Wednesday, March 24, 2010

UC - willful misconduct - offensive comments

Sadler v. UCBR - Marcy 24, 2010 - unreported memorandum opinion

Held, library director engaged in willful misconduct when, at a work meeting with other librarians, expressed happines at death of former director by stating that she was happy that the former director died, acted like she was excited, and yelled “yeehaw” in celebration. Later on, during a meeting break but in the presence of the others, she said to another librarian, “Ding dong, the witch is dead,” quoting from the Wizard of Oz song."

For insensitive comments to rise to the level of willful misconduct in cases, such as here, where the Employer has no specific policy governing standards of behavior, they must be of such a character that the speaker knew or intended, or that any reasonable person would have known, that the comments were offensive or inappropriate under the circumstances. Poplin v. UCBR, 690 A.2d 781 (Pa. Cmwlth. 1997). The burden of proof is on the employer to prove allegations of willful misconduct. Phoenixville Area School District v. UCBR, 596 A.2d 889 (Pa. Cmwlth. 1991).
Whether an offensive comment rises to the level of willful misconduct is highly fact-specific.

In Witkowski v. UCBR, 633 A.2d 1259 (Pa. Cmwlth. 1993), we held that a white employee who told two black employees that their employer was “working me like a n----r” committed willful misconduct, while in Poplin, 690 A.2d 781, we held that a white employee who referenced the Ku Klux Klan in the presence of a black employee and then asked the black employee if he wished he were white did not engage in willful misconduct.

In McCall v. UCBR, 717 A.2d 623 (Pa. Cmwlth. 1998), we held that an employee of a business school who was responsible for acquisition and maintenance of a city contract to train persons on welfare engaged in willful misconduct when she questioned whether the program taught students moral values about bearing children out of wedlock and then stated that she “strongly objects to supporting whores on welfare.”

On the other hand, in Gallagher v. UCBR, 388 A.2d 785 (Pa. Cmwlth. 1978), we held that a bartender who called his boss’ girlfriend a “bitch” while at the bar on his day off from work did not engage in willful misconduct because the claimant’s comment was not connected with his work.

Gallagher is most similar to this appeal, but with the important distinction that the claimant in Gallagher was physically present at his place of employment, he was not actually working when he called his employer’s girlfriend a bitch while, here, Claimant was participating in a business meeting at the time of her comments. If Claimant had walked into her library to check out a book on a day she was not working and exclaimed “yeehaw” and “ding dong, the witch is dead” upon hearing of the death of her former director, her comments, while crass, would not have risen to the level of willful misconduct. However, because she was attending a business meeting at the time of her comments and, in fact, interrupted the meeting to express her unabashed pleasure at the news, her conduct was qualitatively different and crossed the line from crassness to willful misconduct. As Claimant acknowledged, it was offensive and inappropriate to express such demonstrative joy over the death of a former supervisor at a business meeting filled with people who knew the deceased and had just learned of her death.