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Elser v. Unemployment Compensation Board of Review

March 12, 2009

ROBERT L. ELSER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Pellegrini

Submitted: February 20, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Robert L. Elser (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e),*fn1 because his discharge was for willful misconduct. For the reasons below, we affirm.

VisionQuest (Employer) is a residential treatment facility for at-risk boys ages 14 to 20 who are adjudicated delinquent by the court system. Employer has a policy regarding community relations and public conduct which states:

POLICY: COMMUNITY RELATIONS & PUBLIC CONDUCT

You, as an employee of VisionQuest, are expected to conduct yourself in a manner that comports with your responsibilities in the communities in which you are stationed. Because our visibility within a community is highlighted by the type of services that we provide, we expect all employees to conduct themselves in a manner at once appropriate and positive in nature. VisionQuest defines conduct at once appropriate and positive in nature as: obeying the laws of the community in which we as a company reside temporarily or permanently. While you cannot be expected to be aware of every public law, you will be expected to exercise common sense in realizing that certain types of behavior are often times illegal. This may include public drunkenness, fighting (assault), and theft or theft of services. However, VisionQuest will not take disciplinary action if it is evident that local laws are being enforced in a selective or discriminatory fashion. Employees will be subject to disciplinary actions up to and including termination who fail to adhere to the standards herein set forth. Let us all be proud of who we are and respect whom we work for and what VisionQuest strives to stand for in its pursuit of the betterment of youth in all communities.

Claimant was employed by VisionQuest as a full-time principal on July 16, 2007, and signed an acknowledgement of receipt of Employer's policy which was reviewed with him during his orientation.

On April 2, 2008, Claimant and his wife invited Employer's program administrator, Mark Mazurkewic (Mazurkewic) and his girlfriend over for dinner at their house. During the evening, Claimant inquired if Mazurkewic had any "weed" and made graphic and slanderous comments about two former employees. When Mazurkewic told Employer about those remarks, Employer met with Claimant to confirm what Mazurkewic had relayed and then terminated Claimant on April 8, 2008, for unprofessional conduct in violation of the Community Relations & Public Conduct Policy.

Claimant applied for unemployment compensation benefits with the Erie UC Service Center. The UC Service Center stated that there was a conflict as to whether the incident which caused the separation was work or non-work-related, and both Section 402(e) of the Law, 43 P.S. §802(e), and Section 3 of the Law, 43 P.S. §752,*fn2 had to be considered. It then determined that Section 402(e) was appropriate because Employer proved that Claimant's actions constituted willful misconduct when he made vicious statements unsupported by fact and exposed Employer to liability from slander, and Claimant did not show good cause for his actions.*fn3

Claimant appealed to the Referee who conducted a hearing. At the hearing, Paula Mehler (Mehler), Employer's Human Resources Director, testified that there had been an ongoing problem with Claimant's conduct. Claimant had a three month evaluation in October 2007 at which he received a verbal warning regarding his professional conduct. One month later, in November 2007, he had been arrested for DUI and possession of drug paraphernalia which was reported in the local newspaper. Mehler stated that Employer counseled Claimant regarding public relations, his demeanor in public, and especially how important it was because he was Employer's principal and a member of management. She also stated that there had been complaints about him using foul language and inappropriate language in front of the youths in December 2007 for which he was counseled. Mehler stated that she met with Claimant regarding the incident at his home on April 2, 2008, and Claimant denied making any of the remarks to Mehler. Mehler stated that she found Claimant lacking in credibility while she found Mazurkewic credible regarding the incident because he had been with Employer for a long time and had never made any allegations previously about another employee. However, Mehler admitted that Claimant was not terminated after the three-month evaluation or the DUI arrest. She also admitted that the dinner party had no relation to Claimant's job.

Mazurkewic also testified regarding the dinner at Claimant's house when Claimant made statements regarding a co-worker, Robert Lee, who died and Claimant implied that Employer killed him.*fn4 Mazurkewic also stated that Claimant made statements that a female co-worker was performing sexual acts on students in her office but nothing was being done about that by Employer. He specified that Claimant accused the employee of performing oral sex and having intercourse with the youths in the facility and called her a whore.

Claimant testified that he was principal of the facility and was responsible for staff and curriculum development, personnel discipline, physical plant supplies, interdepartmental meetings, licensing and teacher certification.*fn5

Regarding the dinner party he had at which Mazurkewic was present with his girlfriend, he stated that it was not work-related. He denied asking Mazurkewic if he had any "weed" or making any negative comments about any other co-workers on behalf of Employer. He stated that they were merely ...


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