Reading Sch. Dist. v. Unemployment Comp. Bd. of Rev., 2023 Pa. Commw. Unpub. LEXIS 36 (Pa. Commw. Ct., Jan. 20, 2023).  In an unpublished opinion the Commonwealth Court of Pennsylvania reversed the decisions of an unemployment compensation referee and the Pennsylvania Unemployment Compensation Board of Review, each of which found a teacher was justified in shoving a school janitor who made an extremely crude remark to the teacher.  The Court held the teacher’s actions were not justified, and she was not entitled to unemployment compensation after being terminated, citing precedent that physical contact is rarely justified in response to crude or hostile verbal remarks.

DISCUSSION

In 2019 a teacher employed by Reading School District (“District”) experienced a “personal and embarrassing mishap in the restroom between classes.”  The teacher was discussing the embarrassing mishap with two female security guards when the male janitor interjected himself into the conversation and made a crude and suggestive remark about the mishap, stating, “I can clean that up.  I can clean that up real good with my tongue.”  In response, the teacher shoved the janitor.

The District investigated the incident and terminated the teacher for violating policies and standards of conduct related to fighting, acts of violence and unprofessional conduct.  The teacher was denied unemployment compensation benefits and appealed to an unemployment compensation referee.  The referee held the teacher was provoked and had good cause to shove the janitor.  The Pennsylvania Unemployment Compensation Board of Review agreed and upheld the referee’s decision, granting unemployment compensation benefits to the teacher.  The District then appealed to the Pennsylvania Commonwealth Court, which reversed the decisions of the referee and Unemployment Compensation Board of Review. 

ANALYSIS

The Pennsylvania Commonwealth Court explained willful misconduct disqualifies an employee for unemployment compensation.  However, once the employer establishes prima facie willful misconduct, the burden shifts to the employee to establish good cause for her actions in order to retain benefits.  Good cause exists when the employee’s actions are justified or reasonable, such as when the employee is provoked.

The Court explained that an employee is generally not justified in pushing another employee in response to abusive or personally offensive language.  For example, the Court has held calling an employee a “dirty bastard” does not justify an employee pushing another employee. Similarly, the Courts has held offensive references to an employee’s nationality do not justify fighting a co-worker.

On the other hand, if the offensive language is accompanied by threatening gestures or movements, then an employee may be justified in defending him or herself.  For example, the Court held an employee was justified in punching a co-worker who was threatening to kill the employee, was making racial slurs, and was reaching for something in his back pocket.

An employee also may be justified in physically responding to an extended, aggressive verbal tirade.  For example, when a supervisor verbally intimidated an employee for 45 minutes, with loud and aggressive statements about the employee’s work attitude, the Court held the employee was justified in throwing a writing tablet at the supervisor.

Finally, if an employer deliberately provokes an employee, the employee may be justified in physically retaliating.  For instance, a supervisor who wanted to fire an employee arranged for a co-worker to repeatedly bang a steel bin in which the employee was welding.  The employee emerged from the bin, pushed the co-worker, and was fired.  The Pennsylvania Commonwealth Court held the employee was justified in pushing his co-worker and was entitled to unemployment compensation.      

In the case at hand, there was no dispute the teacher committed willful misconduct by pushing the janitor.  And although the janitor’s remark was extremely crude and personally offensive it was not enough, according to the Court, to justify pushing the janitor under any of the exceptions above.    

PRACTICAL ADVICE

In Pennsylvania cases considering unemployment compensation benefits, there are limited circumstances in which an employee is justified in physically attacking a co-worker in response to a verbal statement, no matter how offensive the statement.  To justify physical retaliation the verbal statements must be accompanied by either 1) physically threatening behavior, 2) extended aggressive verbal haranguing or 3) a deliberate, calculated effort to provoke the employee.  Given the fact-specific nature of such incidents, it is important school districts seek guidance from their solicitor when facing similar situations.