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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ngoc Nguyen,

:

Petitioner

:

:

v.

: No. 1303 C.D. 2004

: Submitted: November 12, 2004
Unemployment Compensation Board :
of
Review,

:

Respondent

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FLAHERTY

FILED: February 18, 2005

Ngoc Nguyen (Claimant) petitions for review from the decision of the
Unemployment Compensation Board of Review (Board) which affirmed the
referee's denial of benefits under Section 402(e) of the Unemployment
Compensation Law.1 We affirm.

The facts as found by the Board after remand from our Court are as
follows:
1. The claimant was last employed as a machine
operator by Vallorbs Jewel Co. from May 26, 2001 at
a final rate of $7.34 per hour and his last day of work
was October 9, 2002.
2. During the majority of the claimant's employment,
the claimant was assigned to operate a machine in the
CNC Skirmishing Department.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).

3. Although the quantity of the claimant's production
was satisfactory in that department, the employer was
not satisfied with the quality of the claimant's work.
4. As a result, on or about September 6, 2002, the
employer transferred the claimant to another
department, called the Secondary Operations
Department.
5. During the first week in the new department, the
claimant's production in terms of quantity was above
average at 112% and the employer was satisfied with
the quality of his work.
6. At the end of the day on September 13, 2002, the
claimant learned that he was not getting a raise in his
pay.
7. The decision not to give the claimant a raise was
based on the poor quality of his work in the previous
department.
8. The claimant was upset at not receiving a raise and his
supervisor explained to him that the raise was based
upon his performance in the previous department.
9. From that point on, the claimant did not produce the
quantity expected by the employer, in fact performing
at less than 50%.
10. On October 1, 2002, the employer gave the claimant a
warning for poor production in terms of quantity.
11. At the time that the claimant was given the warning
notice, he stated to his supervisor that the supervisor
should get the second warning ready because he was
ready to sign it.
12. The claimant's production did not improve and the
employer gave the claimant a second warning notice
on October 7, 2002 for poor production in terms of
quantity.
13. At the time that the claimant was given the warning
notice, he stated to his supervisor that three days was
too long and that he wanted to stay home now.
14. The claimant's production again gave the claimant a
third warning notice, therefore discharging him from
employment.
15. The employer discharged the claimant for his
intentional failure to meet the employer's production
expectations in terms of work.

2

Board's Decision, May 20, 2004, Finding of Facts Nos. 1-15, at 1-3. The Board
concluded that Claimant was not eligible pursuant to Section 402(e) of the Law.
Claimant now petitions our Court for review.2

Claimant contends that the Board erred in concluding that Claimant's
actions amounted to willful misconduct and that the Board's findings of fact are
not supported by substantial evidence. This Court has defined willful misconduct
under Section 402(e) of the Law as:
[A] wanton and willful disregard of an employer's
interest, a deliberate violation of rules, a disregard of
standards of behavior which the employer can rightfully
expect from its employee, or negligence which manifests
culpability, wrongful intent, evil design, or intentional
and substantial disregard for the employer's interests or
the employee's duties and obligations.
Brady v. Unemployment Compensation Board of Review, 544 A.2d 1085, 1086
(Pa. Cmwlth. 1988). An employer has the burden of proving that willful
misconduct was committed by an employee. Hartley v. Unemployment
Compensation Board of Review, 397 A.2d 477 (Pa. Cmwlth. 1979).

A review of the record reveals that Employer met his burden of
proving willful misconduct. Employer testified in pertinent part as follows:
And, in fact, from the beginning from the beginning of
the year `til approximately three quarters of the year
through, the records indicated that he was out of all the
operators he had the lowest quality, I'm not saying
production, but quality evaluation of anyone based on his
scrap and reject rates that had run. So, we thought that
maybe this was, that he wasn't adapting to this job very
well or wasn't performing very well. We thought maybe

2 Our review in this matter is limited to a determination of whether constitutional rights
have been violated, errors of law committed, or whether essential findings of fact are supported
by substantial evidence. Brady v. Unemployment Compensation Board of Review, 544 A.2d
1085 (Pa. Cmwlth. 1988).
3

we could try him in a different department to see if he
could do better that might be less complex for him, and
so we transferred him. After we transferred him, on the
first week or two, he performed, you know, very well.
Production was good; he didn't seem to have any quality
problems. At that time in September of 2002 raises
came out in (sic) organization, pay raises. He did not
receive any for his previous performance. And his rating
was based on where he was previously working for the
past year, which was in that CNC Skirmishing
Department, not the new department, `cause he just
moved there. Once the pay raise came out, it was a
completely different story on the new job from the
previous several weeks that he was on the job.
...
So, he was doing fine, you know, on the very first day,
basically, or first week of his job. That's that week, then
on the 13th, the 13th or 14th the raises come out.... The
first, first day here, now, he would have worked that day
without knowing what he got because (sic) wouldn't
have got the paycheck until the end of the day.
...
And then, once he found out that he didn't get a raise,
from that point on the record show(s) his production
never got over 50 percent. And prior to the raise, it was
always above 50 percent, in fact, sometime(s) over a
hundred percent.
...
[F]rom that point on, I had a problem with his
production, which led to the warning notices.... From
the statements that he made to me when I gave him the
warning notices he didn't care.
...
So, obviously we went through the warning, which he did
process and it never changed, the production stayed the
way it was and we had to just terminated (sic) him
because of that....
Notes of Testimony, April 7, 2004, at 8-10, 17-18.

Once the Employer established willful misconduct, the burden shifted
to Claimant to show "just cause" for his actions. Mulqueen v. Unemployment
4

Compensation Board of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988). A review of
the record indicates that the Claimant failed to meet this burden.3 The Board found
Employer's testimony credible. Claimant's testimony that his decrease in
production was due to other circumstances was found not credible. All credibility
determinations are made by the Board. The weight given the evidence is within
the discretion of the factfinder. Fitzpatrick v. Unemployment Compensation Board
of Review, 616 A.2d 110 (Pa. Cmwlth. 1992). The Board is the ultimate
factfinder. Treon v. Unemployment Compensation Board of Review, 499 Pa. 455,
453 A.2d 960 (1982). The Board's finding that the Claimant was discharged for
willful misconduct was supported by substantial evidence.

Accordingly, we affirm.

JIM FLAHERTY, Senior Judge

3 Claimant testified that Employer told him that the product that he produced was of poor
quality. Claimant also stated that he had untreated diabetes which gave him poor eyesight,
however, he never told Employer about his diabetes. Claimant also stated that he did not make
the statements that were written on his first and second warning and that he did not stop
performing his job just because he did not get a raise. Claimant further stated that he had
problems with the machine but was told by Employer that the machine was okay. N.T. at 25-27.
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ngoc Nguyen,

:

Petitioner

:

:

v.

: No. 1303 C.D. 2004

:
Unemployment Compensation Board :
of
Review,

:

Respondent

:

O R D E R

AND
NOW,
this
18th day of February, 2005 the order of the
Unemployment Compensation Board of Review in the above captioned matter is
affirmed.

JIM FLAHERTY, Senior Judge