Opinion
No. 2135 C.D. 2013
06-30-2014
Heather Wooten, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Heather Wooten (Claimant) petitions for review of the November 22, 2013, order of the Unemployment Compensation Board of Review (UCBR), affirming the decision of a referee to deny Claimant unemployment compensation (UC) benefits. The UCBR concluded that Claimant was ineligible for UC benefits under section 402(e) of the Unemployment Compensation Law (Law) because her discharge from work with Targeted Pet Treats, LLC (Employer) was the result of willful misconduct. We reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked part-time for Employer from October 29, 2012, through June 10, 2013, on an assembly line, packing pet treats. Employer has a code of conduct, which states that Employer expects that employees will act in a professional manner. Employer expects employees to treat each other with respect and to perform assigned work in a prompt, cooperative, and efficient manner. Failure to live up to these expectations can result in the implementation of the targeted corrective action and discipline system. Claimant was aware of Employer's policy. (UCBR's Findings of Fact, Nos. 1-4.)
On the assembly line, when the pet products are bagged, the proper procedure is to place the treats in the bag and stand the bag upright into a basket for sealing. If the bag is not upright, it takes more time and work for the next person to seal the bag. (Id., Nos. 6-7.)
On June 10, 2013, an exchange occurred between Claimant and a co-worker, Shirley Shirley, over the bagging procedure, because another co-worker had laid some bags down. Claimant yelled at Shirley, "Why can other people do it and I can't [?]" Shirley responded, "Dammit," and Claimant replied, "No, damn you." Shirley became upset and started to cry. The other employees stopped packing when the incident occurred. While the line continued running, Shirley went to the human resources manager. The human resources manager spoke with Shirley, Claimant, and other employees to determine what occurred. Employer discharged Claimant at the end of the day because she was disrespectful towards one of her co-workers in violation of Employer's code of conduct and because her disruptive behavior affected other employees. (Id., Nos. 8-15.)
Claimant filed a claim for UC benefits, which was denied by the local service center. Claimant appealed to the referee, who conducted a hearing and similarly denied benefits. On appeal, the UCBR affirmed. The UCBR determined that Claimant engaged in willful misconduct, concluding that "[C]laimant uttered a very disrespectful comment to a co-worker, causing her to be very upset and resulting in a disruption in the flow of work." (UCBR's Decision, 11/22/13, at 3.) This appeal followed.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
On appeal, Claimant contends that her actions did not constitute willful misconduct. We agree.
Whether Claimant's conduct constitutes willful misconduct is a question of law. Brown v. Unemployment Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012). When an employee is discharged for violating a work rule, the employer must prove the existence of the rule and the fact of its violation. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The burden then shifts to the employee to prove that she had good cause for violating the rule. Id.
Here, we agree that Employer established that it has a code of conduct requiring respectful behavior among its employees. However, we disagree with the UCBR's determination that Claimant engaged in disqualifying willful misconduct.
Whether the language spoken by a claimant rises to the level of willful misconduct is determined by evaluating its use in context and in accordance with modern parlance to determine whether it is abusive, vulgar, or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Here, when asked by Claimant why other employees could lay down the bags, Shirley responded "Dammit," and Claimant replied "No, damn you." Claimant's utterance was no more disrespectful than her co-worker's. In addition, Claimant's statement was issued in response to Shirley's. Although there was a disruption in the work flow, as found by the UCBR, it was Shirley who left the assembly line, not Claimant.
"Where . . . the offensive remark was justifiably provoked and is of a de minimis nature, it does not amount to willful misconduct." First Family Federal Savings and Loan Association v. Unemployment Compensation Board of Review, 449 A.2d 870, 872 (Pa. Cmwlth. 1982). We cannot agree with the UCBR that Claimant's remark constituted willful misconduct because it was similar to Shirley's remark, which did not result in Shirley's termination.
Accordingly, we reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 30th day of June, 2014, we hereby reverse the November 22, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge