Opinion
No. 1569 C.D. 2012
04-10-2013
Natha Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Natha Davis (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Essentially, Claimant contends she suffered from a recent work injury and thus had good cause for her last four absences from work which resulted in her termination. For the reasons that follow, 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 states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to her work.
I. Background
Claimant worked for United Cerebral Palsy (Employer) as a house manager from September 2008 until her last day of work on April 6, 2012. Claimant's final rate of pay was $11.36 per hour.
Employer's sick leave policy states that a total of four unplanned callout sick days during a three-month period is considered excessive and a hardship to Employer. Four or more absences during this period will result in a meeting between Employer and the employee to discuss the reasons for the absences. Also, an employee absent from work for three or more consecutive days must submit a doctor's note upon return to work.
In the three-month period preceding her discharge, Claimant had five unplanned sick days. As a result of her numerous absences, Employer first issued Claimant a verbal warning for excessive absenteeism in January 2012. During February and March 2012, Claimant had a 50% attendance rate. Following Claimant's absences on March 29 and 31, and April 1 and 2, 2012, Employer requested a doctor's note. Claimant failed to submit a doctor's note justifying her absences. Consequently, Employer discharged Claimant for excessive absenteeism.
Claimant applied for benefits, which the local service center denied under Section 402(e). The referee, following an evidentiary hearing, also found Claimant ineligible on the basis of willful misconduct. He reasoned:
The absences that led directly to the Claimant's discharge occurred on March 29, 2012, March 31, 2012, April 1, 2012 and April 2, 2012. At the Referee's hearing, the Claimant testified that she was unable to report to work for those days for medical reasons. However, when the Employer requested a doctor's note justifying those absences from work, the Claimant could not produce one.
Commonwealth Court has consistently held that an Employer has the right to request and receive medical
documentation justifying excessive absenteeism from work due to medical reasons. Since the Claimant did not provide the Employer with the requested medical documentation, the Claimant has not met her burden of proving that her March 29, 2012, March 31, 2012, April 1, 2012 and April 2, 2012 absences were with good cause, for health reasons.Referee's Op., 6/15/12, at 2. On appeal, the Board adopted the referee's findings and conclusions and affirmed the determination of ineligibility. Claimant petitions for review.
That being the case, the Referee is constrained to decide that the Employer has met its burden of proving that the Claimant committed willful misconduct, thereby rendering her ineligible for benefits under Section 402(e) of the Law.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012).
We also note the Board is the final factfinder in unemployment compensation cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Also, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Further, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
II. Issue
Claimant contends the Board's determination that Employer discharged her for willful misconduct is erroneous and unsupported by the record.
III. Discussion
A. Argument
Section 402(e) of the Law states that an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work. 43 P.S. §802(e). Willful misconduct within Section 402(e) is defined by the courts as: 1) a wanton and willful disregard of an employer's interests; 2) deliberate violation of rules; 3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or 4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002); Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1997). The employer bears the initial burden of establishing a claimant engaged in willful misconduct. Id. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Id.
Claimant asserts she informed Employer on March 25, 2012, that she could no longer physically perform her job as a result of a work-related injury sustained that day. Claimant further argues she sought treatment for that injury from Employer's panel physicians at Concentra as soon as possible. In addition, Claimant asserts she made a good faith effort to obtain a medical excuse from Concentra for her work absences on March 29 and 31, and April 1 and 2, 2012. However, Concentra would not provide her with a document excusing her from work. Claimant maintains that as a result Employer manipulated her into a discharge based on her failure to provide a doctor's note for her absences. Therefore, Claimant contends her actions did not equate to willful misconduct. See Frumento v. Unemployment Comp. Bd. of Review, 446 Pa. 81, 351 A.2d 631 (1976) (applying the concept of good cause to unemployment cases, the court reasoned where an employee's actions are justifiable or reasonable in light of the circumstances, they cannot be considered willful misconduct).
Moreover, Claimant continues, Employer failed to properly apply its sick leave policy to her. She asserts Employer never offered her a correction plan or progressive discipline program. Taking into account that she demonstrated good cause for her actions, Claimant argues it is only logical to conclude her actions cannot be considered willful misconduct.
In response, the Board asserts Claimant's actions constituted willful misconduct. Employer met its initial burden of showing Claimant violated its sick leave policy requiring an employee who is absent three or more consecutive days for health reasons to submit a doctor's note upon return to work. Consequently, the burden shifted to Claimant to demonstrate good cause for the violation. See Conemaugh Mem'l Med. Ctr. v. Unemployment Comp. Bd. of Review, 814 A.2d 1286 (Pa. Cmwlth. 2003) (once employer establishes the existence of a reasonable work rule and its violation, the burden shifts to the employee to show she had good cause for her action).
Further, the Board maintains it is well established that an employer may request medical documentation from its employees to justify unexcused medical absences. See Lausch v. Unemployment Comp. Bd. of Review, 679 A.2d 1385 (Pa. Cmwth. 1996) (employer's attendance policy reasonably required medical documentation for absences of three or more days for medical reasons; otherwise, employer bears the burden of evaluating every medical absence without the benefit of a professional medical opinion).
Finally, the Board contends Claimant failed to show good cause for violating Employer's sick leave policy requiring a doctor's note. Accordingly, the Board urges it properly denied Claimant benefits under Section 402(e) of the Law. Frumento; Lausch.
B. Analysis
Initially, we recognize excessive absenteeism may constitute willful misconduct. Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55 A.3d 186 (Pa. Cwmlth. 2012). Employers have the right to expect that employees will attend work as scheduled. Id.
In Lausch, we determined the employer's attendance policy reasonably required that an employee provide proper medical documentation for three or more days of absence for medical reasons. An employer may require medical certification for an employee's absence for medical reasons. Id. (citing Mrasz v. Unemployment Comp. Bd. of Review, 404 A.2d 790 (Pa. Cmwlth. 1979)). Otherwise, the employer would have to evaluate every absence from work based on medical reasons without the benefit of a professional medical opinion. Id.
Here, the Board specifically found:
This Employer has a policy which states that a total of four unplanned callout sick days during a three month period is considered to be a hardship to the agency and excessive, and will result in a meeting between the supervisor and the employee to discuss the reasons for the absences. A plan of correction may be drafted, if necessary. If the plan does not result in reduced absences, progressive discipline may result .... An employee absent from work for three or more consecutive days is required to submit a doctor's note upon return to work.Referee's Op., 6/15/12, Finding of Fact (F.F). No. 2. This finding is supported by the record. See Notes of Testimony (N.T.), 6/13/12, Employer's Ex. 1 (Employer's Policy No. 133 - Sick Time).
The Board further found Claimant knew or should have known of this policy. F.F. No. 5. Claimant does not challenge this finding.
Rather, Claimant argues her actions did not rise to the level of willful misconduct because her absences on March 29 and 31, and on April 1 and 2, 2012, were the result of a March 25 work injury. Claimant asserts she made a good faith effort to treat with Employer's panel physicians at Concentra as soon as possible. Nevertheless, Concentra's physicians refused to provide her with medical documentation justifying her work absences on these dates. Claimant maintains that Concentra's actions were outside her control.
Claimant further asserts Employer did not make it clear that she could have obtained a doctor's note somewhere else. To the contrary, Claimant believed she had to treat with Employer's panel physicians for her work injury.
Viewing the record in its entirety, it appears Claimant frequently called off work at least in part as a result of a work-related injury sustained with a previous employer. Claimant testified she did provide doctors' notes for the absences prior to the alleged March 2012 work injury. See N.T. at 15-16; Reproduced Record (R.R.) at 16a-17a.
However, our review of Claimant's testimony does not support her assertions that she made a good faith effort to obtain a doctor's note to justify her last four absences following the alleged March 2012 injury or that Employer's physicians improperly refused to provide her with a doctor's note justifying those absences.
To that end, Employer's termination notice states that Claimant received medical clearance from Employer's physicians to return to work on March 26, 2012, the day after an alleged work injury. The termination notice provides in pertinent part (with emphasis added):
On 3/25/2012 you stated you were injured performing personal care for one of the residents, however, the injury center cleared you to return to work on 3/26/2012. You again failed to return to work on 3/29/2012, 3/31/2012, 4/1/2012, and 4/2/2012. You have no physician's note to cover these days nor do you have any available sick time to cover these days. You are being terminated at this point for excessive use of sick time due to the fact that in
your 18 scheduled days from 2/2/5/2012 [sic] to 4/5/2012 you only worked 9 which is [a] 50% attendance rate. This termination is effective immediately.Employer's Ex. 4. Consequently, it does not appear that Employer's panel physicians improperly denied Claimant medical documentation justifying her last four absences.
Summarizing, the record does not support Claimant's assertions that she made a good faith effort to obtain or was improperly denied a doctor's note justifying her absences on March 29 and 31, and April 1 and 2, 2012. In particular, Claimant did not testify that she asked any doctor or health care provider for medical documentation for these absences or that they refused to provide it. Therefore, we reject Claimant's contention that she had good cause for violating Employer's policy requiring a doctor's note for three or more consecutive absences. Lausch.
Additionally, Claimant contends Employer failed to properly apply its sick leave policy to her. She asserts Employer did not offer her a plan of correction or progressive discipline. We disagree.
Employer's sick leave policy provides, "A plan of correction may be drafted, if necessary." Employer's Ex. 1 (emphasis added). Nothing in Employer's policy requires that a plan of correction be implemented. Here, Claimant's attendance record reflects a pattern of excessive absenteeism. Employer initially converted some of Claimant's absences to vacation time and unpaid leave. See Employer's Ex. 3. However, Claimant's absences continued. We do not interpret Employer's sick leave policy as requiring any further effort at a plan of correction.
Further, the record indicates Employer followed its progressive discipline policy with Claimant. In January 2012, Employer provided Claimant with a verbal warning for five unplanned sick days in a three-month period. Employer's Ex. 2. Employer also provided Claimant with a written warning for six sick days in a three-week period from February 25 through March 11, 2012. See Employer's Ex. 3. Claimant, however, failed to attend the scheduled meeting regarding the written warning. See Employer's Ex. 4. Finally, following her last four absences, Employer terminated Claimant on April 6, 2012, after she failed to provide a doctor's note for those absences. Id.
For these reasons, we reject Claimant's contention that Employer failed to follow its sick leave policy.
IV. Conclusion
Discerning no error in the Board's decision and order, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of April, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge