IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victorine Leao, :
Petitioner :
:
v. : No. 703 C.D. 2021
: Submitted: December 17, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: June 14, 2022
Victorine Leao (Claimant), pro se, petitions for review of the May 28, 2021
Order of the Unemployment Compensation (UC) Board of Review (Board),
affirming and adopting, as modified, the decision of a Referee that found Claimant
ineligible for UC benefits pursuant to Section 402(e) of the UC Law2 (Law). On
appeal, Claimant argues that, although Trans Union LLC (Employer) technically
discharged her for violating its email confidentiality policy (Policy), the real reason
for her termination was retaliation against her for filing a harassment complaint
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e). Section 402(e) provides that “[a]n employe shall be ineligible for compensation for any
week” “[i]n which [their] unemployment is due to [their] discharge . . . from work for willful
misconduct connected with [their] work . . . .” Id.
and/or due to a COVID-19 workforce reduction. Claimant further argues that, even
if she was discharged for violating the Policy, she is not disqualified from receiving
UC benefits because Employer did not uniformly enforce its Policy and she had good
cause for her actions. Although the Board’s findings regarding the reason for
Claimant’s discharge are supported by substantial evidence, the Board did not make
findings of fact or resolve conflicting testimony concerning whether Employer
consistently enforced the Policy, which goes to whether Employer met its burden of
proving the deliberate violation of a work rule. Gordon Terminal Serv. Co. v.
Unemployment Comp. Bd. of Rev., 211 A.3d 893, 898 (Pa. Cmwlth. 2019).
Therefore, we vacate the Board’s Order and remand the matter for the Board to issue
a new determination that addresses the conflicting evidence regarding the
enforcement of Employer’s Policy and whether Claimant’s actions constituted
disqualifying willful misconduct under Section 402(e) of the Law.
I. BACKGROUND
Claimant worked for Employer as a full-time Senior Technician from
September 28, 2015 to June 12, 2020, when, following an investigation, she was
discharged for violating the Policy, which prohibits employees from sending
business-related emails containing confidential information to their personal email
accounts. On May 29, 2020, Claimant, who was aware of the Policy and was alleged
to have previously violated the Policy, emailed herself business-related emails
containing confidential information. Claimant applied for UC benefits, but a UC
Service Center found her ineligible for benefits under Section 402(e) in a Notice of
Determination. The UC Service Center concluded that Claimant was ineligible
because she “was warned about violating the [Policy]” by forwarding emails
containing confidential information to her personal email account, and “failed to
2
show that she had good cause for her actions.” (Certified Record (C.R.) Item No. 6,
Notice of Determination at 1.) Claimant appealed, and a Referee held a telephonic
hearing on March 9, 2021, at which Claimant appeared and was represented by
counsel, and Employer appeared, represented by a tax consultant, and presented
three witnesses.
A. Proceedings Before the Referee
1. Employer’s Evidence
Employer offered three witnesses: Lead Human Resource Business Partner
Amy Addis (HR Partner), Associate Lead Miguel Duenas (Supervisor), and
Department Manager Ian Kenny (Department Manager). HR Partner testified that,
following an internal investigation, Claimant was discharged on June 12, 2020, for
violating Employer’s Policy on May 29, 2020, by forwarding emails that contained
confidential information to her personal email account. HR Partner explained that
the Policy, which is available to employees on Employer’s intranet and is a part of
each employee’s annual training, precludes the forwarding of confidential
information to an employee’s personal email address. (C.R. Item No. 18, Transcript
(Tr.) of Testimony at 17.) According to HR Partner, when Claimant was told of the
allegations, Claimant knew what emails the investigation was about and
acknowledged forwarding the emails to her personal email. Although Claimant
indicated to HR Partner that Claimant wanted to use her home computer, HR Partner
stated that Claimant was not authorized to work from home. HR Partner described
a prior incident in the summer of 2019 (2019 Incident), when Claimant had violated
the Policy and that Claimant had been told such actions violated the Policy, which
Claimant acknowledged. (Id. at 10-11.) HR Partner explained, in regard to an
unrelated, May 27, 2020 warning that Employer gave to Claimant, which Claimant
3
asserted was the reason for her forwarding the emails so as to prepare her defense,
that this was not a reason to violate the Policy and that, if Claimant needed more
time to respond to the warning, it would have been given.
Supervisor described being advised of Claimant’s violation of the Policy by
Employer’s information security personnel, who inquired if Claimant had been
authorized to send the emails that contained confidential information. Supervisor
testified that Claimant was not so authorized, he confirmed that confidential
information was contained therein – the name, date, and social security numbers of
five or six consumers – and he advised Claimant of the investigation. According to
Supervisor, Claimant was not authorized to work from home, and Claimant did not
deny having sent the emails, which were a total of 5 to 10 pages.
Department Manager testified that the Policy is for security purposes and
provides “that no personal information should be forwarded to [an employee’s]
personal e[]mail or shared with anyone.” (Id. at 15.) Department Manager stated
that the Policy is uniformly enforced and the typical discipline for its violation is
termination. (Id. at 15-16.) Although he was not involved in the 2019 Incident,
when asked why Claimant was not discharged then, Department Manager believed
it was a situation that Claimant was possibly given another opportunity or chance.
(Id. at 16.)
2. Claimant’s Evidence
Claimant testified to the following. Claimant received a warning on May 27,
2020, which she felt was issued in retaliation for a complaint she lodged with Human
Resources. (Id. at 17.) Claimant testified that in order to defend against this
warning, she sent herself an email approximately 10 pages long containing a string
of emails, in which there was confidential information from 5 consumers. (Id. at 17,
4
21.) Claimant explained that on May 29, 2020, at around 8:00 p.m., she forwarded
the emails to her personal email so that she “could work on it over the weekend”
because she was running out of time to do so at the office. (Id. at 18-19, 21.)
Claimant also wanted to work from home, which she claimed Supervisor allowed
her to do, because her home computer set up was more comfortable than her work-
issued laptop.
Claimant acknowledged being aware of Employer’s Policy and that she had a
higher level of responsibility to ensure that she was not sending confidential
information when sending a work email to her personal email. Notwithstanding this
responsibility, Claimant agreed that she had not reviewed the emails in question
because she did not have time to do so. Claimant explained that “through [her] five
years working at [Employer], [she had] sent numerous e[]mails to [her]self and back
and forth [and] that was okay, that was approved by management.” (Id. at 19.)
According to Claimant, each time a file is sent outside the company, information
technology (IT) flags it, sends an email to the employee asking who sent the email,
why it was sent, and whether it was approved by a supervisor. Claimant explained
that “all the previous times, it was approved by my supervisor except this one.” (Id.
at 20.) Concerning the 2019 Incident, Claimant testified that she was never actually
counseled for a violation of the Policy, the email at issue at that time contained
confidential information, and she had not received a warning or counseling because
“it was approved.” (Id. at 21.)
3. Referee’s Decision
Following the hearing, the Referee issued a decision finding Claimant
ineligible for benefits pursuant to Section 402(e) of the Law. In doing so, the Referee
made the following findings of fact:
5
1. The [C]laimant worked for [Employer] from September 2015
until June 12, 2020[,] as a full-time senior technician.
2. The [E]mployer has a [P]olicy which states in part that workers
are not permitted to send business-related emails containing
confidential or personally protected information to their personal email
account.
3. Violation of the [P]olicy may result in termination for the first
offense.
4. The [E]mployer informed the [C]laimant of the [P]olicy.
5. The final incident leading to the separation occurred on May 29,
2020.
6. After becoming aware of the incident, the [E]mployer conducted
a disciplinary review of the incident.
7. On May 27, 2020, the [E]mployer had administered a discipline
to the [C]laimant for an incident unrelated to the final incident.
8. The [C]laimant believed it was important to defend herself as a
result of this discipline, [and] therefore emailed [5] to [10] pages of
business-related information to her personal email that were related to
the discipline that could be used by the [C]laimant to review while at
home.
9. The email contained confidential information for five
[E]mployer consumers, including names[,] addresses[,] and Social
Security numbers.
10. The [C]laimant did not review the email to confirm that
personally protected information was not contained in the email prior
to sending it to her personal email, as she did not have time.
11. At the conclusion of the investigation, the [E]mployer discharged
the [C]laimant due to violation of the [E]mployer [P]olicy.
(C.R. Item No. 19, Referee’s Decision, Finding of Fact (FOF) ¶¶ 1-11.)
6
The Referee concluded that because Claimant acknowledged being aware of
the Policy and it was “not in dispute that . . . [C]laimant . . . violate[d] the [P]olicy
during the final incident, . . . the [E]mployer has met [its] burden of proof under
Section 402(e) of the Law as” Claimant deliberately violated the Policy. (Id. at 3.)
The Referee noted that “[o]nce the employer has proven both the existence of its
policy and the fact of its violation, the burden shifts to the claimant to establish either
good cause for violating the employer’s policy and/or that the policy is unreasonable,
or that the policy is not fairly enforced or uniformly applied.” (Id. at 2-3.) The
Referee concluded that “[C]laimant testified that she did not confirm that the
information that she was emailing to her personal email did not contain confidential
information because she was rushed and did not have time to review.” (Id. at 3.)
The Referee found that Claimant did not have good cause for her failure to review
the email for confidential information and to avoid violation of the Policy, and, thus,
found Claimant ineligible for benefits under Section 402(e). (Id.) Claimant
subsequently appealed to the Board.
B. The Board’s Order
Claimant argued to the Board that, although she was aware of the Policy, the
inclusion of confidential information was inadvertent. She further asserted that
“[t]here [wa]s a question in this case as to [Employer’s] consistent application of the
rules” because during Claimant’s five years of employment, she had sent numerous
emails to her personal email address without warnings or discipline from Employer,
and she was not fired for the previous 2019 Incident. (C.R. Item No. 25, Claimant’s
Letter Brief at 2.) After reviewing the entire record, the Board concluded the
Referee’s Decision was in accordance with the Law and affirmed. The Board
adopted and incorporated the Referee’s findings and conclusions,
7
but modifie[d] Finding of Fact 5 to reflect that the final incident leading
to the [C]laimant’s separation from work occurred on May 29, 2020,
wherein the [C]laimant sent an email from her work account to her
personal email account containing protected consumer information in
violation of the [E]mployer’s [P]olicy; modifie[d] Finding of Fact 8 to
reflect that the [C]laimant sent the email dated May 29, 2020[,] [to] her
personal email account because it contained information related to her
May 27, 2020 discipline and she wanted additional time to review the
information at home; and modifie[d] Finding of Fact 11 to reflect that
on June 12, 2020, the [E]mployer discharged the [C]laimant for sending
protected business and consumer information from her business email
to her personal email account in violation of its company [P]olicy.
(C.R. Item No. 26, Board’s Order.) Claimant filed a petition for review.
II. DISCUSSION
On appeal,3 Claimant argues that Employer’s Policy was used as a pretext to
fire her, and she was really discharged in retaliation for filing the harassment claim
and/or due to a COVID-19 workforce reduction. Claimant further asserts that
Employer’s Policy was not uniformly enforced, and she had good cause for her
actions. The Board responds that competent testimony and evidence supports its
3
This Court’s review in a UC “case is limited to a determination of whether constitutional
rights were violated, errors of law were committed, or” essential findings of fact were not
supported by substantial evidence. Lee Hosp. v. Unemployment Comp. Bd. of Rev., 637 A.2d 695,
697 (Pa. Cmwlth. 1994). In reviewing Board decisions, “[t]he Board’s findings are conclusive on
appeal so long as the record, when viewed in its entirety, contains substantial evidence to support
the findings.” W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Rev., 913 A.2d 331, 334 n.2
(Pa. Cmwlth. 2006). Substantial evidence is defined as “relevant evidence upon which a
reasonable mind could base a conclusion.” Johnson v. Unemployment Comp. Bd. of Rev., 502
A.2d 738, 740 (Pa. Cmwlth. 1986). The Board is the ultimate factfinder and is empowered to
make its own determinations as to evidentiary weight and the resolution of conflicting evidence.
Constantini v. Unemployment Comp. Bd. of Rev., 173 A.3d 838, 843 (Pa. Cmwlth. 2017). “[T]his
Court is bound ‘to examine the [evidence] 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’” therefrom. 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)).
8
finding that Claimant was discharged for violating the known Policy, about which
she had been previously warned, and there was no evidence that Claimant was fired
as retaliation for filing a harassment claim or due to COVID-19. The Board contends
that, contrary to Claimant’s arguments, she did not offer evidence that Employer did
not uniformly enforce its Policy, and/or she did not have good cause for her actions.
Section 402(e) of the Law provides, in pertinent part, “[a]n employe shall be
ineligible for compensation for any week in which [their] unemployment is due to
[their] discharge or temporary suspension from work for willful misconduct
connected with [their] work . . . .” 43 P.S. § 802(e). The question of whether a
claimant’s “actions constitute willful misconduct is a question of law, subject to
[judicial] review.” McLean v. Unemployment Comp. Bd. of Rev., 383 A.2d 533, 535
(Pa. 1978). The employer has the burden of proving willful misconduct. Id. If an
employer meets its burden of proof, “the burden of proof shifts to the [claimant] to
prove that she had good cause for her actions.” Chapman v. Unemployment Comp.
Bd. of Rev., 20 A.3d 603, 607 (Pa. Cmwlth. 2011). “A claimant has good cause if
his or her actions are justifiable and reasonable under the circumstances.” Docherty
v. Unemployment Comp. Bd. of Rev., 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).
Here, the Board found that Claimant was discharged for deliberately violating
Employer’s Policy on May 29, 2020, when she emailed herself confidential
information in violation of the Policy. The violation of an employer’s policies or
work rules may constitute willful misconduct. Caterpillar, Inc. v. Unemployment
Comp. Bd. of Rev., 654 A.2d 199, 201 (Pa. Cmwlth. 1995). “When an employee is
discharged for violating a work rule, the employer must prove the existence of the
work rule, the reasonableness of the rule, the claimant’s awareness of the rule, and
the fact of its violation.” Adams v. Unemployment Comp. Bd. of Rev., 56 A.3d 76,
9
79 (Pa. Cmwlth. 2012). The employee’s violation of a rule must be knowing and
deliberate, and an inadvertent or unknowing rule violation is not willful misconduct.
Eshbach v. Unemployment Comp. Bd. of Rev., 855 A.2d 943 (Pa. Cmwlth. 2004).
The parties do not dispute the existence of the Policy, the reasonableness of
the Policy, Claimant’s awareness of the Policy, or the fact that Claimant forwarded
emails that contained confidential information in violation of the Policy on May 29,
2020. Rather, Claimant asserts that her violation of the Policy was not the real
reason for her discharge, that her violation was not deliberate, and that Employer did
not uniformly enforce its Policy. Upon review, we conclude that, while the record
supports the Board’s findings that Claimant’s discharge was due to her violation of
the Policy, we are unable to determine the validity of Claimant’s second and third
assertions due to the lack of specific findings of fact and credibility determinations
related to Employer’s enforcement of the Policy.
On the first assertion, the reason for Claimant’s discharge, both HR Partner
and Department Manager testified that Claimant was discharged for violating the
Policy, (Tr. of Testimony at 8, 15), and Claimant testified that her termination letter
specifically mentioned “the [] 2019 violation of [a] similar nature with sending an
e[]mail to [her] personal e[]mail,” (id. at 26 (emphasis added)). Further, Claimant’s
own filings with the UC authorities stated that she left due to a rule violation, that
she had violated the Policy, and that violation of the Policy resulted in her discharge.
(C.R. Item No. 2, Initial Application at 6-7.) Absent from the record is any evidence
that supports her current contention that she was discharged for any reason other
than violation of the Policy.4 The above evidence supports the finding that Claimant
4
While Claimant testified that she thought the May 27, 2020 warning was issued in
response to a complaint to HR, (Tr. of Testimony at 17), she did not offer similar testimony
regarding her discharge for the Policy violation.
10
was discharged for violating the Policy and, thus, this finding is conclusive on
appeal. W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Rev., 913 A.2d 331,
334 n.2 (Pa. Cmwlth. 2006).
Claimant’s second and third assertions are intertwined, and their resolution
affects whether the Board erred in finding that Employer met its burden of proving
willful misconduct based on the deliberate violation of the Policy. In Gordon
Terminal Service Co., this Court held that a claimant may challenge whether an
employer meets its burden of proof in a rule violation case by establishing that the
rule is not consistently enforced, and, if it is not, the rule violation does not support
a finding of disqualifying willful misconduct. 211 A.3d 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 (emphasis
added). See also Great Valley Publ’g v. Unemployment Comp. Bd. of Rev., 136 A.3d
532, 538-39 (Pa. Cmwlth. 2016) (holding that where an employer admittedly
tolerated violations of its policy governing employees’ internet use, the employer
failed to establish that the claimant’s use of internet amounted to willful
misconduct). The “inconsistent enforcement of a rule results in an employer’s
inability to prove willful misconduct.”5 Gordon Terminal Serv. Co., 211 A.3d at
900 (emphasis added). In both Gordon Terminal Service Co. and Great Valley
Publishing, this Court held that the employers could not meet their burdens of
proving a deliberate rule violation so as to support a finding of willful misconduct
where the employers did not consistently enforce their rules. See also Fegley Mgmt.
& Energy v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 11 C.D. 2020,
5
This distinguishes a claim of “inconsistent enforcement” from “disparate treatment,”
which is an affirmative defense and occurs when an employer enforces a rule differently for
different employees. Gordon Terminal Serv. Co., 211 A.3d at 899.
11
filed Oct. 14, 2020), slip op. at 10 (holding that “[b]ecause [the e]mployer did not
show that it consistently enforced its own . . . policy, it was as if there was no rule at
all”).6
Claimant contends, as she did to the Board, that Employer does not
consistently enforce the Policy and she presented evidence of this inconsistent
enforcement. The Board responds that Claimant’s testimony that she sent emails to
herself with impunity in the past is insufficient to establish inconsistent enforcement
because none of those prior emails contained confidential information. The Board
likens this matter to that in Khouri v. Unemployment Compensation Board of Review
(Pa. Cmwlth., No. 1352 C.D. 2015, filed April 8, 2016), where, it asserts, “this Court
also found willful misconduct when the claimant forwarded the employer’s
proprietary and confidential information outside the employer’s system to her
personal e[]mail account, in violation of the employer’s policy.” (Board’s Brief at
14.)
Reviewing the record, Claimant’s testimony regarding her prior experience
with the Policy conflicts with that of HR Partner and Department Manager
concerning whether Employer uniformly enforced its Policy prior to the May 29,
2020 violation and Claimant’s discharge therefor. Claimant testified that in over
five years of working for Employer, she had sent numerous emails to herself,
including ones that contained confidential information, that were flagged by IT
and reviewed by her supervisor, and that “all the previous times, it was approved
by my supervisor except this one.” (Tr. of Testimony at 19-21 (emphasis added).)
Claimant further testified that she was not actually “counseled” for her alleged
6
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.
12
violation of the Policy in 2019. (Id. at 20.) In contrast, HR Partner testified that
Claimant was warned in 2019 about Claimant’s violation of the Policy, and
Department Manager testified that the Policy was uniformly enforced and its
violation resulted in termination. (Id. at 10-11, 15-16.) However, Department
Manager acknowledged that he had not been involved in the 2019 Incident and that,
apparently, Claimant received a second chance, rather than being discharged. (Id. at
15-16.) Thus, there is conflicting testimony regarding uniform enforcement of the
Policy.
Unfortunately, while the Referee acknowledged that Claimant could
“establish . . . that the policy is not fairly enforced or uniformly applied,” the
Referee rendered no findings or credibility determinations regarding the evidence
on whether the Policy was uniformly enforced or otherwise addressed the issue
beyond this statement. (C.R. Item No. 19, Referee’s Decision at 3 (emphasis
added).) Further, notwithstanding Claimant’s argument to the Board regarding the
inconsistent enforcement of the Policy, the Board likewise made no credibility
determinations or findings regarding this conflicting testimony and did not address
the issue. Because the Board did not resolve the conflicting evidence and address
the issue of Employer’s uniform enforcement of the Policy, we cannot exercise
effective appellate review over the Board’s Order to determine whether it erred in
finding that Employer had met its burden of proving a deliberate violation of the
Policy.
Although the Board relies on Khouri to support its position that Claimant’s
violation of the Policy is disqualifying willful misconduct, Khouri is distinguishable.
Like here, Khouri involved a claimant’s violation of an employer’s known policy
against emailing proprietary information to a personal email address. Khouri, slip
13
op. at 3, 10. Unlike here, however, the Board in Khouri made specific credibility
determinations that rejected, as not credible, the claimant’s testimony that her
actions were accidental, she regularly sent work-related emails to herself, the
employer routinely monitored all network communications, and she never had a
prior issue. Id., slip op. at 3-4, 11-12. These credibility determinations allowed this
Court to engage in meaningful appellate review concerning the claimant’s argument
that the employer’s policy had not been uniformly enforced. Unfortunately, we do
not have the benefit of such factual findings and credibility determinations to aid us
in this matter.
III. CONCLUSION
Accordingly, while the Board’s finding that Claimant was discharged for
violating the Policy is supported by substantial evidence, we cannot determine
whether the Board erred in finding that Employer met its burden of proving
disqualifying willful misconduct in light of the unresolved conflict of evidence that
the Policy had not been uniformly enforced. Thus, we are constrained to vacate the
Board’s Order and remand the matter for the Board to issue a new decision that
addresses the conflicting evidence regarding the enforcement of Employer’s Policy
and, based on those findings and the application of the appropriate legal standard,
determine whether Claimant’s actions constituted disqualifying willful misconduct
under Section 402(e) of the Law.7
_____________________________________
RENÉE COHN JUBELIRER, Judge
7
Based on our disposition, we do not address Claimant’s other allegations of error.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victorine Leao, :
Petitioner :
:
v. : No. 703 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, June 14, 2022, the Order of the Unemployment Compensation Board
of Review (Board), entered in the above-captioned matter is hereby VACATED,
and this matter is REMANDED for the Board to issue a new decision in accordance
with the foregoing opinion.
Jurisdiction relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge