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Neil D. Brown v. Unemployment Compensation Board of Review

August 9, 2012

NEIL D. BROWN, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: March 2, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT*fn1

Neil D. Brown (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for benefits for willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e).*fn2 The Board held that two signs Claimant posted in the workplace were threatening in nature and very offensive because they used the word "moron." Claimant acknowledged that he posted the signs but explained that he did so to prevent his co-workers from attempting to use an inoperable battery, which could be hazardous. Because "moron" is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant's use of the word "moron" did not rise to the level of willful misconduct. Therefore, we reverse the Board.

Claimant worked full-time for C&S Wholesale Grocers Inc. (Employer) as a Battery Machine Operator, responsible for maintaining the batteries in inventory at Employer's warehouse, where 605 people worked. Claimant worked Sundays through Wednesdays, from August 13, 2007, until February 16, 2011, his last day of work before he was dismissed.

On February 22, 2011, Claimant filed for unemployment compensation benefits. The Lancaster Unemployment Compensation Service Center denied Claimant benefits for the stated reason that he had harassed co-workers. Claimant appealed, and a hearing before a Referee was held on May 9, 2011.

Claimant testified that one of his work duties was to ensure that batteries needing repair were kept out of circulation and set aside in a designated space. Each out-of-service battery is labeled with a sign reading "Do Not Use." When Claimant reported to work the week of February 13, 2011, he discovered that someone had torn the "Do Not Use" sign off of an out-of-service battery and had attempted to charge and use it before it had been repaired. Claimant reported the matter to his supervisor, who directed Claimant to return the battery to the outof-service space, and Claimant did so. Claimant then placed two hand written signs on the battery that read "To the moron who can't read do not use this, do not use this battery" and "Not charging you moron." Notes of Testimony, May 9, 2011, at 6 (N.T. __). On or about February 21, 2011, Claimant learned that he had been fired.

Employer's witnesses explained Claimant's discharge. Employer's regional maintenance manager, Walter Barron, testified that he was contacted by Employer's human resources department because an employee in the shift that followed Claimant's complained about the signs on the battery. Barron testified that the employee who saw the signs "felt it [the word 'moron'] was a direct aim at him." N.T. 10. Barron further testified that he called Claimant to confirm that it was Claimant who had written the signs. In that call, Barron told Claimant that he found the signs to be offensive, as did the employee who found them.

William Gleason, of the human resources department, testified that Claimant was discharged because Claimant's signs did not represent "the type of conduct that [Employer] wanted to have within that work environment or on that work team." N.T. 6. Gleason further explained that Claimant had violated Employer's employment policy against "threatening, intimidating or coercing fellow employees on the premises at anytime for any purpose." N.T. 7.

Gleason also offered copies of Employer's Employment Guide into evidence. The Employment Guide defines harassment as verbal, physical and/or visual conduct when it denigrates or shows hostility or aversion toward an individual or his/her relatives, friends or associates because of his/her/their race, color, religion, national origin, age, disability, sexual orientation or any other characteristic protected by law.

Exhibit E-1 at 14 (Ex. __) (emphasis added). The Employment Guide also states that "[t]hreatening, intimidating or coercing fellow employees on the premises at any time or for any purpose" may result "in disciplinary action up to and including termination of employment." Ex. E-1 at 32. Claimant's Personnel Change Notice was also entered into evidence, and it stated that Claimant was terminated for violating company policy. Claimant's personnel record, also submitted into evidence, stated that "[h]arassment will not be tolerated in any form. Neil Brown will be terminated for the above stated events." Ex. E-3.

On cross-examination, Gleason testified about a separate incident between Claimant and "Mike," one of Claimant's supervisors. Mike called Claimant "jackass" after a dispute arose about cars being parked too closely together in the lot. Gleason spoke to Claimant about how to remedy the insult, and Claimant requested an apology from Mike. Gleason testified that Mike "apologized [to Claimant] and the two shook hands and everything was fine." N.T. 9. Gleason also acknowledged on cross-examination that bathrooms in the warehouse contained untoward graffiti, but it was removed when discovered.

The Referee denied Claimant's appeal, concluding that his conduct violated the Employment Guide. The Board affirmed, but it found that Employer did not prove that Claimant had violated its anti-harassment policy because there was no evidence that Claimant's conduct had been directed toward employees who were members of a protected class by virtue of their race, age, gender or disability.*fn3 Nevertheless, the Board found that Claimant's use of the word "moron" violated Employer's policy against threatening behavior toward fellow employees as well as the standards of conduct every employer has the right to expect of an employee. The Board rejected Claimant's claim that Employer tolerated the use of derogatory language or that he had been the victim of disparate treatment. The Board found that Employer did not condone graffiti on bathroom walls or the supervisor's use of the word "jackass" when addressing Claimant.

Claimant now petitions for this Court's review and raises three issues.*fn4 First, Claimant argues that substantial evidence does not support the Board's findings of fact, specifically findings of fact 4, 10 and 17. Second, Claimant argues that the Board erred in holding that the sign containing the word "moron" violated Employer's rule against threatening, intimidating or coercing fellow employees. Finally, he argues that the Board erred in finding that the use of the term ...


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