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ELAINE R. DODSON v. COMMONWEALTH PENNSYLVANIA (12/17/81)

decided: December 17, 1981.

ELAINE R. DODSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALLEGHENY LUTHERAN SOCIAL SERVICES, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Elaine R. Dodson, No. B-182147.

COUNSEL

Ronald Keeler, for petitioner.

Karen Durkin, Associate Counsel, with her, Joel G. Cavicchia, Associate Counsel, Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for intervenor.

Judges Mencer, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 246]

This is an appeal by Elaine R. Dodson (Claimant) from a decision of the Unemployment Compensation Board of Review (Board) affirming the referee's denial

[ 63 Pa. Commw. Page 247]

    of benefits on the basis of Claimant's willful misconduct.*fn1

Claimant was last employed by Allegheny Lutheran Social Services (Employer) as a Center Director of a day school for preschool children in Saxton. Claimant's duties involved directing and supervising the day to day operation of this facility, its students and staff. On November 29, 1979, Claimant was presented with a written performance evaluation by her supervisor, Mrs. Helen Wright, who had prepared the evaluation. As Claimant looked over the evaluation, she informed her supervisor several times that: "This is a bunch of shit." Upon being informed by her supervisor that she could resign, Claimant responded: "Not on your ass will I resign."*fn2 Further along in the conversation, in response to a request for cooperation, Claimant informed her supervisor: "I have cooperated with you for two and one-half years, lady. No more."*fn3 On November 14, 1979, the Claimant was discharged from her position, the reason as found by the referee being her vulgarity and insubordination on November 29.*fn4

[ 63 Pa. Commw. Page 248]

Of course, the issue of willful misconduct is a question of law for our review. Murraysville Telephone Page 248} Co. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 35, 398 A.2d 250 (1979). The standard we have enunciated is that willful misconduct is established when an employee's behavior constitutes a wanton and willful disregard of the employer's interests or the deliberate violation of the employer's rules or the disregard of the standards of behavior which an employer can rightfully expect from his 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. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). We have also held that vulgarity, even in a single instance, may constitute willful misconduct where the vulgarity is unjustified, unprovoked, unnecessary or uncalled for under the circumstances. Fields v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 200, 300 A.2d 310 (1973). However, where there is justifiable provocation and the language is de minimis, we have held vulgar and offensive language addressed to a superior not to be willful misconduct. See Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 316 A.2d 110 (1974).

Claimant has argued that the words used here are part of the common marketplace-workplace language to which we are all exposed and that the words are especially harmless in this case since the words were not used to derogate the superior. Therefore, the Claimant believes these words ...


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