Allen
v. UCBR – Cmwlth. Court – June 12, 2018 – reported, precedential decision
Held: Claimant committed willful misconduct by
violating employer rule prohibiting the use of profane, abuse, or threatening
language toward fillow employees and others, even though both claimant and his
supervisor used racial slurs in an exchange of emails.
The
referee, board, and court all upheld different consequences for Claimant, who was
fired, and his supervisor, who was not, based on findings that claimant was the
instigator of the altercation, and had used threatening language (including
reference to a weapon).
From
the opinion:
Disparate treatment
is “an affirmative defense” that can excuse conduct that might otherwise be
willful misconduct - a claimant who
has engaged in willful misconduct may still receive benefits....” Geisinger
Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).
Disparate treatment
is not proven where there is a difference in the alleged employee misconduct - Bays
v. UCBR, 437 A.2d 72 (Pa. Cmwlth. 1981)
(illegal work stoppage in which some were “ringleaders” and others were “reluctant
participants”)
Disparate treatment
based on race is improper... - In the seminal case, Woodson v. UCBR,
336 A.2d 867 (Pa. 1975), the employer discharged the claimant (and others) for
excessive absenteeism. Our Supreme Court held that the employer did not prove
willful misconduct because its work rule against excessive absenteeism had been
enforced in a racially discriminatory manner. It held:”[W]e cannot sanction the
Bureau’s acceptance of an employer’s standard which expects certain conduct
from black employees, but not from white employees. The use of such a standard
to determine unemployment benefits constitutes state action based on the
racially discriminating policies of an employer. This is prohibited.”
Disparate treatment
improper even where race is not involved
-City
of Beaver Falls v. UCBR, 441 A.2d 510 (Pa. Cmwlth. 1982), this Court considered
the city’s inconsistent enforcement of its requirement that city employees had
to live in the city. Drawing on Woodson, 336 A.2d 867, we explained the
need for consistent enforcement of a work rule as follows: The [Supreme] Court
held that a standard of conduct which an employer may expect of an employee
must be equally applied to both blacks and whites. We believe that such a
consideration is equally applicable where racial discrimination is not
involved. Beaver Falls, 441 A.2d at 512.
An employer’s “inconsistent enforcement of its [work rule] did not
establish such a standard of conduct with which it could reasonably expect its
employees to comply.” Id. Stated otherwise, a written work rule that is not
enforced uniformly is no more than a piece of paper.” Inconsistent enforcement of a work rule
defeats the existence of the work rule. Beaver Falls, 441 A.2d 510. An employer cannot pursue haphazard
enforcement of its work rule and expect that rule to be dispositive of a
claimant’s eligibility. To be sure, an
employer may change its enforcement policy from one of a lax posture to one of
zero tolerance, but it must warn employees of the new strict enforcement
policy.
Employers have some
discretion in deciding when to punish a rule violation - It is not
the Board’s province to usurp the management prerogative of the employer, which
must decide on a case-by-case basis what discipline to impose when a work rule
infraction occurs. Geisinger, 964 A.2d 970 (holding that a discharge for
multiple infractions of a computer policy did not render the work rule a
nullity because other employees, with far fewer violations, were not
discharged).
The Board overstated
the holding in Bays - Here, the Board stated that “Commonwealth
Court has held that ‘the mere fact that one employee is discharged for willful
misconduct and others are not discharged for the same conduct does not
establish disparate treatment.’” Board Adjudication at 1 (quoting American Racing, 601 A.2d at 483)
(emphasis added). In actuality, this quoted sentence was not the holding in American Racing but, rather, a
characterization of the Bays decision,
where there was a common thread to the willful misconduct of multiple
employees, i.e., participation in a work stoppage. However, the employees acted
differently during that work stoppage and, thus, were disciplined differently.
This single sentence from American Racing,
which overstates the principle established in Bays, is obiter dictum.
The Board has erroneously made it the holding of American Racing, and it is not. . . .The holding in American Racing was, simply, that
refusal to follow a directive constitutes willful misconduct, and there was no
suggestion that insubordination was generally tolerated by the employer.
