Opinion
No. 11 C.D. 2014
01-08-2015
Richard P. Dominick, 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
Petitioner Richard P. Dominick (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of a Referee, thereby denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after being discharged from employment as a per diem registered nurse supervisor for St. Joseph's Center (Employer) on May 21, 2012. The Scranton UC Service Center (Service Center) issued a notice of determination finding Claimant ineligible for unemployment compensation benefits. (Certified Record (C.R.), Item No. 5.) Claimant appealed, and, following an evidentiary hearing, a Referee issued a decision affirming the Service Center's determination. Specifically, the Referee concluded that Claimant's failure to comply with Employer's request to provide adequate medical documentation in connection with his absences from work rose to the level of willful misconduct. (C.R., Item No. 10.)
We note that although Employer intervened in this matter, this Court precluded Employer from filing a brief by order dated July 17, 2014.
Claimant then appealed to the Board, which affirmed. (C.R., Item No. 18.) In so doing, the Board issued its own findings of fact and conclusions of law. The Board found that Claimant began working for Employer on November 16, 2009. (Finding of Fact (F.F.) No. 1.) In September 2011, Claimant asked to reduce his scheduling time because he had some personal issues at home to address. (F.F. No. 3.) In October 2011, Claimant filed for intermittent leave pursuant to the Family and Medical Leave Act of 1993 (FMLA) in order to care for his ailing mother. (F.F. No. 6.) Employer's policy regarding intermittent FMLA leave provided that an employee must provide a medical report from a doctor within 3-5 days indicating that he is unable to work for his scheduled shift for every "call off" that is designated for FMLA leave and, if the employee fails to provide the report, he will not be entitled to use personal time off. (F.F. No. 8.)
Claimant also filed multiple requests for a remand hearing, which the Board ultimately denied in its decision. (C.R., Item No. 18.)
Claimant subsequently took over 30 days off from work. (F.F. Nos. 11-14, 17, 22, 23, 25, 26, 29-31, 38). The Board found that Claimant cited his FMLA leave and provided the necessary medical documentation for most of these days. (F.F. Nos. 17, 22, 25, 26, 29, 33.) There were days, however, for which Claimant (1) cited his FMLA leave but did not provide an accompanying medical note, (2) called off due to reasons unrelated to his FMLA leave, or (3) failed to show up for work and provide a reason for the absence altogether. (F.F. No. 38.) Moreover, Claimant called off sick or for FMLA purposes on a number of occasions to a per diem registered nurse in a similar position that Claimant held. (F.F. No. 39.) Although this employee was not in the position of receiving documentation for "calls offs," Claimant would often fax them to her location, and she would give them to the nursing secretary with the understanding that they would then go to Employer's Human Resources Department. (Id.)
The Board found that throughout this time period, Claimant repeatedly sent letters, apparently by fax, to Employer seeking documentation relating to his FMLA leave status. (F.F. No. 20, 24.) In response to a request, Employer issued a letter to Claimant, directing Claimant to contact its Human Resources Department, as communication by fax was not adequate to communicate properly. (F.F. No. 21.) Eventually, however, Employer did send Claimant a letter, informing Claimant that the requested information was available for pick up, but that Employer would not send personal employment information to a commercial fax location. (F.F. No. 24.) Employer also noted that repeated attempts were made to contact Claimant via telephone and mail, which were not answered or acknowledged by Claimant. (F.F. No. 24.) On April 16, 2012, Employer's counsel wrote Claimant a letter, again asking for contact by phone from Claimant to counsel or Employer's staff within ten days. (F.F. No. 27.) Claimant admitted that after receiving this letter, he did not contact counsel or Employer's staff as directed. (F.F. No. 28.) Moreover, Employer tried to call Claimant about missing medical notes, but Claimant did not return phone calls. (F.F. No. 35.) Employer tried the phone number of Claimant's wife and mother in an attempt to contact Claimant. (Id.) Claimant admitted he did not return any of Employer's phone calls. (F.F. No. 36.) The Board found that Employer typically wants an employee to come in and discuss the FMLA in order to go over the process with the employee, because there are a lot of questions involved. (F.F. No. 37.) Thus, on May 21, 2012, Employer discharged Claimant for job abandonment, failing to call off or show up for work, and failing to have any meaningful communication with Employer about his absences. (F.F. No. 40.)
The Board concluded that, based on the record, Employer had established that Claimant was discharged for willful misconduct. The Board noted that the record was replete with information about whether Claimant called off pursuant to FMLA and if he provided necessary medical documentation. Nevertheless, the Board explained that Employer discharged Claimant, in part, for failing to have any "meaningful communication" during this process. (C.R., Item No. 18 at 5.) The Board concluded that Claimant received a directive from Employer to contact Employer's Human Resources Department, because faxed communication was not effective. The Board agreed that given the complexity of FMLA leave, Employer's directive to Claimant was reasonable. The Board further explained that Claimant inexplicably failed to follow this reasonable directive, but instead continued to keep all communication through letters, faxes, and medical notes delivered by third parties. Moreover, while Claimant called off, he significantly failed to do so through the Human Resources Department.
The Board observed that an employee owes an employer a certain level of cooperation in the employment relationship. The Board explained that while Claimant may have had good cause to be absent, he failed to establish credible good cause for why he could not call the Human Resources Department or arrange to go in person. The Board rejected as not credible any inference that Claimant was unable to do so, because he cared for his terminally ill mother and could make no other arrangements, as Claimant gave conflicting testimony on this issue and two other nurses served as caretakers. The Board specifically rejected Claimant's allegation that he could not meet Employer in person in light of the fact that Claimant refused to call Employer, and rejected as not credible Claimant's assertion that his mother was so ill that he was unable to make a phone call. The Board observed, significantly, that Claimant's use of FMLA leave did not include any provision that Employer not contact Claimant. The Board concluded that Claimant's continued refusal to follow a reasonable directive rose to the level of willful misconduct. Thus, the Board denied benefits under Section 402(e) of the Law. Claimant then petitioned this Court for review.
On appeal, Claimant argues that the Board's findings of fact are not supported by substantial evidence. Claimant also argues that the Board erred as a matter of law in concluding that his actions constituted willful misconduct. Lastly, Claimant argues that the Board erred in denying his requests for a remand hearing.
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.
The Board argues that Claimant waived any challenges to the Board's findings of fact, because although he identifies challenged findings of fact numbers 8, 11, 23, 24, 26, 28, and 30-40 in his petition for review, Claimant does not argue with specificity the inadequacy of the findings. See Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998). We agree that Claimant does not set forth a cogent argument regarding these findings in the argument section of his brief. Throughout his brief, however, Claimant makes statements that could be interpreted as arguments that challenged findings of fact numbers 11, 23, 24, 26, 28, 30, 31, 34, 35, 36, 37, and 38 are not supported by substantial evidence. Many of those challenged findings of fact, however, are not material to the Board's decision. Although the Board went into great detail regarding the dates and circumstances surrounding Claimant's use of personal and FMLA leave, the Board based its denial of benefits on Claimant's continued failure to follow a reasonable directive to contact Employer. For instance, findings of fact numbers 11, 23, 26, 30, 31, and 38 all relate to dates Claimant called off work for personal or FMLA reasons and whether he provided medical documentation as to the reason for the leave, and finding of fact number 34 relates to the identity of his mother's primary caregiver. Even if we were to disagree with the Board regarding waiver and agree with Claimant that substantial evidence does not exist to support those findings of facts, those findings do not affect the analysis employed by the Board as to whether Claimant failed to follow a reasonable directive to contact Employer. Those challenged findings, therefore, are not material to the Board's analysis, and any errors contained in those findings are not grounds for reversal. Thus, we will not address those findings.
Other challenged findings of fact, however, relate to Employer's requests that Claimant contact Employer, and those findings are material to the Board's decision. Those findings are numbers 24, 28, 35, 36, 37, and 40. Although the manner in which Claimant presented his challenges to these findings of fact do not meet the requirements of Pa. R.A.P. 2111 and 2119, the Court nevertheless is able to discern a minimal basis for these challenges and will consider whether substantial evidence exists to support these findings.
Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d 1159, 1161 (Pa. Cmwlth. 1992). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). "The fact that [the employee] may have produced witnesses who gave a different version of the events, or that [the employee] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1107 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Moreover, in an unemployment case, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1386 (Pa. 1985). The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004).
We will consider whether findings of fact numbers 24, 28, 35, 36, 37, and 40 are supported by substantial evidence of record. Those findings provide, as follows:
24. On March 12, 2012, employer sent claimant a letter regarding his fourth request for information
related to employment. The claimant was informed that the information was available for pick up and inspection for several weeks. The employer noted that it would not send personal employment information to a commercial fax location. The employer also noted that repeated attempts were made to contact the claimant via telephone and mail which were not answered or acknowledged by claimant.(C.R., Item No. 18 at 3-4.)
28. Claimant admitted that after receiving [a] letter [dated April 16, 2012], he did not contact counsel or the employer's staff as directed.
35. Employer tried to call claimant about the missing medical notes and claimant would not return phone calls. Employer tried the phone number of claimant's wife and his mother's phone number in an attempt to contact the claimant.
36. Claimant admitted he did not return any of the employee's [sic] phone calls.
37. Employer typically wants an employee to come in and discuss the FMLA so the employer can sit down and go over the process with them since there are a lot of questions involved.
40. The employer discharged the claimant on May 21, 2012, for job abandonment, for failing to call off or show up for work, and for failing to have any meaningful communication with the employer about his absences.
A review of the record reveals that during the hearing, with regard to the matters relevant to this appeal, Employer presented the testimony of Mary Ellen Desiderio, Administrator for Residential Services, Lindsey Sershen, Human Resources Generalist, and Jennifer Landis, Nursing Secretary. Claimant testified on his own behalf.
Ms. Desiderio testified that Claimant generally worked five days every two-week pay period, and he regularly "would pick up a lot of time." (C.R., Item No. 9 at 8-10.) In September 2011, Claimant requested that Employer reduce the amount of time he worked, because he had some issues at home. (Id.) Employer honored the request. (Id.) Claimant then worked less than five days per two-week pay period. (Id.) The last day he worked was January 28, 2012. (Id.)
It appears that following the reduction in hours, Claimant filed for unemployment compensation benefits, which were denied following a hearing on January 30, 2012.
Ms. Desiderio testified that Employer scheduled Claimant to work various days in January, February, and March, but Claimant called off work, citing the need to use personal or FMLA leave. (Id. at 10-11.) She further testified that he failed to call off some days, which constitutes abandonment. (Id.) Also, with regard to FMLA leave, Employer requires absent employees to provide a physician's note within three to five days of the absence, and Claimant failed to submit required notes for some of the days. (Id.) When asked whether she requested Claimant to provide her with the missing notes, she responded that "the problem that kind of was created was he did not respond to phone calls, he would fax things in, so we were [not] able to verbally communicate with him." (Id. at 11.)
When asked about Employer's efforts to contact Claimant, Ms. Desiderio testified that Employer's Human Resources Department called his phone and his wife's phone. (Id. at 12.) They did not send a fax, because the fax was not a private fax. (Id.) She testified that Claimant "repeatedly refused to engage in any significant communication with [her] or with Human Resources, he failed to show up for work without again meaningful communication." (Id. at 13.)
Ms. Landis testified that she is responsible for scheduling registered nurses. (Id. at 27.) To her knowledge, Claimant's last day of work was January 28, 2012. (Id.) From the period of time from January 28, 2012, through May 21, 2012, she attempted to contact Claimant numerous times to determine whether he would be coming to work. (Id.) She described Claimant as her "go to guy," who had "[a]lways [been] willing to work up until this time." (Id. at 27-28.) She testified that she was compassionate about his mother, but she also needed to do the schedule to make sure that Employer has proper coverage. (Id.) In order to do this, she attempted to contact Claimant on numerous occasions, even calling his wife's number and his mother's home. (Id. at 28.) She testified:
I would contact, leave messages with his wife. There wasn't time before he started—before he started not answering, but his wife would get in touch with [him] and then he would call me back. Then it just stopped happening. I would get in touch with ... his wife and I would get no return phone calls. I would call his mother's house, his mother would answer the phone often and sometimes he was there and . . . he would answer the phone. Other times he was not there. And whether he got a message or not I don't know, but I would leave a message.(Id.) To her knowledge, Claimant stopped communicating as of February 1, 2012, and she was not able to reach him at all. (Id.)
Ms. Sershen, a Human Resources generalist who became employed by Employer after Employer's termination of Claimant's employment, testified that it is not a policy to require an employee to personally come to the Human Resources Department to get FMLA paperwork, noting that some supervisors will obtain the paperwork for employees. (Id. at 38-39). She testified that although it is not a requirement that a person obtain the paperwork in person, typically Employer "want[s] the employee to come in, so we can sit down and go over the process with them. Since there's a lot of questions." (Id. at 38.) With regard to whether Employer had a policy regarding faxing FMLA documents to a public or commercial fax machine, she testified that she did not know. (Id.) She also testified that she would not have a problem faxing a blank form, but she would not want to fax anything that had any personal information on it, such as name, address, date of birth, etc. (Id.)
Claimant testified that he was approved for FMLA leave on October 24, 2011, but he did not use it until February 11, 2012. (Id. at 43.) During a telephone conversation with Stephanie Vernetti, who works in Employer's Human Resources Department, he told her that he "was going to probably be changing [his] FMLA status because [of his] mother's health." (Id.) He followed up with two letters to her, which he faxed, requesting forms and information. (Id. at 44.) He said that he did not receive any FMLA paperwork thereafter. (Id. at 45.) He testified that he also sent a letter to Ms. Desiderio. (Id. at 46.)
With regard to providing notes, he faxed some notes to Employer, gave notes to a licensed practical nurse who lives next door to his mother so that the neighbor could take them to Employer, and mailed notes to Employer. (Id. at 47-49.)
With regard to the letter dated March 12, 2012, referenced in finding of fact number 24, a copy of that letter is included in the certified record as an exhibit to the hearing. (Id., following hearing transcript.) Its substance is consistent with finding of fact number 24.
On cross-examination, Claimant acknowledged that he received a letter dated February 14, 2012, from Stephanie Vernetti, who works for Employer's Human Resources Department, in which Ms. Vernetti acknowledged receiving faxes from Claimant dated February 8th and 12th. (Id. at 59.) He acknowledged that Ms. Vernetti stated in her letter that she had the information requested by Claimant, but that communicating by fax was not an adequate way of corresponding with each other. (Id.) She requested that he contact her via telephone, which he acknowledges he did not do. (Id.) Claimant also acknowledged receiving the letter, dated March 12, 2012, wherein Employer's counsel reminded Claimant that the materials were available for pick-up and requested Claimant contact Employer. (Id. at 59-60). Claimant testified that, in response to the letter, he sent his wife to pick up the materials, but Employer would not give the materials to his wife. (Id. at 60.) He did not go to pick up the materials because his mother was terminally ill. (Id.) Again, Claimant did not call Employer or Employer's counsel in response to that letter. (Id. at 61.) In fact, Claimant testified that he did not respond to the February 7th or March 12th letters as he "saw no need to call" because he spoke with Ms. Vernetti on February 7, 2012. (Id.) He disputed that Employer ever called him. (Id.) Claimant further acknowledged receipt of a letter, dated April 16, 2012, from Employer's counsel, which purported to summarize his recent employment history, reiterated that Employer had made repeated attempts to contact him regarding his employment status, and requested that Claimant contact Employer or Employer's counsel within ten days. (Id. at 62.) Claimant disputed that the summary of his recent employment history was accurate or that Employer had made attempts to contact him, describing the letter as being "full of lies." (Id.) He confirmed that he did not contact Employer or Employer's counsel following the receipt of the letter. (Id.)
Claimant also testified that he received Employer's letter, dated May 21, 2014, which terminated his employment for job abandonment based upon his repeatedly failing to show up for work coupled with his lack of meaningful communication with Employer. (Id. at 63.) The letter stated in part that, despite repeated attempts to contact Claimant, Claimant "repeatedly refused to engage in any significant communication" with Employer's staff. (Id.) Claimant again disputed that Employer contacted him. (Id.) He further responded that Employer's counsel (not Employer) had contacted him, and that he "really [doesn't] know why an attorney would be contacting [him]." (Id.) Claimant then stated that he did not contact Employer's counsel because his mother was very ill. (Id.) Claimant also testified that there were times when he called his supervisor (not Human Resources) to inform her that he was using FMLA, that he was not coming in because his mother was very ill, and that he needed the forms to change his FMLA to continuous. (Id. at 65.)
The testimony set forth above constitutes substantial evidence of record in support of findings of fact numbers 24, 28, 35, 36, 37, and 40. Ms. Desiderio and Ms. Landis both testified regarding various attempts made to contact Claimant and Claimant's failure to respond to phone messages left for him. Claimant himself testified that he received the letters dated March 12, 2012, and April 16, 2012, and that he did not respond to them. Ms. Shershen testified to problems regarding faxing human resources information to commercial or public faxes and Employer's preference for having employees come to the Human Resources Department to discuss FMLA matters. Finally, the letter dated May 21, 2012, documents the termination of Claimant's employment and the reasons for the termination. Thus, we reject Claimant's argument that substantial evidence of record does not exist to support the Board's material findings.
Next, we address Claimant's argument that the Board erred in concluding that his actions constituted willful misconduct. Claimant contends that although he did not respond to Employer's counsel upon receipt of his various correspondences, Claimant did ensure Employer had knowledge of Claimant's circumstances. Specifically, Claimant repeatedly contacted Employer regarding his need to request continuous FMLA leave forms. Furthermore, in conjunction with calling off from his scheduled shifts, Claimant advised his supervisor that his mother was terminally ill, that the necessity of turning in doctor's notes to support his use of intermittent FMLA leave was burdensome, and that he required the continuous FMLA leave forms. Claimant also argues that he did not violate any existing work rule and that there is a lack of evidence establishing that Employer had a rule requiring employees to engage in "meaningful communication" with Employer while on FMLA leave. Claimant contends that he was not aware of any obligation to communicate with Employer in this respect or that he could potentially face discipline for his failure to do so.
In his brief, Claimant also argues that Employer's termination letter reciting Claimant's attendance record and describing his failure to submit medical documentation regarding his absences is inaccurate. Additionally, Claimant contends that any alleged failure on his behalf to comply with Employer's rule requiring a doctor's note to accompany each use of intermittent FMLA leave cannot be deemed to constitute willful misconduct, as such a rule is unreasonable for being contrary to the federal regulations regarding the use of FMLA leave.
We note that the Board based its conclusion that Claimant engaged in willful misconduct solely on Claimant's failure to follow Employer's reasonable directive to contact Employer's Human Resources Department, whether by phone or in person, regarding his absences. Thus, Claimant's arguments regarding the accuracy of Employer's termination letter and the reasonableness of Employer's rule requiring a physician's note to accompany each use of FMLA leave are irrelevant.
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 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).
The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). "It is not always necessary . . . to find that a rule has been violated to establish 'willful misconduct.' An employee's refusal, without good cause, to obey the reasonable directive of his employer can also constitute 'willful misconduct.'" Bailey v. Unemployment Comp. Bd. of Review, 457 A.2d 147, 149 (Pa. Cmwlth. 1983). When a claimant is terminated for refusing to comply with an employer's directive, the employer has the burden to establish the reasonableness of the directive. See Blue v. Unemployment Comp. Bd. of Review, 616 A.2d 84, 86 (Pa. Cmwlth. 1992), appeal denied, 626 A.2d 1159 (Pa. 1993). Once the employer meets its burden, the burden shifts to the claimant to show good cause for his refusal to comply with the directive. Blue, 616 A.2d at 86-87. A claimant has good cause if his actions are reasonable and justifiable under the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether an employee's conduct constitutes willful misconduct and whether a claimant has proved good cause are questions of law subject to our review. Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
Furthermore, "we have consistently held that advance warning is not a prerequisite to a finding of willful misconduct." Reed v. Unemployment Comp. Bd. of Review, 414 A.2d 172, 174 (Pa. Cmwlth. 1980).
Here, in addition to making several of its own attempts to contact Claimant, Employer repeatedly directed Claimant to contact Employer's Human Resources Department, either by phone or in person, regarding his absences. We agree with the Board that this directive was reasonable, not only in light of the complexities of FMLA leave, but also because an employee owes an employer a certain level of cooperation in the employment relationship. A review of the Board's findings reveals that, notwithstanding his receipt of this reasonable directive, Claimant refused to comply by limiting his communication with Employer to letters, faxes, and medical notes delivered by third parties. Thus, Employer met its burden to prove willful misconduct. We must determine, therefore, whether Claimant met his burden to demonstrate good cause for his actions.
We conclude that Claimant failed to establish good cause for his failure to comply with Employer's directive. As stated earlier, to prove "good cause," a claimant must demonstrate that his actions were justifiable and reasonable under the circumstances. Docherty, 898 A.2d at 1208-09. In this regard, Claimant argues that he could not take the time to call or meet Employer due to his mother's terminal illness and the fact that he was her only caretaker. The Board, however, did not find these reasons for violating Employer's directive to be credible, and, thus, it did not find that there was good cause for Claimant's refusal to comply. The Board is the ultimate fact finder and is entitled to make credibility determinations. Peak, 501 A.2d at 1388. Further, questions of credibility are not subject to reevaluation on judicial review. Id. The Board determined that Claimant was not credible, and this Court will not reevaluate the Board's credibility determination. Thus, the Board did not err in concluding that Claimant's actions constituted willful misconduct.
We next address Claimant's argument that the Board erred in denying his requests for a remand hearing. Claimant argues that the Board erred based upon a determination of the Wage and Hour Division of the Federal Department of Labor (Department) that his termination violated the FMLA. Specifically, Claimant contends that because the Department's determination had the potential to impact the determination here (that Claimant committed willful misconduct by violating a directive of Employer's), this denial was in error.
At the outset, we note that Claimant has failed to include this issue in his petition for review and, therefore, it is waived. See Tyler v. Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991). Nevertheless, even in the absence of waiver, we would conclude that the Board did not err in denying Claimant's requests for a remand hearing. "The law is clear that the Board has discretionary power to remand a case to the referee for the taking of additional evidence if the Board determines that the record before it is inadequate for a proper resolution of the issues presented." Primecare Med., Inc. v. Unemployment Comp. Bd. of Review, 760 A.2d 483, 487 (Pa. Cmwlth. 2000). With regard to the denial of a remand, this Court will reverse a decision to grant or to deny remand only for an abuse of discretion. Fisher v. Unemployment Comp. Bd. of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997). Again, the Board concluded that Claimant engaged in willful misconduct based solely on Claimant's failure to follow Employer's reasonable directive to contact Employer's Human Resources Department, whether by phone or in person, regarding his absences. As indicated above, the Board did not err in reaching this conclusion. Moreover, even if the Department decided that Claimant's termination, to the extent it was based upon Claimant's alleged failure to show up for work, violated the FMLA, Claimant's contention that such a decision "had the potential" to impact the Board's decision as to Claimant's willful misconduct is insufficient to warrant a remand hearing. Thus, the Board did not abuse its discretion in denying Claimant's requests for a remand hearing.
Our Supreme Court recently amended Pa. R.A.P. 1513, relating to petitions for review, effective January 1, 2015. With regard to appellate jurisdiction petitions for review, the 2014 amendment to Pa. R.A.P. 1513(d)(5) provides that an omission of an issue from the general statement of the objections to the order or other determination "shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record." The petition for review in this case, however, was filed prior to the effective date of the amendment. --------
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 8th day of January, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge