Submitted: November 13, 2014.
Appealed from No. B-556762. Unemployment Compensation Board of Review.
Marcus B. Schneider, Pittsburgh, for petitioner.
Marie I. Rivera-Johnson, Pittsburgh, for intervenor Lifesteps, Inc.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE RENé E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge. OPINION BY JUDGE LEAVITT.
MARY HANNAH LEAVITT, Judge
Thomas Scott, Jr., (Claimant) petitions for review of an adjudication of the Unemployment Board of Review (Board) holding that Claimant committed willful misconduct by sending a lengthy e-mail to senior management that contained two sarcastic and insulting comments about Claimant's immediate supervisor. Accordingly, the Board held that Claimant was ineligible for unemployment compensation under Section 402(e) of the Unemployment Compensation Law (Law). Claimant argues that the statements in question did not violate a work rule and, in any case, the e-mail is not what prompted his employer to discharge him. Claimant argues in the alternative that he had good cause for violating the putative work rule. We reverse the Board.
Claimant worked full-time as a residential supervisor at a group home owned and operated by Lifesteps, Inc. (Employer) and had worked there for over four years when he was dismissed on February 21, 2013. Residents of this group home suffer mental health and developmental disabilities. One of Claimant's job responsibilities was to serve on a committee with other employees to develop behavior plans for residents.
At issue in this case was the behavior plan for D.H., a resident who demonstrates aggressive behavior. The committee decided, over Claimant's objections, to modify D.H.'s behavior plan to impose more restrictions on him. Claimant complained to Michael Smith, a vice-president in charge of disability services, who directed Claimant to send him a written report by January 7, 2013. On January 10, 2013, Claimant sent a 50-page e-mail to Smith and to Karen Scott Owens, Employer's president and chief executive officer, that presented his concerns about D.H.'s revised behavior plan.
The e-mail offered detailed complaints about several employees, including Jim Schellhammer, a senior director at the group home and Claimant's supervisor. A few hours after receiving the e-mail, Smith called a meeting with Claimant and several other employees, none of whom had participated in the decision to revise D.H.'s behavior plan. Meredith Hayes, a compliance officer for Employer, interrupted Claimant while he was speaking, and Claimant responded angrily. Smith suspended Claimant for his angry reaction. Employer, after an investigation, discharged Claimant on February 21, 2013.
Claimant applied for unemployment compensation, which Employer opposed. In the UC Employer Questionnaire, Employer stated that it discharged Claimant for (1) not cooperating with the behavior plan committee; (2) confronting Schellhammer about D.H.'s behavior plan in front of county representatives; (3) making insulting and derogatory comments about Schellhammer in an e-mail to Smith; (4) verbally abusing Meredith Hayes during the meeting on January 10, 2013; and (5) verbally abusing a resident by chastising him for singing.
The Altoona UC Service Center denied Claimant benefits for the stated reason that he committed willful misconduct by failing to exercise good judgment, failing to maintain a cooperative attitude and failing to assist in the development of a resident's behavior plan. Claimant appealed, and a hearing was held before a Referee.
At the hearing, Employer repeated the five reasons for Claimant's discharge that it had recited in the UC Questionnaire. This time, Employer treated Claimant's alleged failure to cooperate with the behavior plan committee and confrontation of Schellhammer in the presence of county representatives as a single reason. Employer then added a new reason, i.e., that it discharged Claimant because he did not send the e-mail on January 7, 2013, as directed, but three days later.
The Referee found, as fact, that Employer did not prove that Claimant was uncooperative with the committee members; was verbally abusive at the January 10, 2013, meeting; was verbally abusive to a client; or was insubordinate by submitting his report by e-mail three days late. This left Claimant's two statements in the e-mail report as the reason for Employer's discharge, and those statements have become the focus of this appeal.
Claimant's lengthy e-mail recounted the horrific life story of D.H., 34 years old, who has resided in Employer's group home since 1999. D.H. and his brother were kept locked in dog cages by their parents. In addition, D.H.'s mother physically and sexually abused him. Her abuse culminated in feeding arsenic to D.H., his brother, his father and his grandfather.
All died save D.H., who was left with neurological damage caused by the arsenic. After relating this account of D.H.'s childhood, Claimant's e-mail report turned to criticisms of Schellhammer. Claimant complained that Schellhammer did not appreciate the extent of D.H.'s psychological damage. Specifically, Claimant's e-mail stated:
I'm sure after hearing about [D.H.'s] childhood, you would assume that he would have terrible psychological trauma. But despite [D.H.'s] fooling various clinical psychiatrists who have done psychological evaluations on him and prescribed him a wide array of psychotropic medications over the years for supposed psychological and neurological disorders, [Employer's] management has decided that [D.H.] does not have any psychiatric problems or issues. Thank goodness for Jim Schellhammer's expertise, because [Employer's] Behavioral Support Team may have went in a completely different direction if it weren't for his insights and leadership. Of course [Schellhammer's] not a licensed psychiatrist, but who needs to be whenever you have an associate's degree in occupational therapy from Mount Aloysius? I'm sure [Schellhammer] probably had some specialized training in psychiatry in the coal mines that I'm not aware of...and after all he is a " Senior Director" [with Employer], who can argue with a fancy job title like that? I think I heard that [D.H.] may have even kicked [Schellhammer] where it hurts on one occasion, so who better to give us an in-depth analysis of [D.H.'s] behaviors, and to debunk those naive clinical psychiatrists.
Claimant's Reply Brief, E-mail attachment of January 10, 2013, at 2 (ellipsis in original) (emphasis ...