The opinion of the court was delivered by: Judge Cohn Jubelirer
Argued: December 10, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.
Geisinger Health Plan (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the Unemployment Compensation Referee's (Referee) decision granting John D. Buckeye (Claimant) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn2 On appeal, Employer argues that the Board erred in determining that Employer disparately applied its work rule against sending pornographic e-mails and that Claimant was, therefore, eligible for benefits despite engaging in willful misconduct by violating that rule.
Claimant applied for unemployment compensation benefits after Employer discharged him from his employment. The Unemployment Compensation Service Center (Service Center) found Claimant ineligible for benefits because his discharge was a result of willful misconduct. Claimant then filed an appeal. An evidentiary hearing was subsequently held before a Referee on May 16, 2007.
At the hearing, Employer presented the testimony of its HR manager, Erin Winn (Winn). Winn testified that Claimant began working for Employer in October 2005 and that Employer discharged Claimant on February 20, 2007, for violating Employer's electronic communication policy. More specifically, Winn testified that Employer's internal audits department had uncovered as many as twenty-five e-mails that Employer considered to be in violation of its electronic communication policy. Winn stated that she discussed six of these e-mails with Claimant at the time Employer discharged him. Employer introduced these six e-mails into evidence at the hearing.*fn3 Winn also testified regarding Employer's electronic communication policy, which states:
Any access to pornography is strictly prohibited on Geisinger time or using Geisinger resources and is grounds for termination.
For the benefit of all of our employees, Geisinger's policy prohibiting harassment applies in its entirety to the use of the electronic communication system including downloading, possession or transmission of materials. No one may use the electronic communications in a manner that may be construed by others as harassment or as offensive on the basis of sex, race, color, religion, national origin, ancestry, age, physical handicap, disability, marital status, veteran's status or any other non-job-related factor.
(Employer's Electronic Communication Policy, Service Center Ex. Nos. 10-11.) On cross-examination by Claimant, Winn stated that some of the twenty-five e-mails uncovered by Employer's internal audit department had been sent to Claimant by other employees. When questioned by Claimant and the Referee as to whether Employer's electronic communication policy was evenly applied, Winn responded that, while other individuals who sent e-mails to Claimant had not been terminated, Employer was continuing to investigate the matter, taking into account the "severity and the inappropriateness of the e-mails." (Referee Hr'g Tr. at 12.) Of the six e-mails that formed the basis for Claimant's termination, E-mail 3, entitled "Happy Halloween," and E-mail 6, the joke about Tarzan, were sent to Claimant by Employer's employees. On redirect, Winn explained that Claimant was terminated in lieu of some lesser discipline "because of the high frequency of the e-mails that were sent during work time to other Geisinger employees and also because of the severity which was [sic] the pornographic images that were forwarded on." (Referee Hr'g Tr. at 14.) Winn also stated that Employer considered pornographic images to be more severe than sexually explicit jokes. (Referee Hr'g Tr. at 14-15.)
When Claimant's turn to testify came, Claimant initially stated that he did not think Employer consistently applied its electronic communication policy. The Referee pointed out that this was an argument, not testimony. Other than stating that he believed he was denied a peer review, Claimant did not offer any testimony or documentary evidence.
The Referee reversed the Service Center's determination and granted Claimant benefits. Employer appealed to the Board, which affirmed the Referee's decision. In doing so, the Board made the following findings of fact:
1. The claimant was employed by Geisinger Health Plan as a medicare sales representative having begun his employment in October 2005 on a full-time basis with a final rate of pay of $20.50 per hour.
2. The claimant's last day of work was February 20, 2007.
3. The employer has an electronic communications policy that provides that access to pornography is prohibited and is grounds for termination.
4. The claimant knew and/or should have known the policy.
5. The employer learned through an internal audit that the claimant had been forwarding pornographic e-mails through its computer system to other employees.
6. Some of the e-mails had been sent to the claimant from other employees.
7. The employees who sent the e-mails to the claimant were not disciplined.
8. The claimant was discharged for violating the employer [sic] electronic communication policies.
(Board Decision, Findings of Fact (FOF) ¶¶ 1-8.) Based on these findings of fact, the Board concluded that Claimant was eligible for benefits under Section 402(e) of the Law because Employer did not uniformly enforce its policy. The Board concluded that Claimant had been "disciplined in a disparate manner from other similarly-situated employees." (Board Decision at 2.) The Board noted that it had considered the volume and content of the e-mails sent by Claimant, but characterizing Employer's policy as "zero-tolerance," found that it made no allowance for violation. Claimant was the only employee who had been discharged at the time of the Referee's hearing. In addition to finding that Claimant had been treated differently from other similarly-situated employees, the Board also determined that Employer failed to explain why Claimant had been fired while the two employees who had each sent Claimant one objectionable e-mail were only being investigated. Since Employer offered no explanation as to why other employees were still only being investigated, the Board concluded that Claimant had shown that Employer had disparately enforced its electronic communication policy. Employer now petitions for review of the Board's order.*fn4
Employer argues that the Board erred when it determined that Employer disparately applied its electronic communication policy. We agree.
An employee is not eligible to receive unemployment compensation "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). This Court has defined the term "willful misconduct" to mean:
(1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial ...