Opinion
No. 463 C.D. 2011
06-01-2012
Joseph DeVito, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Joseph DeVito (Claimant) petitions for review of the February 16, 2011, order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for compensation pursuant to 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 from work for willful misconduct connected to his work.
Claimant was employed by Pepsi Beverages Company (Employer) from August 23, 2005, until August 18, 2010. At the time of his discharge, Claimant worked as a full-time customer service representative, driving a truck route and visiting customers. Employer's policy requires an employee to notify his direct supervisor if he is unable to report to work, and Claimant was aware of this policy. In 2009, Employer issued both a verbal warning and a subsequent written warning to Claimant for failing to report off by calling his supervisor directly. Employer issued a final warning to Claimant for the same infraction on July 8, 2010. Claimant was advised that if he could not reach Barry Herman, Jr., his immediate supervisor, directly, he could report off to supervisor Brian Peacock or unit manager Ed Johnson. (Findings of Fact Nos. 1-6.)
On the evening of Thursday, August 12, 2010, Claimant informed Herman that he was not feeling well and would not be at work the following day. On Sunday, August 15th, Claimant made an unsuccessful attempt to contact Herman by Nextel radio to report that he would be absent on the 16th. Claimant did not report to work on the 16th, 17th, and 18th, and he did not contact Herman, Peacock, or Johnson concerning his absences. Employer discharged Claimant for failing to report to work or report off from work in accordance with Employer's policy. (Findings of Fact Nos. 8-12.)
In his on-line application for benefits, Claimant stated that he was discharged on August 18, 2010, for violating Employer's no call, no show policy. (Exhibit 4-4A.) Among the documents Claimant submitted to the local service center was a copy of an August 23, 2010 letter to Employer in which Claimant explained that he had been suffering from stress, anxiety, and panic attacks since he began working with a new supervisor about a year earlier. Claimant indicated in the letter that he had difficulty adjusting to a change in the call-off procedure and felt unappreciated and unfairly treated. However, acknowledging that not calling off and not showing up "wasn't the best decision," Claimant apologized and asked Employer to reconsider his termination. (Exhibit 7-7A.) Claimant also submitted a doctor's note dated August 20, 2010, indicating that Claimant suffered from stress, anxiety, and panic attacks and reflecting the doctor's recommendation that Claimant take two weeks off from work. (Exhibit 8.) By notice dated September 20, 2010, the local service center determined that Claimant was ineligible for benefits under section 402(e) of the Law because he violated Employer's policy and did not show good cause.
Claimant appealed and was represented by counsel at the November 29, 2010 hearing. Employer, represented by a tax consultant, offered the testimony of Herman, Employer's Territorial Sales Manager. Herman confirmed that Claimant was discharged for violating Employer's policy requiring employees to contact their direct supervisor if they are unable to come to work. Herman explained that it was not acceptable for employees to report off to warehouse workers, especially the night crew, because those employees often leave before the drivers come in. Herman also identified disciplinary action reports documenting Claimant's past policy infractions and a last chance agreement, dated August 17, 2010, that was drafted for Claimant but never executed.
Herman testified that Claimant last worked on July 27, 2010, and he believed that Claimant was discharged by letter dated August 6, 2010. (N.T. at 4.) Herman subsequently corrected himself and recalled that Claimant last worked on July 28th. When asked if he was sure about the date of Claimant's discharge, he replied, "That's the date I was told," (N.T. at 8), and he acknowledged that the unit manager could have given him the wrong date. (N.T. at 12.) Addressing the August 18, 2010 letter, Herman stated that he did not recollect the events that occurred from August 13th through August 18th, adding that at some point in the process, Employer's human resources division and the unit manager take control. (N.T. at 10.)
Claimant offered Employer's August 18th letter into evidence. The letter was signed by unit sales manager Ed Johnson and states that Claimant's employment was terminated on that date due to his absences from work on August 13th through August 18th and his failure to report off to a supervisor. (Exhibit C-1.) During his testimony, Claimant acknowledged that he understood Employer's policy as requiring employees to report off work to their direct supervisor or to another supervisor. (N.T. at 15, 17.) Regarding the events leading to his discharge, Claimant stated that he called Herman Thursday night, August 12, 2010, to say that he was not feeling well, probably due to a combination of heat and medication he was taking, and that he would not be at work the next day. Claimant said that the medication he was taking interfered with his sleep over the next two days and he was drowsy, so he tried to reach Herman on Sunday night to report off. Claimant testified that his call to Herman did not go through, and he then called the warehouse and told one of the managers that he would not be in for a couple of days while he tried to get a doctor's appointment. (N.T. at 15.) Claimant stated that he saw a doctor on August 20th and subsequently provided Employer with a note from his doctor (Exhibit 8).
By decision and order dated November 30, 2010, the referee concluded that Employer established a reasonable attendance policy, Claimant was aware of the policy, and Claimant failed to report off from work in accordance with the policy on August 16, 17, and 18, 2010, without justification. Accordingly, the referee held that Claimant was ineligible for benefits pursuant to section 402(e) of the Law. Claimant appealed to the Board, asserting that the referee's findings cannot support a denial of benefits because Employer's witness testified that Claimant was fired for failing to properly call off work from July 28, 2010, to August 6, 2010. Claimant further argued that Employer failed to account for a twelve-day gap between the conduct for which Claimant was discharged and the date of his termination. Finally, Claimant asserted that his conduct reflected a good faith effort to comply with Employer's policy and did not support a finding of willful misconduct. However, in its February 16, 2011 decision and order, the Board noted that Claimant made admissions in the documents he submitted and in his testimony that support the reason for his discharge. Accordingly, the Board affirmed the referee's decision, adopting the referee's findings and conclusions of law.
In unemployment cases, the Board is the ultimate finder of fact and, therefore, is empowered to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
On appeal to this Court, Claimant again contends that the record does not support a finding of willful misconduct. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
The term "willful misconduct" is not defined by the Law, but Pennsylvania courts have held that the term includes: a wanton and willful disregard of an employer's interest; a deliberate violation of an employer's rules; a disregard of the standards of behavior that an employer has the right to expect of an employee; and negligence that manifests culpability, wrongful intent, or intentional disregard of the employer's interests or the employee's duties. Lytle v. Unemployment Compensation Board of Review, 387 A.2d 962 (Pa. Cmwlth. 1978). Whether an employee's conduct constitutes willful misconduct is a question of law subject to this court's review, Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa. Cmwlth. 1979), and the burden of proving willful misconduct rests with the employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa. Cmwlth. 1984). Where, as here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of the reasonable rule or policy and its violation. Brunson v. Unemployment Compensation Board of Review, 570 A.2d 1096 (Pa. Cmwlth. 1990). When the employer meets this initial burden, the burden shifts to the claimant to prove that he had good cause for his actions. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).
Claimant first argues that the testimony of Employer's witness establishes that Claimant was fired for conduct occurring between July 28 and August 6, 2010, and, therefore, the finding that Claimant was discharged for willful misconduct that occurred later in time is not supported by the evidence. However, contrary to Claimant's assertions, Herman did not adamantly insist that Claimant was discharged for conduct occurring from July 28, 2010, through August 6th. Instead, Herman stated that he may have been given incorrect information with respect to the actual relevant dates. Moreover, although Claimant correctly notes that his testimony was limited to the events that occurred and did not establish Employer's mindset for terminating his employment, ample evidence of record supports the finding that Claimant was discharged for violating Employer's policy on August 16-18, 2010; in particular, we note Employer's August 18, 2010 letter, which was introduced by Claimant and corroborated by testimony from Claimant and Herman. Claimant's final argument is that his actions reflect a good faith effort to comply with Employer's policy. In this regard, Claimant cites his attempt to contact Herman on August 15th and his subsequent call to "the supervisor on duty" to report that he would be absent for a few days. (Claimant's brief at 11.) However, Claimant admitted that Employer's policy required him to call Herman, Peacock or Johnson, and that he instead contacted a warehouse manager to call off work. (N.T. at 14-15.) Thus, the record belies Claimant's assertion that the Board's decision is unsupported by the evidence.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 1st day of June, 2012, the order of the Unemployment Compensation Board of Review, dated February 16, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge