Wednesday, February 18, 2015

UC - willful misconduct - offensive language - de minimus conduct - provocation

Campbell v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion


One-time us of the word “bitch” toward a co-worker, in response to that employee’s threatening outburst, was de minimus and not disqualifying willful misconduct, even though use of abusive language violated ER rule.


Arnold v. UCBR, 703 A.2d 582 (Pa. Cmwlth. 1997),  “offensive language directed by an employee to an employer, if sufficiently provoked or de minimis, will not constitute willful misconduct.” Id. at 584.   Horace W. Longacre, Inc. v. UCBR, 316 A.2d 110 (Pa. Cmwlth. 1974), and Kowal v. UCBR, 512 A.2d 812 (Pa. Cmwlth. 1986).  Perez v. UCBR, 736 A.2d 737 (Pa. Cmwlth. 1999)





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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

UC - willful misconduct - fighting

Gallo v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion


Physical altercation at work not willful misconduct where

            * claimant acted in self-defense, after being pushed

            * claimant was furthering ER’s interests by giving foreman’s instructions to co-worker

            * incident lasted a matter of seconds

            * claimant’s actions were reasonable under the circumstances


The court noted that the UCBR failed to analyze the reasonableness of claimant’s actions, and that the facts found by the UCBR did not support findings that claimant escalated the fight.


“[F]ighting is considered inimical to the best interests of the employer and, as such, willful misconduct.” Rivera v. UCBR, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). However, “[w]here an employee’s conduct is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it is not a willful disregard of standards of behavior that an employer has a right to expect.” Miller v. UCBR, 83 A.3d 484, 488 (Pa. Cmwlth. 2014). An employee’s actions may be reasonable under the circumstances where that employee acts in self-defense in response to another employee’s physical aggression against him. See Mula v. UCBR, 407 A.2d 477, 477 (Pa. Cmwlth. 1979) (recognizing that an employee has a right to defend himself).  


Whether an employee’s actions are reasonable depends on the circumstances; our prior cases suggest such circumstances include the degree and duration of the employee’s actions. See Miller, 83 A.3d at 488 (holding that the claimant’s conduct was justified and reasonable where the entire physical altercation consisted of the other co-worker shoving the claimant and the claimant shoving the co-worker back); Peeples v. UCBR, 522 A.2d 680, 682-83 (Pa. Cmwlth. 1987) (holding that the claimant’s striking back at the employee who struck him was in self-defense, reasonable, and justified). Here, the circumstances suggest that Claimant’s actions were in self-defense and reasonable under the circumstances.