Wednesday, July 11, 2012

UC - willful misconduct - rule violation - awareness/proof of rule

Doswell v. UCGBR - July 11, 2012 - unreported memorandum opinion
Claimant found eligible for benefits in case where ER claimed a rule violation. The ER's only evidence of the rule was a written handbook, which was vague. There was no evidence that the Claimant was aware of the unwritten rule she was accused of having violated.

Where the employee is discharged for violation of a work rule, the employer must show not only that the employee violated the rule but also that the employee was aware of the rule and that her actions in violating the rule were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010). An employee cannot be found to have intentionally or deliberately violated a work rule for purposes of establishing willful misconduct absent evidence that she was aware of the rule in question. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985).

UC - willful misconduct - poor attitude

Anderson v. UCBR - July 11, 2012 - unreported memorandum decision

A vague finding that an employee was discharged for her poor attitude, without more, does not support a finding of willful misconduct. Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 (Pa. Cmwlth. 1976). "An employee‟s poor attitude must be coupled with some specific conduct adverse to his employer‟s interest, or result in some identifiable detriment to the employer before a conclusion of willful misconduct is justified." Luketic v. UCBR, 386 A.2d 1045, 1047 (Pa. Cmwlth. 1978); see also UCBR v. Kullen, 346 A.2d 926, 927 (Pa. Cmwlth. 1975).

UC - vol. quit - sexual harassment

JJ Stanley Inc. v. UCBR - July 11, 2012 - unreported memorandum decision

"[C]onduct such as unwanted sexual comments and requests for sexual favors … go beyond what must be tolerated in the workplace." Mutual Pharmaceutical Co. v. Unemployment Compensation Board of Review, 654 A.2d 37, 40 (Pa. Cmwlth. 1994). It is therefore well established that sexual harassment can constitute a necessitous and compelling reason to leave employment. Collier Stone Co., 876 A.2d at 484; Borough of Coaldale, 745 A.2d at 731; Comitalo, 737 A.2d at 344.

Claimant gave Employer sufficient notice of the sexual harassment. A claimant is not obligated to file a written or formal complaint of harassment or report every incident of harassment. Comitalo, 737 A.2d at 344; Mutual Pharmaceutical Co., 654 A.2d at 40; Homan v. UCBR, 527 A.2d 1109, 1111 (Pa. Cmwlth. 1987). "The law does not require a claimant to complain of each and every incident of sexual harassment nor does it require a formal complaint be filed." Homan, 527 A.2d at 1111. Moreover, Claimant fully complied with Employer’s sexual harassment policy. Employer’s sexual harassment policy required only that Claimant notify her supervisor of the harassment; it did not require her to submit a written report or statement. Claimant reported the harassment to her supervisor, who was the person at Employer who was responsible for addressing sexual harassment complaints.

Claimant also did not refuse any reasonable accommodation which could have permitted her to continue her employment. Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. UCBR, 706 A.2d 406, 408 (Pa. Cmwlth. 1998)

"[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace." Comitalo, 737 A.2d at 345.


FDCPA - damages - money paid as result of lawsuit barred by SOL

Hamid v. Stock & Grimes, LLP - ED Pa. July 9, 2012

Money paid by plaintiff/consumer after defendant/collector filed lawsuit barred by applicable statute of limitations is properly recoverable under the Fair Debt Collection Practices Act.

It is clear from its underlying purpose that debtors may recover for violations of the FDCPA even if they have defaulted on a debt. It follows that debtors may recover the amount paid to settle a debt, if the debt collector violated the FDCPA in making the collection, as occurred here. Hamid paid some or all of the money she owed to Discover Bank only as a result of the untimely lawsuit filed by S&G on behalf of the Bank. If her payment was not a proper element of actual damages under the FDCPA, a debt collector could harass a debtor in violation of the FDCPA, as a result of that harassment collect the debt, and thereafter retain what it collected. We do not believe that Congress intended this result.

Other good language

[T]here is universal agreement among scholars, law enforcement officials, and even debt collectors that the number of persons who willfully refuse to pay debts is minuscule.'" Id. at 165-66 (quoting S. Rep. No. 93-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. at 1696)). The court further stated that "Congress recognized that 'the vast majority of consumers who obtain credit fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness or marital difficulties or divorce.'" Id.