Opinion
No. 516 C.D. 2012
09-07-2012
Gordon Gordy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Gordon W. Gordy (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after being discharged from employment with K&A Environmental Contractors, Inc. (Employer) after a temporary layoff on May 5, 2010. The Indiana UC Service Center (Service Center) issued a determination finding Claimant eligible for unemployment compensation benefits. (Certified Record (C.R.), Item No. 4.) Employer appealed the Service Center's determination, and an evidentiary hearing was held before the Referee.
At the hearing before the Referee, Employer's witness and Human Resources Director, Edmund Karl, testified that on May 5, 2010, Employer temporarily laid off Claimant, an asbestos abatement worker. (C.R., Item No. 9 at 4.) Mr. Karl also testified that, by letter dated May 27, 2010, Employer subsequently recalled Claimant to work. (Id. at 5.) Additionally, Mr. Karl testified that Employer telephoned Claimant on June 1 and 2, 2010, to ask Claimant to return to work. (Id.) Claimant declined to rejoin Employer's workforce. (Id.) As a result, according to Mr. Karl's testimony, Employer terminated Claimant's employment. (Id.)
In response, Claimant testified that he did not refuse to return to work. (Id. at 7.) Claimant also testified that he never received the May 27, 2010 letter that Employer had sent to the East 28th Street address or any telephone calls recalling him to work. (Id.) Finally, Claimant testified that he was laid off. (Id. at 9.)
Following the hearing, the Referee issued a decision, reversing the Service Center's determination. The Referee determined Claimant ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Law. The Referee made the following relevant findings:
1. The claimant was last employed as an asbestos abatement worker by K & A Environmental at a varied rate of $18.00 to $29.00 per hour depending
upon the job and had been so employed since [December 2009] with his last day of work being [May 5, 2010].(C.R., Item No. 10.)
2. The claimant's separation of [May 5, 2010] was due to a temporary layoff.
3. The employer recalled the claimant to work on [May 27, 2010] and again on [June 1, 2010] and [June 2, 2010].
4. The claimant refused all requests to return to work.
5. The employer made a determination to terminate the claimant for failure to return to work from a temporary layoff.
6. The claimant had no justification for his conduct.
The Referee resolved any conflicts in testimony in Employer's favor. (Id.) The Referee determined that, despite Employer's efforts to recall him, Claimant refused to return to work. (Id.) The Referee concluded that Claimant's refusal lacked justification and "was not in the best interest of [Employer]." (Id.) As a result, the Referee categorized Claimant's actions as willful misconduct and denied him benefits. (Id.)
Claimant appealed to the Board, and the Board affirmed the Referee's decision. (C.R., Item No. 21.) In affirming the Referee's decision, the Board noted that Claimant had "failed to credibly establish good cause for why he could not work with the employer as he had done in the past year." (Id.) The Board also noted that Claimant had not changed his East 28th Street address with the Department until January 6, 2011-i.e., almost eight months after Employer had sent the May 27, 2010 letter to that address. (Id.) Consequently, the Board reasoned that Claimant was not credible in claiming that he did not receive the letter. (Id.) The Board adopted and incorporated the Referee's findings of fact and conclusions of law. (Id.)
We note that the Board ordered a remand hearing for the limited purpose of determining whether Claimant had filed a timely appeal from the Referee's order. (C.R., Item No. 17.)
On appeal, Claimant only argues that the Board committed an error of law by concluding that Claimant's actions constituted willful misconduct. 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, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
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.
We note that Claimant committed a typographical error in his brief to this Court to the extent that the brief mistakenly references Section 402(b) of the Law, rather than Section 402(e) of the Law.
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).
(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, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). Once an employer has met its burden, however, 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).
Here, Mr. Karl credibly testified that Employer recalled Claimant after Employer temporarily laid him off work. Specifically, Employer contacted Claimant through mail and telephone calls to have Claimant return to work. Claimant, however, declined to rejoin the workforce. While Claimant disputes the fact that he declined to return to work, the Board chose to believe Employer. The Board, as the ultimate fact finder, is entitled to make its own determination as to witness credibility and evidentiary weight, and it is empowered to resolve conflicts in the evidence. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985); DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Claimant's refusal to return to work showed a willful disregard for Employer's interests as well as a disregard for standards of behavior that Employer could rightfully expect of him. Accordingly, Employer established willful misconduct on Claimant's part by demonstrating that Claimant refused to return to work when recalled.
Once an employer has met this burden of establishing willful misconduct, however, we must determine whether the claimant established good cause. McKeesport Hosp., 625 A.2d at 114. To prove "good cause," a claimant must demonstrate that his actions were justifiable and reasonable under the circumstances. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). Here, Claimant failed to argue either on appeal or at any proceedings below that he had good cause for not returning to work. Instead, he argues that he did not refuse to return to work, but rather was laid off. As we previously noted, however, the Board did not find Claimant's testimony credible. We, thus, agree with the Board that Claimant's refusal to return to work constituted willful misconduct.
For the foregoing reasons, we affirm the Board's order.
We note that this Court may not predicate its decision on any evidence that is not part of the certified record on appeal. Lausch v. Unemployment Comp. Bd. of Review, 679 A.2d 1385 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 745, 690 A.2d 1164 (1997). Accordingly, we only relied on evidence of record in rendering this decision. --------
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 7th day of September, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge