Opinion
No. 214 C.D. 2014 No. 268 C.D. 2014
01-06-2015
Alyce J. DiPietro-Miller, Petitioner v. Unemployment Compensation Board of Review, Respondent Law Offices of Steven L. Smith, P.C., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Before the Court are the cross-petitions for review of an order of the Unemployment Compensation Board of Review (Board) of Alyce J. DiPietro-Miller (Claimant) and the Law Offices of Steven L. Smith, P.C. (Employer). The Board determined that Claimant had not engaged in disqualifying willful misconduct, but denied Claimant benefits pursuant to Section 401(d)(1) of the Unemployment Compensation Law (Law), because Claimant was not able and available for work during the week ending August 17, 2013. For the reasons set forth below, we dismiss as moot Claimant's petition for review and affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Pursuant to Section 401(d)(1) of the Act, in order to receive unemployment compensation benefits, an employee who is or becomes unemployed must be "able to work and available for suitable work."
Claimant filed for unemployment compensation benefits after Employer terminated her employment on August 12, 2013. The Lancaster UC Service Center (Service Center) issued a determination finding Claimant ineligible for benefits pursuant to Section 402(e) of the Law, relating to willful misconduct. It also found her ineligible for benefits pursuant to Section 401(d)(1) of the Law. Claimant appealed the Service Center's determination.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
The Referee conducted a hearing at which she considered whether Claimant's unemployment was due to discharge for willful misconduct and whether Claimant was able and available for work. The Referee determined that although Claimant was able and available for work, Employer discharged her for willful misconduct connected with her employment. Thus, Claimant was ineligible for benefits. Claimant appealed to the Board.
The Board affirmed the Referee's determination that Claimant was ineligible for benefits. It found, however, no willful misconduct connected with Claimant's employment. Instead, the Board denied Claimant benefits on the basis that she was not able and available for work pursuant to Section 401(d)(1) of the Law for the week ending August 17, 2013. In so doing, the Board made the following findings of fact:
1. Claimant was employed by Steven L. Smith Law Offices as an officer [sic] manager/secretary at a bi-weekly salary of $2,138.08 that began March 1, 2004 and last worked on July 19, 2013.
2. The employer alleged that there was a decline in the claimant's work performance and attitude towards work during her last three years of employment.
3. The employer alleged that the claimant was not as conscientious as she had been about the work, made careless errors or was nonchalant about performing her duties.
4. The employer alleged that claimant's declining performance and attitude began to adversely impact his law practice and as a result had several verbal conversations with her concerning these issues.
5. The claimant never received a written warning.
6. The claimant's work performance did not deteriorate from prior acceptable level.
7. The claimant received a bonus in 2011 and 2012.
8. The employer did not like that the claimant was succinct with her replies.
9. On [sic] February 2013, the claimant set up a telephone conference call[, and] the employer did not like how the claimant set up the conference call.
10. As a result, the employer had the opposing counsel set up the conference call.
11. The claimant had never previously set up a conference call the way the employer wanted her to set up the call.(Certified Record (C.R.), Item No. 14 at 1-2.)
12. The claimant sustained a knee injury and informed the employer that she needed to have surgery which was tentatively scheduled for July 15, 2013, the date on which the employer was scheduled for vacation.
13. The claimant postponed her surgery until July 22, 2013, at the urging of the employer when he would return from vacation.
14. The claimant contacted the employer daily with office updates and status of the mail so that the office business could be handled while the employer was away.
15. On July 19, 2013, the claimant took off from work following which she began an extended absence over the next 7 weeks to have her knee surgery.
16. On July 22, 2013, the claimant had her knee surgery and notified the employer that she was going to need additional time off as a result of the surgery.
17. On August 12, 2013, the employer terminated the claimant effective August 16, 2013.
18. On August 19, 2013, the employer began looking for a replacement and hired a new employee.
19. The final incident that led to the claimant's discharge was that the claimant went on medical leave for knee surgery.
20. The employer hired a new employee because the claimant was on medical leave.
21. Effective September 6, 2013, the claimant became able and available for work.
22. The claimant always worked to the best of her ability.
The Board, in concluding that Claimant did not engage in willful misconduct, reasoned:
It is now well settled that if there is no willful misconduct in the final incident for which a claimant has been discharged a denial of benefits cannot ensue under Section 402(e) of the Law. The claimant was discharged because she went on medical leave.(Id. at 3.) Additionally, the Board reasoned that because Claimant was not released by her doctor to resume work until September 6, 2013, she was not able and available for work during the week ending August 17, 2013. (Id.) Thus, under the Board's reasoning, Claimant was not eligible for benefits prior to September 6, 2013, because she was unable to work. Claimant, however, became eligible for benefits subsequent to that date, because she was no longer unable to work and had not been discharged for willful misconduct.
Therefore, while the Board in no way questions the employer's right to discharge the claimant, it cannot hold that the claimant's discharge was for willful misconduct in connection with her work. The claimant is eligible for benefits under Section 402(e) of the Law.
On appeal to this Court, Employer contends that the Board erred in concluding that Claimant did not engage in willful misconduct, such that Claimant is not entitled to benefits for any period. Employer first argues that the Board erred in focusing on the final incident for which Claimant was discharged, because her cumulative conduct constituted willful misconduct. Alternatively, Employer argues that even if the Board's focus on the final incident was not in error, Claimant's final incident constituted willful misconduct because she "willfully fail[ed] to attend work." (Employer's Br. at 24.)
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
At the outset we note that Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" 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.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer, however, has met its burden, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
We first address Employer's argument that the Board erred in concluding that because the final incident leading to the termination of Claimant's employment did not involve willful misconduct, Claimant was not ineligible for benefits pursuant to Section 402(e) of the Law. In support of this argument, Employer relies upon the rationale set forth in Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186 (Pa. Cmwlth. 2012) (en banc). In Grand Sport, a claimant was late or absent from work without a valid excuse nineteen times, and his employer fired him following an excused absence. This Court affirmed the Board's denial of benefits, concluding that the employer fired the claimant for willful misconduct. We explained that "Claimant's pattern of habitual and unexcused absences and tardiness . . . in a seven month period fell below the standard of behavior Employer had the right to expect of Claimant as its employee and were inimical to Employer's interests in completing its work in a timely fashion." Id. at 193-94. Thus, the reason for the claimant's termination was his cumulative behavior in the months leading up to the termination, not the final absence.
The present matter is distinguishable from Grand Sport. Here, the Board did not find that Claimant had engaged in a pattern of misconduct; rather, the Board found that "[t]he claimant's work performance did not deteriorate from [a] prior acceptable level" and that "[t]he claimant always worked to the best of her ability." (C.R., Item No. 14 at 1-2.) "[A] finding that a claimant has worked to the best of [her] ability negates a conclusion of willful misconduct." Norman Ashton Klinger & Assocs., P.C. v. Unemployment Comp. Bd. of Review, 561 A.2d 841, 843 (Pa. Cmwlth. 1989). Because there was no finding of deteriorating work performance, the "final incident" of taking medical leave is the only incident to be considered in evaluating whether Claimant engaged in willful misconduct. Further, under Grand Sport, the employer must show that the history of misconduct was the reason for the employee's discharge even if the final incident does not rise to the level of willful misconduct. Grand Sport, 55 A.3d at 193-94. See also Panaro v. Unemployment Comp. Bd. of Review, 413 A.2d 772, 774 (Pa. Cmwlth. 1980) ("Not only must the employer prove the claimant committed some act which constitutes 'willful misconduct', the employer must also prove that the act in question was the actual reason for the claimant's discharge.") There was no such showing in the instant matter. On the contrary, the Board found that "[t]he final incident that led to the claimant's discharge was that the claimant went on medical leave for knee surgery." (C.R., Item No. 14 at 2.) Thus, Employer's reliance on Grand Sport is misplaced, and we reject Employer's first argument that the Board erred in focusing on the final incident leading to the termination of Claimant's employment.
Next, Employer argues that the Board erred in determining that there was no willful misconduct in the final incident leading to the termination of Claimant's employment. Employer contends that "Claimant's final incident was the ultimate example of willful misconduct-willfully failing to attend work." (Employer's Br. at 24.) In support of this contention, Employer states that Claimant's use of crutches after surgery did not prevent her from performing her job, nor was she unable to drive to work because the surgery was on her left knee. (Id.) Thus, Employer argues that Claimant was able to get to work, but she chose not to do so.
The Board found that Employer discharged Claimant because she went on medical leave. Claimant testified that she explained to Employer why the surgery was necessary, when it would be, and how long it would take her to recover. (C.R., Item No. 11 at 39.) When she learned that she would need to be out of work for another month, she informed Employer and provided a note from her doctor. (Id. at 40.) This Court has held that with respect to medical leave, a claimant who violates an employer's policy has engaged in willful misconduct. See, e.g., Owens v. Unemployment Comp. Bd. of Review, 748 A.2d 794 (Pa. Cmwlth. 2000) (holding that claimant was not eligible for benefits because she failed to return medical documentation necessary under employer's medical leave policy); Ferko v. Unemployment Comp. Bd. of Review, 309 A.2d 72, 74-75 (Pa. Cmwlth. 1973) (holding that claimant engaged in willful misconduct when claimant was aware of employer's policy regarding medical leave and failed to follow it). In the instant matter, there is no evidence that Employer had a policy in place regarding the taking of medical leave, let alone a reasonable policy that Claimant violated. Although Employer did request medical documentation, Claimant provided that documentation and properly reported her absence. Thus, Claimant's taking of medical leave as the final incident leading to the termination of her employment did not amount to willful misconduct.
Having addressed Employer's issues on appeal challenging the Board's legal conclusions, we note that throughout the arguments related to willful misconduct Employer also appears to argue that the Board's finding that Claimant was discharged for taking medical leave and not for her alleged misconduct is not supported by substantial evidence. In support of this contention, Employer cites several examples of Claimant's misconduct, including absenteeism, tardiness, excessive breaks, invasion of privacy, and poor work performance. There is ample support in the record, however, for the Board's finding that Claimant was discharged for taking medical leave. At the hearing before the Referee, Employer testified that "we both contemplated that she would return after recuperating from her surgery." (C.R., Item No. 11 at 11.) He further testified that although he had been contemplating terminating Claimant's employment in May 2013, the extension of her medical leave caused him to have "a hard choice to make whether I was going to hire a temporary and/or, you know, a permanent replacement." (Id.) Further, Claimant's employment was not terminated until August 12, 2013, over three weeks from her last day of work prior to medical leave, July 19, 2013, which suggests that the termination was not performance related. Although Employer testified that it discharged Claimant for poor performance, it was well within the purview of the Board to resolve this evidentiary conflict in favor of Claimant. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985) (concluding that Board is ultimate fact finder and is entitled to make credibility determinations). Employer attempted to present a contrary scenario; however, there is substantial evidence to support the Board's finding that Claimant's work performance did not deteriorate and Employer discharged Claimant for taking medical leave.
The sole issue raised in Claimant's petition for review is moot, and we need not address it here.
Claimant initially argued that the Board erred in denying Claimant benefits pursuant to Section 401(d)(1) of the Law. Claimant stated that although the claim for benefits was filed prematurely with respect to the date she became available for work, September 6, 2013, she should be awarded benefits for the period commencing after that date. (Pet'r's Br. at 10-11.) Claimant has now acknowledged, however, that the "Department began paying claimant unemployment compensation benefits as of September 20, 2013." (Pet'r's Reply Br. at 2.) After serving the waiting week, Claimant received benefits for every week during which she was able and available to work. (Id.; Bd. Br. at 9-11.) We agree with Claimant that "the arguments made in the principal brief are moot." (Pet'r's Reply Br. at 2.) As this was the only issue raised in Claimant's petition for review, we dismiss Claimant's petition as moot. Employer's cross-petition, however, must still be addressed. --------
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 6th day of January, 2015, the petition for review docketed at 214 C.D. 2014 is dismissed as moot, and the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge