Court: No threat intended by worker who vows he 'won't forget'

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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 Mr. Aversa's accounts to his co-worker, Jim Mowery, because the employer thought Mr. Aversa had encroached on Mr. 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 part of the message was in all caps, part was also in lowercase, the panel noted. Importantly, the message came with no promise of harm to Mr. 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,'" Judge 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, Judge Leavitt said, the messages convey Mr. Aversa was angry and bears a grudge -- but being angry is not the same as making a threat.

Senior Judge James Gardner Colins joined Judge Leavitt, and Judge Bonnie Brigance Leadbetter dissented without comment.

Mr. 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, Mr. Aversa appealed and went before a referee in May of last year. Mr. Aversa testified before the referee he did not intend to intimidate or threaten Mr. Mowery with the message.

According to the opinion, Mr. 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."

The ruling reverses that of the Unemployment Compensation Review Board, which affirmed the referee's determination that Mr. 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.

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 Mr. Aversa in Aversa v. Unemployment Compensation Board of Review, because the panel found he never intended to threaten, harass or intimidate Mr. Mowery, and never broke any of U.S. Food Services's workplace violence prevention rules.


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