A man’s email message to a co-worker in all capital letters saying he would not forget that his colleague took over one of his business accounts was not a threat, the Commonwealth Court has ruled.
The split three-judge panel examined the employee handbook of U.S. Food Services in determining Joseph Aversa was wrongly denied a claim for unemployment compensation benefits after being fired from his food sales job.
Saying “I won’t forget it” does not amount to a threat, the panel decided.
According to the opinion, the email message came after U.S. Food Services assigned one of Aversa’s accounts to his co-worker, Jim Mowery, because the employer thought Aversa had encroached on Mowery’s territory to pick up the account.
The email read as follows: “Hey Jim, you set me up pretty good … I WON’T FORGET IT.”
While the message was in all caps, it was also in small caps, the panel noted. Importantly, the message came with no promise of harm to Mowery nor his property.
It also came through cyberspace, Judge Mary Hannah Leavitt said in an 11-page opinion, a form of communication that “does not contain the same force or immediacy of an in-person exchange; it is absent voice or hand gesture.”
“[The email] did not state, for example, ‘I am going to get you’ or ‘You will be sorry,’” Leavitt said. “Even those examples may be too vague to convey an intentional threat.”
“By contrast, ‘I am going to beat you up’ or ‘I am going to burn down your house’ leave no doubt in the reader’s mind.”
At most, Leavitt said, the messages convey Aversa was angry and bears a grudge.
Senior Judge James Gardner Colins joined Leavitt, and Judge Bonnie Brigance Leadbetter dissented without comment.
Aversa was fired in January 2011 after a meeting with his employer, a meeting in which he admitted the email message was not professional. After being denied benefits, Aversa appealed and went before a referee in May of last year. Aversa testified before the referee he did not intend to intimidate or threaten Mowery with the message.
According to the opinion, Aversa said: “No, I just — well, in my mind I wasn’t threatening him. I just wanted him to know that I would remember it and not let it happen again.”
While the referee, and ultimately the Unemployment Compensation Review Board, found Aversa not to be credible, Leavitt said “factfinders err when they try to make a finding of positive fact on the basis of a negative credibility determination.”
In other words, as Leavitt put it: “An adverse credibility determination is not itself substantial evidence.”
The ruling reverses that of the board, which affirmed the referee’s determination that Aversa did in fact commit willful misconduct.
The court’s analysis centered on a provision in state law on willful misconduct, which prohibits employees from collecting benefits if they violate an employer’s rule.
In such cases, the employer must establish the existence of a rule, its reasonableness, and that the employee was aware of the rule.
In other words, the employee has to know he or she broke a rule. Once the employer meets that burden, the burden of proof shifts to the claimant to show the rule was unreasonable or that he or she had good cause to violate the rule.
But that burden appeared to never shift to Aversa in Aversa v. Unemployment Compensation Board of Review because the panel found he never intended to threaten, harass or intimidate Mowery.
The U.S. Food Services Associate Handbook spells out a “workplace violence prevention policy,” which prohibits any behavior that is or is intended to be violent, threatening, intimidating, disruptive, aggressive or harassing, to be determined by the employer in its sole discretion.
The policy came after an incident of violence ended in a fatality about 10 years ago, a human relations manager testified before the referee. The manager also said the employer’s position was Aversa intended to be threatening with the email.
She testified Aversa told her he did not intend the message to be a threat and that he was frustrated about having lost his client. Aversa also apologized to Mowery and the division president, the opinion said.
Edwin A. Abrahamsen Jr. of Abrahamsen, Conaboy & Abrahamsen in Scranton represented Aversa and was not available for comment.
Gerard M. Mackarevich of the Unemployment Compensation Board of Review Division of the Governor’s Office of General Counsel represented the board and was not available.
(Copies of the 11-page opinion in Aversa v. Unemployment Compensation Board of Review, PICS No. 12-1779, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •