Opinion
No. 966 C.D. 2012
11-02-2012
Avco Corporation, Lycoming Engines Division, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Avco Corporation, Lycoming Engines Division (Employer), petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding Patricia Bryan (Claimant) not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because her absences from work did not constitute willful misconduct. Finding no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent part:
An employe shall be ineligible for compensation for any week -
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Willful misconduct has been defined 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.
Claimant was employed as a full-time material clerk with Employer beginning May 24, 1978. Following several absences in September, 2011, Claimant's employment was terminated pursuant to Employer's attendance policy. Claimant filed a claim for unemployment compensation benefits which the Unemployment Compensation Service Center granted, and Employer appealed.
Before the Referee, Claimant testified that she worked for Employer from May 24, 1978, through November 7, 2011, as a full-time material clerk. She said that she was out of work on September 9, 20, 22, 23, 26, 27, and 28, 2011, because of a back injury, for which she had been trying to get a doctor's appointment. She reported her absences to Employer's security officers who usually answered the phone when she called to report an absence; when she called, she identified herself and indicated that she was using Family Medical Leave of Absence (FMLA) time. It was her understanding that her calls would be sufficient, because she never had to provide a doctor's note for FMLA time before. When she made these phone calls, she was unaware that she was actually out of FMLA time. Claimant further testified that during this period, she had been receiving injections in her back, but they only provided temporary relief, so she had surgery on October 19, 2011. She said that when she returned to work, she provided documentation to Employer, but it was deemed insufficient. Claimant admitted that she was aware of how Employer's attendance policy worked and of the proper procedure for reporting an absence, including the necessity for having a doctor's excuse. However, she understood these rules as applicable to workers' compensation time off, but said that she was unaware that the policy remained the same for FMLA time.
Hope Coolbaugh (Coolbaugh), a human resources consultant for Employer, testified that Employer has "a no-fault attendance policy which is based on a system for points for absenteeism, tardiness, and leaving work early." (Reproduced Record [R.R], at 9a.) Under this policy, an employee gets one point for a full day of absence and a half point for tardiness or leaving work early; if an employee accumulates seven points over the course of a 12-month period, his or her employment will be terminated. Coolbaugh further testified that consecutive days of absence warrant only one point, so long as a doctor's note is received. During the calendar year preceding her employment termination, Claimant was absent on numerous occasions. Based on Employer's records, Claimant was absent on September 9, 12, 13, 14, 20, 22, 23, 26, and 28, 2011. Because some of the absences were excused, Claimant's absence on September 28, 2011, brought on her seventh point and led to her discharge. Claimant was out of work for surgery for much of October, 2011 and returned to work on October 24, but "was out beyond the seven point threshold ... [from September 28] through October 21st." (R.R., at 16a.) Claimant was terminated on November 7, 2011, for accumulated, unexcused absences on September 9, 20, 22, 23, 26, 27, and 28, without medical documentation.
On cross-examination, Coolbaugh said she had not previously seen the documentation Claimant testified to and was not aware that it was provided to Claimant's supervisor or the head of the environmental health and safety department. However, the documents either indicated that Claimant was trying to schedule an appointment or that a phone call to a doctor's office was made, so they were insufficient to excuse the absences. Coolbaugh admitted that if the documentation had been acceptable, stretches of consecutive days of absence would have only warranted one point, which would mean Claimant would have had four points, rather than seven.
In dismissing Employer's appeal, the Referee found that "[C]laimant's absences were caused by her additional medical treatments and were properly reported to [E]mployer for a period of September 9, 20, 22, 23, 26, 27, and 28, 2011," (R.R., at 29a), and that Claimant mistakenly believed she had remaining FMLA time that would cover those absences. He also found that, during the time of her absences, Claimant was being reevaluated in preparation for her October, 2011 surgery. Based on these findings, the Referee determined that Employer did not establish willful misconduct by Claimant, since she merely thought she had FMLA time remaining and was unaware that such time had been exhausted. Employer appealed to the Board, which affirmed the decision of the Referee, also noting that Claimant's employment was not terminated until November 7, 2011, and "there was an unreasonable amount of time between discovering the violation and terminating [C]laimant." (R.R., at 43a.) This appeal followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were not supported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 376, 625 A.2d 622, 624 (1993). "Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001). Absent an error of law or showing of fraud, the decision of the Board must be affirmed. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996). --------
On appeal, Employer argues that the Board decision to grant benefits was not supported by substantial evidence and constituted an error of law because Claimant failed to offer sufficient justification for her unexcused absences to excuse her willful misconduct due to excessive absenteeism. However, once an employer makes out a prima facie case, then the burden shifts to claimant to establish a justification for his or her "misconduct." Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004). In this case, Employer met its burden of establishing that Claimant had incurred more absences than were allowed, and the burden then shifted to Claimant to establish that those unexcused absences were justified.
Generally speaking, excessive absences may constitute willful misconduct if the absences are unjustified or not properly reported. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Justified excuses include illness, but a claimant is obligated to establish that illness constituted her absenteeism. With regard to FMLA absences, where an employee reasonably believed her absences were protected under FMLA, failure to report those absences pursuant to the employer's absence policy does not rise to the level of willful misconduct. Eshbach, 855 A.2d at 950. We emphasized in Eshbach that the employer had an "obligation to provide Claimant with information concerning her rights and responsibilities under the FMLA, including Claimant's obligations regarding ending that leave." Id. at 949.
In this case, Claimant testified that when she called in to report her absences, she believed that she had not yet exhausted her FMLA time and was not told otherwise. While her belief was in error, the Board, based on her testimony, found that Claimant did not deliberately violate Employer's attendance policy. Claimant's September absences were further justified because, as the Referee found, "[C]laimant was involved in reevaluations of her medical situation in preparation for surgery," (R.R., at 29a). Contrary to the Employer's contention that there was no substantial evidence to support that finding, Claimant credibly testified that she was absent from work in September, 2011, due to lingering pain and appointments in preparation for her upcoming October, 2011 surgery.
Because there was substantial evidence to support the Board's finding that Claimant's belief that she had FMLA time remaining was reasonable and her absences justified by illness, the Board did not err in finding that Claimant did not engage in willful misconduct. Accordingly, for these reasons, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 2nd day of November, 2012, the order of the Unemployment Compensation Board of Review, dated May 4, 2012, at No. B-534870, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). However, "an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature." Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (internal citation omitted).