Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Sara M. Kowal, No. B-205016.
Elliot A. Strokoff, Handler and Gerber, P.C., for petitioner.
Michael Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr., and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 77 Pa. Commw. Page 379]
Sara M. Kowal, a program monitor for the Susquehanna Employment and Training Corporation (SETCO) who, at a meeting in September of 1981, threw a writing tablet at her supervisor and told him, "I hate working here. Shove it up your ass," appeals from an Unemployment Compensation Board of Review order which affirmed a referee's denial of benefits on the ground of willful misconduct.
We must decide if the board failed to consider the issue of justifiable provocation, and if so, whether this case should be remanded for additional findings of fact.
Vulgar language addressed to a superior can constitute willful misconduct unless there has been justifiable provocation. Goins v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 22, 445 A.2d 1339 (1982). Here, the claimant's outburst was insubordinate, as we recently held in Losch v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 94, 461 A.2d 344 (1983) involving very similar language.
However, Mrs. Kowal submits that she was justified by provocation because SETCO's executive director, who admonished her and other employees to smile more and present a friendlier attitude, did so in an abusive manner. Specifically, Mrs. Kowal testified that he was "shouting and yelling and pointing." Indeed,
[ 77 Pa. Commw. Page 380]
the executive director, who admitted to speaking "very loudly and very pointedly," testified that:
I did say at that meeting that I guess what I am trying to do is to intimidate any of you to give me some feedback which I thought was a problem we were having within the monitoring division. I did say I guess I had been trying to intimidate you.
Other meeting attendees also testified that the executive director was screaming, speaking loudly, and ...