Burchell v. Unemployment Compensation Board of Review

OPINION BY

Judge LEADBETTER.1

Edward Burchell, Jr., petitions for review of the September 8,2003, order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of a referee to deny Burchell benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).2 We affirm.

The Board adopted the findings and conclusions of the referee, who found as follows. Burchell was employed by the University of Pittsburgh (employer) as a Systems Programmer II. Employer has a policy which prohibits employees from using employer’s computers “for the creation, design, manufacture, preparation, display, or distribution of any written or graphic obscene material.” Burchell was aware, or should have been aware, of this policy. On April 5, 2002, Employer placed Burchell on administrative leave pending an investigation into his alleged violation of this policy. Employer believed that Burchell had downloaded pornographic material from the internet onto employer’s computer system.3 In addition, employer had discovered a foreign CD in the computer that Burchell used, which contained pornographic movies. On April 25, 2002, following its investigation, employer terminated Burchell’s employment.

Burchell applied for benefits, which the UC Service Center granted based on employer’s failure to prove willful misconduct. Employer filed an appeal, and hearings *1084were held before a referee. Employer testified that Burchell was the only person who had the access to the laptop since only he knew the password to the laptop. Burchell denied downloading pornographic material to the laptop as well as ownership of the CD containing pornographic material. The referee found Burchell incredible and that Burchell downloaded pornographic material to one of employer’s computers and left a CD of pornographic movies in a computer. The referee concluded that BurchelPs conduct constituted willful misconduct. Thus, the referee reversed the grant of benefits. Burchell appealed to the Board, which affirmed. Burchell now appeals to this court.4

Burchell first contends that the Board erred in concluding that he committed willful misconduct because employer presented no evidence to establish that he downloaded or viewed pornography while at work. Burchell also argues that while a workplace rule forbidding the viewing of pornography at work is reasonable, the same policy becomes unreasonable if it is extended to conduct occurring off employer’s premises when the employee is not working and, therefore, it cannot support a finding of willful misconduct. We conclude that Burchell’s arguments lack merit.

While the term “willful misconduct” under Section 402(e) is not defined in the Law, our Supreme Court has held that it includes those actions constituting a deliberate violation of the employer’s rules or a disregard of the standard of behavior which the employer has a right to expect of an employee. Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 83, 351 A.2d 631, 632 (1976). To establish willful misconduct for a violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and its violation. Conemaugh Mem’l. Med. Ctr. v. Unemployment Comp. Bd. of Review, 814 A.2d 1286, 1288 (Pa.Cmwlth. 2003). Thereafter the burden shifts to the claimant to establish good cause for his actions. Id. Whether the claimant’s actions constitute willful misconduct is a question of law subject to our plenary review. Id.

Here, the credited evidence established that employer had a work rule that prohibited the display of graphic obscene material on employer’s computer and that Burchell knew or should have known about this policy. In addition, the credited evidence demonstrate that files and a CD containing pornographic material were found in the computer that Burchell used. This evidence supports the conclusion that Burchell was using employer’s computer to download pornographic material in violation of employer’s written policy and in disregard of the standard of behavior which the employer has a right to expect of an employee. Since the Board found that Burchell downloaded the material to the computer and left the CD in the computer, it is a necessary inference that Burchell also displayed the obscene material. Otherwise, the conduct of downloading the material or inserting the CD into the drive would be pointless.5

*1085According to Burchell, however, employer’s rule should only be applicable to conduct occurring during work hours, and, thus, since employer failed to prove that he downloaded or viewed the objectionable material while at work, it failed to prove that he violated employer’s rule.6 This argument is meritless in light of the express language of the rule. The relevant rule states that “Using a computer, computer system, computer network, or any other University property for the creation, design, manufacture, preparation, display, or distribution of any written or graphic obscene material is prohibited.” Original Record, Item No. 15, Employer’s Ex. C at 2. Clearly, the rule prohibits the use of employer’s property in connection with graphic obscene material; violation of the rule is not contingent upon the conducts occurring at work. Rather, the rule is violated when employer’s property is used in an unauthorized manner. Thus, since the credited evidence demonstrated that Burchell’s laptop contained files and a CD with graphic obscene material, the Board could properly conclude that Burchell used his computer in violation of employer’s rule. Burchell argues that such an interpretation of the rule is unreasonable, however, because it interferes with his freedom outside of the scope of his employment. We disagree. Whatever right claimant may have to view such material on his own time and with his own equipment, the University has every right to prohibit employees from using University property in a manner clearly not connected with work.

Burchell next argues that the Board erred in excluding evidence that employer failed to enforce its rules consistently. Burchell relies on this court’s decision in City of Beaver Falls v. Unemployment Comp. Bd. of Review, 65 Pa.Cmwlth. 14, 441 A.2d 510 (1982) for the proposition that violation of an employer’s rule does not constitute willful misconduct if the rule is not uniformly enforced. Assuming the Board erred in excluding such evidence, a close examination of Beaver Falls discloses that such evidence would not have changed the result in this case. In Beaver Falls, two claimants were discharged for their failure to comply with a municipal ordinance which required employees of the City of Beaver Falls to reside within the City. The Board affirmed a referee’s decision holding that “inasmuch as the residency ordinance was not uniformly enforced, the claimants’ actions did not evidence such a disregard for the employer’s interests as to constitute willful misconduct.” Id. at 511. In upholding the Board’s order, this court stated

Where a discharge based on the violation of such an ordinance has been established, we believe that the burden then shifts to the claimant to prove both that the ordinance was not enforced uniformly and that a violation thereof was not an act which was contrary to a reasonable standard of behavior which an employer could expect of an employee.

Id. at 512 (emphasis added). We concluded that the claimants had met both burdens there. Id. Although it is not contrary to reasonable standards of behavior for City employees to live outside City limits in the absence of a uniformly enforced ordinance establishing a residency requirement, it is obviously contrary to reasonable standards of behavior for an employee to use employer’s property for downloading graphic obscene material, even absent an *1086express rule prohibiting such conduct. Cf. Denardis v. Unemployment Comp. Bd. of Review, 76 Pa.Cmwlth. 212, 463 A.2d 116 (1983) (claimant did not meet his burden of proving that his unauthorized personal use of employer’s vehicle was not contrary to a reasonable standard of behavior expected of an employee). Therefore, in light of Burchell’s clear deviation from the reasonable standard of behavior that employer had a right to expect, evidence that the rule was not uniformly enforced would not change the result and, therefore, the Board’s error is harmless at most.

Accordingly, we affirm.

ORDER

AND NOW, this 29th day of April, 2004, the order of the Unemployment Compensation Board of Review in the above captioned matter is hereby AFFIRMED.

. This case was reassigned to the opinion writer on February 17, 2004.

. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides that an employee is not entitled to benefits for any week in which the unemployment is due to discharge for willful misconduct connected with the employee’s work.

.Burchell was given a laptop computer to perform his job duties. R.R. at 32a.

. Based on the issues raised by Burchell, our scope of review is limited to determining whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

. We also conclude that the terms ''creation” and "preparation” could include the conduct of downloading as such results in the creation of a file on the computer, for purposes of accessing and viewing at a later time. Moreover, the rule is written broadly, clearly intending to be inclusive and not exclusive.

. Burchell does not argue that the material contained in the files and CD does not constitute "graphic obscene material.”