Unemployment compensation — Wilful misconduct — Burden of proof — Good cause — Abusive language — Absenteeism — Emotional problems — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, when the employer proves that she was discharged for wilful misconduct, and the burden is upon the employe to prove that reasonable and justifiable circumstances existed for the conduct leading to her discharge. [492]
2. The use of abusive language to a superior and continual tardiness and absenteeism can properly be held to constitute wilful misconduct precluding receipt of unemployment compensation benefits by an employe discharged as a result of such conduct. [492]
3. Wilful misconduct cannot be excused in an unemployment compensation case because of a claim of emotional disorder alleged to have caused such conduct when no medical evidence is produced to show the existence of such condition at the time of the misconduct and when the employe did not discuss the problem with her employer or request a transfer to work more suitable to her alleged condition. [492]
OPINION BY PRESIDENT, JUDGE CRUMLISH, June 4, 1981:
The Unemployment Compensation Board of Review denied benefits to claimant. She appeals. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (e).
Catherine Bolden was discharged November 19, 1979, after a verbal confrontation with her employer's personnel director, a supervisor and an immediate superior. This followed a series of recorded incidents of abusive language and long history of tardiness, absenteeism and suspensions. On November 13, 1976, the personnel director had issued an incident report summarizing a long list of abuses, making it the last warning.
Again late for work on the morning of her last day of work, Bolden, among other things, gave her superiors an ultimatum. They obliged and she was then discharged.
Bolden seeks to excuse this willful misconduct on her emotional state and severe pressure stemming from a dispute with her separated spouse. We disagree. The law is clear. While the burden of proving willful misconduct rests squarely on the employer's shoulders, Roach v. Unemployment Compensation Board of Review, 31 Pa. Commw. 424, 376 A.2d 314 (1977), the burden of showing that reasonable and justifiable circumstances exist to override a finding of willful misconduct lies with the claimant. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commw. 191, 415 A.2d 425 (1980). Instances of loud and abusive language directed at superiors, Nesmith v. Unemployment Compensation Board of Review, 43 Pa. Commw. 579, 402 A.2d 1132 (1979), histories of lateness and absenteeism, American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commw. 272, 412 A.2d 1123 (1980), when supported by the record cannot be accepted as behavior which an employer can reasonably expect from an employee.
As to her allegation of emotional stress, we have in the record but a handwritten note dated November 28, 1979, from the Coping Clinic, a community mental health clinic, addressed to "To Whom it May Concern" stating Bolden was seen at the clinic on November 20, 1979, for acute mental distress, was treated at that time and presently functioning in a "normal fashion." At the conclusion of the hearing and review, the referee and the Board found no medical evidence of any emotional disorder at the time of the incident. A review of the record and considering our scope of review, we conclude that there has been no capricious disregard of competent evidence. Bolden's actions were not only deliberate and abusive, but she made no attempt to discuss her problems with her employer, nor did she request work compatible with her alleged condition. See Nedd v. Unemployment Compensation Board of Review, 24 Pa. Commw. 514, 357 A.2d 268 (1976). Consequently, benefit were properly denied.
Affirmed.
ORDER
The order of the Unemployment Compensation Board of Review at B-79-1-M-980, dated April 17, 1980, is affirmed.
Judge WILKINSON, JR., did not participate in the decision in this case.