IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ahmed I. Yarow, : Petitioner : : v. : No. 419 C.D. 2011 : SUBMITTED: November 18, 2011 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER 1 FILED: February 9, 2012 Petitioner, Ahmed I. Yarow, petitions for review of the order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 2 43 P.S. 802(e). We affirm. 1 This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge. 2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(e) of the Law provides that a claimant shall be ineligible for benefits for any week in which his unemployment is due to discharge from work for willful misconduct connected with his work.
Petitioner was employed by Berk Tek, Inc. (Employer) as an operator from July 25, 2005, until August 18, 2010. Employer terminated Petitioner s employment for violating its harassment policy. Petitioner s application for unemployment compensation benefits was denied by the Unemployment Compensation Service Center. Petitioner appealed the denial of benefits and a referee held a hearing at which testimony was taken and documents were submitted. Employer presented the testimony of Frank Kourt, production manager, and Daria Teter, senior human resources manager. Petitioner testified on his own behalf and presented the testimony of Anthony Passaniti, a former coworker. Kourt testified that an employee, Luis Arroyo, complained to him that Petitioner had been spreading rumors about him. Kourt testified that Arroyo had complained that Petitioner had told Vannack Chan that he, Arroyo, was engaged in a sexual relationship with Chan s girlfriend, Silka Shrek, also an employee of Berk Tek. Kourt conducted an investigation, which involved meetings with Arroyo, Chan and Petitioner. Both Kourt and Teter testified that during the meeting, Petitioner admitted talking to Chan about Shrek s sexual behavior with other men. Kourt testified that spreading gossip about other people s sexual activities falls under Employer s sexual harassment policy. 3 Petitioner testified that while on vacation, he had heard that someone was saying that he was spreading rumors. After returning from vacation, Petitioner stated that he approached Chan to tell him that he was not spreading rumors about Shrek. Petitioner denies admitting to Kourt that he engaged in spreading gossip. 3 Kourt also stated that Petitioner was discharged as a result of employer s progressive discipline policy as he had received two prior warnings. Employer did not submit its progressive discipline policy into the record. 2
The referee concluded that Petitioner engaged in willful misconduct and that he was not subject to disparate treatment by Employer. Petitioner appealed to the Board, which concluded that he had violated Employer s harassment policy without just cause and was ineligible for benefits under Section 402(e). The Board concluded that: [E]mployer has a harassment policy. One form of harassment includes interfering with an employee s work performance or creating a hostile, intimidating, or offensive work environment. Board Opinion, Finding of Fact No. 3. The Board found that Petitioner had admitted to Employer that, he informed the coworker that the other operator was touching the coworker s girlfriend s breast, and that the operator was hitting on the coworker s girlfriend the coworker s girlfriend was messing around with the operator [and] another coworker had sex with the first coworker s girlfriend. Id. at Finding of Fact No. 6. The Board specifically rejected Petitioner s testimony that he did not gossip or spread rumors about his coworkers. Finally, the Board found that Petitioner s conduct was a form of harassment and a violation of employer s policy because the [Petitioner s] behavior interfered with employees work performance and created a hostile, intimidating, and offensive work environment. Id. at Finding of Fact No. 13. On appeal, Petitioner asserts that the Board erred in concluding that he engaged in willful misconduct and that the referee erroneously admitted hearsay into the record over his objections. With respect to the first argument, Petitioner contends that the facts contained in the record do not support a finding that he intentionally acted in a manner contrary to Employer s interest because his actions did not rise to the level of willful misconduct. However, in his petition for review, as well as before the referee and the Board, Petitioner asserted only that the Board 3
erred in finding him ineligible for benefits because he was subject to disparate treatment and because it improperly relied upon hearsay testimony. Accordingly, because Petitioner failed to preserve the issue that his actions did not constitute willful misconduct, 4 the issue is waived. 5 Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95 (Pa. Cmwlth. 2011). Petitioner also argues that the Board erred in relying upon hearsay evidence that was admitted into the record over his objection. Specifically, Petitioner asserts that Finding of Fact Number 13 relies upon properly objected to hearsay evidence. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219 (1999). Nevertheless, a party admission is admissible as an exception to the hearsay rule and may be used as competent evidence. Pa.R.E. 803(25); Robinson v. Unemployment Comp. Bd. of Review, 546 A.2d 750 (Pa. Cmwlth. 1988). During the hearing, Kourt s testimony included statements made to him by Arroyo and Chan regarding what Petitioner had said to Chan. Petitioner objected to Kourt s repetition of out-of-court statements by other employees as hearsay. The referee permitted the testimony stating that he was admitting it not for the truth of the matter asserted, but for notification purposes only. See Notes of Testimony at 7-8. However, Kourt and Teter both testified that Petitioner admitted 4 Even before this court, Petitioner s argument is based in large part on his version of the facts rather than those credited by the Board. Factfinding is the province of the Board, and we will not re-weigh the evidence or substitute our judgment as to credibility for that of the factfinder. 5 Petitioner also asserts that Employer s progressive discipline policy cannot serve as a basis for his termination as the policy is not a part of the record. Because Petitioner has failed to preserve the issue of whether his conduct constituted willful misconduct, we need not address this issue. 4
telling Chan that Arroyo and Shrek were engaging in sexual behavior. The Board did not base its findings of fact on hearsay. Rather, the Board relied upon Kourt s and Teter s testimony regarding Petitioner s admission to them. The Board specifically rejected Petitioner s testimony that he never admitted to Kourt and Teter that he told Chan that Shrek was engaging in sexual behavior with Arroyo. We conclude that the Board did not err in relying on the testimony of Employer s witness regarding Petitioner s admission. For all of the foregoing reasons, we affirm. BONNIE BRIGANCE LEADBETTER, President Judge 5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ahmed I. Yarow, : Petitioner : : v. : No. 419 C.D. 2011 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 9th day of February, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ahmed I. Yarow, : Petitioner : : v. : No. 419 C.D. 2011 : Submitted: November 18, 2011 Unemployment Compensation Board : of Review, : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE BROBSON FILED: February 9, 2012 Because I believe that the Unemployment Compensation Board of Review (Board) improperly considered objected-to hearsay and uncorroborated hearsay in rendering its factual findings in this case, I respectfully dissent. See Sule v. Philadelphia Parking Auth., 26 A.3d 1240, 1243 (Pa. Cmwlth. 2011). If the hearsay evidence i.e., the testimony by supervisors of what other employees told them is disregarded, as it should have been, the only competent evidence of the act by Claimant Ahmed I. Yarow (Claimant) that led to his dismissal is the testimony of Claimant s supervisor that Claimant admitted that he told a co-worker that the co-worker s girlfriend was cheating on him.
Informing a co-worker of such a violation of trust 1 is not an act of harassment, either as that term is generally understood or as defined under the no-harassment policy of Berk Tek Inc. (Employer). I, thus, respectfully disagree with the majority s conclusion that Claimant s alleged statement to his supervisor alone can bear the weight of the Board s decision. By directing the Court, in footnote 2 of its brief, to a supervisor s testimony that the girlfriend was upset when she learned what Claimant had done, even the Board tacitly acknowledges that Claimant s alleged statement was not enough to prove a violation of Employer s policy. The policy includes within its definition of harassment conduct interfering with an employee s work performance or creating a hostile, intimidating, or offensive work environment. (Board Finding #3.) Yet no hearing witness offered any direct testimony as to how Claimant s decision to inform a co-worker of his girlfriend s infidelity impacted a particular employee s work performance or the work environment generally. Neither the co-worker, the co-worker s girlfriend, nor the other co-worker who Claimant identified as the other man involved and who lodged the complaint with Claimant s supervisor, testified at the hearing. In short, to conclude in this case that the Board only considered Claimant s alleged admission that he informed his co-worker of the co-worker s 1 Accepting as true the supervisor s testimony regarding Claimant s statement, there is no evidence in the record that Claimant lied to his co-worker or otherwise lacked any reasonable grounds to believe that what he told his co-worker was true. There is also no evidence in the record that Claimant passed this information on to others in the work place. Accordingly, I cannot see how Claimant s statement to his supervisor alone supports a finding that he engaged in gossip or spread rumors. See Webster s Third New Int l Dictionary 981 (1993) (defining gossip as to retail facts, rumors, or behind-the-scenes information about other persons (emphasis added)); id. at 1987 (defining rumor as common talk or opinion: widely disseminated belief having no discernable foundation or source ). PKB-2
girlfriend s infidelity in making necessary factual findings is to conclude that telling a co-worker that his girlfriend is cheating on him is harassment and, thus, disqualifying willful misconduct. 2 I cannot adopt such a non sequitur and, therefore, would reverse the Board. P. KEVIN BROBSON, Judge 2 I note a distinction between informing a co-worker of a matter that affects the co-worker, as in the case now before us, and informing other non-affected co-workers of the matter that affects the co-worker. PKB-3