Geisinger Health Plan v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge PELLEGRINI.

Because I disagree with the majority’s standard for determining whether disparate treatment exists, I respectfully dissent.

In this case, Claimant, John D. Buckeye, was discharged by his Employer, Geisinger Health Plan, for willful misconduct and he was denied unemployment compensation benefits. He filed an appeal, and a hearing was held at which his Employer’s manager, Erin Winn (Winn), offered into evidence six e-mails that depicted nude or partially nude women with “jokes” attached that were the impetus for his discharge. Apparently, along with those six e-mails, there had been at least 25 other e-mails that Employer discovered that were in violation of its electronic communication policy, 1 but the six e-mails offered into evidence were the ones the manager had discussed with Claimant at the time he was fired. When Claimant testified that some of the pornographic emails had been sent to him by other employees, Winn admitted that other individuals who sent e-mails to Claimant had not been terminated. However, Winn testified that Claimant was terminated due to the high frequency of the e-mails that were sent during work hours to other employees and because of the severity of the pornographic images that were forwarded on.

The Referee reversed the denial of Claimant’s benefits and on appeal the Board agreed because Employer had not uniformly enforced its policy. In fact, the Board concluded that Claimant had been disciplined in a disparate manner from other similarly-situated employees because *978 Employer’s policy had been characterized as “zero-tolerance,” but only Claimant had been discharged. Because Employer failed to explain why the employees who had sent the offensive e-mails were only being investigated, the Board found that Claimant had been treated differently from other similarly-situated employees and granted benefits.

On appeal, Employer argues that the Board erred in determining that it disparately applied its policy. The majority agrees stating that “Disparate 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.” (Op. at 974.) (Emphasis added.) The majority then goes on to state that 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. In developing that standard, the majority confuses who has the burden of production, i.e., which party has to come with the evidence at different points in the proceeding, with the “burden of persuasion,” i.e., which party loses based on fact-finding and creditability determinations.

In this case, the majority finds that Claimant failed to satisfy the second prong based on Employer’s evidence that the other employees were not similarly situated because Claimant did not show that other employees forwarded as many emails as Claimant did. The majority’s discussion of the Employer’s evidence in holding that Claimant did not meet his burden itself shows that it was not Claimant’s burden because what the other side offered is irrelevant in determining whether the party with the burden met its burden of production — only whether the burdened party has offered evidence to meet its burden. Moreover, the difference in conduct does not go to whether another employee is similarly situated — had the same status — but goes to the reasons that an employer fired one employee and not the other. I would hold that once an employee shows that other employees have engaged in the same type of conduct and are covered by the same work rule, the burden of production shifts to the employer to show that it had valid reasons to treat those employees differently.

Shifting the burden of proving that they had a “proper criterion” is necessary because the claimant would have no means by which to look at other employees’ personnel files to determine if they had any other infractions, i.e., fewer or more warnings, or other conduct that would preclude them from termination. While an individual employee may be able to testify that other employees engaged in similar prohibited conduct, it is ultimately the employer who knows the reason why it terminated one employee and not the other.

In this case, both Employer and Claimant instinctively knew that this was the only practical way to make out and defend a disparate treatment claim. Claimant testified that other employees who were covered by the rules sent him similar emails. Employer realized that if it had not proffered any evidence whatsoever, then Claimant would have prevailed because all that would have been in evidence was Claimant’s testimony that employees who engaged in the same conduct covered by the rule were not terminated. Employer countered that it had a valid reason — a proper criterion for not terminating other *979 employees by showing that they only sent one e-mail and not as many as Claimant. Because both sides met their burden of production, the only issue then was who met its burden of persuasion.

The Board found that Employer did not meet its burden of persuasion because it was bound by its own zero tolerance policy that one offense required termination, making the proffered reason that Claimant had sent many and the other employees only one irrelevant. An interesting question and one the majority should have addressed.

For the above reasons, I respectfully dissent.

. Employer’s policy was as follows:

Any access to pornography is strictly prohibited on Geisinger time or using Geisinger resources and is grounds for termination.

For the benefit of all of our employees, Geisinger’s policy prohibiting harassment applies in its entirety to the use of the electronic communication system including downloading, possession or transmission of materials. No one may use the electronic communication system in a manner that may be construed by others as harassment or as offensive on the basis of sex, race, color, religion, national origin, ancestry, age, physical handicap, disability, marital status, veteran’s status or any other non-job-related factor.