Friday, September 14, 2012

UC - willful misconduct - email - threat - use of capital letters

Aversa v. UCBR – Cmwlth. Court – Sept. 13 2012   (2-1)

Neutral words are converted into threat by use of CAPITAL LETTERS

When claimant perceived he was wrongfully removed from a sales region, he wrote to the person who replaced him, stating: Hey Jim, you set me up pretty good … I WON’T FORGET IT.”  The employer fired him for threatening conduct.  The UCBR denied benefits.

The Board did not believe Claimant’s statement that he did not intend to convey a threat, but that credibility determination is not substantive evidence that Claimant did, in fact, intend a threat. An adverse credibility determination is not itself substantial evidence.

To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat.  The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat.  The manager did not consider the fact that capitalized letters in an e-mail are still quite small.

The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously.  The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.

The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.

In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.

Accordingly, we reverse