
Presidential Election. Upon review, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
I. Background
Employer, a continuing care retirement community, employed
Claimant as its full-time Vice President of Human Resources from April 1997 until
her discharge on September 27, 2016. Employer discharged Claimant for a tweet
posted on her personal Twitter page on July 24, 2016, which read:
@realDonaldTrump I am the VP of HR in a comp outside
of philly an informal survey of our employees shows
100% AA employees voting Trump!
After her separation from employment, Claimant applied for UC
benefits, which a local service center granted. Employer appealed, and a referee
held a hearing, at which both parties testified.
At the hearing, Employer, who was represented by counsel, presented
two witnesses. Claimant, who was unrepresented by counsel, testified on her own
behalf. Based on the testimony and other evidence presented, the referee determined
Claimant’s behavior violated Employer’s policy and fell below the standards of
behavior Employer had the right to expect. Thus, the referee concluded Claimant
was ineligible for UC benefits under Section 402(e) of the Law for willful
misconduct. Claimant appealed.
On appeal, the Board reversed. Based on the record created by the
referee, the Board made the following findings. Employer maintains a Social Media
Policy, which provides, in relevant part:
[Employer] has an interest in promoting and protecting its
reputation[,] as well as the dignity, respect, and
confidentiality of its residents, clients, and employees as
depicted in social medial, whether through [Employer’s]
own postings or that of others. Towards that end,
[Employer] will actively manage the content of its social
media sites to uphold the mission and values of the
2
company. Also, [Employer] expects employees who
identify themselves with [Employer] in either internal or
external social media to conduct themselves according to
this policy.
Board Op., 2/21/17, Finding of Fact (F.F.) No. 2. Claimant knew of Employer’s
Social Media Policy. F.F. No. 3. On July 24, 2016, Claimant posted on her Twitter
page: “@realDonaldTrump I am the VP of HR in a comp outside of philly an
informal survey of our employees shows 100% AA employees voting Trump!” F.F.
No. 4. In September 2016, Employer became aware of the post and conducted an
investigation. F.F. Nos. 5, 6. Upon completion of its investigation, Employer
discharged Claimant for allegedly violating its Social Media Policy by posting the
tweet. F.F. No. 7.
Although Claimant claimed her husband posted the tweet, the Board
rejected this testimony as not credible and found that Claimant herself posted the
tweet. Board Op. at 2-3; F.F. No. 4. Notwithstanding, the Board found that the
tweet did not violate Employer’s policy because Claimant did not identify herself
with Employer. Board Op. at 3. Although her Twitter post identifies Claimant as a
vice president of human resources for a company located outside of Philadelphia,
the Board concluded that such a statement is “overly-broad.” Id. The mere fact that
Claimant “follows” Employer’s Twitter account is insufficient to say that she
“identified” herself with Employer. Id. Although an individual, through additional
research efforts, could determine that Claimant worked for Employer, the Board
reasoned that “such is not the standard presented by [E]mployer’s [S]ocial [M]edia
[P]olicy.” Id. Ultimately, the Board concluded that Employer failed to meet its
burden of proving willful misconduct under Section 402(e) of the Law. Thus, the
3
Board reversed the referee’s decision and awarded UC benefits to Claimant.
Employer then petitioned this Court for review.2
II. Issues
Employer contends that the Board erred by determining that Claimant’s
“racially charged” social media post, and related conduct, did not violate Employer’s
policies and procedures. In addition, it claims that the Board erred by failing to find
that Claimant’s “racially charged” social media post, and related conduct,
demonstrated wanton and willful disregard for Employer’s interests or defied the
standards of behavior that Employer could reasonably expect from its Vice President
of Human Resources.
III. Discussion
First, Employer contends that the Board erred in concluding that
Employer did not meet its burden of proving that Claimant’s conduct violated its
Social Media Policy. According to Employer, Claimant readily identified herself
with Employer. Claimant identified herself as a vice president of human resources
of a company located outside of Philadelphia. Claimant follows Employer’s Twitter
feed. A Google search of Claimant’s name or Employer’s directory would quickly
link the two together. In addition, Employer asserts that the Board erred by focusing
solely on its Social Media Policy and ignoring other provisions of its
2
Our review is limited to determining whether 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 (Pa.
Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014).
4
Communications Policy, which it argues Claimant clearly violated by linking to
Employer’s website.
We begin by noting that “[t]he [Board], not the referee, is the ultimate
fact finding body and arbiter of credibility in [UC] cases.” Deal v. Unemployment
Compensation Board of Review, 878 A.2d 131, 133 n. 2 (Pa. Cmwlth. 2005).
“Questions of credibility and the resolution of evidentiary conflicts are within the
discretion of the [Board] and are not subject to re-evaluation on judicial review.”
Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 n. 4 (Pa.
Cmwlth. 2007). “[T]he Board . . . may reject even uncontradicted testimony if it is
deemed not credible or worthy of belief.” Stockdill v. Unemployment Compensation
Board of Review, 368 A.2d 1341, 1343 (Pa. Cmwlth. 1977). We are bound by the
Board’s findings so long as there is substantial evidence in the record, taken as a
whole, supporting those findings. Guthrie v. Unemployment Compensation Board
of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
Section 402(e) of the Law provides that an employee will be ineligible
for UC benefits for any week in which her “unemployment is due to [her] discharge
or temporary suspension for willful misconduct.” 43 P.S. §802(e). “Whether
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 employer bears “the burden of proving that it discharged an
employee for willful misconduct.” Adams v. Unemployment Compensation Board
of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). This Court has defined willful
misconduct as:
(1) wanton and willful disregard of an employer's
interests; (2) deliberate violation of rules; (3)
5
disregard of the standards of behavior which an
employer can rightfully expect from an employee; or,
(4) negligence showing an intentional disregard of the
employer’s interests or the employee’s duties and
obligations.
Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 (Pa.
Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014).
Where an employer seeks to deny UC benefits based on a work-rule
violation, the employer must prove the existence of a work rule, the reasonableness
of the rule and the employee's violation of the rule. Maskerines v. Unemployment
Compensation Board of Review, 13 A.3d 553, 557 (Pa. Cmwlth. 2011). If the
employer meets its burden, the burden then shifts to the claimant to demonstrate
good cause for her actions. Johns, 87 A.3d at 1010.
Here, Employer terminated Claimant for violating its Social Media
Policy because she represented herself as Employer’s Vice President. Reproduced
Record (R.R.) at 41a. Employer’s policy provides, in pertinent part: “Employer
expects employees who identify themselves with Employer in either internal or
external social media to conduct themselves according to this policy.” F.F. No. 2;
R.R. at 55a. Claimant was aware of this policy. F.F. No. 3; Referee’s Hearing,
11/28/16, Notes of Testimony (N.T.) at 11; R.R. at 39a. However, as the Board
found, Claimant did not identify herself with Employer on her personal Twitter
account. Board Op., at 3. Claimant merely identified herself as a vice president of
human resources of an unnamed company located outside of Philadelphia. F.F. No.
4; R.R. at 80a. Although Claimant “follows” Employer’s Twitter account, which
means she can view any posts posted by Employer, Claimant’s Twitter account is
not “linked” to Employer’s Twitter page or website. N.T. at 9; 22. Her personal
Twitter feed did not represent the Employer. While one could investigate Claimant
6
and ultimately determine the identity of her Employer in the process, the Board
reasoned such is not the standard presented by Employer’s Social Media Policy.
Board Op., at 3; see N.T. at 17. Employer’s policy clearly pertained to “employees
who identify themselves with Employer.” Because Claimant did not identify
Employer in her tweet or otherwise hold herself out as a representative of Employer
on her personal Twitter page, the policy did not apply. Thus, the Board did not err
in concluding that Claimant did not violate Employer’s Social Media Policy.
Insofar as Employer now asserts that Claimant violated other
provisions of its Communications Policy, Employer did not identify a violation of
the Communications Policy as grounds for dismissal. See R.R. at 41a-51a.
Employer referred expressly and only to its Social Media Policy in its separation
information. See R.R. at 41a, 43a, 45a, 46a, 49a. Although Employer also submitted
its Communication Policy into evidence, R.R. at 58a-65a, Employer did not assert a
violation of its Communication Policy at the referee’s hearing. See N.T. at 6, 15-16,
27. Thus, Employer waived the issue. See Wing v. Unemployment Compensation
Board of Review, 436 A.2d 179, 180-81 (Pa. 1981) (issues not raised during a UC
proceeding are waived).
Notwithstanding waiver of this issue, Employer failed to prove that
Claimant violated its Communications Policy, which provides that employees may
not “link from a personal blog or social networking site to [Employer’s] internal or
external website.” R.R. at 63a. The Board’s finding that Claimant merely “follows”
Employer’s Twitter account is supported by the evidence. Board Op. at 3; see R.R.
at 22a, 29a; see R.R. at 77a. Employer did not prove that Claimant had a “link” to
Employer’s website on her social media page. Consequently, Employer would not
prevail on this claim.
7
Next, Employer asserts that the Board erred by not finding that
Claimant’s “racially charged” social media post, and related conduct, demonstrated
wanton and willful disregard for Employer’s interests or defied the standards of
behavior that Employer could reasonably expect from its Vice President of Human
Resources. According to Employer, the tweet confirms that she acted
inappropriately at the workplace by conducting an informal survey, in which she
“singled out African-American staff and asked them their political preferences.”
Petitioner’s Brief at 13. “Claimant, by her own admission, . . . targeted African-
American employees and inquired about their political preferences. ([R.R. at] 25a;
80a).” Petitioner’s Brief at 21. Employer asserts that Claimant’s tweet created a
question of whether she could effectively perform her job duties without regard to
race and exposed Employer to the possibility of litigation by former employees and
those who incurred adverse employment consequences. Employer argues that the
Board erred by focusing exclusively on whether Claimant violated Employer’s
Social Media Policy and not on these other grounds for willful misconduct.
In a UC proceeding, we do not question an employer’s decision to
terminate an at-will employee. See Conlon v. Retirement Board of Allegheny
County, 715 A.2d 528, 529 n.2 (Pa. Cmwlth. 1998) (Pennsylvania is an at-will
employment state and, where there is not a contract, an employer may discharge an
at-will employee “at any time, for any reason or for no reason.”). The issue of
whether an employer can rightfully discharge an employee is separate from, and not
relevant to, the issue of whether a claimant is eligible for UC benefits. Port Authority
of Allegheny County v. Unemployment Compensation Board of Review, 955 A.2d
1070, 1075-76 (Pa. Cmwlth. 2008).
8
Here, although the referee found that Claimant’s conduct fell below the
standards of behavior Employer had the right to expect, the Board, as the ultimate
finder of fact, made no such finding. See F.F. No. 6. Upon review, we conclude
that the Board did not err in this regard. First, the record does not support
Employer’s assumption that “AA” stands for “African American.” Contrary to
Employer’s assertions, Claimant never admitted to this. See R.R. at 25a, 80a. The
certified record contains an exhibit3 listing various meanings for the acronym “AA,”
the first of which is “Alcoholics Anonymous,” followed by “African Americans.”
R.R. at 67a. Claimant testified it stood for “Administrative Assistants.” N.T. at 24.
Notwithstanding, even assuming that AA stands for “African
American,” the tweet did not “single out” “African-American” staff regarding their
political preferences as alleged by Employer. Rather, the tweet itself refers to “an
informal survey of our employees,” not just African-American employees. R.R. at
78a (emphasis added). Employer’s witness testified that Claimant asked “employees
who they were voting for,” not just African Americans. R.R. at 25a (emphasis
added).
Insofar as Employer contends that the act of taking an informal survey
of political preferences during work defied Employer’s standards, Employer offered
no proof, beyond the tweet itself, that she actually took a survey or poll of political
preferences or that she did so during company time. In fact, Employer’s witness
testified that Claimant merely shared a conversation with her regarding political
preferences, but “it wasn’t necessarily that she told me she was conducting any polls,
it was just a conversation that she had shared.” R.R. at 25a. Mere discussions about
3
Both Claimant and Employer deny that they offered this exhibit and suggested it was
submitted by the UC service center. N.T. at 26-27.
9
current affairs, such as an upcoming Presidential Election, do not rise to a level of
disqualifying willful misconduct.
Upon review, we conclude that the Board did not err in determining
Employer did not meet its burden of proving disqualifying misconduct under Section
402(e) of the Law. Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Waverly Heights, Ltd., :
:
Petitioner :
:
v. : No. 312 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 13th day of November, 2017, the order of the
Unemployment Compensation Board of Review, dated February 21, 2017, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge