Bixler v. UCBR – Cmwlth. Curt – 8-4-22- unreported memorandum decision**
The court upheld the UCBR finding of willful misconduct, which involved claimant’s use of a racial slur about his employer (“It’s fucking jot in here. I hope I’m the one to have a heat strike so then I can sue the Indian bastard and own this company.”
However, the court specifically declined to adopt a per se rule about such speech, holding that “such statements should be considered on a case-by-case basis and should be considered in the context in which they were made.”
Even absent an employer policy or work rule, an employee’s use of vulgar and abusive language toward a superior, when unprovoked and greater than de minimis, can constitute willful misconduct. Id.; Allen v. UCBR, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994). We have also “recognized that words referencing nationality are offensive” and “that even a single incident of offensive language can constitute willful misconduct.” Witkowski v. UCBR, 633 A.2d 1259, 1260 (Pa. Cmwlth. 1993); see also Poplin v. UCBR, 690 A.2d 781, 783 (Pa. Cmwlth. 1997) (citing Witkowski).7
However, “whether such comments are willful misconduct must be evaluated on a case[-]by[-]case basis and should be considered in the context in which they were made.” Poplin, 690 A.2d at 784. Once the employer makes a showing of willful misconduct, the burden shifts to the employee to establish that good cause justified his conduct. Brown, 49 A.3d at 937.
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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).
