IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph E. De Ritis, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : No. 1952 C.D. 2013 Respondent : Submitted: May 23, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 18, 2014 Joseph E. De Ritis (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Referee s denial of benefits to Claimant under Section 402(e) of the Unemployment Compensation Law (Law). 1 I. Background. The Board made the following relevant findings of fact: 1. The Delaware County Public Defender s Office employed the claimant from December 5, 2005, through May 2, 2013, finally as an attorney 1 earning $35, 190.00 per year. 2. The employer demoted the claimant from its trial division to a trial assistant in juvenile court because he 802(e). 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
allegedly was not prepared for court, failed to have witnesses subpoenaed, did not investigate cases, and would not communicate with assistant district attorneys when representing the employer s clients. 3. The claimant told judges and fellow attorneys that he was demoted because the employer s public defender was punishing him for taking too many cases to trial, but did not address his concerns with the employer. 4. The employer discharged the claimant for making statements harmful to the public defender s reputation....the claimant admitted making the statements, but claims he is protected by the free speech clause of Amendment I to the United States Constitution. Denial of benefits may not be based on one s free speech rights absent a compelling state interest. The burden of proof rests with the claimant to show that his conduct was constitutionally protected and that the conduct was the substantial or motivating factor in the employer s decision to discharge him. If the claimant meets his burden, the employer must show that it would have discharged him absent the protected conduct. The employer admitted that the claimant s statements were the reason for his discharge, so the claimant must show that his conduct was constitutionally protected. To determine whether the claimant s conduct was constitutionally protected, the Board must balance the interests of the claimant in commenting on matters of public concern and the interest of the employer in promoting the efficiency of the public services it performs through its employees. The claimant told judges and fellow attorneys that he was demoted because the employer s public defender was punishing him for taking too many cases to trial. The claimant s statements were not criticisms of the employer s disposition of public funds, its policies regarding plea agreements, or the inadequacy of funding that required resources to be overstretched, resulting in underrepresented clients, all issues that appear to be of 2
public concern. Instead, the Claimant s statements were private in nature. Although private communication may also be protected speech, the private nature of the communication is significant when the public concern with the communication is otherwise unapparent. The Board must next determine the employer s interest in promoting the efficiency of the public services it performs through its employees. The claimant made private statements regarding his alleged punishment to several individuals in the legal community in which the employer operated. The claimant admitted that he heard nothing official regarding the reason for his demotion, nor did he address his concerns with the employer. Conversely, the public defender credibly testified that the claimant was demoted because he allegedly was not prepared for court, failed to have witnesses subpoenaed, did not investigate cases, and would not communicate with ADAs when representing the employer s clients. Regardless of the claimant s belief, his speculation, based on unsubstantiated rumors, did not justify his statements. When an employee questions the integrity of his superior, especially to the judges and attorneys in the same sector, the employee s conduct so seriously undermines the employment relationship that discharge of an employee is appropriate. Based on the entire record, the claimant s statements were not of sufficiently public concern and were so disruptive to the employer s operations that they were not protected by Amendment I of the U.S. Constitution. The Board is not the appropriate venue to seek relief under the Whistleblower Act. Therefore, benefits must be denied. Board s Opinion, October 4, 2013, (Opinion) Findings of Fact (F.F) Nos.1-4 and Discussion at 1-3. 2 2 The pages of the Reproduced Record are not numbered. 3
II. Present Controversy. On appeal, Claimant contends 3 that the Board erred when it determined that Claimant was not entitled to demand evidence of employment performance at the hearing. Claimant also argues that the Referee and the Board erred when they found Claimant s speech was not entitled to protection under the Whistleblower Law 4 and the First 5, Sixth 6 and Fourteenth 7 Amendments to the United States Constitution. 3 Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 474 A.2d 829, 831 (Pa. Cmwlth. 1977). This Court will review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony in order to determine if substantial evidence exists. Taylor v. Unemployment Compensation Board of Review, 474 A.2d 829, 831 (Pa. Cmwlth. 1977). 4 Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. 1421-1428. 5 U.S. Const. amend. I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 6 U.S. Const. amend. VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. 7 U.S. Const. amend. XIV, 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, (Footnote continued on next page ) 4
A. Whether the Board Abused Its Discretion When It Ruled That Claimant Was Not Entitled To Receive And Examine Evidence Of His Performance? Claimant first contends that the Board erred when it determined Claimant was not entitled to receive and examine evidence of his work performance. Here, the Board found that, [t]he employer demoted the claimant from its trial division to a trial assistant in juvenile court because he allegedly was not prepared for court, failed to have witnesses subpoenaed, did not investigate cases, and would not communicate with assistant district attorneys when representing the employer s clients. Opinion, F.F. No. 2 at 1. Douglas C. Roger (Mr. Roger), Director of the Public Defender s Office in Delaware County, explained that Claimant was discharged for making statements, in the course of his employment, that were contrary to the policies of Employer: [Claimant], when appearing before the local magistrate for the purpose of performing his duties, told her that he was being punished by me because he wanted to try too many cases in the courthouse, that he would not follow a policy that he told her that I have for the office, which involved compromising criminal defendant s cases in order that they could be quickly disposed of.[w]hen I learned that [Claimant] related that to [the local magistrate], I asked [Claimant] to come in and talk to me in my office. And when he did.i was shocked that he (continued ) liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 5
did not deny that. And I was shocked that he admitted that this was a policy that he believed I was carrying out as a director. Notes of Testimony, July 22, 2013, (N.T.) at 4. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 A.2d 829 (Pa. Cmwlth. 1977). Claimant s discharge was not due to the allegations that may have led to his demotion. Rather, Claimant was discharged for making statements that were harmful to the Public Defender s reputation. Evidence of Claimant s work performance that resulted in his demotion was immaterial to whether his statements constituted willful misconduct. B. Whether Claimant s Speech Was Constitutionally Protected Under The First, Sixth and Fourteenth Amendments? Claimant next contends that his speech was constitutionally protected under the First, Sixth and Fourteenth Amendments to the United States Constitution. 6
It has been established that denial of unemployment compensation benefits cannot be based on an individual s exercise of First Amendment rights absent a compelling state interest. Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629 (Pa. Cmwlth. 1994). In determining whether a denial of benefits equates to an impermissible infringement on an individual s right to free speech, one must balance the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997). The burden of proof rests with Claimant to show that his conduct was constitutionally protected and that the conduct was the substantial or motivating factor in employer s decision to discharge him. Boyer v. Unemployment Compensation Board of Review, 415 A.2d 429 (Pa. Cmwlth. 1980). In the present case, Claimant argues the statement, I m being punished. I m apparently taking too many cases to trial should be accorded First Amendment protection. N.T. at 4. Claimant maintains that the public would be very interested to know that the county s president judge is so concerned that caseloads are high that he would demand- and receive- the demotion of an aggressive public defender on a promise of political capital to the chief public defender. Claimant s Brief at 38. 7
The Board determined that Claimant s statements were not of sufficiently public concern and were so disruptive to the employer s operations that they were not protected by Amendment I of the U.S. Constitution. Opinion, Discussion at 3. This Court agrees. Claimant s statements were purely personal in nature. Claimant s private statements about the reasons for his demotion to local magistrates and colleagues were clearly not a matter of public concern. Since Claimant s speech that resulted in his discharge was not protected speech under the First Amendment, we must determine whether his statements constituted willful misconduct that rendered him ineligible for unemployment compensation benefits. Under Section 402(e) of the Law, an employee is ineligible for benefits when he has been discharged from work for willful misconduct connected with his work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Whether a Claimant s conduct rises to the level of willful misconduct is a question of law subject to this Court s review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer s interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer s interest or employee s duties and 8
obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 A.2d 1383 (Pa. Cmwlth. 1985). However, the existence of a specific rule is not necessary where the employer has a right to expect a certain standard of behavior, that standard is obvious to the employee, and the employee s conduct is so imical to the employer s interests that discharge is a natural result. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1162 (Pa. Cmwlth. 2013). Here, Claimant did not refute that he made the statements to a local magistrate and fellow attorneys. N.T. at 10. To openly and directly question an employer s veracity and to accuse the employer without cause is insolence which, in and of itself, rises to the level of willful misconduct sufficient to deny a claimant benefits under Section 402(e) of the Law. Sargent v. Unemployment Compensation Board of Review, 630 A.2d 535 (Pa. Cmwlth. 1993). As finder of fact, the Board determined that Employer discharged the [C]laimant for making statements harmful to the public defender s reputation. Opinion, F.F. No. 4 at 1. N.T. at 12. These statements which questioned the integrity of the public defender constituted willful misconduct. 9
Accordingly, the decision of the Board is affirmed. BERNARD L. McGINLEY, Judge 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph E. De Ritis, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : No. 1952 C.D. 2013 Respondent : O R D E R AND NOW, this 18 th day of July, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge