Opinion
No. 1374 C.D. 2012
03-12-2013
Lateesha E. Jenkins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
Lateesha E. Jenkins (Claimant) petitions for review of the July 2, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for unemployment compensation benefits pursuant to 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) provides than an employee shall be ineligible for compensation for any week in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.
The Law does not define the term willful misconduct, but our courts have defined it as including: wanton or willful disregard for an employer's interests; deliberate violation of an employer's rules; disregard for standards of behavior which an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001).
Claimant was employed by Wells Fargo (Employer) from March of 2010 until April of 2012. (Finding of Fact No. 1.) Employer has an attendance policy under which employees are to report absences directly to their supervisor and also through an automated telephone system. The policy calls for an employee's termination after the accumulation of negative 41 hours of absence or tardiness. (Finding of Fact No. 2.) Claimant was provided this policy in written form at the time of her hiring, (Notes of Testimony (N.T.) at 4), and again on February 21, 2011. On April 8, 2011, Employer gave Claimant a formal warning concerning her status under the attendance policy. (Finding of Fact No. 4.)
Employer's witness testified that Employer has a flexible attendance policy. Each employee begins with a positive balance of 40 "points," which is reduced for each unscheduled absence. Once an employee reaches a negative balance, the employee is given an informal warning and review of the policy. At -17 points, the employee is given a formal warning and reviews opportunities to earn points. At -41 points, the employee is terminated. (N.T. at 4; Record Item 10, Ex. 1, 2.)
Claimant was absent from her scheduled shifts on April 8 through April 11, 2012. (Findings of Fact Nos. 5-8.) Although Claimant reported each absence through the automated telephone system, she failed to contact her supervisor. (N.T. at 6.) As of the absence on April 11, 2012, Claimant had accumulated more than the negative 41 hours required for termination under the policy, and Employer discharged Claimant for violating the attendance policy on April 12, 2012. (Findings of Fact Nos. 9, 10.)
On April 26, 2012, the local service center denied Claimant's application for unemployment benefits, concluding that Claimant's discharge was due to willful misconduct and therefore, she was ineligible for benefits under section 402(e) of the Law. Claimant appealed this decision on April 30, 2012. On May 3, 2012, a notice was sent to Claimant that a hearing would be conducted by a referee on May 17, 2012. (Record Item 9.) Claimant did not attend the hearing. Employer was represented by counsel and offered the testimony of Joan Kisslinger, Claimant's supervisor. After reviewing the evidence presented by Employer and the documentary evidence of record, the referee concluded that Claimant was ineligible for benefits under section 402(e) of the Law. By order dated May 18, 2012, the referee affirmed the job center's determination.
On May 23, 2012, Claimant appealed the referee's decision to the Board. In her petition for appeal, Claimant explained why she believed she was entitled to benefits, and she included a letter to the Board detailing the reasons for her absences and her efforts to contact Employer. However, Claimant did not explain or otherwise address her failure to appear at the referee's hearing. (Record Item 12.) By decision and order dated July 2, 2012, the Board adopted the referee's findings and conclusions and affirmed the referee's decision. In doing so, the Board explained that because Claimant failed to appear at the referee's hearing, she had not asserted good cause for violating Employer's attendance policy. The Board further noted that it "cannot consider extra-record statements." (Record Item 13 at 1.)
We note that all documents of record up to and including Claimant's May 23rd appeal to the Board state Claimant's address as 518 N. Mohr Street. However, the Board's July 2nd opinion notes Claimant's address as 27 South Fourth Street Apartment 2. Our review of the record fails to reveal the time or manner in which Claimant's change of address was effectuated.
On July 6, 2012, pursuant to 34 Pa. Code §101.101, Claimant requested reconsideration by the Board, asserting for the first time that she did not appear at the referee's hearing because she had not received notice. (Record Item 14.) In support of her assertion, Claimant submitted documentation indicating that Claimant's residence at 518 N. Mohr Street, to which notice of the hearing had been sent, had been condemned. Claimant alleged that the condemnation caused her to vacate her home prior to receiving the notice. The Board denied Claimant's reconsideration request on August 16, 2012.
On appeal to this Court, Claimant first argues that the Board erred in denying her petition for reconsideration where she provided good cause for failing to appear at the referee hearing. Not receiving a hearing notice can constitute proper cause for reopening a hearing. See Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 40-41 (Pa. Cmwlth. 2012). Generally, a presumption of receipt by the claimant exists when the notice was mailed to the claimant's last known address and the notice was not returned as undeliverable. Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). However, where a party claims not to have received notice, the Board must provide the party against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut that presumption and to support the party's assertions of good cause for not appearing at the hearing. Volk, 49 A.3d at 47. Although Claimant asked for such an opportunity in her request for reconsideration, she did not raise this issue in her appeal to the Board.
Our scope of review is limited to determining whether constitutional rights have been violated, errors of law were committed, or whether findings of fact are supported by substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124, 1127 n.4 (Pa. Cmwlth. 2010).
"[T]he applicability of the doctrine of waiver to cases before the Board is well-established." Dehus v. Unemployment Compensation Board of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988) (citing Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981)).
[T]he administrative law tribunal must be given the opportunity to correct its errors as early as possible; diligent preparation and effective advocacy before the tribunal must be encouraged by requiring the parties to develop complete records and advance all legal theories; and the finality of the lower tribunals' determinations must not be eroded by treating each determination as part of a sequence of piecemeal adjudications.Wing, 496 Pa. at 117, 436 A.2d at 181. Thus, as reflected in Wing and Dehus, a party waives review of an issue by failing to raise it at the earliest possible opportunity. Here, Claimant's earliest possible opportunity to assert good cause for failing to appear at the referee's hearing was in her appeal from the referee's decision on May 23, 2012. However, Claimant's appeal to the Board, including the letter accompanying the appeal form, did not address this issue. Because Claimant first raised the issue of good cause for not attending the referee's hearing in her request for reconsideration of the Board's decision, we must conclude that it is waived. See Wing, 496 Pa. 113, 436 A.2d 179; Dehus, 545 A.2d 434.
Our decision is consistent with our memorandum opinion in Murray v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 820 C.D. 2009, filed October 19, 2009), holding that an issue is waived when it is raised for the first time in a request for reconsideration.
Claimant also argues that the Board erred in finding that she was ineligible for benefits under section 402(e) of the Law due to willful misconduct, because her absences from work were for good cause. Generally, "even if excessive, absenteeism, where justified or properly reported according to company policy, does not disqualify a claimant from receiving unemployment compensation benefits." Steth, Inc. v. Unemployment Compensation Board of Review, 742 A.2d 251, 253 (Pa. Cmwlth. 1999). However, "[e]ven if an absence is itself justified, the failure to comply with a reporting-off requirement, of which the employee is aware, can constitute willful misconduct." Yerger v. Unemployment Compensation Board of Review, 457 A.2d 1333, 1334 (Pa. Cmwlth. 1983). Here, Claimant asserts that she was absent in order to care for her ill sister's children and that she followed Employer's procedures for reporting the absences. Unfortunately, we are unable to address these claims; because these issues were not raised before the referee and properly were not considered before the Board, 34 Pa. Code §101.106, they are therefore waived on appeal. Pa.R.A.P. 1551; Umedman v. Unemployment Compensation Board of Review, 52 A.3d 558 (Pa. Cmwlth. 2012); Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011).
Even if Claimant's arguments were not waived, our determination would remain the same. Employer's attendance policy, which was signed by Claimant, required that employees '[n]otify [their] supervisor/manager and use [their] work group's designated absence notification process" to report their absences. (N.T. at 4; Record Item 10, Ex. 1.) Even considering Claimant's extra-record statements, she does not allege that she notified her supervisor/manager of any of her absences, nor does she offer any reason for failing to do so. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of March, 2013, the order of the Unemployment Compensation Board of Review, dated July 2, 1012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge