Opinion
No. 2046 C.D. 2011
04-27-2012
Ryan Cloak, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ryan Cloak (Claimant) petitions for review of the September 29, 2011, order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with her work.
Claimant was employed as a cook by Heritage of Green Hills (Employer) from February 16, 2009, to March 22, 2011. (Finding of Fact No. 1.) Employer has a policy that states that excessive absenteeism can lead to disciplinary action up to and including termination and that ten excused absences in a rolling 12- month period constitutes excessive absenteeism which may be subject to disciplinary action. (Finding of Fact No. 2.) Claimant was or should have been aware of Employer's policy. (Finding of Fact No. 3.)
On March 3, 2010, Claimant was warned regarding his attendance violations. (Finding of Fact No. 4.) Claimant committed attendance violations on December 7, 2009, December 31, 2009, April 3, 2010, May 25, 2010, June 14, 2010, June 30, 2010, September 22, 2010, September 29, 2010, and October 11, 2010. (Finding of Fact No. 5.)
On October 13, 2010, Claimant received a written warning for having 10 absences within a 12-month period. (Finding of Fact No. 6.) On January 5, 2011, Claimant received a written warning for absenteeism stating that additional attendance issues would result in additional discipline up to and including termination. (Finding of Fact No. 7.) On March 21, 2011, Claimant was verbally counseled for attendance violations and told that additional attendance issues could result in discharge. (Finding of Fact No. 8.)
On March 25, 2011, Claimant called out sick. (Finding of Fact No. 9.) On March 26, 2011, Claimant called out because he did not have childcare for his children. (Finding of Fact No. 10.) On March 27, 2011, Claimant called out because he assumed that he would be discharged so he decided to go to church instead of reporting to work. (Finding of Fact No. 11.) On March 29, 2011, Employer discharged Claimant for excessive absenteeism. (Finding of Fact No. 12.)
On April 13, 2011, Claimant filed a claim for benefits. (Certified Record (C.R.) Item No. 2.) The local service center determined that although Employer had a point system for absenteeism and tardiness and Claimant had been warned about his attendance, Claimant showed good cause for his absence on March 25, 2011. (C.R. Item No. 3 at 1.) Accordingly, the service center determined that Claimant was eligible for benefits under section 402(e) of the Law. (Id.)
Employer appealed and a hearing was conducted before a referee on June 15, 2011. Claimant did not appear at the hearing. On June 16, 2011, the referee issued a decision and order reversing the service center's determination and denying benefits under section 402(e) of the Law and Claimant appealed the decision to the Board. By order dated July 28, 2011, the Board remanded the matter to the referee for an August 18, 2011, hearing to receive testimony and evidence on Claimant's nonappearance at the June 15th hearing and on the merits of Claimant's appeal of the referee's decision. The Board later determined that Claimant had good cause for not appearing at the first hearing. (Certified Record (C.R.) Item No. 14 at 2.)
Claimant testified that he reported off work on March 25, 2011 because he was sick. (N.T. 8/18/11 at 5.) Claimant stated that he reported off work on March 26, 2011, because his babysitter cancelled. (Id. at 5-6.) Claimant testified that when he called in to report that he would be off for March 26th, he also called off for March 27, 2011, because he wanted to go to church. (Id. at 6.) Claimant stated that although he tried for a year and a half to be off work on Sundays, he did not specifically request to be off on March 27th after he was scheduled to work on that day. (Id. at 6, 7.)
"N.T. 8/18/11" refers to the transcript of the August 18, 2011, referee's hearing.
Russell Carter, Employer's food and beverage director, testified that Claimant was given a verbal warning on March 3, 2010, regarding his attendance, written warnings on October 13, 2010, and January 4, 2011, regarding his attendance, and another verbal/written warning on March 21, 2011, regarding his leaving work before the end of his scheduled shift. (N.T. 6/15/11 at 7-8; N.T. 8/18/11 at 9-10.) Carter stated that Claimant was told in his March 21st warning that his job was in jeopardy. (N.T. 8/18/11 at 10.)
"N.T. 6/15/11" refers to the transcript of the June 15, 2011, referee's hearing.
Carter also testified that Claimant called off when he was scheduled to work on March 25, 26, and 27, 2011. (N.T. 6/15/11 at 5; N.T. 8/18/11 at 10.) Carter stated that Claimant called off on March 25th because he was sick and he called off on March 26th because he did not have a sitter. (N.T. 6/15/11 at 5; N.T. 8/18/11 at 10.) Carter testified that Claimant also called off for March 27th because Claimant heard from someone that he was going to be fired so he was going to church instead of getting fired. (Id.) With respect to Claimant's absence on March 27th, Carter explained:
[Claimant] had stated that he requested Sundays off for a year and a half. Any request is just that. It is a request. I was I think, I tr[ied] to be as accommodating as I could. You know with, there were many Sundays where he did have off. I didn't give him every Sunday off because of the business needs. But you know when he was hired his schedule that he was hired for did not specifically say that he would not work on Sundays....(Id. at 9.) Carter stated that Claimant was terminated on March 29, 2011, due to his attendance issues. (N.T. 6/15/11 at 6.)
On September 29, 2011, the Board issued a decision and order affirming the referee's determination that Claimant was ineligible for benefits under section 402(e). (C.R. Item No. 14.) The Board specifically stated:
In this case, the claimant had been extensively warned regarding his attendance. The employer's policy provided
that extensive absenteeism can lead to disciplinary action up to and including termination from employment. It also provides that ten excused absences in a rolling twelve month period are excessive and may be subject to disciplinary action. The claimant did violate the employer's policy when he was again absent on March 25, 26, and 27, 2011. That does not end the inquiry, however, because if the claimant had good cause for his final absence and it was properly reported his conduct would not rise to the level of willful misconduct. In this case, the employer's witness credibly testified that the claimant informed him that he would not be reporting to work on Sunday, March 27, 2011, because he "heard that [he] was getting fired so [he was] just not going to come in. [He was] going to go to church instead of getting fired." This is not good cause for the claimant to be absent. The employer did not discharge the claimant until March 29, 2011, and did not testify that it had made the decision to discharge the claimant prior to that date. Therefore, the Board determines that the claimant's actions do rise to the level of willful misconduct and that he is ineligible for benefits under Section 402(e) of the Law.(Id. at 3.) Claimant then filed this petition for review.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
In this appeal, Claimant asserts that the Board erred in determining that he is ineligible for benefits under section 402(e) of the Law. Specifically, Claimant contends that the Board erred in determining that he engaged in willful misconduct because he was never given a final warning; his final absences were for illness and for personal time that he had earned; and the absences were properly reported and could not be relied upon to support the instant disciplinary action.
Under section 402(e), an employee is ineligible for unemployment compensation 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). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review, and we make this determination in light of all the circumstances, including the reasonableness of both the employer's expectations and the claimant's conduct. Id.; Verner v. Unemployment Compensation Board of Review, 471 A.2d 139, 141 (Pa. Cmwlth. 1984).
Although willful misconduct is not defined by statute, it has been described as: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior that an employer can rightfully expect from his employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Guthrie, 738 A.2d at 521 (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)).
Thus, a violation of an employer's work rules and policies may constitute willful misconduct. Guthrie, 738 A.2d at 522. An employer seeking to prove willful misconduct based on a violation of a work rule must establish the existence of a reasonable work rule and its violation by the employee. Id. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove that he had good cause for his actions. Id. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Id.
Good cause is an issue for the Board to resolve. Wideman v. Unemployment Compensation Board of Review, 505 A.2d 364, 368 (Pa. Cmwlth. 1984). As the fact finder, the Board determines the weight and credibility of the evidence and it is free to reject even uncontradicted testimony. Id. Thus, the Board resolves all questions of credibility and conflicts in the testimony. Id. However, the question of whether a claimant has proved good cause is one of law and, therefore, is subject to our review. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1016 (Pa. Cmwlth. 2008).
In addition, an employer has the right to expect that its employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission. Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1980). Thus, excessive absenteeism and tardiness constitute willful misconduct as a disregard of the standards that an employer has a right to expect of its employees. Id.; American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 1123, 1125 (Pa. Cmwlth. 1980); Crilly v. Unemployment Compensation Board of Review, 397 A.2d 40, 41 (Pa. Cmwlth. 1979). Although an advance warning is not a precondition or prerequisite to support a discharge for willful misconduct, a prior warning is relevant in that it reflects the employee's attitude toward his employment and adds to the willfulness of the misconduct. Id. at 1125-26. On review, we look to the cause of the absence that precipitated the discharge in determining whether a claimant's conduct constitutes willful misconduct. See Grace v. Unemployment Compensation Board of Review, 412 A.2d 1128, 1130 (Pa. Cmwlth. 1980) ("[B]ecause illness caused the early departure and absence which precipitated the discharge, even if claimant violated the 'no-fault' discharge policy, there was no willful misconduct as to those last two occasions.").
While absenteeism standing alone is grounds for discharge, it is not willful misconduct. Lyons v. Unemployment Compensation Board of Review, 533 A.2d 1144, 1145 (Pa. Cmwlth. 1987). Absenteeism can constitute willful misconduct if any of the following additional elements are present: (1) excessive absenteeism; (2) failure to notify the employer of the absence in advance; (3) lack of good or adequate cause for the absence; (4) disobedience of existing employer rules, regulations, or policy regarding absenteeism; and (5) disregard of warnings regarding absenteeism. Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974). The additional elements present in the instant case are Claimant's excessive absenteeism, disobedience of Employer's absenteeism policy, and disregard of prior warnings regarding his absenteeism.
In this case, Claimant introduced part of Employer's Employee Handbook which states, in pertinent part:
Attendance and punctuality are very important parts of the employee's job performance. Absenteeism places a burden on other employees who have to perform absent employees' duties. Absenteeism can cause scheduling problems for the department and can adversely affect our ability to serve our clients. For these reasons, excessive absenteeism cannot be tolerated. When an employee is absent from work, it will be recorded as an excused or non-excused absence. A non-excused absence is a serious failure of performance and may be subject to disciplinary action. Excused absences are not subject to disciplinary action if proper notifications are met. However, ten excused absences in a rolling twelve month period are excessive and may be subject to disciplinary action.(Exhibit C-2 at 4.)
Exhibit C-2 was admitted into evidence at the August 18, 2011 hearing. (N.T. 8/18/11 at 12.)
Service Center Exhibit 8 shows that Claimant called off from work on November 8, 2009, December 31, 2009, April 3, 2010, June 30, 2010, and September 22, 2010; Claimant left work early on December 7, 2009, June 14, 2010, and September 29, 2010; Claimant arrived late to work on October 11, 2010; and Claimant arrived late to work and left early on May 25, 2010.
Exhibits SC-6, SC-7, SC-8, SC-9, and SC-10 were admitted into evidence at the June 15, 2011 hearing. (N.T. 6/15/11 at 2-3.)
In addition, Carter testified that Claimant was given verbal and/or written warnings regarding his attendance issues on March 3, 2010, October 13, 2010, January 5, 2011, and March 21, 2011, and that Claimant was told in his March 21st verbal warning that his job was in jeopardy. (N.T. 6/15/11 at 7-8; N.T. 8/18/11 at 9-10.) Carter also stated that, in spite of these warnings, Claimant called off on March 25th because he was sick, Claimant called off on March 26th because he did not have a sitter, and Claimant called off for March 27th because he heard that he was going to be fired so he was going to church instead of getting fired. (N.T. 6/15/11 at 5; N.T. 8/18/11 at 10.) Thus, the Board's findings are supported by substantial evidence and are conclusive in this appeal.
The October 13, 2010, written warning was based on the ten incidents of absence, tardiness, and departure prior to the end of a shift that occurred between November 28, 2009, and October 11, 2010, in violation of the absence policy. Exhibits SC-6, SC-7, SC-8. The January 5, 2011, written warning was based on an additional incident of departure prior to the end of a shift that occurred on December 31, 2010. Exhibits SC-9, SC-10.
Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn therefrom. Id.
Moreover, the foregoing evidence supports a finding of the existence of Employer's policy, the reasonableness of the policy, Claimant's awareness of the policy, and the fact of its violation. Accordingly, the burden of proof shifted to Claimant to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522.
Although Claimant may have had good cause for calling off of work on March 25 and 26, 2011, he did not have good cause for calling off on March 27, 2011, the final absence precipitating his termination. Contrary to Claimant's assertion, Carter's testimony supports the Board's finding that Claimant called off of work on March 27th because he thought that he was going to be fired. This does not constitute good cause. See Mees' Bakery v. Unemployment Compensation Board of Review, 82 A.2d 68, 69 (Pa. Super. 1951) ("[T]here is no positive testimony that the employer severed claimant's employment. The claimant contended only that he failed to report because he 'knew he was going to be discharged.' There were no facts to substantiate his alleged belief...."). As a result, the Board did not err in determining that Claimant is ineligible for benefits under section 402(e) of the Law.
See McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993) (holding that illness is a good cause defense to a charge of willful misconduct due to excessive absenteeism); Mulqueen v. Unemployment Compensation Board of Review, 543 A.2d 1286, 1287-88 (Pa. Cmwlth. 1988) (holding that a claimant's inability to obtain a sitter for his children on short notice was good cause for countermanding an employer's directive to report to work); Grace, 412 A.2d at 1130 (holding that illness constitutes good cause for early departure and absence from work).
Claimant cites his testimony and evidence supporting the conclusion that he did not violate Employer's policy or commit willful misconduct. However, the fact that there is testimony and evidence to support the conclusion that Claimant did not act in violation of Employer's attendance policy or commit willful misconduct does not compel us to reverse the Board's order. See, e.g., Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994) ("[T]he fact that Employer may have produced witnesses who gave a different version of events, or that Employer might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's Findings."). --------
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 27th day of April, 2012, the September 29, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge