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ROSEMARIE CUNDIFF v. COMMONWEALTH PENNSYLVANIA (03/19/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 19, 1985.

ROSEMARIE CUNDIFF, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Rosemarie Cundiff, No. B-197843-B.

COUNSEL

Carol S. Mills McCarthy, for petitioner.

Sandra E. Wise, with her, Philip J. Murren, Ball & Skelly, for intervenor, Saint Joseph Home for the Aged.

Judges Doyle and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 88 Pa. Commw. Page 273]

This is an appeal by Rosemarie Cundiff (Claimant) from an order of the Unemployment Compensation Board of Review (Board), affirming a referee's decision which denied benefits on the ground of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law.*fn1 We reverse.

The facts as found by the Board*fn2 are essentially undisputed. On March 20, 1981 Claimant was employed

[ 88 Pa. Commw. Page 274]

    as a nurse's aide by the St. Joseph Home for the Aged (Employer). Her regular schedule required that she attend patients from 7 to 8 a.m. and that at 8 a.m. she begin feeding patients. On the morning of March 20, 1981, one of Claimant's totally invalid patients was incontinent and required extensive bathing. At 8 a.m. Claimant's supervisor discovered her with this patient in the tub room and told her to attend to the feeding of other patients. Claimant replied "get off my back; so what, there are other people out there than can feed patients, I don't have to do that."*fn3 Claimant was discharged for insubordination. The Board concluded that Claimant had good cause to be taking care of the incontinent patient but denied Claimant benefits because "she was not justified in making insubordinate remarks to her supervisor."

[ 88 Pa. Commw. Page 275]

In an unemployment compensation case the burden of proving willful misconduct is on the employer. Gane v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 292, 398 A.2d 1110 (1979). When the party bearing the burden of proof prevails before the Board, this Court's scope of review is limited to a determination of whether the Board's findings of fact are supported by substantial evidence and whether the Board has committed an error of law. Milne v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 30, 457 A.2d 224 (1983). Whether specific conduct constitutes willful misconduct is a question of law subject to review by this Court. Gilbert v. Unemployment Compensation Page 275} Board of Review, 60 Pa. Commonwealth Ct. 446, 431 A.2d 1151 (1981).

We first note that Claimant had good cause to refuse to leave the invalid patient in the tub to attend to feeding chores.*fn4 If an employee has good cause for refusing to comply with a directive of the employer, the refusal does not constitute willful misconduct. Tisak v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 399, 424 A.2d 635 (1981). It is the "insubordinate remarks", that is, the words by which Claimant communicated her refusal, that the Board found to be willful misconduct. Claimant's language, however, was not abusive, vulgar or offensive by modern standards of parlance. Her words may have been somewhat curt, but under the circumstances they were not unreasonable.

The Employer, relying on Losch v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 94, 461 A.2d 344 (1983),*fn5 argues that insubordination is a category of willful misconduct separate and

[ 88 Pa. Commw. Page 276]

    distinct from vulgar and offensive language and therefore Claimant's statement should not be analyzed by this Court in the same manner as vulgar and offensive language. Specifically, the Employer contends that Claimant's statement should not be subject to exception from classification as willful misconduct if found to be provoked or de minimis.*fn6 We disagree.

While this Court has held that abusive language directed to a superior is a form of insubordination, Strong v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 554, 459 A.2d 57 (1983), the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive.*fn7 If the language is found to fit within one of these categories, it will constitute willful misconduct unless provoked or de minimis.*fn8

Our Supreme Court has held that where the action of an employee is reasonable under the circumstances

[ 88 Pa. Commw. Page 277]

    it cannot be considered willful misconduct since it is not a willful disregard of the standard of conduct the employer has a right to expect. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631, (1976). Having determined that Claimant's language was not unreasonable under the circumstances, we hold that it was de minimis ; it was not such a willful disregard of the standard of conduct which the Employer had a right to expect as to disqualify her from receiving unemployment compensation benefits. The order of the Board is reversed.

Order

And Now, March 19, 1985, the order of the Unemployment Compensation Review Board, No. B-197843-B, in the above-captioned matter is reversed.

Judge Williams, Jr., did not participate in the decision in this case.

Disposition

Reversed.


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