M.J. Woodring v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Markus J. Woodring, :

Petitioner :

:

v. : No. 218 C.D. 2019

: Submitted: June 24, 2022

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION

BY JUDGE DUMAS FILED: October 4, 2022

Marcus J. Woodring (Claimant) has petitioned this Court to review the

adjudication of the Unemployment Compensation Board of Review (Board), which

affirmed a Referee’s decision that Claimant was ineligible for unemployment

compensation benefits under Section 402(e) of the Unemployment Compensation

Law (Law) relating to willful misconduct.1 Upon review, we affirm.

I. BACKGROUND2

Claimant worked full time as an information technology (IT) hardware

technician for the House of Representatives Republican Caucus (Employer) from

December 21, 2005, to March 2, 2018. As such, Claimant was subject to Employer’s

email policy, which requires employees to use its email system with common sense,

1

Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936,

Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e) (providing that an employee

shall be ineligible for compensation when his separation from employment is due to willful

misconduct connected with his work).

2

Except as stated otherwise, we adopt this background from the Board’s Decision and

Order, 2/1/19, which is supported by substantial evidence of record.

common decency, and civility, and which prohibits the transmission of any message

for the purpose of intimidating, harassing, or abusing others, or which is offensive

or defamatory in nature.

On February 22, 2018, Claimant sent an email to a fellow employee,

stating, “Did you hear Ashley is going to be the next HR Director? Once again, they

don’t follow any of their rules. Just giving jobs away again. If I were you, I’d be

pissed with your qualifications. I’m curious if she is even qualified for the job.”

Notes of Testimony (N.T.) from Referee’s Hr’g, 4/24/18, Ex. E-1. Thereafter,

Employer terminated Claimant for violation of its email policy.

Claimant applied for, but was denied, unemployment compensation

benefits under Section 402(e) of the Law. Claimant appealed to a Referee, who

denied Claimant’s appeal following a hearing.3 Claimant then appealed to the

Board, which affirmed. Claimant now appeals to this Court.

II. ISSUES

Claimant asserts that Employer failed to prove that Claimant committed

willful misconduct. According to Claimant, because Employer was absent from the

hearing, Employer could not sustain its burden of proof or authenticate its

documentary evidence. See Claimant’s Second Am. Br. at 19-20. Further, Claimant

suggests, his email and other correspondence constitute speech protected by the First

Amendment.4 See id. at 20-22. For these reasons, Claimant concludes, this Court

should reverse the Board’s decision and find that Claimant is eligible for benefits.

Id. at 23.

3

At the hearing, held April 24, 2018, Claimant appeared and testified; Employer did not

appear at the hearing but was represented by counsel.

4

U.S. CONST. amend. I.

2

For its part, Employer rejects these arguments.5 According to

Employer, its counsel was present at the hearing and elicited from Claimant all facts

necessary to establish that he is ineligible for benefits under Section 402(e) of the

Law. Intervenor’s Br. at 13. Further, according to Employer, Claimant has waived

any argument that his conduct was constitutionally protected. Intervenor’s Br. at

13-14. In the alternative, Employer suggests that Claimant’s email related to internal

matters outside of the public interest and, therefore, was not constitutionally

protected. Id. at 14-16.

III. DISCUSSION

This Court’s review is “limited to determining whether the necessary

findings of fact were supported by substantial evidence, whether errors of law were

committed, or whether constitutional rights were violated.” Johns v. Unemployment

Comp. Bd. of Rev., 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014). It is well settled

that, in unemployment compensation cases, the Board is the ultimate fact-finder and

its findings are conclusive on appeal, provided there is substantial evidence to

support them. Cambria Cnty. Transit Auth. (“CamTran”) v. Unemployment Comp.

Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019). Substantial evidence is such

relevant evidence that a reasonable mind might accept as adequate to support a

conclusion. Scott v. Unemployment Comp. Bd. of Rev., 36 A.3d 643, 647 n.4 (Pa.

Cmwlth. 2012).

A. Employer Proved Claimant’s Willful Misconduct

Claimant asserts that Employer did not meet its burden of proving that

Claimant committed willful misconduct because Employer failed to appear at the

evidentiary hearing. This claim is without merit.

5

Employer intervened as of right pursuant to Pa.R.A.P. 1531(a).

3

Section 402(e) of the Law provides that an employee shall be ineligible

for unemployment compensation benefits for any week “in which his unemployment

is due to his discharge or temporary suspension from work for willful misconduct

connected to his work[.]” 43 P.S. § 802(e). It is well established that “[w]hether

conduct rises to the level of willful misconduct is a question of law to be determined

by this Court.” Brown v. Unemployment Comp. Bd. of Rev., 49 A.3d 933, 937 (Pa.

Cmwlth. 2012).

Although undefined in the Law, our courts have defined “willful

misconduct” to mean (1) “an act of wanton or willful disregard of the employer’s

interest,” (2) “a deliberate violation of the employer’s rules,” (3) “a disregard for

standards of behavior which the employer has a right to expect of an employee,” or

(4) “negligence indicating an intentional disregard of the employer’s interest or of

the employee’s duties and obligations to the employer.” Scott v. Unemployment

Comp. Bd. of Rev., 105 A.3d 839, 844 (Pa. Cmwlth. 2014). The initial burden rests

with the employer to prove willful misconduct on the part of the employee. Adams

v. Unemployment Comp. Bd. of Rev., 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012).

An employer, seeking to prove willful misconduct based on the

violation of its policies, must prove the existence of the policy, its reasonableness,

and the fact of its violation. Halloran v. Unemployment Comp. Bd. of Rev., 188 A.3d

592, 597 (Pa. Cmwlth. 2018). Upon doing so, the burden of proof shifts to the

employee to prove that he had good cause for his actions. Id. The employee can

establish good cause where his actions are “justified or reasonable under the

circumstances.” Chapman v. Unemployment Comp. Bd. of Rev., 20 A.3d 603, 607

(Pa. Cmwlth. 2011).

4

Finally, an employer’s burden of proof may be carried, in whole or in

part, by the claimant’s own testimony. Walker v. Unemployment Comp. Bd. of Rev.,

202 A.3d 896, 902-03 (Pa. Cmwlth. 2019) (accepting claimant’s testimony as

corroboration of employer’s hearsay evidence); Moore v. Unemployment Comp. Bd.

of Rev., 578 A.2d 606, 608-09 (Pa. Cmwlth. 1990) (noting that “[e]ven where an

employer fails to appear [and has] the burden of proving willful misconduct, benefits

may be denied if the employee seeking benefits proves the employer’s case”).

At the hearing in this matter, Claimant acknowledged the existence of

the policy and that he was aware of it. See N.T. at 15-16. Claimant also admitted

that he sent the email disparaging the newly hired HR Director and accusing

Employer of not following its rules. Id. at 22. Finally, the letter from Employer

terminating Claimant’s employment, which advised Claimant that he was terminated

for violating Employer’s email policy, was admitted into evidence without objection.

See id. at 3.6

Based on this substantial evidence, the Board properly found that

Claimant had committed willful misconduct and, therefore, was ineligible for

unemployment benefits under Section 402(e) of the Law. 43 P.S. § 802(e);

Halloran, 188 A.3d at 597; see also Cambria Cnty. Transit Auth., 201 A.3d at 947.

Thus, although Employer was not present, Claimant’s testimony, along with the

documentary evidence submitted by the parties, carried Employer’s burden of

establishing willful misconduct. See Walker, 202 A.3d at 902-03; Moore, 578 A.2d

at 608-09.

6

Claimant introduced no evidence to prove good cause for his violation of Employer’s

email policy, suggesting rather that his termination was in retaliation for alleged whistleblower

complaints made in 2015 and 2016. See N.T. at 15-17. The Board did not find merit in this

allegation. See Bd.’s Decision & Order at 2 (unpaginated).

5

B. Claimant’s Constitutional Arguments are Without Merit

Claimant also asserts that his conduct is protected under the First

Amendment. In perfunctory remarks, Claimant asserts that “it should be clear that

[Claimant’s] emails and postings were speech coming from a citizen on a matter of

public concern.” Id. at 22.7 In response, Employer contends that Claimant has

waived this issue on appeal and, alternatively, that this claim is without merit

because the content of Claimant’s email does not constitute speech of public

concern.

We decline to find this issue waived. Pennsylvania Rule of Appellate

Procedure 1513(d) provides that a petition for review shall contain “a general

statement of the objections to the order or other determination, but the omission of

an issue from the statement shall not be the basis for a finding of waiver if the court

is able to address the issue based on the certified record.” Pa.R.A.P. 1513(d)

(emphasis added). Although Claimant omitted from his petition for review any

specific objection to the Board’s adjudication on the ground that his conduct was

protected under the First Amendment, Claimant made such assertions to the Board,

and there is sufficient evidence of record to inform our analysis. See Claimant’s Pet.

for Appeal from Referee’s Decision/Order, 5/8/18, Ex. (Notice of Appeal, ¶ 3); see

generally N.T.

Nevertheless, we agree with Employer that this claim lacks merit. “The

denial of unemployment compensation benefits cannot be based on an individual’s

7

Principally, in support of his claim, Claimant suggests that this Court consider his ongoing

pursuit of relief in federal court. See Claimant’s Second Am. Br. at 20-21. Apparently, Claimant’s

federal complaint has survived a recent motion to dismiss. See id. Claimant offers little context.

Considering the scant details and mindful that Claimant’s federal claims appear to be in the early

pleadings stage of litigation, we conclude that his federal claims are irrelevant to whether he is

eligible for unemployment compensation.

6

exercise of First Amendment rights absent a compelling State interest.” McCall v.

Unemployment Comp. Bd. of Rev., 717 A.2d 623, 625 (Pa. Cmwlth. 1998). The first

step in any constitutional inquiry is to determine whether the employee engaged in

protected speech activity, i.e., whether the speech addressed a matter of public

concern. Connick v. Myers, 461 U.S. 138, 147 (1983); Frigm v. Unemployment

Comp. Bd. of Rev., 642 A.2d 629, 633 (Pa. Cmwlth. 1994); Bala v. Unemployment

Comp. Bd. of Rev., 400 A.2d 1359, 1364 (Pa. Cmwlth. 1979).

Speech implicates a matter of public concern if it can be “fairly

considered as relating to any matter of political, social, or other concern to the

community.” Connick, 461 U.S. at 146 (noting, e.g., that statements concerning a

school district’s allegedly racially discriminatory policies involved a matter of public

concern). However, “speech that relates solely to mundane employment grievances

does not implicate a matter of public concern.” Munroe v. Cent. Bucks Sch. Dist.,

805 F.3d 454, 467 (3d Cir. 2015); see, e.g., Sanguigni v. Pittsburgh Bd. of Pub.

Educ., 968 F.2d 393, 399 (3d Cir. 1992) (finding no public concern in statements

focused on employee morale).8

The United States Supreme Court’s decision in Connick is instructive.

In that case, an assistant district attorney, Ms. Sheila Myers, became disgruntled

upon learning of her pending transfer to another section of the criminal court.

Connick, 461 U.S. at 140-41. In response, she prepared and distributed a

questionnaire soliciting the views of her colleagues on various employment matters,

including “office transfer policy, office morale, the need for a grievance committee,

the level of confidence in supervisors, and whether employees felt pressured to work

8

Although decisions by federal district courts and courts of appeals are generally not

binding on this Court, they may have persuasive value. O’Toole v. Pa. Dep’t of Corr., 196 A.3d

260, 271 n.15 (Pa. Cmwlth. 2018).

7

in political campaigns.” Id. at 141. The district attorney terminated Ms. Myers for

insubordination, and she commenced litigation, alleging wrongful termination

because she had exercised her constitutionally protected right of free speech. Id.

Although Ms. Myers was initially granted relief, ultimately the

Supreme Court determined that, with but one exception,9 the questionnaire provided

no information of public interest but merely embodied “an employee grievance

concerning internal office policy.” Id. at 154. According to the Court, the limited

First Amendment interest did not require the district attorney to “tolerate action

which he reasonably believed would disrupt the office, undermine his authority, and

destroy close working relationships.” Id. Thus, her discharge did not offend the

First Amendment. Id.

In this case, Claimant was critical of Employer’s management and

expressed his disagreement with the recent promotion of a colleague. These are not

matters of public concern or interest but rather reflect Claimant’s mundane

employment grievances. Thus, Claimant’s email is not protected speech. See id.

For these reasons, we discern no legal error in the Board’s decision.

Accordingly, we affirm.

LORI A. DUMAS, Judge

Judge Wallace did not participate in the decision in this case.

9

The Court recognized that “whether assistant district attorneys are pressured to work in

political campaigns is a matter of interest to the community[.]” Connick, 461 U.S. at 149.

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Markus J. Woodring, :

Petitioner :

:

v. : No. 218 C.D. 2019

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 4th day of October, 2022, the Order of the

Unemployment Compensation Board of Review, dated February 1, 2019, in the

above-captioned matter is AFFIRMED.

LORI A. DUMAS, Judge