Boyer v. Commonwealth

415 A.2d 425, 51 Pa. Commw. 191, 1980 Pa. Commw. LEXIS 1401
Commonwealth Court of Pennsylvania·Decided May 7, 1980·No. Appeal, No. 460 C.D. 1979·Published·Cited by 20 cases

Opinion

Opinion by

Judge MacPhail,

Terry L. Boyer (Petitioner) brings this appeal from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s order denying him unemployment compensation benefits. The referee and before her the Bureau (now Office) of Employment Security had determined that Claimant was discharged from his employment with the City of Lancaster (Employer) because of willful misconduct and, therefore, was not eligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. §802(e). On appeal, Claimant raises three issues for our consideration: whether he was discharged from his employment as a result of the exercise of his First Amendment right to free speech; whether the conduct resulting in his dismissal constituted wilful misconduct as a matter of law; and whether the Board’s findings of fact were sufficient to support the denial of benefits. For the reasons which follow, we affirm.

Claimant was employed as a Traffic Technician I by Employer. His last day of work was May 17, 1978 and his final rate of pay was $165 per week. During his period of employment, Claimant received a number of written memos from his supervisor, Roy Falcone, concerning his job performance. In response to the final memo, Claimant wrote a letter to Falcone [194] entitled “Unjustified Memos.”1 Claimant also sent copies of bis letter to the Mayor of Lancaster, the City’s Director of Public Works, the City’s Personnel Manager, and the President of Local 1896 of the [195] American Federation of State, County, and Municipal Employees. Shortly after he received the copy of the letter, the Personnel Manager discharged Claimant.

The burden of proving willful misconduct is on the employer. Roach v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 424, 426, 376 A.2d 314, 315 (1977). Where, as here, the party bearing the burden of proof prevails before the Board, we must determine on appeal whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial evidence. Roach at 427, 376 A.2d at 315; Unemployment Compensation Board of Review v. Tumolo, 25 Pa. Com[196] monwealth Ct. 264, 267, 360 A.2d 763, 765 (1976). Because Employer prevailed before the Board, it is entitled to tbe benefit of any inferences which can be reasonably and logically drawn from the evidence on the record. Nehi Bottling Co. v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 251, 253, 366 A.2d 594, 595 (1976). Of course, questions of credibility, resolution of conflicts in the evidence presented, and a determination of the weight to be given the evidence are matters for the Board to determine. Roach at 427, 376 A.2d at 315.

We turn first to Claimant’s argument that he was discharged from his employment for exercising his First Amendment right to free speech. The Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), addressed this issue and analyzed the competing interests involved when a public employee speaks out:

[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between 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.

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. If Claimant meets his burden, the burden of proof will then shift to Employer to show that it would have discharged him in the absence of the protected conduct. Mt. Healthy City Board of Education v. Doyle, 429 U.S. [197]*197274, 287 (1977). It is undisputed that Claimant’s letter to Falcone was a substantial factor in the decision to dismiss him. Claimant has failed to prove, however, that his conduct was constitutionally protected.

In determining whether a statement is to be accorded First Amendment protection in a context such as the one before us, we must consider the nature of the concern addressed and the relationship between the employer and employee. See Pickering v. Board of Education. "We find that Claimant’s letter to Falcone does not address a matter of public concern and that his conduct resulted in a total disruption of the employer/employee relationship.

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Boyer v. Commonwealth, 415 A.2d 425, 51 Pa. Commw. 191, 1980 Pa. Commw. LEXIS 1401 (Pa. Ct. App. 1980).

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