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Oyetayo v. Unemployment Comp. Bd. of Review

Commonwealth Court of Pennsylvania

March 4, 2015

Gbenga A. Oyetayo, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted  October 3, 2014

Page 1118

Appealed from No. B-560726. State Agency: Unemployment Compensation Board of Review.

Daniel G. Anna, Media, for petitioner.

Sharon W. Glogowski, Norristown, for intervenor County of Montgomery.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 1119

COLINS, SENIOR JUDGE

Gbenga A. Oyetayo (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), in which the Board affirmed the determination made by a Referee that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law[1] (Law) because he was discharged from his employment in the Montgomery County (Employer) Department of Behavioral Health and Developmental Disabilities (Department) for willful misconduct. For the reasons that follow, we affirm.

Claimant filed his initial claim for unemployment compensation benefits on July 3, 2013. (Record Item (R. Item) 2, Internet Initial Claim.) On July 24, 2013, the Unemployment Compensation Service Center issued a determination finding Claimant eligible for benefits of the Law because Employer had not provided information to substantiate that Claimant had violated its rules. (R. Item 5, Notice of Determination.) Employer appealed the determination and a hearing was held before the Referee on September 30, 2013 at which Claimant testified. Additionally, two witnesses testified for Employer at the hearing: the Department's Administrative Officer and the Department's Fiscal Director. In a November 19, 2013 decision and order,

Page 1120

the Referee reversed the Service Center's determination and held that Claimant was ineligible for unemployment compensation under Section 402(e), making the following findings of fact:

1. For the purpose of this appeal, [C]laimant was last employed with [Employer] as a staffing accountant from August 27, 2007 until July 1, 2013.
2. [E]mployer has a policy addressing, " Acceptable Use of Electronic Resources" . The policy defines " acceptable use" of [Employer]'s computers, networks, electronic mail services, and electronic resources. Employees may not use the resources of their office or equipment in aid of or to conduct political or personal activities. Such penalties for policy infractions may include loss of system access and termination of employment. No employee shall misuse personal services and company property. Personal usage of [Employer] materials and equipment are intended to be utilized for official purposes. Personal usage is allowed only if " de minimus " [sic] in nature and reasonable under the totality of circumstances.
3. [C]laimant was aware of [E]mployer's company policy.
4. [C]laimant was scheduled to work the hours of 8:00 AM to 4:30 PM, with a lunch break from 1:00 PM to 2:00 PM and two fifteen (15) minute breaks.
5. On February 1, 2013, [C]laimant was presented with a Progressive Discipline Report and provided with a written warning for his excessive personal phone calls while on company time and use of [Employer] office equipment for personal needs.
6. On April 29, 2013, [C]laimant sent a personal e-mail to his wife at 9:21 AM.
7. On May 20, 2013, [C]laimant sent a number of personal e-mails beginning at 10:01 AM to 10:09 AM; [Claimant] also ...

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