IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John P. Cassidy, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 474 C.D. 2004
Respondent : Submitted: August 6, 2004
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE COLINS FILED: November 12, 2004
John P. Cassidy (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which reversed a referee’s decision and denied Claimant benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm.
The pertinent factual findings as summarized from the Board’s decision are as follows. Claimant was employed by the Department of Labor and Industry as a Worker’s Compensation Judge from April 6, 1992 through July 21, 2003. In mid-1999, Employer first counseled Claimant regarding unacceptable conduct after Employer received a complaint that Claimant was not wearing a shirt while sitting in his office. Employer has sexual harassment policies, acknowledged by Claimant, adopted as an Executive Order and Management Directive, which respectively provide:
No department, board, commission or other agency under Employer’s jurisdiction shall tolerate sexual harassment by any Commonwealth employee against any other employee... Sexual harassment in Commonwealth work settings is strictly forbidden... Sexual harassment includes unwelcome sexual advances, request for sexual favors and/or other verbal, visual, or physical conduct of a sexual nature where... such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Any Commonwealth employee who engages in or knowingly condones sexual harassment related to Commonwealth employment shall be subject to disciplinary action, up to and including dismissal...
Executive Order 2002-4 (Prohibition of Sexual Harassment in the Comonwealth). See 4 Pa. Code §§1.1, 9.1.Examples of acts of sexual harassment which shall not be tolerated include, but are not limited to, the following, particularly when they are repeated or part of a general pattern of behavior: Unwelcome suggestive, sexually explicit or offensive comments, epithets, slurs or jokes; inappropriate comments about an individual’s body or sexual activities; repeated unwelcome propositions or repeated unwelcome requests for dates or sexual activities; and sexually oriented gestures, display of sexually suggestive or derogatory objects, pictures, cartoons, posters or drawings.
Management Directive 505.30
On March 18, 2002, Employer suspended Claimant without pay for giving a female coworker a birthday card that stated, "Me and mah dog wanna wish you a Happy Birthday... Actually I wanna wish you a Happy Birthday – mah dog just wants to sniff your crotch." A handwritten notation, "(or vice versa)," followed the text of the card.
In May 2002, the Judge Manager reviewed Employer’s sexual harassment policy with Claimant and told Claimant to "leave sex out of the conversation. Don’t joke about sex." On June 24, 2002, Claimant agreed, as part of an executed settlement agreement with Employer: "[Claimant] understands and agrees that this Settlement shall be his final warning with respect to behaviors that are or could be construed as sexual harassment, and that any future incidents or similar behaviors will result in his dismissal."
In October 2002, the Judge Manager received, and Employer began an investigation concerning, a complaint that Claimant told a joke of a sexual nature. On December 6, 2002, the Judge Manager gave Claimant a written warning for telling a joke of a sexual nature, instructing Claimant to avoid any conduct that could be construed as sexual harassment. The warning reminded Claimant that the Settlement Agreement remained in full force and that any further complaints of this nature could result in disciplinary action. The Judge Manager explained to Claimant that even statements that were intended as jokes could be in violation of the sexual harassment policy. In addition, the Judge Manager informed Claimant that he could have been fired over this incident and directed Claimant not to engage in this type of behavior again.
On March 28, 2003, Claimant approached the receptionist at the Johnstown Judge’s Office and asked her if her boyfriend was taking her to a co- worker’s retirement party. When the receptionist told him that she did not have a boyfriend, Claimant responded that he knew a rich old man with a lot of money and a good job who could take her to the party. Claimant then took out a wad of money and began leafing through it. The receptionist asked Claimant if he was referring to himself, and Claimant nodded his head. The receptionist told Claimant that she did not date married men.
On April 14, 2003, the receptionist had changed into workout clothes. Claimant saw the receptionist and asked her what she was doing. The receptionist told Claimant that she was going walking. Claimant then told the receptionist, "I know a good exercise for us big people." The receptionist thought Claimant was talking about having sex. The receptionist then reported these incidents to the Administrative Officer of the Central District.
On April 30, 2003, a female clerical supervisor at the Johnstown Judge’s Offices was having a discussion with the receptionist and another employee over whether anyone knew of someone for the receptionist to date. Claimant walked by these individuals, and someone asked him if he knew of anyone for the receptionist to date. Claimant then indicated that he knew someone who had a good job. Claimant stated that when he was young he would go to church to meet someone nice. Claimant then began to tell two jokes: (1)"I went to church last Sunday and said to the priest, can you save a wild woman. The priest said yes. And I said, well could you save her for me next Sunday;" and (2)"A 77 year old man was speaking with a priest and was telling him that he had been married for 50 years to the same woman and never had any relations with anyone else but that he just had done it twice with a seventeen year old girl. The priest then asked him when he was last in confession. The man answered never, I’m Jewish. The priest then asked him why he was telling him this and the man responded I’m telling everyone." The clerical supervisor told Claimant that his joke was disgusting. Claimant previously told the receptionist the same joke and she remarked that Claimant was a pig.
Later that same day, Claimant stopped by the receptionist’s desk. The receptionist, in reference to Claimant’s earlier statement that he knew someone who the receptionist could date, asked Claimant who this man was to whom he had referred. Claimant asked the receptionist if she remembered him telling her about the man who should take her to the retirement party (the March 23, 2003 communication). Claimant then pulled out a wad of cash and started leafing through it. The receptionist again asked Claimant if he meant himself, and Claimant again nodded his head yes. The receptionist again told Claimant that she did not date married men.
On May 2, 2003, the receptionist was in the kitchen making tea when Claimant walked in and started singing "Tea for Two." Later that day, Claimant approached the receptionist and started singing a song about two people who were in love and riding a bicycle made for two. Claimant had previously sung to the receptionist, "Everybody Loves Somebody Sometime."
After the May 2003 incidents, Employer became aware of these allegations, and an investigation was conducted. On June 20, 2003, Employer held a fact-finding conference to provide Claimant with a chance to respond to the allegations made against him. On July 9, 2003, Employer held another fact-finding conference. On July 14, 2003, Employer discharged Claimant, effective July 21, 2003, for violation of its sexual harassment policy and for insubordination.
Claimant filed an application for unemployment compensation benefits. On August 13, 2003, the Altoona UC Service Center (Service Center) denied Claimant benefits, and Claimant appealed. At the hearing with the referee, whether the Board erred in concluding that the
Claimant was ineligible for benefits based upon his willful misconduct and whether the Board’s findings are supported by substantial evidence. four witnesses, including the receptionist and the Secretary Supervisor of the Commonwealth, testified for the Department of Labor about the various occurrences and Claimant does not dispute the facts. Claimant instead states that he was drawn into the two conversations, at which point some of the events occurred, by the receptionist and others. After a hearing, the referee reversed the Service Center’s determination on the basis that Employer had failed to prove that Claimant’s actions constituted willful misconduct2 under Section 402(e) of the Law. Employer appealed, and the Board reversed the referee’s decision after concluding that Claimant’s conduct constituted willful misconduct. The Board concluded that statements Claimant made and actions he took after signing the Settlement Agreement and receiving the subsequent warning subjected his coworkers to sexual harassment. Claimant appeals the Board’s decision and raises the following issue for our review,3
The burden of proving an employee’s willful misconduct traditionally rests with the employer. Moore v. Unemployment Compensation Board of Review, 578 A.2d 606 (Pa. Cmwlth. 1990). The determination of whether an employee’s actions constitute willful misconduct is a question of law subject to this Court’s review. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884 (Pa. Cmwlth. 1998). An employer who alleges that an employee’s violation of a work rule constitutes willful misconduct must establish both the existence of the rule and its violation. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 703 A.2d 452, (1997). Here, Claimant acknowledged the existence of the sexual harassment policy that prohibits, among other things, sexually explicit or offensive comments, epithets, slurs, or jokes; inappropriate comments about an individual’s body; and repeated, unwelcome propositions. This policy applies to all employees of the Commonwealth, and it is not necessary for a claimant to be a supervisor of the individual who is sexually harassed. In deciding whether the alleged violation constitutes willful misconduct, this Court examines whether the Employer’s rule or policy is reasonable in light of the circumstances and, if so, whether the employee had good cause to violate it. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 703 A.2d 452, (1997). "Reasonableness is determined by whether the employer’s application of the rule under the circumstances is fair, just and appropriate to pursue a legitimate interest." Id., 550 Pa. at 123, 703 A.2d at 456-57. Claimant does not challenge the reasonableness of the rule and thus this Court does not address it.
Once the employer establishes the existence of the rule, its reasonableness, and the facts of its violation, the burden shifts to the accused employee to prove that he had good cause for violating the rule. Metropolitan Edison Company v. Unemployment Compensation Board of Review, 606 A.2d 955 (Pa. Cmwlth. 1992). Further, when a claimant avers that he had "good cause" for violating the employer’s rule, the Court must examine the reason for the employee’s noncompliance and evaluate its reasonableness under the circumstances. Id. In this case, Claimant never raised a good cause for violating the rule.
After reviewing the present record and having noted Claimant’s arguments, we are nonetheless constrained to find Claimant’s actions in this instance to be unreasonable in light of his many warnings and repeated violations of the sexual harassment policy. Claimant’s two jokes were a violation of the policy because they were sexually explicit and offensive. The offensive nature of the jokes can be seen through the reaction of the clerical supervisor and the receptionist. The clerical supervisor told Claimant that "the joke was disgusting" and the receptionist told him that "he was a pig." Claimant’s comment about knowing an exercise for big people was an inappropriate comment about an individual’s body and an inappropriate comment about sexual activity since he was referring to sex according to the receptionist. Claimant continually made advances towards the receptionist either through the singing of love songs in her presence or the more deliberate leafing through money and referring to himself as the one for her to date. The Board's findings are conclusive on review if they are supported by substantial evidence, which is such evidence as a reasonable mind might find adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The fact that witnesses gave different versions of the events, or that petitioner might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, (Pa. Cmwlth. 1994). Here, this Court concludes that the Boards findings are supported by substantial evidence.
The policy makes it clear that these behaviors demonstrated by Claimant will not be tolerated, particularly when they are repeated or part of a general pattern of behavior. This is certainly the case here as Claimant has had several warnings regarding his behavior and has even previously been suspended for violating the policy.
We therefore concur with the Board’s conclusion that Claimant’s deliberate violation of a work rule rose to the level of willful misconduct and thus Claimant is ineligible for benefits.
Accordingly, the order of the Board is affirmed.
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JAMES GARDNER COLINS, President Judge