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Neil D. Brown v. Unemployment Compensation Board of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


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 "moron" violated the standards of conduct an employer has a right to expect of employees working in a warehouse facility.

We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:

(1) an act of wanton or willful disregard of the employer's interest;

(2) a deliberate violation of the employer's rules;

(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]

(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.

Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003).

Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Stated another way, "the employer must show the existence of the rule and its knowing violation." BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (emphasis original). Once employer meets its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 601 n.3, 633 A.2d 1150, 1156 n.3 (1993).

An employee's use of abusive, vulgar or offensive language with a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language.

Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Where an employer has adopted a policy against the use of obscene or abusive language with other employees or customers, violation of that rule may constitute willful misconduct. Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994). However, the context in which the profanity or other proscribed language is used must be considered. Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980) (holding that in the absence of evidence on context, a claimant's admission to using profanity "at times" did not constitute willful misconduct). In any case, the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Willful misconduct is not proven where use of the proscribed language was provoked or is de minimis in nature. Id. at 950.

We begin with Claimant's argument that the Board erred in concluding that his use of the word "moron" on the battery sign was threatening or intimidating, in violation of Employer's work rule. Claimant argues that he had good cause to use the term because the prior and more neutral sign had been removed and its message ignored. Claimant's replacement sign was intended to convey caution, not a threat or intimidation. The employee who found and complained about the sign was not its target. Indeed, Employer conceded that the sign was not directed at any particular person among the 605 who worked in its facility. In any case, this employee reported feeling "offended," not frightened or intimidated. Claimant argues that he had good cause to use the word "moron" because of the dangers involved in using a damaged battery. Finally, Claimant argues that "moron" is not considered profane or vulgar in modern parlance, particularly in a setting such as a large and busy warehouse, noting that his own supervisor called him a "jackass."

The Board responds that it properly denied benefits. The Board acknowledges that Claimant did not direct the signs to a particular co-worker. However, the Board believes that the sign was threatening, in violation of Employer's Employment Guide. We disagree.

The Employment Guide states that "[t]hreatening, intimidating or coercing fellow employees on the premises at any time or for any purpose" may result in disciplinary action, including termination. Ex. E-1 at 32. However, the Employment Guide does not define "threatening" or provide any illustrative examples. A "threat" is defined as a communication that conveys an "intent to inflict harm or loss on another or on another's property." See BLACK'S LAW DICTIONARY 1519 (8th ed. 2004). Calling a person a "moron" is rude, but it does not convey an intention to inflict harm on a person or his property.

Employer did not adopt a work rule proscribing abusive, vulgar or offensive language with respect to fellow employees. Cf., Brandt, 537 Pa. 267, 643 A.2d 78. Nevertheless, the Board held that Claimant's use of the word "moron" violated the standards of conduct that Employer can expect of its employees. In Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867 (1975), our Supreme Court explained:

A determination of whether an employee has engaged in willful misconduct can . . . only be made by considering what standard of conduct an employer reasonably requires. Standards expected by one employer may of course not be the standards of another employer. Willful misconduct cannot therefore be considered in a vacuum. It must be considered in relation to the particular employees and to the reasonable standards expected by a particular employer.

Id. at 442-43, 336 A.2d at 868 (emphasis added). Stated otherwise, the "standard of conduct" analysis is not an exact science.

Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that "moron" and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a "jackass" by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer's warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than "moron," was uttered in a more troubling context because it was directed by a supervisor to his subordinate. Management should be held to a higher standard of conduct. Claimant did not direct the term "moron" to his superior, which could be insubordination if unprovoked. Allen, 638 A.2d 448, 451. Indeed, Claimant did not direct "moron" to any specific individual or co-worker, as the Board itself acknowledges.

Concluding that "moron" was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse, we hold that Claimant did not commit willful misconduct.*fn5 In addition, Claimant's use of "moron" was de minimis and provoked by the dangerous negligence of some unknown co-worker who attempted to charge an inoperable battery. Cundiff, 489 A.2d at 951.

For these reasons, we reverse the adjudication of the Board.

Judge Leadbetter dissents.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

No. 1618 C.D. 2011 :

Neil D. Brown, : Petitioner : v. Unemployment Compensation : Board of Review, : Respondent :

ORDER

AND NOW, this 9th day of August, 2012, the order of the Unemployment Compensation Board of Review dated August 2, 2011, in the above-captioned matter, is hereby REVERSED.

MARY HANNAH LEAVITT, Judge


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