M. Reices v. UCBR

M
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marysol Reices,                                 :
                             Petitioner         :
                                                :
                      v.                        :   No. 762 C.D. 2020
                                                :   Argued: April 12, 2021
Unemployment Compensation Board                 :
of Review,                                      :
                    Respondent                  :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
              HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: May 14, 2021


       Marysol Reices (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) dated July 10, 2020,
which affirmed a Referee’s Decision finding Claimant ineligible to receive UC
benefits pursuant to Section 402(e) of the UC Law (Law).1 On appeal, Claimant
argues:     (1) the Board capriciously disregarded evidence that Accessing
Independence (Employer) terminated Claimant because her felony conviction
required Employer to do so based on the Older Adults Protective Services Act



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e) (setting forth that a claimant is ineligible to receive UC benefits when that claimant’s
“unemployment is due to [] discharge or temporary suspension from work for willful misconduct
connected with [the claimant’s] work . . .”).
(OAPSA);2 (2) Claimant’s failure to immediately report her felony arrest to
Employer in violation of Employer’s policy does not constitute willful misconduct
because Claimant did not deliberately violate Employer’s policy; (3) the remoteness
doctrine bars an ineligibility determination in this case; and (4) Employer acted
unreasonably by not exercising discretion and imposing discipline other than
discharge against Claimant. Because substantial, competent evidence supported the
Board’s finding that Employer terminated Claimant since she failed to report her
felony arrest immediately and thus violated Employer’s policy, the Board did not
capriciously disregard evidence about whether Employer terminated Claimant
because of OAPSA. Moreover, the evidence of record does not support Claimant’s
contention that she did not immediately report her arrest due to mental illness and,
therefore, did not deliberately violate Employer’s policy. Also, we cannot say that,
after learning that Claimant had been arrested, Employer substantially delayed
terminating her such that the remoteness doctrine applies. Last, Employer was under
no obligation to impose discipline less severe than discharge. Accordingly, we
affirm the Board’s Order.

   I.         Factual Background and Procedure
        Claimant worked as a full-time direct care worker for Employer from October
2017 until she was discharged from that position on February 17, 2020. Thereafter,
Claimant filed for UC benefits. UC authorities requested information from both
Claimant and Employer regarding Claimant’s discharge.                     Based upon this
information, the Department of Labor and Industry’s Office of UC Benefits issued
a Notice of Determination finding Claimant ineligible to receive UC benefits
pursuant to Section 402(e) of the Law because Claimant was discharged for willful

        2
            Act of November 6, 1987, P.L. 381, as amended, 35 P.S. §§ 10225.101-10225.5102.


                                                2
misconduct. (Certified Record (C.R.) at 49.) Specifically, the Office of UC Benefits
found that Employer discharged Claimant for violating Employer’s rule requiring
“all employees to report any arrest and[/]or convictions to human resources
immediately after they occur,” and “Claimant [did] not show[] good cause for
violating the rule.” (Id.) Claimant timely appealed the Notice of Determination.
      Claimant’s appeal was assigned to a Referee, who conducted a telephone
hearing on May 8, 2020. Claimant and one witness for Employer testified at the
hearing. Claimant testified, in relevant part, as follows. She had read Employer’s
Disciplinary Action Policy in 2017, had been arrested in 2018, and had not reported
that arrest to Employer until January 2020. (C.R. Item 10, Hearing (Hr’g) Transcript
(Tr.) at 23.) She did not report her arrest to Employer because she “was under a deal
of stress . . . [and] forgot to tell [Employer].” (Id. at 18.) On January 20, 2020,
Claimant received an email from a work colleague indicating that Employer had
scheduled her for an “FBI fingerprint.” (Id. at 19.) After receiving that email,
Claimant arranged to meet with her supervisor and, at that meeting, she provided
him with a letter from her probation officer. That letter indicated that, as of January
24, 2020, Claimant was in the Mental Health Court Diversionary Program of
Lancaster County and, after completion of the program, she would have “her Felony
3 Retail Theft charge dismissed and erased from her criminal record.” (C.R. at 152.)
Upon reviewing the letter, Claimant’s supervisor thanked Claimant for “coming
forward and being honest” and asked her not to worry as “[e]verything [would] be
okay.” (Hr’g Tr. at 21.) Employer subsequently asked Claimant to attend a February
17, 2020 meeting, at which Employer’s Human Resources (HR) Coordinator (HR
Coordinator) told Claimant that “because of . . . [Claimant’s] felony [she] [could




                                          3
not] work for[ Employer] any longer.” (Id. at 22.) According to Claimant, she was
terminated based on the OAPSA. (Id. at 12.)
       On direct examination, HR Coordinator testified, in relevant part, as follows.
Claimant was discharged because “she was[ not] hirable anymore with [Employer]
based upon her recent conviction. [Employer] used the [OAPSA] as [] guidance for
[its] hiring practices . . . .” (Id. at 12.) Claimant was terminated because she violated
Rule 223 of Employer’s Corrective Action, Discipline and Documentation policy
(Discipline Policy) by failing to “report her arrest to [Employer.]” (Id.) Around the
time that Claimant submitted to an FBI background check for purposes of a work
assignment, Claimant provided Employer with a letter from the Court of Common
Pleas of Lancaster County indicating that she had been arrested on March 13, 2018.
Claimant was aware of Rule 22 because it was in Employer’s Employee Handbook
(Handbook), and Claimant acknowledged when she was hired that she was familiar
with the Handbook. Rule 22 provides that failure to report an arrest can result in
termination.    Upon receiving information from an employee about an arrest,
Employer considers the overall circumstances. In this instance, because Claimant
was arrested on a felony charge, Employer “[could not] utilize employment at th[e]
time because it [was] [] against [] [Employer’s] hiring standards” as “outlined [in]
the [OAPSA].” (Id. at 13.) At Claimant’s termination meeting, HR Coordinator
explained to Claimant how her “Employee Counseling Discipline Notice” and “FBI
form” “fell within the [OAPSA]” and invited Claimant to apply “for reemployment
because [Claimant’s] hiring standards at that time would have changed.” (Id. at 15.)
       On cross-examination, HR Coordinator testified that Employer has a
progressive employee discipline policy, but if an infraction is severe, “[Employer]

       3
         Employer’s Policy Number 2.08.22 requires an employee to immediately report an arrest
or conviction. Because Claimant refers to that policy as “Rule 22,” we will do the same.


                                              4
can jump through the different realms of corrective discipline.”                 (Id. at 16.)
Employer did not provide Claimant with a formal warning prior to terminating her.
HR Coordinator confirmed her earlier testimony that Employer could not continue
to employ Claimant given its policy that Claimant’s “retail theft charge was a
prohibited offense under the [OAPSA].” (Id. at 18.)
       Following the hearing, the Referee issued a decision finding Claimant
ineligible to receive UC benefits pursuant to Section 402(e) of the Law because
Claimant was discharged for willful misconduct.4 The Referee found that

       Employer’s [Discipline Policy] . . . requires all employe[es] to report
       any arrest(s) and/or convictions to [HR] immediately after they occur.
       If an employee is arrested but does not report it to [HR], it would violate
       this policy and would be grounds for suspension and/or disciplinary
       action up to and including termination.

(Referee’s Decision, Finding of Fact ¶ 2 (emphasis omitted).)                       Claimant
acknowledged receipt of and received training regarding the Discipline Policy
during her orientation. (Id. ¶ 3.) Furthermore, the Referee found that, on March 18,
2018, Claimant was arrested and charged with a felony of the third degree for retail
theft, and she reported the arrest to her supervisor on January 28, 2020. (Id. ¶¶ 4, 5.)
On February 17, 2020, Employer terminated Claimant “for failing to report her
felony arrest immediately.” (Id. ¶ 6.)
       The Referee determined that Employer had a reasonable policy requiring
employees to immediately report being arrested, and “Claimant failed to report her
felony arrest for approximately 21 months.” (Referee’s Decision at 3.) In addition,
the Referee did not find credible Claimant’s assertion that she was stressed and

       4
         The Referee also concluded that Claimant timely appealed her Notice of Determination.
Employer did not appeal that determination to the Board. Therefore, that issue is not currently
before us.


                                              5
forgot to immediately report her arrest. Instead, the Referee found that Claimant
“only reported [her arrest] when [] an FBI criminal background check was
forthcoming which would be disclosed to [] Employer.” (Id.) Moreover, the Referee
concluded that Employer need not have warned Claimant before terminating her
because Rule 22 “provides for up to immediate termination. The Referee did not
consider the [c]onstitutionality of [the OAPSA], as the failure to report the arrest
violated the specific arrest reporting policy.” (Id.) Claimant appealed the Referee’s
Decision to the Board.
         In a decision dated July 10, 2020, the Board adopted and incorporated the
Referee’s findings and conclusions and affirmed the Referee’s Decision denying
benefits pursuant to Section 402(e) of the Law. Claimant then filed the instant
petition for review with this Court.5


   II.       Discussion
         Before analyzing the parties’ specific arguments, we recount the law on
willful misconduct. Section 402(e) of the Law sets forth that a claimant is ineligible
to receive UC benefits when that claimant’s “unemployment is due to [] discharge
or temporary suspension from work for willful misconduct connected with [the
claimant’s] work.” 43 P.S. § 802(e). “Whether or not an employee’s actions amount
to willful misconduct is a question of law subject to review by this Court.” Gordon
Terminal Serv. Co. v. Unemployment Comp. Bd. of Rev., 

211 A.3d 893

, 898 (Pa.
Cmwlth. 2019) (quoting Nolan v. Unemployment Comp. Bd. of Rev., 

425 A.2d 1203

,


         5
          “Our 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).


                                             6
1205 (Pa. Cmwlth. 1981)).           In UC cases, the employer bears the burden of
demonstrating that the claimant’s unemployment is due to willful misconduct.
Walsh v. Unemployment Comp. Bd. of Rev., 

943 A.2d 363

, 368 (Pa. Cmwlth. 2008).
The Law does not define the term “willful misconduct.” However, our Supreme
Court defined that term in Caterpillar, Inc. v. Unemployment Compensation Board
of Review, 

703 A.2d 452

, 456 (Pa. 1997), as “a) wanton or willful disregard for an
employer’s interests; b) deliberate violation of an employer’s rules; c) disregard for
standards of behavior which an employer can rightfully expect of an employee; or
d) negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations.”


       A. Capricious Disregard and Substantial Evidence
       On appeal, Claimant argues that the Board “capriciously disregarded []
Employer’s clear, specific testimony that [] Claimant was discharged because her
conviction was a listed offense in OAPSA and not because [] her failure to
immediately report her arrest [was] a violation of Rule 22.” (Claimant’s Brief (Br.)
at 13.) Claimant cites several statements made by HR Coordinator indicating that
Employer relied on the OAPSA when it decided to discharge Claimant. (Id.)
According to Claimant, this testimony shows that she was actually discharged
because Employer concluded that, under the OAPSA, termination was required
given Claimant’s felony conviction.6 Consequently, Claimant submits that the

       6
           Under Claimant’s theory that she was actually discharged because of Employer’s
improper application of the OAPSA, she argues she did not commit willful misconduct because
her “felony conviction is not work-related and is therefore not connected to her employment.”
(Claimant’s Br. at 25.) In addition, Claimant maintains that Employer misapplied the law by
“basing [Claimant’s] discharge upon [the OAPSA’s] irrebuttable presumption” that Claimant was
unfit to continue in her position because of her felony conviction, as that provision of the OAPSA
was declared unconstitutional in Peake v. Commonwealth, 

132 A.3d 506

(Pa. Cmwlth. 2015). (Id.


                                                7
Board’s finding that Claimant was discharged because she violated Rule 22 is not
based on substantial evidence, as that was not the actual cause of her termination.
(Id. at 23.)
       The Board responds that Employer established that it discharged Claimant
because she violated Rule 22 by failing to report her arrest and, therefore, “the Board
was not required to address Employer’s testimony that it also could not continue to
employ her due to the subsequent felony conviction.”                  (Board’s Br. at 12.)
According to the Board, a claimant, like Claimant in this case, “who has been
discharged for multiple reasons is disqualified from receiving benefits even if only
one of those reasons amounts to willful misconduct.” (Id. (quoting Glenn v.
Unemployment Comp. Bd. of Rev., 

928 A.2d 1169

, 1172 (Pa. Cmwlth. 2007).) The
Board argues that, while Claimant challenges the Board’s finding “that she was
actually terminated for violation of the [OAPSA],” the “record is replete with
substantial, competent evidence to support the Board’s [f]inding that Claimant was
terminated for failing to immediately report an arrest, in violation of Employer’s
policy.” (Id. at 7-8.) That evidence includes the testimony of HR Coordinator that
Employer discharged Claimant for violating Rule 22. (Id.) In addition, the Board
points to the termination notice that Employer provided to Claimant, which states,
inter alia, that “[Claimant] did not initially report [her] arrest when it occurred until
[she] [was] required to do an FBI background check” and Employer terminated
Claimant “for violating [Rule 22] as noted [earlier in the termination notice].” (Id.
at 8-9 (quoting Employee Counseling & Discipline Notice, C.R. at 134).) Moreover,
the Board identifies several of Employer’s responses in a pre-hearing questionnaire,


at 26.) Claimant submits that denying her UC benefits based on Employer’s misapplication of the
OAPSA is “unconstitutional and against public policy” because it “amounts to the State partaking
in the unequal protection of the law.” (Id. at 27.)


                                               8
the UI State Inquiry, which indicate that Claimant was terminated because she
violated Rule 22. (Id. at 10 (citing UI State Inquiry form, C.R. at 37).) According
to the Board, because “substantial[,] competent evidence support[ed] the Board’s
finding” that Claimant was discharged for violating Rule 22, “that finding is binding
on appeal.” (Id. at 11.)
      In reply, Claimant relies on Bertram v. Unemployment Compensation Board
of Review, 

206 A.3d 79

(Pa. Cmwlth. 2019), a case in which this Court held that the
Board capriciously disregarded relevant evidence, arguing that the “Board has
repeated the errors from Bertram in the instant case.” (Claimant’s Reply Br. at 3-
4.) Claimant maintains that the Referee “did not attempt to resolve the conflict in
evidence to determine whether . . . there was a singular ‘actual’ cause of
termination.” (Id. at 4.) Claimant submits that, as in Bertram, “the Board . . . had
an obligation to properly adduce the evidence to reach the question of ‘actual’
causation and [] did not do so[,]” and thus the “Board’s decision should be
overturned[,] and [] [Claimant] should be deemed eligible for benefits.” (Id.)
      A capricious disregard of evidence

      occurs where the fact finder willfully and deliberately disregards
      competent and relevant evidence that one of ordinary intelligence could
      not possibly have avoided in reaching a result. More specifically, a
      capricious disregard of evidence occurs where the fact[]finder has
      refused to resolve conflicts in the evidence, has not made essential
      credibility determinations or has completely ignored overwhelming
      evidence without comment. It is the responsibility of the fact[]finder
      to resolve the conflicts in the testimony and explain why it has accepted,
      or rejected, each piece of relevant evidence.

Bertram, 206 A.3d at 83

(quotation marks and citations omitted). However, “[t]he
express consideration and rejection of [] evidence, by its definition, is not capricious
disregard.” Taliaferro v. Darby Twp. Zoning Hearing Bd., 

873 A.2d 807

, 816 (Pa.


                                           9
Cmwlth. 2005). When examining whether a fact finder capriciously disregarded
evidence, we “may not reweigh the evidence or make credibility determinations.”
Wise v. Unemployment Comp. Bd. of Rev., 

111 A.3d 1256

, 1263 (Pa. Cmwlth. 2015).
      Instantly, Claimant argues that, while the Board found that Employer
terminated Claimant because she violated Rule 22, it only reached that result because
it capriciously disregarded evidence that Employer terminated Claimant because it
concluded, based upon Claimant’s felony conviction that, pursuant to the OAPSA,
it could not continue employing Claimant. However, in making the findings that it
did, the Board need not have “willfully and deliberately disregard[ed] competent and
relevant evidence that one of ordinary intelligence could not possibly have avoided
in reaching a result.” 

Bertram, 206 A.3d at 83

. The evidence of record is clear that
Employer terminated Claimant for two reasons. First, because she violated Rule 22,
and second, because Claimant’s felony conviction was a listed offense in the
OAPSA. Pursuant to Glenn, “a claimant who has been discharged for multiple
reasons is disqualified from receiving benefits even if only one of those reasons
amounts to willful 

misconduct.” 928 A.2d at 1172

.
      In order to reach the result that Employer terminated Claimant for violating
Rule 22, the Board need not have considered any of the evidence regarding how
Employer utilized the OAPSA in its consideration of Claimant’s felony conviction,
as that evidence was irrelevant to the completely separate issue of whether Claimant
violated Employer’s Disciplinary Policy. “It is not capricious to disregard irrelevant
evidence.”     Jarensky-Moranski v. Workers’ Comp. Appeal Bd. (Luzerne
Intermediate Unit 18) (Pa. Cmwlth., No. 2248 C.D. 2008, filed Apr. 30, 2009), slip




                                         10
op. at 6.7 Once the Board determined that the record evidence supported the finding
that Claimant’s actions violated Rule 22, it was not necessary for it to consider
evidence regarding Employer’s application of the OAPSA to Claimant’s felony
conviction. See Saunders v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No.
1045 C.D. 2015, filed Feb. 24, 2016), slip op. at 5 (where there were numerous
reasons for claimant’s discharge, there was no error in the Board’s decision not to
consider “the non-immediate reasons offered by [the e]mployer to support [the
c]laimant’s discharge where those relied upon support[ed] the determination that
[the c]laimant was ineligible for UC benefits”). Therefore, we agree that the Board
“did not capriciously disregard Employer’s testimony regarding [Claimant’s] felony
conviction” as “it was irrelevant.” (Board’s Br. at 4.)8
       We do not accept as persuasive Claimant’s argument that Bertram is factually
analogous to this case such that we should hold, as this Court did in Bertram, that
the Board capriciously disregarded competent and relevant evidence. In Bertram,
the referee found that the claimant was dismissed because he called his sales
manager a “liar” at a meeting on January 23, 2017. 

Bertram, 206 A.3d at 82

. On
appeal, the claimant argued that the Board improperly ignored the testimony of his
co-worker, who testified that the claimant’s sales manager announced claimant’s
discharge on January 20, 2017.

Id. at 83.

This Court stated that the “[r]eferee’s
factual findings are based upon [the claimant’s sales manager’s] testimony, but this
testimony was contradicted by other testimony and by documentary evidence[,]”

       7
          Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an
unreported opinion of this Court, while not binding, may be cited for its persuasive value.
        8
          While the Referee did not discuss at length the evidence that Employer terminated
Claimant based on the OAPSA, he did not disregard it. The Referee stated that he “did not consider
the [c]onstitutionality of [the OAPSA], as the failure to report the arrest violated [Rule 22].”
(Referee’s Decision at 3.)


                                               11
including, inter alia, the testimony of the claimant’s co-worker that the claimant’s
sales manager announced the claimant’s termination three days before the claimant
called his sales manager a “liar.”

Id. at 83-84.

This Court held that there was a
capricious disregard of evidence because the referee did not resolve conflicts
between testimony and made no comment on documentary evidence that conflicted
with the testimonial evidence upon which the referee had based his findings.

Id. at
85.

      Bertram is distinguishable from this case, because unlike here, the Board in
that case ignored conflicting evidence as to why the claimant was discharged. There
was significant testimonial and documentary evidence in Bertram indicating that the
claimant was discharged on January 20, 2017, for unsatisfactory work performance.
If that evidence was true, then the claimant was not discharged, as the Board found,
for calling his sales manager a “liar” three days later. The claimant was discharged
for one reason or the other – he could not have been both discharged on January 20,
2017, for unsatisfactory work performance and discharged on January 23, 2017, for
calling his sales manager a “liar.” Here, in contrast, by finding that Claimant was
terminated for violating Rule 22, the Board did not ignore conflicting evidence. The
evidence that Employer terminated Claimant based on its application of the OAPSA
does not conflict with the evidence that Employer terminated Claimant for violating
Rule 22. Both can be true simultaneously, i.e., that the Board found Employer
terminated Claimant for failing to immediately report her arrest does not mean that
Employer could not also have considered its disciplinary guidelines based on the
OAPSA. Whereas in Bertram there was evidence suggesting that the employer’s
reason for discharging the claimant was pretextual, here there is simply no evidence




                                        12
of record suggesting that Employer’s discharge of Claimant for violating Rule 22
was pretextual. Accordingly, Bertram does not control our decision.
      Claimant does not challenge the evidence regarding the Board’s finding that
Employer discharged Claimant for violating Rule 22, but rather argues that
substantial evidence is lacking because Employer’s misapplication of the OAPSA
was the actual reason Employer terminated Claimant. The Board contends that
substantial evidence – documentary and testimonial – underlie the Board’s finding
that Claimant was discharged for violating Rule 22.
      In UC cases, the Board’s findings of fact must be supported by “[s]ubstantial
evidence[, which] is defined as ‘such relevant evidence which a reasonable mind
would accept as adequate to support a conclusion.’” W. & S. Life Ins. Co. v.
Unemployment Comp. Bd. of Rev., 

913 A.2d 331

, 334 n.2 (Pa. Cmwlth. 2006)
(quoting Guthrie v. Unemployment Comp. Bd. of Rev., 

738 A.2d 518

, 521 (Pa.
Cmwlth. 1999)). “The Board’s findings are conclusive on appeal so long as the
record, when viewed in its entirety, contains substantial evidence to support the
findings.”

Id. This Court is

bound “to examine the testimony in the light most
favorable to the party in whose favor the Board 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. U.S.
Banknote Co. v. Unemployment Comp. Bd. of Rev., 

575 A.2d 673

, 674 (Pa. Cmwlth.
1990) (quoting Taylor v. Unemployment Comp. Bd. of Rev., 

378 A.2d 829

, 831 (Pa.
1977)). Moreover, “even if there is contrary evidence of record, the Board’s findings
of fact are binding upon the Court where supported by substantial evidence.”
Borough of Coaldale v. Unemployment Comp. Bd. of Rev., 

745 A.2d 728

, 731 (Pa.
Cmwlth. 2000).



                                         13
      We agree with the Board that substantial evidence supported the Board’s
finding that Claimant was terminated because she violated Rule 22. In response to
the question of whether, in addition to Employer’s use of the OAPSA “as a
guidance” to terminate Claimant based on her felony conviction, there were other
reasons Claimant was terminated, HR Coordinator answered that “[a]ccording to our
[Discipline Policy] [] [Claimant] did not report her arrest to [Employer], which
occurred on 3/13/18. So, she did not report that she was arrested of a crime to begin
with.” (Hr’g Tr. at 12.) Also, the termination notice that Claimant received from
Employer states, in no uncertain terms, that Claimant was terminated for violating
Rule 22. The termination notice provides in the section titled “Description or Reason
for Action”:

      According to the FBI, on 3/13/2018, you were arrested for retail theft
      []. To date, you have failed to report this arrest and subsequent charge
      to your supervisor and/or [HR] []. In accordance with [Rule 22] . . . [i]f
      an employee is arrested, but does not report it to [HR] [], it would
      violate [Rule 22] and would be grounds for suspension and/or
      disciplinary action up to and including termination . . . . You did not
      initially report your arrest when it occurred until you were required to
      do an FBI background check.

(C.R. at 134.) In addition, the section of the termination notice titled “Action
Plan/Consequences” provides that Claimant was terminated “for violating [Rule 22]
as noted [earlier in the termination notice].” (Id.) Moreover, Employer’s responses
in a pre-hearing questionnaire – UI State Inquiry – support the Board’s finding that
Claimant was discharged for violating Rule 22. Those responses include:

      5. [D]id the violation of the rule require a discharge or suspension[?]

      [Employer’s] policy requires all employees to report any arrest(s)
      and/or convictions to [HR] immediately after they occur. If an
      employee is arrested, but does not report it to HR, it would violate this


                                         14
      policy and would be grounds for suspension and/or disciplin[e] up to
      termination.

      6. [D]id [] [Claimant] provide a reason for violating the rule[?]

      [N]o reason was provided. [] [Claimant] did not report her conviction
      until [Employer] requested an FBI background check . . . .

      7. [W]hat was [] [C]laimant’s reason for violating the rule[?]

      [Claimant] did not disclose that she had [] felony charges while []
      employed [by Employer], until she was asked to have an additional
      clearance[,] . . . [at which time] she then stated the charges would show
      up.

(C.R. at 37.) A reasonable mind would accept this evidence, in its entirety, as
adequate to support the conclusion that Employer terminated Claimant for violating
Rule 22. This finding is thus binding on this Court even though there is additional
evidence in the record suggesting that Employer discharged Claimant based on its
application of the OAPSA. See Borough of 

Coaldale, 745 A.2d at 731

. Having
determined that substantial evidence supports the Board’s finding that Claimant was
terminated for violating Rule 22 and the Board did not capriciously disregard
evidence that Claimant was terminated for a different reason, we need not reach
Claimant’s arguments, (Claimant’s Br. at 25-27), that are premised on our accepting
Claimant’s assertion that she was actually discharged based on Employer’s improper
application of the OAPSA.

      B. Deliberate Violation of Rule 22
      Claimant contends that, assuming, arguendo, that she was discharged for
violating Rule 22, her failure to immediately report her arrest to Employer does not
constitute willful misconduct. Specifically, Claimant maintains that she did not
intentionally or deliberately violate Rule 22 “because she forgot to report [her arrest]


                                          15
because of her mental illness.” (Claimant’s Br. at 30.) Claimant points to a letter
provided by her criminal defense counsel stating that shortly after her arrest, it was
“obvious” that Claimant had mental health issues. (Id. (quoting C.R. at 129).)
Moreover, Claimant explains that, after her felony conviction, she participated in the
Mental Health Court Diversionary Program of Lancaster County, which is a
“specialty court program for offenders diagnosed with a serious mental illness.” (Id.
(internal quotations omitted).) According to Claimant, in order to be eligible for that
program, a defendant’s mental illness must have led to their criminal infraction and
the defendant must have a recent diagnosis of mental illness. Thus, Claimant
submits that the record evidence shows that her serious mental illness caused her to
forget to disclose her arrest to Employer and, therefore, Claimant did not
“intentionally or deliberately fail to comply with [Rule 22].” (Id. at 31.)
      The Board responds that Claimant’s position “lacks merit” because the record
does not contain evidence establishing “a causal connection between any mental
illness Claimant suffered from and her continued violation of [Rule 22].” (Board’s
Br. at 18.) The Board argues that, in order to accept Claimant’s position, “testimony
by a person possessing sufficient skill, knowledge or experience in the field of
mental disorders . . . is necessary” because here it is less than obvious that Claimant
did not disclose her arrest to Employer for 21 months due to a mental illness. (Id. at
18-19 (quoting Brady v. Unemployment Comp. Bd. of Rev., 

539 A.2d 936

, 939 (Pa.
Cmwlth. 1988).)) And, because Claimant’s proof does not include such testimony,
it is insufficient. Specifically, the Board argues

      (1) there is no evidence in the record of what mental illness Claimant
      has, what its symptoms are, and which symptoms Claimant personally
      suffered from, and (2) there is no evidence in the record authored by a
      professional in mental illnesses who can opine on the causality between
      Claimant’s mental illness and its impact on her memory and decision[-


                                          16
      ]making process such that Claimant could be found to have not
      deliberately violated Employer’s policy.

(Board’s Br. at 20 (emphasis in original).) Last, the Board submits that, even if
mental illness prevented Claimant from immediately reporting her arrest, the record
does not contain evidence indicating how a mental illness prevented Claimant from
reporting her arrest for nearly two years.
      “In order to prove willful misconduct by showing a violation of employer
rules or policies, the employer must prove the existence of the rule or policy and that
it was violated.” 

Walsh, 943 A.2d at 369

. It is the employer’s burden to show that
the employee intentionally or deliberately violated the work rule or policy. Chester
Cnty. Charter Sch. v. Unemployment Comp. Bd. of Rev., 

138 A.3d 50

, 54 (Pa.
Cmwlth. 2016). An inadvertent or negligent violation of an employer’s rule may not
constitute willful misconduct.

Id. Moreover, “[q]uestions of

credibility and the
resolution of evidentiary conflicts are within the sound discretion of the Board, and
are not subject to re-evaluation on judicial review.” Serrano v. Unemployment
Comp. Bd. of Rev., 

149 A.3d 435

, 439 (Pa. Cmwlth. 2016) (quoting Peak v.
Unemployment Comp. Bd. of Rev., 

501 A.2d 1383

, 1388 (Pa. 1985)).
      In this case, the Board did not credit Claimant’s testimony that she was
stressed and forgot to immediately report her arrest to Employer. The Board
determined that the “argument lacks merit, as [Claimant] only reported [her felony
arrest] when she [knew] an FBI criminal background check was forthcoming which
would be disclosed to [] Employer.” (Referee’s Decision at 3.) This Court may not
disturb that credibility determination. 

Serrano, 149 A.3d at 439

. Moreover, even if
we would accept as true Claimant’s argument that she did not deliberately violate
Rule 22 “because she forgot to report [her arrest] because of her mental illness[,]”
(Claimant’s Br. at 30), that argument fails to explain why Claimant did not report

                                             17
her arrest for 21 months. Thus, Claimant has not offered a compelling reason why
this Court should overturn the determination of the Board that Claimant deliberately
violated Rule 22.


       C. Remoteness Doctrine
       Claimant contends that the remoteness doctrine precludes the Board from
denying her benefits because Claimant notified Employer that she had been arrested
on January 28, 2020, and Employer did not terminate her until February 17, 2020.
(Claimant’s Br. at 34.) The “almost three weeks” between Claimant notifying
Employer of her arrest and her discharge “establishes that [] Employer did not think
[] Claimant was guilty of misconduct warranting discharge but rather felt compelled
to discharge her because of its mistaken application of [the] OAPSA . . . .” (Id. at
35.)
       The Board responds that the remoteness doctrine is inapplicable because the
time between Employer’s confirmation of Claimant’s arrest and her discharge was
not substantial. Specifically, the Board explains that Employer received the results
of Claimant’s background check on February 6, 2020, which confirmed her March
2018 arrest, and 11 days later Employer terminated Claimant. According to the
Board, a delay of 11 days is not substantial compared to the 25 days that this Court
found was substantial in Tundel v. Unemployment Compensation Board of Review,

404 A.2d 434

, 436 (Pa. Cmwlth. 1979). Also, the Board points out that the
termination notice shows that in order for an employee to be disciplined, her
supervisor and department head, and also HR, must authorize the discipline.
(Board’s Br. at 23.) Thus, there was not unexplained substantial delay.




                                        18
      The remoteness doctrine provides that “[a]n incident of willful misconduct
cannot be so temporally remote from the ultimate dismissal and still be the basis for
a denial of benefits.” 

Tundel, 404 A.2d at 436

. The doctrine prevents an employer
from seeking a denial of benefits based on willful misconduct only “where there is
an unexplained substantial delay between the claimant’s misconduct” and his or her
discharge. Raimondi v. Unemployment Comp. Bd. of Rev., 

863 A.2d 1242

, 1247 (Pa.
Cmwlth. 2004) (emphasis in original). An employer can explain a “substantial
delay” with evidence indicating that it was investigating the employee’s willful
misconduct or undertaking an administrative review process during the time between
learning of the employee’s conduct and termination. Weingard v. Unemployment
Comp. Bd. of Rev., 

26 A.3d 571

, 576 (Pa. Cmwlth. 2011).
      The remoteness doctrine is inapplicable because we cannot say that, under the
standard set forth in Tundel, Employer’s delay in terminating Claimant was
substantial. Twenty days elapsed between Claimant notifying Employer about her
arrest and Employer terminating Claimant. Based on a simple comparison – 20 days
here versus 25 days in Tundel – Employer in this case acted more quickly than the
employer in Tundel, which militates against a finding that Employer’s delay in this
case was substantial. Moreover, there is evidence indicating that, during the 20-day
period, Employer was investigating Claimant’s willful misconduct or undertaking
an administrative review process. 

Weingard, 26 A.3d at 576

. The Board rightly
places importance on Employer’s confirmation of Claimant’s arrest using the FBI
background check, which was completed on February 6, 2020. In Claimant’s
termination notice, (C.R. at 134), Employer specifically mentions the FBI
background check, its date, and the results thereof, which suggests that Employer
was indeed awaiting the results of that investigation before taking disciplinary



                                         19
action. After Employer received the FBI background check results on February 6,
it terminated Claimant 11 days later, a time period we cannot say was substantial.
Moreover, there is record evidence that, before Employer could take a disciplinary
action against an employee, multiple layers of authorization were necessary. The
termination notice includes spaces for the signatures of an employee’s supervisor,
department head, and an HR representative. Here, although each of the signatures
is dated February 17, 2020, we draw the reasonable inference that each of the
individuals that signed the termination notice discussed how to proceed over the
course of the 20 days between the date Claimant notified Employer about her arrest
and the date upon which she was terminated.          Accordingly, though we find
Employer’s delay in terminating Claimant insubstantial under Tundel, even if it
would be considered substantial, it was not unexplained. 

Raimondi, 863 A.2d at
1247

.


        D. Progressive Discipline
        Claimant contends that the Board capriciously disregarded the section of
Employer’s Discipline Policy setting forth the “guidelines for progressive
discipline,” (C.R. at 130-31), which is the “touchstone for a proper and full
evaluation” regarding how Rule 22 is applied, (Claimant’s Br. at 16). Claimant
states that Rule 22 “require[s] [] Employer to exercise discretion on what
disciplinary action it should impose” and the section of the Discipline Policy
providing guidelines for progressive discipline “is the guiding principle that []
Employer has to consider to determine appropriate disciplinary actions.” (Id. at 17.)
Claimant argues that Employer acted unreasonably by not considering the
progressive discipline guidelines when deciding how to discipline Claimant for



                                         20
violating Rule 22, (id. at 18-19), and the Board capriciously disregarded those
guidelines by not considering them at all, (id. at 16).
      Claimant returns to this argument later in her brief, stating that “[t]he language
of Rule 22 [] requires the exercise of discretion [about] which sanction to impose[,]
and the progressive disciplinary policy, [the] underlying policy [of which] is based
upon providing notice and the opportunity to correct behaviors, makes clear that
discharge was unreasonable under the totality of circumstances.”           (Id. at 32.)
Claimant argues that Employer’s decision to terminate Claimant was not “fair, just,
and appropriate[,]” (id. at 33 (quoting 

Caterpillar, 703 A.2d at 456-57

)), and
Employer should have exercised its discretion and applied less severe discipline
using the “roadmap of factors” set forth in 

Peake, 132 A.3d at 521

, (Claimant’s Br.
at 32-33).
      In response, the Board contends that Employer did, in fact, exercise discretion
and points out that, while Peake sets forth factors that an employer can consider
when taking disciplinary action, it does not mandate that employers apply certain
factors; Peake did not “create a ‘roadmap’ employers are required to travel.”
(Board’s Br. at 15.) According to the Board, Peake does not prevent employers from
considering an employee’s criminal history, and the Board notes that Peake stated
that employers “‘should not be required to employ a person with a criminal record.’”
(Id. at 16 (quoting 

Peake, 132 A.3d at 522

)). The Board submits that “Employer set
its policy as to who to employ, or not [to] employ, and it is not the role of the Board
or the Court to become super-employers and override Employer’s policy.” (Id.)
      There is nothing in Employer’s Discipline Policy or in the specific language
of Rule 22 that required Employer, after being notified that Claimant had been
arrested, from imposing discipline other than termination, such as a warning. This



                                          21
is consistent with the Board’s finding that “[t]here is [] no requirement that []
Claimant be warned, as the [Discipline Policy] provides for up to immediate
termination.” (Referee’s Decision at 3.) This finding is conclusive if it is supported
by substantial evidence. W. & S. Life Ins. 

Co., 913 A.2d at 334

n.2. The clear
language of Rule 22 supports the Board’s finding. It provides that “[i]f an employee
is arrested, but does not report it to [HR] [], it would violate [Rule 22] and would be
grounds for suspension and/or disciplinary action up to and including termination.”
(C.R. at 132.) While the Disciplinary Policy is structured to allow progressive
discipline, it does not require it.9 Moreover, we cannot say that Employer in this
case did not exercise its discretion, and consider other, lesser forms of discipline,
simply because Employer ultimately decided to discharge Claimant.
       Last, based on our review of Peake, we agree with the Board that Peake does
not require an employer to consider specific factors when considering disciplinary
action against an employee, and there are no findings of fact in this case supporting
Claimant’s assertion that Employer understood that it had to terminate Claimant
based upon the OAPSA. In Peake, the petitioners challenged the constitutionality
of a provision of the OAPSA that banned individuals convicted of certain
enumerated crimes from employment for life in facilities covered by the OAPSA.
Specifically, the petitioners contended that the provision at issue made “no provision
for consideration of any other factor, such as the nature of the crime, the facts
surrounding the conviction, the time elapsed since the conviction, evidence of the
individual’s rehabilitation, and the nature and requirements of the job.” 

Peake, 132
A.3d at 521

. The Court found the lifetime employment ban unconstitutional “on its

       9
          In addition, we note that “[t]here is no requirement in the Law . . . that an employee be
first warned that a deliberate violation of an employer’s work directive could result in termination.”
Graham v. Unemployment Comp. Bd. of Rev., 

840 A.2d 1054

, 1058 (Pa. Cmwlth. 2004).


                                                 22
face.”

Id. Contrary to Claimant’s

assertion, this Court in Peake did not articulate a
“roadmap of factors” for employers to follow when taking disciplinary action,
(Claimant’s Br. at 32), but merely agreed with the petitioners that a statutory
provision that stripped employers of discretion, preventing them from “evaluat[ing]
applicants with criminal records on a case-by-case basis[,]” was unconstitutional.

Peake, 132 A.3d at 521

-22.

   III.   Conclusion
      Accordingly, for the foregoing reasons, we conclude that Employer met its
burden of demonstrating Claimant was discharged for willful misconduct.
Specifically, Employer demonstrated that it has a policy requiring employees to
immediately report arrests, of which Claimant was aware, that Claimant deliberately
violated, and that Claimant was discharged pursuant to the policy because she waited
21 months to report an arrest to Employer. Thus, Claimant is ineligible for UC
benefits pursuant to Section 402(e) of the Law.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marysol Reices,                        :
                       Petitioner      :
                                       :
                  v.                   :   No. 762 C.D. 2020
                                       :
Unemployment Compensation Board        :
of Review,                             :
                    Respondent         :
                                       :


                                    ORDER


     NOW, May 14, 2021, the Order of the Unemployment Compensation Board
of Review dated July 10, 2020, is hereby AFFIRMED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge

Add comment

By

Recent Posts

Recent Comments