Geisinger Health Plan v. UCBR - Cmwlth. Court - en banc 4-3 decision - February 5, 2009 - 964 A.2d 970 Pa. Cmwlth. 2009)
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2029CD07_2-5-09.pdf
Claimant was fired for sending pornographic emails at work. He claimed improper disparate treatment, because others who had done the same were not terminated.
The Court (4-3) held that "[d]isparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2 ) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. See Department of Transportation v. UCBR, 755 A.2d 744, 748 (Pa. Cmwlth. 2000) (“[T]he essence of disparate treatment is not only whether unlawful discrimination has occurred but also whether similarly situated people are treated differently, based upon improper criteria.”). Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.
The court noted, several times, that there are "opinions of this Court that have been less than clear in applying the burden of proving disparate treatment," contrasting cases like Remcon Plastics, Inc. v. UCBR, 651 A.2d 671 (Pa. Cmwlth. 1994), with others such as Walsh v. UCBR, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The court noted that "it is important to remember that the disparate treatment defense to a finding of willful misconduct is not found in the Law, but has its genesis in the Pennsylvania Supreme Court’s decision in Woodson v. UCBR, 461 Pa. 439, 336 A.2d 867 (1975)."
There were strong dissents from Judges Pelligrini and Friedman (joined by Smith-Ribner).
So far as I know, there was no appeal in the case.
