Bishop Carroll High School v. Commonwealth

557 A.2d 1141, 125 Pa. Commw. 302, 1989 Pa. Commw. LEXIS 254

• Court: Commonwealth Court of Pennsylvania
• Decided: April 21, 1989
• Docket: Appeal 761 C.D. 1988
• Status: Published

Opinions

Opinion by

Judge McGinley,

Bishop Carroll High School (Bishop Carroll) appeals from a decision of the Unemployment Compensation Board of Review (Board) granting unemployment compensation benefits to John W. Kuskoski (Kuskoski). We reverse.

Kuskoski was a biology teacher at Bishop Carroll for 6 1/4 years prior to his discharge on November 10, 1987. The contract which he entered into on June 1, 1987, stated that “[t]he terms and conditions of employment are those stipulated in the agreement signed 10-27-86 between the Diocese of Altoona-Johnstown and the Altoona-Johnstown Catholic School Teachers’ association.” The preamble of that agreement stated that “Subject to the laws of the Church, the Ordinary shall maintain the sole prerogative to dismiss a teacher for serious or public immorality, public scandal, or rejection of official teaching, doctrine, or laws of the Roman Catholic Church.” Kuskoski had been given a copy of this preamble.

In late September of 1987, Kuskoski advised the principal of Bishop Carroll that he was cohabiting with a divorced woman to whom he was not married, and whose prior marriage had not been annulled. The principal advised Kuskoski that his behavior violated the terms of his employment contract. Kuskoski was advised that he would be discharged if he continued to cohabit outside of marriage. Kuskoski, in an attempt to avoid discharge, proposed to marry the woman in a civil ceremony, pursue an annulment of the woman’s earlier marriage, and then be married in a Catholic Church. The principal advised Kuskoski that Church teachings require that the woman’s prior marriage be annulled before she could be married again, and that Kuskoski’s marriage to her without an annulment would also violate Church teachings and would constitute grounds for discharge. Kuskoski was given an opportunity to consider his options and he chose to continue to cohabit outside of marriage. He was discharged on November 10, 1987.¹

Kuskoski applied for unemployment compensation benefits. The Office of Employm'ent Security (OES) denied the application and Kuskoski filed an appeal for a hearing before the referee. The referee affirmed the denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law, 43 ES. §802(e).² Kuskoski filed an appeal with the Board, which reversed the decision of the referee and granted benefits. The Board determined that Bishop Carroll failed to prove that Kuskoski’s action constituted willful misconduct.³ Bishop Carroll brought the within Petition for Review.

Bishop Carroll contends that the Board erred in concluding that Bishop Carroll failed to prove that Kuskoski’s conduct constituted willful misconduct. Bishop Carroll further contends that Kuskoski did not have good cause for this conduct. Bishop Carroll also contends that the Board’s decision violates Bishop Carroll’s first amendment rights by imposing a burdensome tax on religion. In response, Kuskoski claims that his constitutional right to privacy would be violated by a denial of unemployment benefits.

Our scope of review is limited to a determination of whether necessary facts are supported by substantial evidence, whether an error of law was committed, or whether any constitutional rights have been violated. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Bishop Carroll argues that Kuskoski’s conduct constituted willful misconduct because he was specifically warned that if he continued to live outside of matrimony with a divorced woman he would be discharged, and because he knowingly continued his prohibited conduct. Bishop Carroll further contends that Kuskoski did not have good cause for his actions.

Willful misconduct has been defined as a disregard by an employee of the employer’s interests, a deliberate disregard of the employer’s rules, or a disregard of the standards of behavior that an employer has a right to expect of an employee. Furmento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). In the case sub judice, Bishop Carroll charges Kuskoski with having violated a work rule. The burden of proof in violation of rule cases is well-established.

The employer bears the burden of proving that an employee was discharged for willful misconduct so as to render the employee ineligible for benefits. . . . Where the willful misconduct is based upon a violation of an employer rule or policy, the employer must establish the existence of the rule or policy and that the employee was aware of it.

Sauer v. Unemployment Compensation Board of Review, 110 Pa. Commonwealth Ct. 107-08, 531 A.2d 1174, 1176 (1987). Willful misconduct may be established by showing a deliberate violation of a known and reasonable company rule. Williams v. Unemployment Compensation Board of Review, 109 Pa. Commonwealth Ct. 329, 531 A.2d 88 (1987).

The Board found that Bishop Carroll informed Kuskoski that his conduct constituted grounds for discharge under the terms of his employment contract, as a rejection of the official teaching, doctrine and laws of the Roman Catholic Church. Before we can decide whether Kuskoski’s failure to effect changes in his lifestyle constituted willful misconduct, however,

we must evaluate not only the reasonableness of the employer’s request under the circumstances, but also the employee’s reason for noncompliance. If the employee’s behavior was justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. In other words, if there was good cause’ for the employee’s action, he cannot be deemed guilty of willful misconduct.

In an unemployment compensation case involving a charge of willful misconduct, the employer bears the burden of proving the charge. But, if the claimant seeks to justify the behavior in issue, or to show that it was reasonable, he must bear the proof burden in that respect. (Citations omitted.)

Simpson v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 120, 126, 450 A.2d 305, 308 (1982), cert. denied, 464 U.S. 822 (1983).

Kukoski concedes that he was aware of the existence of the rule and the fact that his conduct violated the rule and was grounds for discharge. He contends, however, that his conduct did not constitute willful misconduct and that he had good cause for his action because Bishop Carroll’s rule was unreasonable. Kuskoski claims that the rule was unreasonable because it forced him to choose between employment and family.⁴ He further contends that a denial of compensation benefits would constitute an unconstitutional burden on his right to privacy. As support for this position, Kuskoski relies on the U.S. Supreme Court opinions in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed. 2d 624 (1981); and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed. 2d 965 (1963).

In both Thomas and Sherbert, the unemployment compensation claimant’s conditions of employment had been changed by the employer after the claimant already had commenced working. Each claimant believed that the practice of his or her religion did not permit him or her to perform the new duties,⁵ and each claimant was either discharged from, or voluntarily terminated, his or her employment based on an unwillingness to perform the new job duties. The U. S. Supreme Court held in both cases that although the state was not the employer, state action was involved, and the Court went on to state that the denial of benefits violated each claimant’s constitutionally guaranteed freedom of religion, reasoning that each claimant was being forced to choose between his religion and his job, with the “price of choosing the former being the loss of state benefits.” Simpson. The U. S. Supreme Court held that such coercion by the state constituted an infringement, albeit indirect, upon the free exercise of religion. Thomas.

Kuskoski maintains that he had a right of privacy with respect to his relationship outside of marriage and that although Bishop Carroll, as a private employer, could discharge him without violating this constitutional right, the Commonwealth of Pennsylvania violated it when it denied him unemployment compensation benefits.

Kuskoski contends that his situation is factually similar to that of the claimants in Sherbert and Thomas, except that his right of privacy was violated as opposed his right to free exercise of religion. We disagree. Whereas the claimants in those cases were faced with changed employment conditions which compelled them to choose between employment and their religion, Kuskoski knew when he signed his employment contract that he would be required to follow the teachings of the Catholic Church as a condition of employment. Consequently, without deciding whether or not Kuskoski has a constitutionally-protected right to cohabit outside of marriage,⁶ we find that he waived any such right when he signed his contract of employment.

This Court and our sister Court have found that constitutional rights may be waived by the execution of contracts. In Pennsylvania Social Services Union v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 461, 508 A.2d 360 (1986), we held that arbitration procedures which the union negotiated in collective bargaining did not violate federal due process requirements for terminating public employees. We also noted, however, that even assuming arguendo that the procedures did violate due process, the employee who was terminated pursuant to those procedures “waived his right to independently raise due process objections in exchange for his greater protections under the collective bargaining scheme.” Id. at 471, 508 A.2d at 365. Similarly, in Federman v. Pozsonyi, 365 Pa. Superior Ct. 324, 529 A.2d 530 (1987), we upheld the constitutionality of a confession of judgment provision in a lease, finding that the lessee voluntarily and intelligently waived his due process rights where he “negotiated the drafting of the lease through his attorney, and the lease itself reflected] the various deletions and additions made pursuant to such negotiations.” Id. at 329-30, 529 A.2d at 533.

The only question which remains is whether or not the sincerity of Kuskoski’s belief that his conduct was constitutionally protected establishes “a state of mind that negates willful misconduct.” We resolved this same issue in Simpson, holding that:

However sincere the claimant may have been in his perception of his legal rights, we must conclude that his mistake in that respect was not the kind that can be allowed to exonerate him and preserve his eligibility for unemployment benefits. His conduct was purely volitional, and disregardful of his employers interest. There is nothing in this case to indicate that the claimants beliefs about his legal rights were other than self-induced. If he wished to gamble on the accuracy of his personal jurisprudence, the Unemployment Compensation Fund should not be required to subsidize his misconception.

Simpson, 69 Pa. Commonwealth Ct. at 133, 450 A.2d at 312.

Having determined that Kuskoski’s actions amounted to willful misconduct and that he did not have good cause to take that course of action, and having determined that his constitutional rights will not be violated, we reverse the Boards decision and reinstate the referees denial of benefits.

Order

And Now, this 21st day of April, 1989, the decision of the Unemployment Compensation Board of Review in the above-captioned matter is reversed.

Judge Smith dissents.

1 On Dec. 12,1987, Claimant married the woman with whom he had been living. The marriage was performed by a Methodist minister.

2 Act of December 5, 1936, Second Ex. Sess., EL. (1937)2897, as amended.

3 (It was a 2-1 decision.)

4 Kuskoski asks this Court to view him as having been forced to choose between employment and marriage, instead of between employment and cohabitation, because Bishop Carroll rejected his proposal to marry the woman with whom he was cohabiting. We decline to do so. If any rights were violated, it was’not his right to marry whomever he chose, but rather his alleged right of privacy to live with someone outside of matrimony.

5 In Sherbert, the claimant, a Seventh Day Adventist, was required to work on her Sabbath. In Thomas, the claimant, a Jehovah’s Witness, was required to participate in the production of arms.

6 Kukoski cites Fabio v. Civil Service Commission, 489 Pa. 309, 414 A.2d 82 (1980), as support for the claim that the right to privacy includes the right to cohabit outside of marriage. Therein the controversy concerned a police officer’s vagueness challenge to the Philadelphia Police Duty Manual’s definition of “conduct unbecoming an officer.”