IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troy McNeil, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 955 C.D. 2016
Respondent : Submitted: January 20, 2017
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: May 1, 2017
Troy McNeil (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) April 15, 2016
order affirming the Referee’s decision denying him UC benefits under Section 402(e)
of the UC Law (Law).1 There are two issues for this Court’s review: (1) whether the
UCBR erred by determining that Claimant committed willful misconduct, and (2)
whether the UCBR erred by disallowing evidence in support of Claimant’s case.2
After review, we affirm.
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
2
In his Statement of Questions Involved, Claimant presented fifteen questions specifically
directed to Employer, several of which (i.e., those relating to Claimant’s communications and
actions on December 31, 2015 and January 1, 2016) are subsumed within the willful misconduct
issue. The other questions Claimant posed were not developed in Claimant’s argument.
“Arguments not properly developed in a brief will be deemed waived by this Court.” Rapid Pallet
v. Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998).
Claimant also raised three issues expressly addressed to the Referee concerning the conduct
of the hearing, one (i.e., whether the Referee disregarded his additional evidence) is subsumed
within the second issue, and the other two (i.e., whether Claimant was afforded ample time to
present his case, and whether the Referee asked Claimant if he was “thin-skinned”) were not
developed in Claimant’s argument and, thus, are waived. Rapid Pallet.
Claimant was employed part-time (approximately 18 hours per week) as
a sous chef/cook for Anthony’s Catering South, Inc. (Employer) from March 2015
through January 5, 2016, when Employer discharged him. Claimant applied for UC
benefits. On January 28, 2016, the Erie UC Service Center determined that Claimant
was eligible for UC benefits in accordance with Section 402(e) of the Law.
Employer appealed. A Referee hearing was held on March 4, 2016. On March 9,
2016, the Referee reversed the UC Service Center’s determination, and denied
Claimant UC benefits under Section 402(e) of the Law. Claimant appealed to the
UCBR. On April 15, 2016, the UCBR adopted the Referee’s findings and
conclusions, and affirmed the Referee’s decision. Claimant appealed to this Court.3
Initially,
Section 402(e) of the Law provides that an employee is
ineligible for unemployment compensation benefits when
his unemployment is due to discharge from work for willful
misconduct connected to his work. The employer bears the
burden of proving willful misconduct in an unemployment
compensation case. Willful misconduct has been defined as
(1) an act of wanton or willful disregard of the employer’s
interest; (2) a deliberate violation of the employer’s rules;
(3) a disregard of standards of behavior which the employer
has a right to expect of an employee; or (4) negligence
3
“Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013). However,
[i]n a case such as this, where the party with the burden of proof
succeeds on the merits before the [UCBR], our scope of review is
limited to a determination of whether substantial evidence exists in
the record to support the [UCBR’s] findings and whether any errors of
law were committed.
Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 332 (Pa. Cmwlth. 1982).
2
indicating an intentional disregard of the employer’s
interest or a disregard of the employee’s duties and
obligations to the employer.
Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted). “If the employer satisfies its burden, the burden
shifts to the employee to show that he . . . had good cause for his . . . conduct. ‘A
claimant has good cause if his . . . actions are justifiable and reasonable under the
circumstances.’” Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55
A.3d 186, 190 (Pa. Cmwlth. 2012) (citation omitted) (quoting Docherty v.
Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
Ultimately, “[t]he question of whether conduct rises to the level of willful misconduct
is a question of law to be determined by this Court.” Scott v. Unemployment Comp.
Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).
The law is well established that:
[T]he [UCBR] is the ultimate fact-finder in unemployment
compensation matters and is empowered to resolve all
conflicts in evidence, witness credibility, and weight
accorded the evidence. It is irrelevant whether the record
contains evidence to support findings other than those made
by the fact-finder; the critical inquiry is whether there is
evidence to support the findings actually made. Where
substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted). This Court has explained:
Substantial evidence is relevant evidence upon which a
reasonable mind could base a conclusion. In deciding
whether there is substantial evidence to support the
[UCBR’s] findings, this Court must examine the testimony
in the light most favorable to the prevailing party, in this
case, the Employer, giving that party the benefit of any
inferences which can logically and reasonably be drawn
from the evidence.
3
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
Here, the UCBR adopted the Referee’s findings that:
2. During this employment [Employer’s] Executive Chef
[Daniel Brodeur (Brodeur)] treated [] Claimant well and
considered [] Claimant to be a [f]riend.
3. On December 31, 2015 [] Claimant was one of three
[c]hefs scheduled to service a wedding with 300 [g]uests.
4. Labor at the wedding was intensive because of the
number of [g]uests and because [Brodeur] needed [c]hefs to
man several food stations.
5. The wedding was scheduled to last until 1:00 a.m.
6. However, at 5:03 p.m. [] Claimant sent [Brodeur] a text
message which stated ‘I’m going to have to leave at 10:00
[p.m.], I can’t break this [f]amily tradition, I already didn’t
celebrate my [w]ife’s birthday with her for the first time in
twenty-two years, if you would like to talk pull me out of
the [k]itchen and talk to me, sorry for the inconvenience’.
7. Although he needed [] Claimant’s help at the wedding,
[Brodeur] felt that if he denied [] Claimant’s request to
leave work in the middle of the wedding, [] Claimant would
‘blow up’ and engage [Brodeur] in an argument at the
wedding.
8. Therefore, [Brodeur] reluctantly gave [] Claimant
permission to leave the wedding.
9. On the following day, January 1, 2016, [] Claimant was
scheduled to work another wedding.
10. [] Claimant previously agreed to report to work at 1:00
p.m. on January 1, 2016 to help with the wedding.
11. However, at 12:34 p.m. [] Claimant sent [Brodeur] a
text message which stated ‘I just realized I have an
important and personal meeting about my [d]aughter at 2:00
[p.m.], I’ll be in right after that’.
4
12. On January 1, 2016 [] Claimant arrived at work at 2:30
p.m.
13. As a result, January 5, 2016 [] Claimant was discharged
for insubordination.
Referee Dec. at 1-2.
Claimant argues that he was not insubordinate, but rather was discharged
because, instead of addressing two incidents during which catered event guests
allegedly made racially-offensive remarks to Claimant, “Employer got rid of the
problem.”4 Claimant Br. at 38. We disagree.
Employer’s Owner/General Manager Giovanni LaRosa (LaRosa)
represented that Claimant was discharged because Claimant left work early on
December 31, 2015, and also arrived for work late on January 1, 2016 with short
notice, thereby leaving Employer “in a very, very bad spot.” Certified Record Item 8,
Notes of Testimony, March 4, 2016 (N.T.) at 7. LaRosa recalled that it was not until
he notified Claimant of his discharge on January 5, 2016 that Claimant mentioned his
personal issues with the guest comments. See N.T. at 8-9. LaRosa pronounced: “I’m
not here today to dispute . . . what he heard or how he feels. My objection towards
his behavior is . . . leaving us early . . . at a big wedding and coming in late the next
day.” N.T. at 8.
4
The UCBR argues that because “[i]t is difficult to discern from [Claimant’s] narrative the
legal basis of [his] appeal[,] . . . Claimant has not preserved any issues before this Court.” UCBR
Br. App. at 6. However, when it comes to compliance with the Pennsylvania Rules of Appellate
Procedure, “this Court is generally inclined to construe pro se filings liberally.” Smithley v.
Unemployment Comp. Bd. of Review, 8 A.3d 1027, 1029 n.6 (Pa. Cmwlth. 2010). Moreover, this
Court has deemed meaningful review of the merits possible when it could discern a pro se
appellant’s argument, or where the interests of justice require it. See Woods v. Office of Open
Records, 998 A.2d 665 (Pa. Cmwlth. 2010). Thus, we can limit our review to those cognizable
arguments we can decipher despite Claimant’s inartful brief. See Woods; Commonwealth v. Adams,
882 A.2d 496 (Pa. Super. 2005).
5
With respect to the December 31, 2015 incident, Brodeur explained that
although Claimant and he were together earlier in the week, Claimant’s text was his
first notice of Claimant’s request to leave early that evening. Brodeur described:
[Brodeur] I was about 20 feet away from him prepping and
that’s what I got.
....
R[eferee] Okay. So, what happened? How did you
respond?
[Brodeur] Well, I didn’t see it at first because . . . we’re
getting ready to put a mega wedding out. . . . And there was
a take-out order going at the back door also because it was
New Year’s Eve. We were doing another small party at the
back. And I happened to glance at my phone. I saw I had a
new text message. In the middle of a lot of confusion
getting ready for a function, that’s what I got. So, no.
There was no verbal whatsoever.
R[eferee] Now, . . . did you respond in any kind of way?
[Brodeur] I kind of looked over and said are you kidding
me. And at that point, I needed him to produce what I
needed him to produce at the time. Yes. We could’ve got
into a conversation. I could’ve taken him outside. We
could’ve discussed all this but it’s time sensitive. It’s . . . at
least 6:00 before a 7:00 start of a major function with hot
and cold hors d’oeuvers, with a seafood station, with a
barista station, with a cheesesteak station at the end, with a
dessert room and there’s only three of us on the . . . kitchen
staff as far as Chef goes. The stations were actually Chef-
manned stations. [Claimant] was expected[,] though we
didn’t talk about game plan at this point[,] but expected as
far as I’m concerned to be there to help with dessert station
and a cheesesteak station that was set to go off -- the dessert
station was at 11:00. Cheesesteak station was at 12:00. . . .
R[eferee] Now, did you give [Claimant] permission to leave
early?
6
[Brodeur] Yes. I did . . . , through conversation across the
room because I didn’t want a confrontation, sir. It’s a small
kitchen. I didn’t want . . .
R[eferee] Well, why . . .
[Brodeur] . . . a confrontation.
R[eferee] . . . didn’t you just say we’re too busy?
[Brodeur] Because I knew what the response was going to
be. It was already told to me there that I’m not missing . . .
something else of my wife. There was an incident prior . . .
on his wife’s birthday that a similar text was sent to me . . .
saying that I’m not missing another function. . . . He [was
permitted to leave a] little bit early [that time]. . . .
R[eferee] Now . . .
[Brodeur] . . . You know, if this was arranged prior to 5:30
p.m., I maybe could’ve done something to take the stress
off me. You have to understand something -- that an
Executive Chef at game time has a lot of stress on him. . . .
If there’s a problem over here, you deal with the problem
over there to try to get the productivity to put a major
wedding out.
....
R[eferee] So, you’re saying you gave him permission
because you felt you didn’t have any other choice with . . . .
[Brodeur] I had no choice.
R[eferee] . . . this? Okay.
[Brodeur] Also knowing . . . it was going to get into a
confrontation that I did not want to have and did not have
time to have at that particular time. It’s a very small work
environment. . . .
N.T. at 13-14; see also N.T. at 40.
Claimant admitted at the Referee hearing that “[he] was aware[ that he]
was to work the whole time” on December 31, 2015. N.T. at 18. He testified that he
had intended to ask to leave early on December 31, 2015 previously that week but,
7
nevertheless, “didn’t give [Employer] prior [notification].” N.T. at 16; see also N.T.
at 17-18. Claimant also acknowledged that his text informed Brodeur that he was
“going to have to leave at 10:00,” rather than sought permission to leave. N.T. Ex.
Emp. 1; see also N.T. at 27-28. Claimant represented that he was unsure how to ask,
since Brodeur berated him in front of the other staff on November 3, 2015 about
asking to leave early for his wife’s birthday.5 He also disagreed that Brodeur needed
him to stay at the wedding on December 31, 2015, because everything was set up and
ready when he left, yet did not dispute that his text apologized “for the
inconvenience.” N.T. Ex. Emp. 1; see also N.T. at 22. Finally, Claimant revealed
while questioning Brodeur at the hearing that Brodeur notified Claimant that “next
time let me know ahead of time.” N.T. at 17.
With respect to Claimant’s January 1, 2016 tardiness, Claimant did not
dispute Brodeur’s testimony that Claimant gave him less than 30 minutes notice that
he would be more than an hour late for work. See N.T. at 15. He further represented
that his presence at work at 1:00 p.m. on January 1, 2016 was not necessary since he
worked hard when he arrived at 2:30 p.m., and “[e]verything with that party went out
great[.]” N.T. at 23. Claimant and his wife testified that, although Claimant’s text
stated that the meeting was “important and personal,” it was actually an emergency.
N.T. at 23; see also N.T. Ex. Emp. 2; N.T. at 37-38. Claimant admitted that he did
not inform Employer that the January 1, 2016 meeting was an emergency.
Claimant also declared at the hearing that “there was stuff that was going
on between [him and Employer] . . . that [Employer had] not spoken about.” N.T. at
23. In particular, Claimant described that there had been two incidents in which
event guests made racist remarks to him or in his presence, which he reported to
5
Claimant pronounced that he objected to the manner in which Brodeur addressed him in
November, but never discussed it with LaRosa. See N.T. 19-20.
8
Brodeur.6 Claimant maintained that since Brodeur did not know how to handle either
incident properly, Claimant’s employment would have been terminated anyway. See
N.T. at 24. Claimant acknowledged that, since it was during the argument over the
December 31, 2015 racism complaint that Brodeur read Claimant’s text about leaving
early, Brodeur “told me I could leave because he wanted to smooth” things over.
N.T. at 27.
The UCBR adopted the Referee’s conclusions:
The Referee found credible the testimony of [Brodeur] that
he granted [] Claimant permission to leave work early, even
though he needed [] Claimant to remain at work, because he
felt that if he denied [] Claimant permission to leave, []
Claimant would ‘blow up’ and be argumentative.
....
At the Referee’s hearing [] Claimant testified that the
[January 1, 2016] meeting he had to attend for his
[d]aughter was an ‘emergency’. However, that is not what
[] Claimant said in his text message. [] Claimant stated that
he had to attend [an] ‘important’ meeting involving his
[d]aughter. It was also ‘important’ that [] Claimant report
to work on time to assist in the wedding on January 1, 2016.
At the hearing [] Claimant testified that his [w]ife waited
until 12:34 p.m. on January 1, 2016 to tell him about a
meeting that was going to occur at 2:00 [p.m.] that day.
6
According to Claimant, the first incident occurred in late November 2015. His station was
located on the darker side of the event room. A guest commented about it being darker in
Claimant’s area. Claimant remarked that his station was more romantic. The guest allegedly
replied to Claimant: “[N]o, it’s dark over here because you’re over here.” N.T. at 24. Claimant
expressed that when he reported this incident to Brodeur that day, Brodeur shrugged his shoulders.
See N.T. at 24, 26.
The second incident allegedly occurred during set-up for the December 31, 2015 wedding,
when a guest (allegedly Brodeur’s friend) picked up an eggplant in Claimant’s presence and
“started rubbing it [and] talking about poor little moulinyan.” N.T. at 25. Claimant testified: “So,
when he looked up, he seen me. His eyes got wide like.” N.T. at 25. According to Claimant,
although moulinyan means “eggplant” in Italian, it has also been used to mean “n***er” in Italian.
N.T. at 25. Claimant contends that when he reported this incident to Brodeur, he and Brodeur “had
words” because Brodeur refused to then confront the guest about the incident. N.T. at 26.
9
Neither the Claimant nor his [w]ife testified as to why his
[w]ife waited until such a late time to inform him of such an
important meeting. That being the case, the Referee did not
find credible the testimony of [] Claimant or his [w]ife
regarding the January 1, 2016 meeting.
Based on the aforestated, the Referee concludes that even
though [Brodeur] forgave [] Claimant for leaving him
shorthanded at the December 31, 2015 wedding, the
Claimant did the same thing the following day by leaving
[Brodeur] short at the January 1, 2016 wedding. The
Referee does not believe that [] Claimant demonstrated
good cause for either one those absences nor did []
Claimant give [Brodeur] sufficient advance notice that he
would not be able to work his full shifts those days.
Referee Dec. at 2-3.
Although LaRosa admitted that there is not a specific, written call-off
policy, he declared that “[i]t’s understood when you’re hired that you come in on
time and you leave when the job’s over.” N.T. at 8. LaRosa specifically stated that
Claimant “knows you leave when the job’s over.” N.T. at 12. Even Claimant
acknowledged that he was expected to remain at the December 31, 2015 wedding
until after it was over at 1:00 a.m. This Court has held that “[a] work rule violation
need not be shown where the behavior standard is obvious, and the employee’s
conduct is so inimical to the employer’s best interests that discharge is a natural
result.” Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa.
Cmwlth. 1985); see also Evans v. Unemployment Comp. Bd. of Review (Pa. Cmwlth.
No. 2419 C.D. 2014, filed December 2, 2015).7 Certainly, “[a]n employer has the
right to expect that his employees will attend work when they are scheduled, that they
will be on time and that they will not leave work early without permission.” Fritz v.
Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982); see
7
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
10
also Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth.
2013) (“It is well-settled that an employer has the right to expect that its employees
will attend work when they are scheduled and that they will be on time”).
The record evidence suggests that Claimant’s December 31, 2015 mid-
shift text was prompted by Claimant’s family’s New Year’s Eve tradition and not
because of any racism incident. Although Claimant had intended to ask Brodeur
earlier in the week, Claimant nevertheless waited until the middle of a large,
elaborate catered event to notify Brodeur that he was leaving at 10:00 p.m.
Moreover, notwithstanding Claimant’s contention that his presence for the December
31, 2015 wedding was not required, he was clearly aware that his actions would be a
problem for Employer, since he found it necessary to apologize for the inconvenience
and directed that Brodeur could discuss it with him outside if necessary. Notably, our
research revealed no case law that supplies a good cause defense or renders de
minimis an employee’s failure to work his entire shift as scheduled because, in the
employee’s opinion, his attendance was not necessary. Finally, both Brodeur and
Claimant stated that Brodeur relented in order to avoid a confrontation,8 and that
Claimant was warned to give more notice next time. Yet, the next day, even though
Claimant knew a wedding was scheduled, Claimant gave Employer less than 30
minutes notice that he would be late due simply to his need to attend an “important”
meeting he “just realized” he had to attend. N.T. Emp. Ex. 1.
Viewing the evidence in the light most favorable to Employer, as we
must, we hold that substantial evidence supports the UCBR’s holding that Claimant’s
behavior on December 31, 2015 and January 1, 2016 represented a willful disregard
8
According to the record and, as Claimant described in his brief, Claimant “was somewhat
upset” and “was at times somewhat ag[g]ressive at [the] hear[ing].” Claimant Br. at 31-32; see also
N.T. at 20-22, 29, 39. Claimant’s willingness to become aggressive with the Referee during the
hearing lends support to Employer’s assessment that Claimant would be confrontational if told he
could not leave work early.
11
of Employer’s interests without evidence of good cause and, thus, Claimant is not
eligible for UC benefits under Section 402(e) of the Law.
Claimant also contends that the Referee erred by disallowing the
additional evidence he offered at the hearing, namely, his discrimination claims
against Employer for his discharge in retaliation for reporting the racism, and his
statements that Employer’s refusal to give him a good reference has hindered his
ability to obtain other employment. We disagree.
Because substantial evidence supports the UCBR’s findings and
conclusions, they are conclusive on appeal and, thus, we need not address the
Claimant’s additional evidence. Ductmate Indus., Inc. However, even if we were to
examine that issue, this Court has held:
Under Section 505 of the Administrative Agency Law, 2
Pa.C.S. § 505, administrative agencies are not bound by the
technical rules of evidence, and all relevant evidence of
reasonably probative value may be received. Where the
record reveals the evidence sought to be introduced is
not reasonably probative, the evidence may be excluded.
The liberal rules of evidence relating to administrative
agencies afford agencies broad discretion in admitting or
excluding evidence, so the exclusion alone may not
constitute a procedural defect.
D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 742, 751 (Pa. Cmwlth. 2010) (citation
omitted; emphasis added). Since the evidence Claimant sought to include in the
record did not relate specifically to whether Claimant’s behavior on December 31,
2015 and January 1, 2016 constituted willful misconduct, or if there was good cause
for Claimant’s actions, it is irrelevant, and the Referee and, by extension, the UCBR,
properly disregarded it.9
9
Section 3 of the Law states that its purpose is not to punish or to award damages for an
employer’s unlawful discrimination or unfair treatment, but rather to provide economic security to
persons who become “unemployed through no fault of their own.” 43 P.S. § 752.
12
For all of the above reasons, the UCBR’s order is affirmed.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troy McNeil, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 955 C.D. 2016
Respondent :
PER CURIAM
ORDER
AND NOW, this 1st day of May, 2017, the Unemployment
Compensation Board of Review’s April 15, 2016 order is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troy McNeil, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 955 C.D. 2016
Respondent : Submitted: January 20, 2017
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: May 1, 2017
The majority makes short shrift of Troy McNeil’s (Claimant)
allegations that he had been subject to racial insult in the course of his work with
Anthony’s Catering South, Inc. (Employer). These allegations are beyond
troubling and deserve much greater scrutiny not only below but at our level as
well. For this reason alone, I cannot join this decision. But I would reverse even if
there were no racially charged element to this matter. Whether Claimant's actions
amounted to willful misconduct is a question of law which is ours solely to decide.
Scott v. Unemployment Compensation Board of Review, 105 A.3d 839, 844 n.4
(Pa. Cmwlth. 2014).
Two incidents form the basis for Claimant's discharge: his leaving an
event on December 31, and his reporting late (after advising Employer of a serious
family matter) the next day. Regarding the former, Employer did not object. 1
1
Employer's reasons for failing to object are irrelevant. Claimant is accused of willful
misconduct which, at the very least, would require some indication from Employer (rather than
passive acceptance) that his conduct on December 31 was not acceptable and was, in fact, wrong.
(Referee’s Decision/Order at 2.) Accordingly, it cannot be said that, as a matter of
law, Claimant's actions that evening constitute willful misconduct.
As for the events of the following day, the family circumstances
surrounding Claimant's tardiness are sufficiently "justifiable" and "reasonable" to
establish "good cause." Eshbach v. Unemployment Compensation Board of
Review, 855 A.2d 943, 948 (Pa. Cmwlth. 2004)(“Where the action of the employee
is justifiable or reasonable under the circumstances, it cannot be considered willful
misconduct because it cannot properly be charged as a willful disregard of the
employer's intent or rules or of the standard of conduct which the employer has a
right to expect.”) There is no evidence that Claimant failed to do his job when he
did arrive, nor that his absence in any way hampered the success of this (or the
previous evening's) event. Further, with no specific policy governing attendance, it
is difficult to discern how completion of one's duties under these circumstances
constitutes "misconduct."
This is a troubling case, one which likely could have and should have
been resolved more amicably between the parties themselves. Instead, it has found
its way into the administrative and now judicial arena, with an unhappy (and
unnecessary) result, further poisoned by allegations of racial insult. I am
compelled to dissent.
___________________________
JOSEPH M. COSGROVE, Judge
JMC-2