Opinion
No. 1731 C.D. 2014
05-29-2015
Frank M. Amedeo, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Frank M. Amedeo (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) finding Claimant ineligible for benefits pursuant to Section 402(e) of the UC Law (Law). Claimant argues that the Board's finding that he improperly reported his absences is not supported by substantial evidence and Employer did not meet its burden to prove willful misconduct. Because substantial evidence supports the Board's findings, and such findings support the Board's conclusion of willful misconduct, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was terminated from his position as a full-time team manager at AT&T Mobility (Employer) on March 17, 2014 for improperly reporting his absences for March 14 through March 16, 2014. (Board Decision, Findings of Fact (FOF) ¶¶ 1, 11.) Claimant, acting pro se, filed for UC benefits. The UC Service Center initially considered Claimant's eligibility under Section 402(b) and Section 402(e) of the UC Law; however, because Employer initiated Claimant's separation from employment, the UC Service Center concluded that Section 402(e) was applicable. (Notice of Determination, R.R. at 34a.) The UC Service Center then determined that Claimant was ineligible pursuant to Section 402(e) because his conduct constituted willful misconduct. (Notice of Determination at 1, R. R. at 34a.) Claimant appealed and a hearing was held before a UC Referee (Referee). Claimant testified on his own behalf and Employer presented the testimony of an area manager (Supervisor), who was Claimant's Supervisor.
43 P.S. § 802(b). Section 402(b) of the Law provides that a claimant is ineligible for compensation if his unemployment is due to voluntarily leaving his employment without cause of a necessitous and compelling nature. Id.
Supervisor testified as follows. Claimant has worked for Employer for approximately thirteen (13) years. (Hr'g Tr. at 9, R.R. at 10a.) Prior to being terminated, Claimant worked Fridays through Mondays from 8:15 a.m. to 7:15 p.m. (Hr'g Tr. at 9, R.R. at 10a.) Claimant originally lived within the vicinity of his employment in Harrisburg, but moved to Steubenville, Ohio in the summer of 2013 when his wife accepted a position with her company in Pittsburgh. (Hr'g Tr. at 11, R.R. at 12a.) Although Claimant attempted to relocate to one of Employer's other facilities, Claimant had not been offered a position closer to where he lives and continued to work in Employer's Harrisburg facility, a four and a half hour drive from his home in Steubenville, Ohio. (Hr'g Tr. at 11, R.R. at 12a.)
Claimant's termination was triggered by events starting on Friday, March 14, when Claimant did not report to work at his 8:15 a.m. start time. (Hr'g Tr. at 10, R.R. at 11a.) Supervisor attempted to contact Claimant numerous times by phone and text message. (Hr'g Tr. at 10, R.R. at 11a.) Claimant returned Supervisor's message at 2:20 p.m. and told her that earlier that morning he was on his way to work when he encountered mechanical problems with his truck and was feeling ill. (Hr'g Tr. at 10, R.R. at 11a.) Claimant told Supervisor that he decided to return home and, upon his arrival, took a dose of Nyquil and fell asleep. (Hr'g Tr. at 10, R.R. at 11a.) Claimant told Supervisor that "he was probably not able to make it for the rest of the weekend" due to the mechanical problems with his truck. (Hr'g Tr. at 10, R.R. at 11a.) Supervisor explained to Claimant how important it was for him to be at work because he was a manager and that she would now be required to find a back-up to fill his role. (Hr'g Tr. at 10, R.R. at 11a.) Supervisor testified that it was important for area managers to know ahead of time when team managers would not report to work so that alternative arrangements could be made. (Hr'g Tr. at 11-12, R.R. at 12a-13a.) Claimant did not report to work on time the following two days, March 15 and 16, 2014. (Hr'g Tr. at 12, R.R. at 13a.) On both days, Supervisor sent Claimant a text message asking if Claimant would be reporting to work; on both days Claimant responded by saying he would not report to work that day. (Hr'g Tr. at 12, R.R. at 13a.)
Supervisor testified that Claimant knew about the need to report his absences because Claimant also did not report to work or call off in advance to notify Employer of his absences the weekend prior to the triggering events of March 14-16, 2014. (Hr'g Tr. at 13, 18-19, R.R. at 14a, 19a-20a.) Supervisor testified that, during the prior weekend, Claimant did not communicate with her; instead, she had to text Claimant and ask if he was coming to work. (Hr'g Tr. at 19, R.R. at 20a.) Although Claimant never properly scheduled his absences from March 7-10, 2014, Employer allowed him to use his paid time off for these absences. (Hr'g Tr. at 18-20, R.R. at 19a-21a.)
Claimant eventually reported to work on Monday, March 17, 2014. (Hr'g Tr. at 18, R.R. at 19a.) Supervisor testified that, upon arriving at work:
[Claimant] requested a meeting with me to inform me that he is not able to meet the attendance requirements needed for a manager and I said does that mean you're resigning your position with [Employer]. He said no I am not; you will need to fire me so I can collect unemployment.(Hr'g Tr. at 19, R.R. at 20a.) Claimant was discharged from his employment with Employer after the meeting with Supervisor on March 17, 2014. (Hr'g Tr. at 19, R.R. at 20a.)
Claimant testified as follows. He was driving to work early in the morning on Friday, March 14, 2014 when, about forty miles into his trip, his truck started to make an odd noise. (Hr'g Tr. at 22, R.R. at 23a.) It was snowing and he decided to turn around and return home. (Hr'g Tr. at 22, R.R. at 23a.) He drove his truck to the mechanic shop and walked home. (Hr'g Tr. at 22, R.R. at 23a.) He returned home around 4:00 or 4:30 a.m. and was not feeling well. (Hr'g Tr. at 22, R.R. at 23a.) Knowing that the mechanic and Supervisor would not be available for a few hours, he decided to take a dose of Nyquil and go to sleep. (Hr'g Tr. at 22, R.R. at 23a.) Claimant knew that he had to call Supervisor because he took off the prior weekend and set his alarm accordingly. (Hr'g Tr. at 22, R.R. at 23a.) Claimant awoke later in the day, called the mechanic to get an update on his truck, and then called Supervisor. (Hr'g Tr. at 22-23, R.R. at 23a-24a.)
Claimant testified further that he approached Supervisor when he returned to work on Monday, March 17, 2014 to discuss alternative scheduling so that he could limit the amount of wear and tear on his vehicle or borrowing a car from a friend. (Hr'g Tr. at 24, R.R. at 25a.) Claimant was terminated after the meeting with Supervisor. (Hr'g Tr. at 23, R.R. at 24a.) He never thought he would be discharged for three absences because he worked for Employer for thirteen years, was a top performer, and no one he knew of was discharged for three days of unexcused absences. (Hr'g Tr. at 24-25, R.R. at 25a-26a.)
The Referee affirmed the UC Service Center's determination that Claimant was ineligible for UC benefits pursuant to Section 402(e) of the UC Law. Claimant retained counsel and appealed the Referee's decision to the Board. After reviewing the evidence presented, the Board made the following findings of fact:
1. AT&T Mobility employed [C]laimant from February 25, 2002, through March 17, 2014, finally as a full-time team manager earning $41,000.00 per year.(FOF ¶¶ 1-11.)
2. In July or August 2013, [C]laimant and his spouse relocated from the York, Pennsylvania, area to Steubenville, Ohio, because she transferred employment.
3. [C]laimant continued to drive to Harrisburg, Pennsylvania, for work, over a four hour drive, until he could find work in the Steubenville area.
4. [C]laimant was scheduled to work from 8:15 a.m. to 7:15 p.m. March 14 through 16, 2014.
5. On March 14, 2014, about forty miles into his commute, [C]laimant's vehicle began to have trouble, so he left it with a mechanic and returned home.
6. Rather than notify [E]mployer that he would be absent, [C]laimant took Nyquil and went to sleep around 4:30 a.m.
7. [E]mployer's [Supervisor] left a voicemail message and sent a text message to [C]laimant inquiring about his attendance.
8. Around 2:20 p.m., [C]laimant finally woke, contacted [Supervisor], and notified [her] of his vehicle troubles.
9. [C]laimant was also absent March 15 and 16, 2014, but did not promptly report his absences.
10. On March 17, 2014, [C]laimant arrived at work and informed [Supervisor] that he would be unable to continue meeting his attendance requirements.
11. [E]mployer discharged [C]laimant for his improperly reported absences March 14 through 16, 2014.
Based on the facts credited, the Board concluded that although Claimant had good cause for missing work on March 14-16, 2014 due to his vehicle troubles, "[C]laimant did not properly report his absences, and [he] did not have good cause for this failure." (Board Decision at 2.) Therefore, the Board held that Claimant was ineligible for UC benefits under Section 402(e) of the UC Law. (Board Decision at 2.) Claimant now petitions this Court for review.
This Court's scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of facts are supported by substantial evidence. Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
On appeal to this Court Claimant argues that, because Employer did not produce evidence detailing a policy on reporting absences, the Board's finding that he violated a work policy is not supported by substantial evidence and Employer did not meet its burden to prove willful misconduct.
We first address Claimant's argument that the Board's finding that he improperly reported his absences from March 14 to March 16, 2014 is not supported by substantial evidence. Claimant argues that, because Employer presented no evidence regarding its leave policy, the Board's finding is not supported by substantial evidence. Claimant argues that, while there is vague testimony by Supervisor on managerial attendance policies, Employer failed to produce any evidence on the proper procedure for reporting an absence.
In addition to Claimant's challenge to the Board's finding that he improperly reported his absences, Claimant's brief specifically challenges three findings by the Referee. The Board is the ultimate finder of fact and, as such, where the Board makes independent findings of fact we review the findings of the Board, not the Referee. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1389 (Pa. 1985). We will, therefore, only address Claimant's arguments related to the findings of the Board. --------
Substantial evidence is defined as "relevant evidence upon which a reasonable mind could base a conclusion." Johnson v. Unemployment Compensation Board of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). The findings of fact made by the Board "are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings." Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). "In determining whether substantial evidence exists to support the Board's findings, we . . . examine the testimony in the light most favorable to the prevailing party below, giving that party the benefit of any inference which can be drawn logically and reasonably from the evidence." Johnson, 502 A.2d at 740.
Here, Claimant was not discharged for being absent without good cause. He was discharged for not properly reporting his absences and the testimony of Supervisor establishes that Employer has a policy for reporting off work. Supervisor, whom the Board found credible, testified that "[t]eam managers should, and it's our expectation, that they will communicate with their area manager on a regular basis if they're not able to make it in on time." (Hr'g Tr. at 12, R.R. at 13a.) Further, Supervisor testified that Claimant was aware of this policy. (Hr'g Tr. at 12, R.R. at 13a.) Claimant essentially admitted that he was aware of this rule when he testified that he "couldn't continue to take time off without talking to [Supervisor]." (Hr'g Tr. at 22, R.R. at 23a.) When viewing the evidence in the light most favorable to Employer, we hold that the Board's finding that Claimant improperly reported his absences rested on substantial evidence.
Next, we address whether the Board erred by concluding that Claimant's conduct constituted willful misconduct. While the Board is the ultimate fact finder, "[w]hether an employee's conduct constituted willful misconduct is a matter of law subject to this [C]ourt's review." Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Section 402(e) of the Law provides, "[a]n employe 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." 43 P.S. § 802(e). The Law does not define willful misconduct; however, numerous decisions of this Court have defined the term as:
(1) the wanton and willful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which 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 employer's duties and obligations.Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450 n.3 (Pa. Cmwlth. 1994). The employer bears the burden of proving willful misconduct. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 199, 201 (Pa. Cmwlth. 1995). Should the employer meet its burden, and the claimant attempts to justify the alleged misconduct, the claimant bears the burden of proving good cause. Lake v. Unemployment Compensation Board of Review, 409 A.2d 126, 127 (Pa. Cmwlth. 1979).
First, we assess whether Employer met its burden of showing that Claimant's failure to properly report his absences arose to willful misconduct. It is well settled that "[a]bsenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits" under Section 402(e) of the UC Law. Runkle v. Unemployment Compensation Board of Review, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). An element, in addition to an employee's absence, must be proved for the conduct to rise to the level of willful misconduct. Id. One such element is "[a]bsence of an employe from work, without notification, in violation of the employer's rules" when failing to notify evidences "a deliberate disregard of the standards of behavior which the employer may rightfully expect." Horan v. Unemployment Compensation Board of Review, 300 A.2d 308, 309 (Pa. Cmwlth. 1973).
In Department of Transportation v. Unemployment Compensation Board of Review, 479 A.2d 57, 58 (Pa. Cmwlth. 1984), we held that "[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in such cases where . . . the employee has been warned and/or reprimanded for prior similar conduct." In that case, a claimant did not report to work because he overslept the day after he spent the night at the hospital due to the imminent death of his uncle. Id. at 58. The claimant was well aware of the need to report his absence because he did not report to work two days earlier, which resulted in a suspension. Id. The claimant called his supervisor once he awoke at 11:00 a.m., which was three hours after his scheduled start time. Id. This was a direct violation of the employer's "rule that absences be reported within two hours of the scheduled start of an employee's shift." Id. Thus, as a consequence of violating the employer's rule, and based on his prior poor work record, the claimant was discharged. Id. We held that, because the claimant was aware that his employer was dissatisfied with his attendance and of the rules for reporting absences, the claimant's violation of the employer's rules constituted willful misconduct. Id. We further held that oversleeping "cannot be deemed per se good cause for the failure to timely report [an] absence." Id. at 59. Therefore, because the claimant did not present evidence of any steps he took to ensure he was awakened for work or that someone would report his absence for him, we held that the claimant did not show a "good faith effort to preserve one's employment which is essential to eligibility for unemployment compensation." Id.
Here, the Board accepted Supervisor's testimony as credible. Supervisor explained to Claimant on March 14, 2014 how important it was for him to be at work. (Hr'g Tr. at 10, R.R. at 11a.) Supervisor also testified that Claimant knew of his responsibility to notify Employer prior to taking off work due to previous conversations between Supervisor and Claimant and because Claimant missed work the weekend prior to the events of March 14-16, 2014, and similarly did not report his absences prior to his start time. (Hr'g Tr. at 13, 18-19, R.R. at 14a, 19a-20a.) Claimant knew he had to call Supervisor to report his absence, but instead decided to take sleep inducing medication and went to sleep. (Hr'g Tr. at 22, R.R. at 23a.) After being reprimanded on March 14 for failing to report his absence, Claimant again did not report his absences the subsequent two days. (Hr'g Tr. at 12, R.R. at 13a.) This pattern of conduct shows that Claimant, like the claimant in Department of Transportation, was warned about his conduct and did not put forth the effort necessary to preserve his employment. Department of Transportation, 479 A.2d at 59. As such, Employer met its burden to show willful misconduct because Claimant's failure to report his absences on three consecutive days after being warned of his responsibility to report such absences showed "conscious indifference to the duty owed the employer." Horan, 300 A.2d at 309.
Next, we assess whether Claimant has met his burden to justify his conduct through showing good cause. Lake, 409 A.2d at 127. Claimant stated that he did not promptly notify Supervisor that he was going to be absent on March 14, 2014 because, upon returning home after his truck was having mechanical problems, he took Nyquil and fell asleep. (Hr'g Tr. at 22, R.R. at 23a.) Claimant did not present any evidence showing good cause for not reporting his absences the following two days. Because oversleeping does not establish, per se, good cause for failing to report absences, Department of Transportation, 479 A.2d at 59, we agree with the Board that Claimant did not provide evidence showing good cause for not properly reporting his absences from March 14 to March 16, 2014.
Accordingly, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 29, 2015, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge