Opinion
No. 1281 C.D. 2014
06-09-2015
Asnake Assefa, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Asnake Assefa (Claimant) petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (board) that affirmed the decision of the referee to deny him unemployment compensation benefits under 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) of the Law provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge for willful misconduct connected to his work. --------
According to the Board's findings of fact, Claimant was employed by Men's Wearhouse (Employer) as a full-time tailor from June 21, 2009, until his last day of work on December 28, 2013. During Claimant's tenure at Employer, he was reprimanded on multiple occasions for tardiness and absenteeism and was placed on a personal development plan on January 10, 2013. Board's Finding of Fact No. 3. Claimant was warned, repeatedly, that continued failure to make improvements would result in discipline, up to and including termination of employment. Board's Findings of Fact No. 4. On December, 21, 2013, Claimant was scheduled to work from 11 a.m. to 7 p.m. with a half hour lunch break. Board's Finding of Fact No. 5. Claimant requested permission to leave work early, which request was denied by the store manager. Claimant left for lunch at 4:20 p.m. but was called back early. Claimant clocked back in at 4:40 p.m. At 5:00 p.m., Claimant left the store, did not clock out, and did not return to finish his shift. Board's Finding of Fact Nos. 11 and 12. Employer attempted to contact Claimant from 5:30 to 7 p.m. with no success. The next day, Claimant admitted to the store manager that he did not return to work because he had a drink with his dinner and did not think it was appropriate to return to work. Board's Finding of Fact No. 14. Claimant was discharged on December 28, 2013, for absenteeism and tardiness, based on the December 21, 2013 incident, immediately following the manager's return from sick leave. Board's Finding of Fact No. 16.
Claimant's initial claim for benefits was denied by the UC Service Center. On appeal, the referee held a hearing at which Claimant and two witnesses for Employer, Jennifer Jackubowski, the store manager, and Alexander Leedie, regional manager, testified. The referee determined that benefits were properly denied under Section 402(e) of the Law. Claimant then appealed to the Board, asserting that his discharge was unrelated to absenteeism, but rather Employer discharged him due to race issues and personality conflicts. The Board affirmed the denial of benefits under Section 402(e).
Claimant argues that "[t]he UCBR's finding that Claimant's leaving store on December 21, 2013 rose to the level of willful misconduct is not supported by substantial evidence." Brief for Petitioner at 7. We note that the determination of willful misconduct is a legal conclusion over which we exercise plenary review. That conclusion, in turn, must be drawn from the Board's factual findings, so long as they are supported by substantial evidence. Substantial evidence has been defined as evidence that reasonably supports a conclusion. Ryan v. Unemployment Comp. Bd. of Review, 547 A.2d 1283, 1286 (Pa. Cmwlth. 1988). "The Board is the ultimate finder of fact in unemployment compensation proceedings." Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). Willful misconduct includes a deliberate violation of an employer's rules or a disregard of the standards of behavior that an employer rightfully can expect from an employee. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). When an employee is discharged for violation of a work rule, the employer bears the burden of proving the existence of the rule and the employee's violation thereof. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The burden then shifts to the employee to show good cause for his actions. Id. After reviewing the record, we conclude that the Board's factual findings are supported by substantial evidence, and its determination of willful misconduct based on those facts is correct as a matter of law.
The Board credited the testimony of Employer's witness that Claimant was denied his request to leave early December 21, 2013, that Claimant told Employer he did not return to work because he had a drink and did not think it was appropriate to return, that Claimant's normal work hours were until 7 p.m. and that he was aware that he was required to return to work after his break. As to this issue, Claimant is simply arguing his own version of the facts, but it was the province of the Board to weigh the evidence and determine the credibility of witnesses.
Claimant next argues that Employer failed to submit into evidence the times cards for the week ending December 21 to establish that he left work early, instead of simply relying on the manager's testimony. He suggests that the Board should have directed Employer to provide the missing time cards. However, if Claimant believed the time cards would have benefitted his case, he could have subpoenaed them. 34 Pa. Code §101.31. It is not up to the referee, let alone the Board, to act as a party's advocate, even one who is unrepresented. At all events, the manager's testimony that Claimant did not return to work on December 21 is corroborated by Claimant's own testimony that he did not return to work because he was drinking with friends. Notes of Testimony (N.T.) at 18.
Claimant also complains that the manager did not terminate him on the following day, but waited until December 28 when Employer had already interviewed possible replacement tailors. The record reflects that the manager was present on December 22, 2013, for a brief period of time until someone else arrived to cover her responsibilities. She immediately went to the hospital where she was admitted for six days. N.T. at 30. The Board credited the testimony of the store manager that she did not discharge Claimant until December, 28, 2013, because she was hospitalized between December 22, 2013, and December 28, 2013. Board's Finding of Fact 16. In any case, the one week delay is of no legal significance, in light of the finding that the reason for his termination was his failure to return to work on December 21. Claimant evidently believes that he was entitled to notice and a suspension with full pay during the period between his misconduct and termination, but this is simply a misunderstanding of the law.
Claimant asserts that he and the store manager had a verbal agreement allowing him to arrive 15 to 20 minutes late because he had to give his mother a ride to her job and could get caught in traffic, and that he could make up the time by staying later. He also claims that other employees were routinely tardy for work. Whether Claimant had a verbal agreement with the store manager regarding his late arrivals or whether other employees were routinely late for work is irrelevant. Claimant was not terminated for arriving late, but for leaving two hours early after being specifically directed not to do so. The Board credited Employer's testimony that Claimant asked to leave early and was told he could not because it was a busy time for the store. Claimant admitted that he left before the end of his shift. N.T. at 17. Moreover, Claimant acknowledged that he received a personal development plan dated January 10, 2013, which stated that he could be discharged if he did not improve his attendance. N.T. at 20; Certified Record at Item No. 3. Employer proved the existence of a policy regarding attendance, and that Claimant had been warned regarding his attendance. He left before the end of shift in violation of Employer's directive, and failed to demonstrate he had good cause for doing so. Thus, the Board correctly concluded that claimant was ineligible for benefits under Section 402 of the Law.
Accordingly, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of June, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge