Fegley Mgmt. and Energy v. UCBR – Cmwlth. Court – unreported memorandum opinion**
http://www.pacourts.us/assets/opinions/Commonwealth/out/11CD20_10-14-20.pdf?cb=1
Willful misconduct
Section 402(e) of the UC Law provides that a claimant is ineligible for benefits for any week “[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.” 43 P.S. § 802(e). Although “willful misconduct” is not defined in the UC Law, the Supreme Court has defined the term 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.
Navickas v. UCBR, 787 A.2d 284, 288 (Pa. 2001). The burden to prove willful misconduct is on the employer, and it must show the existence of the work rule and its knowing violation. BK Foods, Inc. v. UCBR 547 A.2d 873, 875 (Pa. Cmwlth. 1988).
Once an employer proves willful misconduct, the burden shifts to claimant to show that he had good cause for his willful misconduct. Gordon Terminal Serv. Co. v. UCBR, 211 A.3d 893, 898 (Pa. Cmwlth. 2019).
Inconsistent enforcement
However, “inconsistent enforcement” of a rule will prevent an employer from establishing the existence of a rule and a deliberate violation of that rule to support willful misconduct. Id. at 899. “[I]nconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow.” Id. at 900.
There is a clear and important difference between inconsistent enforcement and the disparate treatment doctrine. As stated by this Court in Gordon Terminal,
[d]isparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. Id.
In Gordon Terminal, the employer claimed that the claimant violated the employer’s cell phone use policy, which prohibited use of a cell phone during working hours without special approval. Id. at 899. The Board found that although there was a written policy, the employer’s own witness stated that other employees also used their cell phones without repercussions. Id. Therefore, the employer could not prove that the claimant deliberately violated the cell phone use policy. Id. Similarly, in Great Valley Publishing v. UCBR, 136 A.3d 532, 538-39 (Pa. Cmwlth. 2016), this Court determined that an employer could not prove willful misconduct when it tolerated other employees’ violations of its internet policy. We held that when an employer tolerates past violations, violation of that rule cannot qualify as willful misconduct. Id.
This case is similar to Gordon Terminal and Great Valley Publishing. As in those cases, here, the Board found that Employer did not prove that Claimant’s actions were a deliberate violation of its smoking policy because it found Claimant’s testimony credible regarding Employer’s inconsistent enforcement. The Board’s determination, that the smoking policy was inconsistently enforced, was supported by Claimant’s credited testimony that he smoked with other employees and managers, and that there were never any repercussions for violating the policy. Claimant testified that he smoked with several managers, specifically naming some of them, as well as other employees. The Board found “Employer condoned, and its managers participated in, the same conduct for which [ ] [C]laimant was discharged.” Employer did not offer conflicting testimony or prove that it consistently enforced its policy. Furthermore, Employer did not indicate where the designated areas of smoking were located. The Board is the “ultimate finder of fact,” Peak v. UCBR, 501 A.2d 1383, 1389 (Pa. 1985), and we will not reevaluate questions of credibility and evidentiary conflicts because they are under the Board’s discretion, Serrano v. UCBR, 149 A.3d 435, 439 (Pa. Cmwlth. 2016).
Because Employer did not show that it consistently enforced its own smoking policy, it was as if there was no rule at all. See Gordon Terminal, 211 A.3d at 899- 900. Accordingly, we cannot find that the Board erred in its determination that Employer did not meet its burden to prove willful misconduct and thus, overturning the Referee’s ruling.
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**An unreported Commonwealth Court case can be cited for its persuasive value, even though it is not binding precedent. See 210 Pa. Code § 69.414(b) and Pa. R.A.P. 3716
