UC - job offer contingent on claimant waiver of UC claim

Big Mountain Imaging v. UCBR - Cmwlth. Cour - April 30, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/2138CD11_4-30-12.pdf

An offer of employment may not be contingent on an employee waiving his right to collect unemployment benefits, Claimant had good cause to reject Employer’s offer. Section 701 of the Law, 43 P.S. §861 (no agreement by employee to release rights under this act shall be valid); see Lee v. UCBR, 33 A.3d 717 (Pa. Cmwlth. 2011) (an employer cannot accept a settlement of an unemployment compensation claim); Pitt. Chem. & Sanitary Supply Co., Inc. v. UCBR, 9 A.3d 274 (Pa. Cmwlth. 2010).

sec. 1983 - qualified immunity - private entity doing public function

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

FILARSKY v. DELIA

No. 10–1018. Argued January 17, 2012—Decided April 17, 2012

Respondent Delia, a firefighter employed by the City of Rialto, California, missed work after becoming ill on the job. Suspicious of Delia's extended absence, the City hired a private investigation firm to conduct surveillance on him. When Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation. It hired petitioner Filarsky, a private attorney, to interview Delia. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify Delia’s claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials. Delia brought an action under 42 U. S. C. §1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Court of Appeals for the Ninth Circuit affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.

Held: A private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983. Pp. 4-16.

Syllabus
(a)
In determining whether the Court of Appeals made a valid distinction between City employees and Filarsky for qualified immunity purposes, this Court looks to the general principles of tort immunities and defenses applicable at common law, and the reasons the Courthas afforded protection from suit under §1983. See Imbler v. Pachtman, 424 U. S. 409, 418. The common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-timepublic servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level.Government work was carried out to a significant extent by individ- uals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government’s work, the common law did not draw distinctions based on the nature of a worker’s engagement with the government. Indeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself. Common law principles of immunity were incorporated into §1983 and shouldnot be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should notvary depending on whether an individual working for the governmentdoes so as a permanent or full-time employee, or on some other basis. Pp. 4–11.

(b)
Nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule. First, the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business— which has been called “the most important special government immunity-producing concern,” Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual suedas a state actor works for the government full-time or on some otherbasis. Second, affording immunity to those acting on the government’s behalf serves to “ ‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’ ” Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees. Finally, distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to “ ‘reasonably anticipate when their conduct may give rise to liability for damages,’ ” Anderson v. Creighton, 483 U. S. 635, 646. Pp. 11-13.

(c)
This conclusion is not contrary to Wyatt v. Cole, 504 U. S. 158, or Richardson v. McKnight, 521 U. S. 399. Wyatt did not implicate the reasons underlying recognition of qualified immunity because the defendant in that case had no connection to government and pursued purely private ends. Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work. Pp. 13-15.

621 F. 3d 1069, reversed.
ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-BURG, J., and SOTOMAYOR, J., filed concurring opinions.

UC - willful misconduct - rule violation - proof of rule - threats to co-worker

Lewis v. UCBR - Cmwlth. Court - April 16, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1552CD11_4-16-12.pdf

Proof of employer rule

The employer failed to present adequate evidence of the rule that claimant was accused of violating. - An employer witness provided the only evidence regarding a work policy when he stated, in response to a question about whether Claimant should have known that a heated argument was prohibited in the workplace, “We have rules and regulations and also we have [a] harassment policy.” Critically, Employer did not identify any specific rule or policy that Claimant violated, nor did it present any documentary evidence of such a policy.

Testimony that Employer has “rules and regulations” and a “harassment policy” is insufficient to establish the type of policy that the UCBR found Claimant violated. See Pennsylvania National Insurance Company v. UCBR, 531 A.2d 832, 834 (Pa. Cmwlth. 1987) (finding no willful misconduct where there was no evidence of a specific rule that the claimant violated); Goodson v. UCBR, 424 A.2d 1019, 1020 (Pa. Cmwlth. 1981) (finding no willful misconduct where the employer’s witnesses failed to specify what company regulation the claimant violated). Even if Employer had proven the existence of a policy, however, the UCBR made no finding that Claimant was aware or should have been aware of it. Therefore, we conclude that Employer failed to prove Claimant’s deliberate violation of a work rule.

Threats to a co-worker

While it is true that threats of harm toward a co-worker (CW) may disqualify an employee from receiving benefits, see Andrews v. UCBR, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993), there is no evidence here that Claimant threatened a co-worker. The only evidence Employer presented regarding any threat was Claimant’s written statement that the co-worker said that he [the co-worker] carries guns and Claimant’s response that he had been shot before and was not afraid of guns. Claimant himself did not threaten to use firearms. According to Claimant, the CW then "went on about how [tough] he was and I went on about how [tough] I was to [sic]."

An employee’s remark to another employee that he is "tough," without more, cannot be construed as a threat of physical harm disqualifying him from receiving benefits. See Blount v. UCBR, 466 A.2d 771, 773 (Pa. Cmwlth. 1983) (noting that, where an employee’s offensive remark to another employee was justifiably provoked and of a de minimis nature, it did not constitute willful misconduct).7 Furthermore, the UCBR made no findings, nor was there any evidence, that Claimant used profanity or offensive language during the argument or that there was any physical contact between the two men. Thus, we cannot conclude that Claimant’s behavior rose to the level of willful misconduct.

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This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.

UC - vol. quit, childcare; overpayment - non-fault

Favero v. UCBR - Cmwlth. Court - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1454CD11_4-13-12.pdf

VQ - Child care - In Truitt v. UCBR, 509 Pa. 628, 589 A.2d 208 (1991), our Supreme Court addressed the issue of child care as a necessitous and compelling reason to quit. In Truitt, the claimant quit her job working a late night shift after making inquiries of her sisters, former babysitters, and a daycare center in an effort to find replacement care for her two children, who had been previously cared for by her then-ailing mother. The Supreme Court, in granting benefits, held that in light of all of claimant’s efforts, "[t]here is nothing more that we can or should ask of an employee before that employee terminates his or her employment." Truitt, 527 Pa. at 143, 589 A.2d at 210.

This Court determined, in Shaffer v. UCBR, 928 A.2d 391 (Pa. Cmwlth. 2007), that a claimant’s child care issues did not constitute a necessitous and compelling reason to terminate her employment where the Board found that although she investigated one daycare facility, which proved not to be cost effective, she failed to present evidence regarding additional efforts made to address the child care problems after her employer relocated, "such as securing alternative childcare for her daughter with other daycare facilities...or having her son enroll in an after school activity or stay with a relative or neighbor before or after school." Id. In Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we noted that this Court has consistently required that claimants prove that they explored alternative child care arrangements before terminating employment in order to care for small children, and claimants must establish that they exhausted all other alternative child care arrangements, such as a concerted effort to find another babysitter or find a suitable daycare center. Id. at 71-72.

We find, sub judice, that substantial evidence exists to support the Board’s finding that once her child started public school, Claimant wanted to be available to put her child on the school bus, and meet her child at the bus stop after school, and therefore did not want to put her child in wrap around daycare.7 Here, the Referee questioned Claimant about relatives who might be available to help her, but failed to inquire about babysitters, neighbors, or daycare services that might be available. Indeed, the Referee characterized Claimant’s testimony as to why she left her employment as "her need to take her daughter to the bus stop in the morning and pick her up again in the afternoon." There is simply no evidence that Claimant exhausted alternative child care arrangements, or made any effort at all to explore other possibilities besides securing the services of a family member.

Conversely, Employer asserted, in its appeal from the Referee’s decision, that at least three viable daycare options existed, and Claimant’s child had previously been in daycare. We find that the Board did not err in concluding that Claimant made a decision that once her child started public school, she would undertake to care for the child before and after school, and properly found that Claimant left work without cause of a necessitous and compelling nature.

Overpayment - non-fault - We have stated that the word "fault" within the meaning of Section 804(a) of the Law connotes "an act to which blame, censure, impropriety, shortcoming or culpability attaches...." Greenawalt v. UCBR, 543 A.2d 209, 211 (Pa. Cmwlth. 1988) (quoting Cruz v. UCBR, 531 A.2d 1178, 1180 (Pa. Cmwlth. 1987). Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. Greenawalt.

Our review of the record finds no basis for concluding that Claimant’s statements were knowingly or intentionally misleading, and no other evidence supporting the Board’s finding of a fault overpayment. At every opportunity, Claimant explained her reason for claiming "lack of work" on her online application, and clearly stated that she had voluntarily resigned her full-time position after Employer failed to offer part-time employment.

Accordingly, we affirm the Board’s decision as to the denial of benefits, but we reverse as to the finding of fault on the part of Claimant. Benefits paid to Claimant for the weeks following her voluntary quit are a nonfault overpayment subject to recoupment under Section 804(b) of the Law, 43 P.S. §874(b)(1)

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - willful misconduct v. inadvertent mistakes

Dissinger and Dissinger v. UCBR - April 13, 2012 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1722CD11_4-13-12.pdf

An employee’s failure to work up to her full, proven ability, especially after multiple warnings regarding poor work performance, must be construed as willful misconduct because such conduct shows an intentional disregard of the employer’s interest or the employee’s obligations and duties. However, a finding that a claimant worked to the best of her ability negates a conclusion of willful misconduct. Norman Ashton Klinger & Assocs., P.C. v. UCBR, 561 A.2d 841 (Pa. Cmwlth. 1989); Radio Station WVCH v. UCBR, 430 A.2d 737 (Pa. Cmwlth. 1981). Mere incompetence, incapacity or inexperience causing poor work performance will not support a discharge for willful misconduct. Geslao v. UCBR, 519 A.2d 1096 (Pa. Cmwlth. 1987).

Here, the Board credited Claimant’s testimony that she worked to the best of her ability, and it determined Employer did not show "[C]laimant’s shortcomings were intentional." The Board also credited Claimant’s testimony that she made mistakes when Employer gave her several tasks to complete at one time. The Board also found Employer did not formally discipline Claimant. These findings are amply supported.

In any event, to be disqualifying, an employee’s rule violation must be knowing and intentional or deliberate. Phila. Parking Auth. v. UCBR, 1 A.3d 965 (Pa. Cmwlth. 2010). An inadvertent rule violation is not willful misconduct. Morysville Body Works, Inc. v. UCBR, 419 A.2d 238 (Pa. Cmwlth. 1980). Here, the Board specifically determined Employer did not show Claimant’s actions were intentional; consequently, this could not form the basis for a determination of willful misconduct.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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UC - vol. quit - transportation problems - seeking help from employer

Baker v. UCBR - April 12, 2012 - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1146CD11_4-12-12.pdf

Transportation inconveniences may rise to the level of a necessitous and compelling reason for voluntarily terminating one’s employment if the transportation problems are "so serious and unreasonable as to present a virtually insurmountable problem." J.C. Penney Co., Inc. v. Unemployment Compensation Board of Review, 457 A.2d 161, 163 (Pa. Cmwlth. 1983) (citation omitted). However, "the claimant must demonstrate that . . . she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship." Id. (citation omitted).

In Yurack v. UCBR 435 A.2d 663, 664 (Pa. Cmwlth. 1981), in which a claimant voluntarily resigned her position because she could no longer drive for medical reasons, this Court held that the claimant "should [have] request[ed] her employer’s assistance in finding transportation" before resigning. We noted that "[h]ad such a request been made . . . her employer might have helped [the c]laimant make arrangements with a co-worker to alter his or her commuting arrangements to include [the c]laimant. Alternatively, the employer might have been able to arrange a carpool with employees." Id. However, because she had not taken such actions, we held that the claimant could not "claim the [transportation] problem [was] insurmountable and that her termination was for necessitous and compelling reason." Id. Similarly, in Latzy, we held that the claimant, who had been furloughed from one position, had not established necessitous and compelling cause to reject a job offer at a different location because, although she had inquired about public transportation as a way to get to the new position, she "fail[ed] to investigate the possibility of riding to work with other employees and to ask for the [employer’s] assistance." Latzy, 487 A.2d at 123. We stated that such failure "is not consistent with one desiring to remain employed" and did not establish that the claimant "took reasonable steps to overcome her transportation difficulties." Id.

Here, as in Latzy and Yurack, Claimant did inquire into other means of transportation to work once it became clear that assistance would not be forthcoming from Lancaster or Berks counties. Indeed, Claimant went beyond the efforts of the claimants in Latzy and Yurack by, inter alia, contacting her state senator for assistance. However, also like the claimants in Latzy and Yurack, Claimant did not discuss her transportation problems with Employer, thereby preventing Employer and Claimant from inquiring into whether Claimant could obtain a ride with a co-worker. Although Claimant asserts that such an inquiry would have been futile because Employer did not offer carpooling or a car/van service, we have held that a claimant cannot rely upon the claimant’s own presumption or assumption that it would be futile to seek the employer’s assistance, but must present evidence to support the alleged futility. Dickhoff v. UCBR, 449 A.2d 807, 810 (Pa. Cmwlth. 1982) (citing Yurack). Claimant did not present any evidence of the futility of informing Employer of her transportation difficulties and, although Employer indicated that it did not offer a car/van service or a stipend for transportation services, Employer’s General Manager/Human Resources Director testified that, had Claimant come to her, Employer would have spoken with other employees to see if Claimant could have gotten a ride to work with one of her co-workers. In fact, the General Manager stated that, knowing her staff, she would not have been surprised if a co-worker would have offered Claimant transport to and from work.

Although we sympathize with Claimant and acknowledge the efforts she did make to resolve her transportation difficulties, we conclude, as we did in Latzy and Yurack, that Claimant did not make reasonable efforts to resolve her transportation problems when she did not inform Employer of those difficulties.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

federal courts - pleading - Iqbal, et al.

McClaren v. AIG - ED Pa. - March 2012

http://www.paed.uscourts.gov/documents/opinions/12D0384P.pdf

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008). Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).

Rule 8(a)(2) “[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.5 In determining whether a plaintiff’s complaint is sufficient, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief.” Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although “conclusory or ‘bare-bones’ allegations will [not] survive a motion to dismiss,” Fowler, 578 F.3d at 210, “a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 211 (quoting Iqbal, __ U.S. at __, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is “contextspecific” and requires the court to draw on “its judicial experience and common sense” to determine if the facts pled in the complaint have “nudged [plaintiff’s] claims” over the line from “[merely] conceivable [or possible] to plausible.” Iqbal, __ U.S. at __, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).

A well-pleaded complaint may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

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n. 5 - The Opinion of the United States Supreme Court in Ashcroft v. 5 Iqbal, U.S. , , 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868, 887 (2009), states clearly that the “facial plausibility” pleading standard set forth in Twombly applies to all civil suits in the federal courts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This showing of facial plausibility then “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and that the plaintiff is entitled to relief. Fowler, 578 F.3d at 210 (quoting Iqbal, U.S. at , 129 S.Ct. at 1949, 173 L.Ed.2d at 884). As the Supreme Court explained in Iqbal, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that the defendant acted unlawfully.” Iqbal, U.S. at , 129 S.Ct. at 1949, 173 L.Ed.2d at 884.

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