Opinion
No. 2086 C.D. 2014
07-07-2015
Gordon Terminal Service Co., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Gordon Terminal Service Co. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the Unemployment Compensation Referee's (Referee) decision that Nathaniel Newman (Claimant) was eligible for benefits. Because we conclude that the Board erred in focusing solely on Claimant's last absence, rather than on Claimant's long history of tardiness and absenteeism, we reverse.
Claimant applied for unemployment compensation benefits after being discharged from his employment as a warehouseman for Employer on March 14, 2014. The Duquesne UC Service Center (Service Center) determined that Claimant was eligible for unemployment compensation benefits. Employer appealed the Service Center's determination, asserting that Claimant was ineligible for benefits due to willful misconduct pursuant to Section 402(e) of the Law. A Referee conducted a hearing on May 7, 2014, at 11:30 a.m. Employer was not present in the hearing room at the scheduled time of the hearing. The Referee issued a decision determining Claimant to be eligible for benefits. In doing so, the Referee explained that because Employer did not appear at the hearing, Employer offered no competent evidence to prove willful misconduct.
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, in pertinent part, that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work."
Employer appealed the Referee's decision, alleging that Employer's representative was at the hearing prior to the scheduled time, but due to misinformation from the receptionist and the Referee starting the hearing early, Employer missed the hearing. The Board remanded the case to the Referee to conduct a hearing for the purposes of receiving testimony and evidence on Employer's reason for non-appearance and to allow the parties to provide new or additional testimony and evidence on the merits of the case. On July 18, 2014, the Referee conducted the second hearing with both parties in attendance. The transcript from the hearing was sent directly to the Board to make a decision.
Based upon the evidence presented at the second hearing, the Board made the following findings of fact:
1. Gordon Terminal Service employed the claimant from July 7, 2008, through March 14, 2014, as a full-time warehouseman.
2. On September 13, 2013, in response to the claimant's excessive absenteeism, the employer and the claimant executed a last chance agreement
[Last Chance Agreement] that prohibited the claimant from having an unexcused absence or tardy arrival for twelve months.(Certified Record (C.R.), Item No. 15.)
3. Between September 13, 2013, and March 14, 2014, the claimant accumulated eighteen absence or tardy arrivals, nine of which were unexcused.
4. On March 14, 2014, the claimant left work early to go to the hospital, where he was diagnosed with pinkeye.
5. On March 14, 2014, the employer discharged the claimant for leaving work early.
6. On or about April 3, 2014, the claimant met with the employer and his union representative to discuss his discharge.
7. During the April 3, 2014, meeting, the claimant presented the employer with paperwork establishing he was diagnosed with pink eye on March 14, 2014; nevertheless, the employer reaffirmed the claimant's discharge.
8. The claimant's referee hearing was scheduled to begin at 11:30 a.m. on July 18, 2014.
9. The employer's witness arrived at the referee's office at approximately 11:29 a.m., signed in, and was told to wait in the lobby by the office staff.
10. At approximately 11:30 a.m., the referee hearing began.
11. The employer's witness was unaware that the referee hearing had begun and was never admitted into the hearing.
The Board concluded that Employer had good cause for its nonappearance at the hearing and that Employer had not met its burden to prove that Claimant engaged in disqualifying willful misconduct. With regard to willful misconduct, the Board reasoned:
At the remand hearing, the employer credibly testified that, on September 13, 2013, in response to the claimant's excessive absenteeism, the employer and the claimant executed a last chance agreement that prohibited the claimant from having an unexcused absence or tardy arrival for twelve months. Further, between September 13, 2013, and March 14, 2014, the claimant accumulated eighteen absences or tardy arrivals, nine of which were unexcused. Additionally, the claimant credibly testified that, on March 14, 2014, he left work early to go to the hospital, where he was diagnosed with pinkeye. Notwithstanding his medical condition, the employer discharged the claimant for leaving work early on March 14, 2014.(C.R., Item No. 15.)
Claimant claimed he provided Employer with documentation establishing his pinkeye diagnosis at the hospital on March 14, 2014. Employer claimed that the documentation was never presented or given to him. Although finding all of Employer's statements to be credible, the Board ruled in favor of Claimant and determined that the documentation was presented to Employer. The Board also determined that health issues may constitute good cause for an absence, and, thus, Claimant had established good cause for his absence on March 14, 2014, when he presented the hospital documentation to Employer.
The Board affirmed the Referee's decision, thereby awarding Claimant benefits. Employer petitioned the Board for reconsideration, but the Board denied the petition. Employer then petitioned this Court for review.
On appeal, Employer argues that the Board erred as a matter of law by failing to consider whether Claimant's nine unexcused absences or tardy arrivals in a six-month period, in violation of his Last Chance Agreement, constituted willful misconduct and precluded Claimant from obtaining unemployment compensation benefits.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer, however, has met its burden, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
An employer has a right to expect that employees will attend work when scheduled and that they will be on time. Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). A claimant's "habitual tardiness, particularly after warnings, is sufficient evidence to sustain a finding of willful misconduct." Markley v. Unemployment Comp. Bd. of Review, 407 A.2d 144, 146 (Pa. Cmwlth. 1979). Moreover, "[s]everal elements can support a finding of absenteeism as willful misconduct, including excessive absences and lack of good or adequate cause for the absence." Weems v. Unemployment Comp. Bd. of Review, 952 A.2d 697, 699 (Pa. Cmwlth. 2008). Nevertheless, where properly reported, absence does not constitute willful misconduct. Welded Tube Co. of Am. v. Unemployment Comp. Bd. of Review, 401 A.2d 1383, 1385 (Pa. Cmwlth. 1979).
Employer essentially argues that because Claimant's absence on March 14, 2014, was the last straw in the long history of absenteeism and tardy arrivals and was in violation of the Last Chance Agreement and Employer's policies, Claimant's actions constituted willful misconduct. In support of its argument, Employer explains that Employer documented all of Claimant's tardy arrivals and absences that eventually led to the Last Chance Agreement, which prohibited Claimant from incurring an unexcused absence or tardy arrival for a period of twelve months. Claimant continued to incur tardy arrivals and absences, totaling eighteen occasions within a six month period. Of the eighteen occasions, Claimant failed to provide an excuse for nine of them. Employer fired Claimant following his absence on March 14, 2014.
Employer relies on Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186 (Pa. Cmwlth., 2012), for the proposition that the Board must examine a claimant's history of tardiness and absenteeism and may not rely solely on whether the claimant had "good cause" for his "last absence" when examining whether a claimant engaged in "willful misconduct." Grand Sport, 55 A.3d at 187. In its reply brief, Employer also cites our unreported opinion Hammer v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 543 C.D. 2013, filed November 8, 2013), which discussed Grand Sport and noted that "[d]espite the fact the claimant's last absence was justified, we held that the claimant's pattern of habitual unexcused tardiness and absences fell below the standard of behavior the employer had the right to expect and was inimical to the employer's business." Hammer, slip. op. at 5.
In Grand Sport, the employer repeatedly warned the claimant about his excessive tardiness in June 2010 and again in December 2010. Between September 2010 and March 2011, the claimant was tardy or absent without a valid excuse nineteen times. The claimant requested time off from March 14, 2011, until March 21, 2011, to get married in Mexico, and the employer granted the claimant's request. On March 21, 2011, the claimant's flight from Mexico was overbooked, resulting in him not being able to return to work until March 22. The claimant contacted the employer to explain the situation. The employer suspended the claimant and later discharged him on March 26 for his history of attendance and tardy arrivals.
The Referee in Grand Sport found that the claimant was eligible for benefits. In doing so, the Referee reasoned that "[e]xcessive absenteeism and tardiness, where justified or where properly reported, while a legitimate basis for discharge, do not constitute willful misconduct." Grand Sport, 55 A.3d at 189. The Referee concluded that because the claimant's most recent absence was justified, he did not engage in willful misconduct. The Board affirmed. This Court reversed, noting that the employer established an extensive history of absences and tardiness before the claimant's approved trip to Mexico. We concluded that the claimant's conduct constituted willful misconduct, even though the last incident was for good cause, for the "claimant's history and pattern of absences precipitated his discharge, not any one incident." Id. at 193 (citing Dotson v. Unemployment Comp. Bd. of Review, 425 A.2d 1219, 1220 (Pa. Cmwlth. 1981)). We explained that the Board erred in focusing solely on the last incident which resulted in the termination.
Similarly in Hammer, the employer had a suspension policy where an individual who receives more than two suspensions in a two year period shall be discharged from employment. Employer terminated Claimant's employment after Claimant was suspended for attendance in December 2010, suspended for an attendance matter in July 2011, suspended for attendance in August 2012, and tardy four additional times. The Board found that the claimant had a history of poor attendance and that this history resulted in the claimant's final termination.
Here, Employer clearly established that Claimant had a history of absenteeism and tardy arrivals, which led to the execution of the Last Chance Agreement. Employer also clearly established that Claimant had nine unexcused absences over a six month period of time after the agreement was executed. In light of the Last Chance Agreement, the Board erred in focusing solely on the last incident, Claimant's leaving work early due to pinkeye, and not applying the law established in Grand Sport. The Board's findings of facts and rationale show that while Claimant was discharged as a result of leaving work early, it was not the only factor. Though he had good cause for the last incident, Claimant's termination was based on his continued violation of his Last Chance Agreement, not solely his absence on March 14, 2014. Thus, the Board erred as a matter of law in granting Claimant unemployment compensation benefits, because Claimant's actions, in light of the Last Chance Agreement, constituted willful misconduct.
For the foregoing reasons, the Board's order is reversed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 7th day of July, 2015, the order of the Unemployment Compensation Board of Review is hereby REVERSED.
/s/_________
P. KEVIN BROBSON, Judge