holding that the same behavior, with no evidence of provocation, constitutes willful misconduct
How later courts described this case
- holding that the same behavior, with no evidence of provocation, constitutes willful misconduct
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Menceb:
I respectfully dissent. I cannot discern a real difference between the factual setting of the instant case and that present in the case of Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176 , 316 A.2d 110 (1974). In Longacre, a supervisor shouted an assignment to four employees as they began a scheduled work break and told them that, if they did not like it, they “could go home.” The supervisor then grabbed claimant’s arm and told her the assignment included her. The claimant then gratuitously advised the supervisor to “go to hell.” We held under such *12 circumstance that claimant’s language did not constitute willful misconduct.
In the instant case, the claimant was instructed by his supervisor to keep the key to the IBM machine concealed and in compliance did so by secreting the key by attaching it to the underside of his desk. The supervisor was unable to find the key when she searched for it, whereupon she complained to claimant that it was not in the desk. Claimant checked the desk, found the key where he had placed it, and showed it to the supervisor. This series of events provoked the claimant to tell the supervisor to stop making a liar out of him.
I agree with the following language in Long acre: “Far be it for us to suggest that vulgar and offensive language addressed a superior is not reprehensible and cannot be constituted ‘willful misconduct.’ However, as we have said in this instance, where there was provocation, and the offensive language must even be considered ‘de minimis’ if scrutinized by even the most puritanical standard, we hold that. . . the Claimant was not guilty of ‘willful misconduct’ . . . .” 12 Pa. Commonwealth Ct. at 180 , 316 A.2d at 112 .
In addition, the majority concedes that the testimony as to the alleged statement by claimant found to be abusive language is hearsay but holds that the claimant corroborated the employer’s hearsay statements. I cannot agree that the claimant provided the needed corroboration testimony when he stated that a union representative had said that he, the union representative, “thought I called her a liar.” This is no admission or corroboration by claimant of such a fact but only, and nothing more, a concession that a witness harbored such a thought, the truthfulness of which the claimant had always steadfastly denied. This point is even more germane where, as here, the witness was not present when the alleged statement was made.