Opinion
No. 1473 C.D. 2013
03-07-2014
Kelly M. Becker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Kelly M. Becker (Claimant) petitions for review of the July 31, 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 determined that Claimant was ineligible for benefits because she was discharged from work for willful misconduct pursuant to section 402(e) of the UC Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked for Holdings Acquisition Co, L.P. d/b/a Rivers Casino (Employer) as a part-time table games dealer from July 5, 2010, until February 5, 2013. (Findings of Fact, No. 1.) On Claimant's last day of work, a fellow dealer, Kenny O'Rourke, repeatedly told Claimant that she should tuck in her shirt and put on an apron. (Id., Nos. 5, 6.) Claimant asked O'Rourke to stop, but he continued saying "tuck in your shirt, put on an apron." (Id., No. 7.) On the playing floor, within earshot of guests, Claimant told O'Rourke to "f**k off." (Id., No. 9.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law in their entirety.
At the hearing, O'Rourke testified, "What I said to her was . . . tuck in your shirt, wear your apron. Any time she had a response that's all I kept saying to her back and forth[sic]." (N.T. at 13.) He later stated, "I kept repeating it anytime she had a comeback. She said anything to me[sic] I would just say that right back to her." (N.T. at 14.)
Employer maintains standards of conduct prohibiting cursing and rude or discourteous behavior towards guests, supervisors, or co-workers. (Id., No. 11.) After an investigation, Employer discharged Claimant for using profanity towards another team member while on the floor. (Id., No. 14.)
Claimant filed a claim for UC benefits, which the local service center denied. Claimant appealed to the referee, who held an evidentiary hearing on April 22, 2013. The referee affirmed the denial of UC benefits, concluding that Claimant was discharged for willful misconduct under section 402(e) of the Law. Claimant appealed to the UCBR, which affirmed. Claimant now petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. The determination of whether an employee's conduct constitutes willful misconduct is ultimately a question of law, subject to our review. Bivins v. Unemployment Compensation Board of Review, 470 A.2d 662, 664 (Pa. Cmwlth. 1984). --------
Here, Employer had a reasonable work rule prohibiting swearing in front of guests, and Claimant admitted to swearing on the floor with knowledge of the work rule. See Adams v. Unemployment Compensation Board of Review, 56 A.3d 76, 79 (Pa. Cmwlth. 2012) (holding that when an employee is discharged for violating a work rule, the employer must prove the existence of the work rule, the reasonableness of the rule, the employee's awareness of the rule, and that the employee violated the rule). Thus, the burden shifted to Claimant to prove that she had good cause for violating the rule. See Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (noting that the burden of proof shifts to the employee to prove that she had good cause for her actions after the employer proves a work-rule violation).
Claimant argues that she demonstrated good cause for violating the work rule because O'Rourke's harassment provoked her response. Claimant maintains that this provocation justified her use of profanity and that the profanity was de minimis. We disagree.
Claimant argues that the conduct of a co-worker can manifest good cause for an employee's use of profanity. See, e.g., Kowal v. Unemployment Compensation Board of Review, 512 A.2d 812, 813-14 (Pa. Cmwlth. 1986) (holding that an employee's telling her supervisor to "shove it up your ass" was justifiably provoked by her supervisor's belittling of employee for 45 minutes at a meeting); Nehi Bottling Company v. Unemployment Compensation Board of Review, 366 A.2d 594, 596 (Pa. Cmwlth. 1976) (affirming the UCBR's determination that an employee's threat to a co-worker was excusable due to the co-worker's provocation); Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 316 A.2d 110, 111-12 (Pa. Cmwlth. 1974) (finding adequate provocation for an employee telling her foreman to "go to hell" after the foreman grabbed her arm). However, none of these cases addressed the violation of a work rule prohibiting swearing, nor did they involve swearing in front of customers.
We conclude that Claimant has not demonstrated good cause for her actions. See Chapman, 20 A.3d at 607 ("The employee establishes good cause where her actions are justified or reasonable under the circumstances."). Although O'Rourke's conduct was annoying and childish, his conduct did not justify Claimant's violation of Employer's policy. Claimant did not need to swear in front of customers, she had other options, including discussing the matter with supervisors. (See Referee's Decision at 3.)
Further, the offensive language cannot be considered de minimis because it was a significant obscenity, customers were present, and Employer has an interest in maintaining a profanity-free environment for its guests. This court has repeatedly declined to apply the de minimis exception in cases involving a knowing violation of a work rule. See Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884, 885 (Pa. Cmwlth. 1998) ("[T]his Court has held that the de minimis argument has no place in cases involving a deliberate violation of employer's rules.").
The UCBR correctly determined that Claimant committed willful misconduct. Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge Judge Brobson did not participate in the decision of this case.
ORDER
AND NOW, this 7th day of March, 2014, we hereby affirm the July 31, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge