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Joseph F. Aversa v. Unemployment Compensation Board of Review

September 13, 2012


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

Submitted: March 9, 2012



Joseph Aversa (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for benefits. The Board found that Claimant intentionally threatened a co-worker in an e-mail in which Claimant stated that he would not forget what the co-worker did to him. The statement was held to be willful misconduct, rendering Claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law)*fn1 . Concluding that Claimant's neutral words were not converted into a threat of harm to property or person by being presented in capital letters, we reverse.

For approximately three years, Claimant worked full-time in sales as a territory manager for U.S. Food Services (Employer). In that position Claimant was assigned a specific geographic region and compensated on a commission basis. In January 2011, Employer removed a customer account from Claimant and assigned it to Jim Mowery, another territory manager, because Employer believed that Claimant had acted improperly to build an account in Mowery's region. To implement the account transfer, Claimant sent Mowery, by e-mail, a spreadsheet showing the account history when it had belonged to Claimant. The spreadsheet was sent as an attachment; the transmittal message from Claimant read as follows:

Hey Jim, you set me up pretty good . I WON'T FORGET IT.

Certified Record (C.R. ___), Item 18, Exhibit E-2 at 2 (Ex. ___). Mowery forwarded Claimant's e-mail to Employer without comment. Three days later, on January 24, 2011, Claimant met with Employer, where he acknowledged that his e-mail message was not professional. Employer discharged Claimant at the end of the meeting.

Claimant applied for unemployment compensation benefits. In his application, Claimant stated that he had been discharged, explaining that "I was accused of threatening a fellow employee." C.R., Item 2 at 3. He also stated that "[a] fellow employee lied about a work related incident that got me in trouble through no fault of my own." C.R., Item 2 at 4. The UC Service Center denied Claimant benefits on grounds of willful misconduct. Claimant appealed, and a hearing was held before a Referee on May 25, 2011.

At the hearing, Employer's Human Relations Manager, Alicia Adams, testified. Adams explained that approximately ten years earlier, Employer experienced an incidence of workplace violence that ended in a fatality. Employer responded by adopting a workplace violence prevention policy. Adams explained that this policy is not limited to physical violence in the workplace but also includes threats, intimidation, and harassment. Employer's policy is contained in Employer's "Associate Handbook," which Claimant received when he was hired. Further, he signed an acknowledgement stating that he had received, read, and understood the handbook. C.R., Item 18, Ex. E-1.

The Associate Handbook contains Employer's "workplace violence prevention" policy, and it states, in relevant part, that

[Employer] will not tolerate any actions, statements, or other behavior by anyone that is, or is intended to be, violent, threatening, intimidating, disruptive, aggressive or harassing, as determined by [Employer] in its sole discretion. This means [Employer] will take appropriate action, up to and including termination of employment, in response to such conduct. This policy applies to associates, temporary workers, consultants, contractors, customers, vendors, visitors and all other individuals, while on [Employer's] premises (whether owned or leased) or while conducting Company business (including travel).

C.R., Item 3. The Associate Handbook provides that those who violate the workplace violence policy will be immediately escorted from the workplace pending investigation. It also provides that Employer reserves the right to determine all violations and the sanction, up to and including a termination of employment.

Adams testified that Claimant was discharged for the e-mail to Mowery, which Employer believes that Claimant had "intended to be . threatening," in violation of the Associate Handbook. Id. Adams reported that at her meeting with Claimant, he expressed regret for his e-mail to Mowery but did not think that its language was threatening. Claimant told Adams that he was disturbed by losing his client and was angry when he sent the e-mail to Mowery. Adams testified that she found Claimant's use of capitalized letters in the e-mail to convey a threat and that Mowery told her that he found Claimant's e-mail threatening. Adams acknowledged that Claimant had apologized both to Mowery and to the division president.

Claimant then testified. He stated that a few months before his termination, he had secured a new contract in his territory with a convenience store that was owned by the daughter of one of Mowery's clients. Recognizing the potential for a conflict over the convenience store client, Claimant obtained permission from Mowery and Mowery's district manager to open the account. The convenience store's owner explained to Claimant that she intended to phase out a rival supplier and would be increasing her orders in the future. When orders from the convenience store increased, Claimant attributed this to the phase-out of the rival supplier. However, it turned out that this increase was the result of the convenience store owner ordering products for use at the diner owned by her father.*fn2 The diner was Mowery's client. Employer investigated the matter, telling Claimant that "one of the [c]ooks" at the diner ...

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