63 Pa. Commw. 245 | Pa. Commw. Ct. | 1981
Opinion by
This is an appeal by Elaine R. Dodson (Claimant) from a decision of the Unemployment Compensation Board of Review (Board) affirming the referee’s de
Claimant was last employed by Allegheny Lutheran Social Services (Employer) as a Center Director of a day school for preschool children in Saxton. Claimant’s duties involved directing and supervising the day to day operation of this facility, its students and staff. On November 29, 1979, Claimant was presented with a written performance evaluation by her supervisor, Mrs. Helen Wright, who had prepared the evaluation. As Claimant looked over the evaluation, she informed her supervisor several times that: ‘ ‘ This is a bunch of shit.” Upon being informed by her supervisor that she could resign, Claimant responded: “Not on your ass will I resign.”
Of course, the issue of willful misconduct is a question of law for our review. Murraysville Telephone
Claimant has argued that the words used here are part of the common marketplace-workplace language to which we are all exposed and that the words are especially harmless in this case since the words were not used to derogate the superior. Therefore, the Claimant believes these words do not form the basis for a finding of willful misconduct. We disagree.
The words used by Claimant have previously been found to be vulgar by this Court. Henry v. Unem
The Claimant also argues that the referee and the Board failed to consider evidence presented which the Claimant believed showed that the Employer did not fire her for vulgarity, but rather fired her because of a desire to close the Saxton school and eliminate Claimant’s position.
The burden of proving the reason for discharge is upon the Employer. Radio Station WVCH v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 23, 430 A.2d 737 (1981). Where the party with the burden of proof below prevails before the Board, our scope of review is to determine whether an error of law has been committed or whether any necessary finding of fact is unsupported by substantial evidence. Lalce v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct.
[By the Referee]: Are you telling me then that if the claimant had appeared on November 29, you had gone over that performance evaluation, even though she didn’t like it, if she would have just accepted it, attempted to do the best she could and not engage [sic] you in the conversation you’re now saying took place, she’d still be employed?
[By the Supervisor]: Yes.
For the above reasons, then, we believe the Board’s determination was correct and must be affirmed.
Order
And Now, this 17th day of December, 1981, Decision No. B-182147 of the Unemployment Compensation Board of Review dated March 20, 1980, is hereby affirmed.
See Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (e).
This language was testified to by the supervisor and was not denied by the Claimant
Claimant denies having spoken these words, but conflicts in the testimony are for the factfinder to resolve. Steward v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 279, 402 A.2d 302 (1979).
The two week delay was occasioned by the need for approval of the discharge by Mrs. Wright’s supervisors. Such a delay provides no basis for overruling the Board’s decision. See Unemployment Compensation Board of Review v. Boff, 24 Pa. Commonwealth Ct. 571, 357 A.2d 694 (1976).
Even if tlie words were required to be directed at the supervisor, we would have little problem in finding such in this case. The evaluation was performed by the supervisor; it was this evaluation which the Claimant disparaged. This was not some anonymously prepared document, which Claimant was commenting about; rather, these were comments concerning the supervisor’s opinion of Claimant’s weaknesses and the supervisor’s suggested improvements. As such these words directly reflected upon the supervisor.