Summary
In Losch v. Unemployment Compensation Board of Review, 461 A.2d 344, 345 (Pa. Cmwlth. 1983), a claimant working as a nurse's aide requested the weekend off and was denied.
Summary of this case from Hughes v. Unemployment Comp. Bd. of ReviewOpinion
June 16, 1983.
Unemployment compensation — Vulgarity — Willful misconduct — Good cause.
1. Vulgarity addressed to and unprovoked by a superior, even in a single instance, may constitute willful misconduct for unemployment compensation purposes, and a claimant's disappointment or displeasure with her employer's decision to refuse her request for a particular weekend off does not constitute good cause for the vulgarity. [96-7]
Submitted on briefs May 12, 1983, to Judges BLATT, MacPHAIL and BARBIERI, sitting as a panel of three.
Appeal, No. 460 C.D. 1982, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Maxine Losch, No. B-203063.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
M. Duke Pepper, Jr., with him Paul D. Welch, for petitioner.
Francine Ostrovsky, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.
Maxine M. Losch (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which adopted a referee's findings and decision that she be denied benefits because of willful misconduct. 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).
The claimant was employed by the Nipple Convalescent Home as a nurse's aide for approximately one month. When hired she was informed that she would be working two weekends and would then be off for the third weekend. She was scheduled to be off on the weekend of September 19-20, 1981, and, before this date she asked her supervisor to be off the following weekend. This request was denied. The referee found, and the Board agreed, that her response to this denial was that the supervisor could "take your job and shove it up your a___." She was discharged for insubordination and using obscene language.
The claimant argues first that her rights to due process of the law were violated because the referee did not afford her the opportunity to elect to be represented by counsel at the hearing. See Turner v. Unemployment Compensation Board of Review, 65 Pa. Commw. 489, 442 A.2d 1212 (1982); Vitko v. Unemployment Compensation Board of Review, 62 Pa. Commw. 391, 436 A.2d 1235 (1981). Our review of the record, however, indicates that the referee did inform her that she had the right to counsel but reveals neither any attempt on her part to avail herself of that right nor any explicit waiver thereof, although she did attempt cross-examination of the employer's witness without much success. After carefully reviewing the complete record, however, we do not believe that there was any prejudice to the claimant's case resulting from the referee's alleged failure to allow her counsel. Snow v. Unemployment Compensation Board of Review, 61 Pa. Commw. 396, 433 A.2d 922 (1981); Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commw. 275, 431 A.2d 378 (1981).
The claimant argues next that the record does not support a determination of willful misconduct. Keeping in mind our scope of review, we have studied the findings below and believe them to be supported by substantial evidence in the record. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commw. 304, 387 A.2d 998 (1978). The claimant herself admitted making the statement to her supervisor quoted above, but denied telling him where to shove it and, the Board was clearly justified in resolving this conflicting testimony in the employer's favor.
We have recognized that vulgarity addressed to and unprovoked by a superior, even in a single instance, may constitute willful misconduct. Dodson v. Unemployment Compensation Board of Review, 63 Pa. Commw. 245, 437 A.2d 1080 (1981); Unemployment Compensation Board of Review v. Boff, 24 Pa. Commw. 571, 357 A.2d 694 (1976). So too may insubordination in general constitute willful misconduct. Nesmith v. Unemployment Compensation Board of Review, 43 Pa. Commw. 579, 402 A.2d 1132 (1979). And we believe that the claimant's conduct here warranted a conclusion that she had engaged in willful misconduct.
Additionally, we do not believe that the claimant's disappointment or displeasure with her employer's decision to refuse her request for a particular weekend off constituted such good cause as could excuse her conduct.
We will, therefore, affirm the Board's order.
ORDER
AND NOW, this 16th day of June, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.