A three-judge Commonwealth Court panel has reversed a ruling by the Unemployment Compensation Board of Review in a case in which the board had denied unemployment benefits to a fired janitor who lost his job after getting into a verbal dispute with a coworker while working at Pittsburgh International Airport.

Anthony E. Lewis, who worked for ABM Janitorial Services from early December 2002 until his termination on Jan. 23, 2011, had appealed a July 20, 2011 order of the UCBR affirming a decision by a referee to deny Lewis unemployment compensation benefits.

The board had concluded that Lewis was ineligible to receive the benefits because his firing was the result of willful misconduct under his former employer’s policy.

The firing stemmed from a Jan. 22, 2011 incident in which Lewis engaged in a “loud” confrontation with a fellow coworker while the two were working at the airport in western Pennsylvania.

The argument was apparently overheard by other workers, but Lewis had testified that it never turned physical, and that it occurred after the ticket counter was closed for the night meaning no customers were present at the time.

During a hearing, it was determined that Lewis had violated his employer’s policy prohibiting “threatening conduct” in the workplace, and thus was ineligible to collect the unemployment compensation benefits.

Lewis had appealed to the UCBR, which upheld the referee’s ruling denying him benefits, determining that Lewis had engaged in willful misconduct.

Lewis then appealed to the state appellate court, which reversed the UCBR’s decision.

It its opinion, which was authored by Senior Commonwealth Court Judge Rochelle S. Friedman, the judicial panel agreed with Lewis that the UCBR’s willful misconduct determination is “unsupported by substantial evidence.”

“Here, the UCBR found that [Lewis] violated Employer’s policy ‘prohibit[ing] threatening confrontations between employees in the workplace,’” the ruling states. “We are unable to find substantial evidence in the record to support this finding.”

The panel wrote that Lewis’ employer never identified any specific rule or policy that was allegedly violated by Lewis, and it did not present any documented evidence of such a policy during the hearing.

“Testimony that Employer has ‘rules and regulations’ and a ‘harassment policy’ is insufficient to establish the type of policy that the UCBR found Claimant violated,” the ruling states. “Even if Employer had proven the existence of a policy, however, the UCBR made no finding that Claimant was aware or should have been aware of it. Therefore, we conclude that Employer failed to prove Claimant’s deliberate violation of a work rule.”

The panel further determined that while it is true that threats of harm toward a coworker could disqualify an employee from receiving benefits, there is no evidence on record that Lewis actually threatened the other worker during the verbal spat.

“Furthermore, the UCBR made no findings, nor was there any evidence, that Claimant used profanity or offensive language during the argument or that there was any physical contact between the two men,” the ruling states. “Thus, we cannot conclude that Claimant’s behavior rose to the level of willful misconduct.”

The Commonwealth Court ruling was filed on April 16. Judges Bernard L. McGinley and P. Kevin Brobson joined Friedman in the opinion.


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