Opinion
No. 1210 C.D. 2014
05-20-2015
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner William Linn Company (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board adopted and affirmed a Referee's decision and order that granted unemployment compensation benefits to Paul Glance (Claimant). For the reasons set forth below, we affirm the Board's order.
Claimant applied for unemployment compensation benefits on February 11, 2014, after his separation from Employer. The U.C. Service Center (Service Center) issued a determination finding Claimant ineligible for benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), relating to voluntary resignations. Claimant appealed the Service Center's determination, raising the issue of whether Claimant's decision to attend school full-time constituted a voluntary quit or a discharge for willful misconduct pursuant to Section 402(e) of the Law. A referee (Referee) conducted an evidentiary hearing.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
During the hearing, Claimant testified that Employer terminated his employment because Employer did not have enough work for Claimant. Specifically, Claimant testified that he began attending school full-time at Point Park University in August 2013, but he remained employed until December 23, 2014, when he and the other employees were laid off until January 6, 2014. (Amended Reproduced Record (R.R.) at 17a.) Along with the paycheck that he received on January 3, 2014, there was a note to him from Employer's president, Elaena Mamakos, which stated: "[Claimant] - I am not sure what hours I can give you now that we are slow. Call me Monday." (Id.) Instead of calling that day, Claimant went into work. After arriving, Claimant spoke with Ms. Mamakos and presented his class schedule. According to Claimant, Ms. Mamakos liked this semester's schedule more than last. Claimant, however, explained: "[Ms. Mamakos] said that we had a bad year and profits are low. She said I can't afford to pay you to walk around, and then she told me I should apply for an internship to which I replied they would not pay me for that." (R.R. at 18a.) He then left the premises because he "assumed that I was out of a job." (R.R. at 19a.)
Employer presented the testimony of Ms. Mamakos in support of its position. Ms. Mamakos testified that when Claimant provided his full-time class schedule in August, she informed Claimant that he would have to be replaced. Furthermore, Ms. Mamakos explained that Claimant's responsibilities as General Manager were "critical" and required him to be available in the evenings, which he was not. (R.R. at 24a-25a.) According to Ms. Mamakos, a new General Manager was hired in September, and Claimant helped train him through December. Then on January 6, 2014, when Claimant appeared for work after the "normal layoff," she told Claimant, "I don't have enough work for him to stand around and watch [the new General Manager] anymore, and we are slow then and I can't have two General Managers." (R.R. at 25a-26a.)
Following the hearing, the Referee issued a decision in which she determined Claimant to be eligible for benefits. The Referee made the following findings:
1. The claimant was employed as General Manager, full-time, working approximately thirty-five hours per week from an undetermined date in 1991 through December 23, 2013, the claimant's last day at work.
2. This employer's standard work hours are 9:30 a.m. to 6:00 p.m., Monday through Friday. It[]s bakers generally report at 8:30 a.m. - 8:45 a.m.
3. In August 2011, the claimant enrolled in classes to obtain a certificate as a Welder through Community College of Allegheny County.
4. The employer accommodated the claimant's work schedule while he attended those classes and permitted him to work part-time hours.
5. In August 2013, the claimant enrolled, full-time, in classes through Point Park University located in Pittsburgh, Pennsylvania.
6. The claimant advised the President of the business that he had done so.(Certified Record (C.R.), Item No. 12.)
7. The President advised the claimant that she would have to replace him as General Manager as she could not accommodate his work/school schedule.
8. On an undetermined date in September 2013, the President hired an individual and directed the claimant to train him in all of the claimant's responsibilities.
9. The claimant trained the individual from the date of hire in September through December 23, 2013.
10. Effective December 23, 2013, the employer's business closed for a holiday break and was scheduled to reopen effective January 6, 2014.
11. When the claimant received his paycheck dated December 27, 2013, a note was attached to it that stated: ". . . I am not sure what hours I can give you now that we are slow. Call me Monday. Thanks, Lynn." Lynn is the company president.
12. The claimant reported to work, as scheduled, on January 6, 2014, and presented the President of the company with his school schedule for January through May 2014. The claimant was available to work Monday through Thursday from 8:00 a.m. to 3:30 p.m. and was not available to work on Fridays and Saturdays.
13. The President responded that this schedule was better for the claimant than the previous semester's schedule and also stated that she could not pay him to walk around with nothing to do.
14. The claimant left the employer's premises advising the President that she could contact him if she needed anything from him.
The Referee concluded that although the Employer asserted the Claimant voluntarily resigned employment to attend college full-time, the Employer accommodated Claimant's school schedule. According to the Referee, even though the most critical aspects of the Claimant's position occurred later in the day, Employer worked around Claimant's part-time school schedule in 2011 when he attended welding classes and Claimant's full-time school schedule from August 2013 through December 26, 2013, while he trained another individual. Once that individual was trained, however, Employer no longer required Claimant's services. When Claimant returned and was available to work on January 6, 2014, the President advised Claimant that she had no work available for him and could not pay him at the General Manager rate for walking around when business was slow. Furthermore, Employer made no other offers of work to Claimant—such as lower rate of pay or part-time work. The Referee concluded that these facts do not indicate that Claimant voluntarily resigned from his job. Rather, the Referee determined that Employer ended the employment relationship and, in order to prevail, Employer must demonstrate that willful misconduct was involved in its decision to do so. The Referee further reasoned that there is no indication from the record to support a finding of willful misconduct.
Employer appealed to the Board, which issued an order affirming the Referee's determination. (C.R., Item No. 14.) In its order, the Board adopted and incorporated the Referee's findings of fact and conclusions of law. Employer now petitions this Court for review. (Id.)
On appeal, Employer argues that the Board erred in concluding that Claimant did not voluntarily resign because Claimant made his schedule so that he could not perform his duties as General Manager and refused to change it even after he was informed that he would have to be replaced because of it. Alternatively, Employer argues that, even if Claimant did not voluntarily quit, Claimant engaged in willful misconduct because he knowingly and willfully forced Employer to replace him without advance notice and his essential duties could not be performed until another capable General Manager was found. Initially, we note that Employer does not challenge the Board's factual findings, and, therefore, they are binding on appeal. Campbell v. Unemployment Comp. Bd. Of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).
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. 2 Pa. C.S. § 704. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d 1159 (Pa. Cmwlth. 1992). --------
First, we will address Employer's argument that the Board erred in concluding that Claimant did not voluntarily resign his employment. Whether a Claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to this Court's review and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). "It is a claimant's burden to prove that his separation from employment was a discharge." Id. If a claimant proves that he was discharged, then the burden to prove that the claimant was discharged for willful misconduct is on the employer. Id. at 412-13. If a claimant fails to prove that he was discharged, then the claimant has the burden to prove necessitous and compelling reasons for quitting. See Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). A finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave his employment. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). On the other hand, to be interpreted as a discharge, the employer's language must possess the immediacy and finality of a firing. Charles v. Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). The employer need not use the specific words "fired" or "discharged." Wise v. Unemployment Comp. Bd. of Review, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). An employer's words that the employee should not report back to work the following day if he could not meet the daily standards are considered to show the requisite immediacy and finality necessary to constitute a discharge. Torsky v. Unemployment Comp. Bd. of Review, 474 A.2d 1207, 1210 (Pa. Cmwlth. 1984).
Employer argues that Claimant's decision to voluntarily resign can be inferred from his announcement that he will attend school full-time, his subsequent refusal to change his schedule to continue working as he was doing before attending school on a full-time basis, and his unavailability during the critical times of his job. Moreover, Employer argues that its decision to retain him after Claimant's announcement that he will be attending school full-time was not the product of an agreeable accommodation, but the inevitable result of a decision to quit and subsequent retention solely for the purpose of training Claimant's replacement. According to Employer, the new General Manager's training was completed in December 2013, and Claimant's arrival to work in January after the annual layoff was just a meeting to ensure that Claimant understood that he was no longer needed to train the new General Manager.
In order to determine whether the Board properly concluded that Section 402(b) of the Law does not apply to the instant matter, we must examine the findings of fact issued by the Referee and adopted by the Board. The Referee found that from August 2011 to December 23, 2013, Employer accommodated Claimant's work schedule for him to attend school, even while attending full-time over the past four months. (Referee's Decision, F.F. Nos. 3-9.) When Claimant received his December 27, 2013 paycheck, a note from Employer's president was attached, which stated: "[Claimant] - I am not sure what hours I can give you now that we are slow. Call me Monday." (Id., F.F. No. 11.) On Monday, Claimant reported to work as scheduled and met with the Employer's president. (Id., F.F. No. 12.) At this meeting, the Referee found that Employer's president "responded that this schedule was better for . . . [C]laimant than the previous semester's schedule and also stated that [Employer's president] could not pay him to walk around with nothing to do." (Id., F.F. No. 12-13.) The Claimant then left the Employer's premises advising Employer that he could be contacted if Employer needed anything from him. (Id., F.F. No. 14.) Those findings are not challenged and, based upon the totality of facts and circumstances, Employer's consistent accommodation of Claimant's school schedule—including the previous four months while Claimant attended school full-time—coupled with the note and meeting that occurred immediately before Claimant's termination, demonstrates Claimant's conscious intention to retain his employment. Because these findings support the Board's determination that Claimant did not voluntary resign, the Board did not err.
We next address Employer's issue on appeal challenging the Board's legal conclusions as to 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 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). The burden of proving willful misconduct rests with the employer. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412-12 (Pa. Cmwlth. 1996). 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).
Here, Employer argues that Claimant's decision to go to school full-time and his failure to alert Employer of his decision until after he enrolled constituted a willful disregard for Employer's interests. By deciding to attend school full-time and not providing any notice to Employer, Claimant, in effect, blatantly and willfully disregarded Employer's interests. In addition, according to Employer, Claimant's acts constituted willful misconduct because he knew that his job was the most vital position for Employer and that his most important tasks were performed at times when he would not be available.
The Board, based upon the findings of the Referee, concluded that there are no facts that support a finding of willful misconduct by Claimant. Based upon our review of the record, we agree with the Board. The Board found that Employer allowed Claimant to remain working for more than four months after learning of Claimant's decision to attend school full-time. (Referee's Decision, F.F. Nos. 3-9.) While Claimant willfully decided to attend school full-time, this conduct was not made in disregard of Employer's interests as evidenced by Claimant's continued employment months later and, furthermore, Employer's persistence in accommodating his changing class schedule throughout the last three years. Claimant, therefore, did not engage in disqualifying willful misconduct, and the Board did not err.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 20th day of May, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge