Opinion
No. 664 C.D. 2014
01-06-2015
ECM Transport, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
ECM Transport, Inc. (Employer), petitions for review of the March 24, 2014 order of the Unemployment Compensation Board of Review (Board) granting Jennifer L. Gordon (Claimant) unemployment compensation benefits. We affirm the order of the Board.
Employer discharged Claimant from its employ and Claimant filed for unemployment compensation benefits. Employer submitted separation information to the Department of Labor and Industry and opposed Claimant's unemployment compensation claim on the grounds that Claimant's absenteeism amounted to willful misconduct, making her ineligible to receive benefits under Section 402(e) of the Unemployment Compensation Law (Law). (Record Item (R. Item) 3, Employer Separation Information.) On September 18, 2013, the Department of Labor and Industry issued a Notice of Determination concluding that Claimant was ineligible to receive unemployment compensation due to her discharge from employment for willful misconduct. (R. Item 4, Notice of Determination.) Claimant appealed the Notice of Determination and a hearing was held before a Referee on November 21, 2013, at which both Employer and Claimant were represented by counsel. (R. Item 8, Hearing Transcript.) Following the hearing, the Referee issued a December 12, 2013 decision and order that affirmed the Notice of Determination and that concluded Claimant was ineligible to receive unemployment compensation due to excessive absenteeism amounting to willful misconduct. (R. Item 9, Referee Decision and Order.) Claimant appealed the Referee's order to the Board, and the Board reversed the Referee in a March 24, 2014 decision and order, concluding that Claimant was not ineligible to receive unemployment compensation benefits. (R. Item 15, Board Decision and Order.)
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 or her unemployment is due to discharge for willful misconduct connected to his or her work. Id.
In its decision and order, the Board made the following findings of fact:
1. [Claimant] was employed by [Employer] as a full-time administrative clerk from March 2009 to August 20, 2013.
2. At the time of separation, [Claimant] was working in a light duty position due to a work-related injury.
3. [Claimant] had been warned about her attendance, most recently in a letter dated July 23, 2013.
4. The July 23, 2013, warning indicated that [Claimant's] position would be terminated if she missed a day of work without a justifiable excuse.
5. [Claimant] was absent from work August 12, 2013, through August 19, 2013.
6. When [Claimant] returned to work on August 20, 2013, she was sent home because [Employer] found [Claimant's] excuse to be inadequate.
7. [Claimant] was given a deadline of 5:00 p.m. on August 26, 2013, to provide adequate medical documentation to justify her extended absence.
8. [Claimant] presented [Employer] with a return to work slip dated August 13, 2013.
9. The return to work slip indicated that [Claimant] was seen in the Emergency Room of Westmoreland Hospital on August 13, 2013.
10. [Claimant] followed up with a doctor's visit on August 14, 2013.
11. In emails to [Employer], [Claimant] initially indicated that she hoped to be back to work on Thursday, August 15, 2013.
12. On the morning of August 15, 2013, [Claimant] sent an email to [Employer] indicating that she was to have an epidural shot tomorrow, August 16, 2013, and that she would return to work on Monday, August 19, 2013.
13. [Claimant] did not have an epidural shot on August 16, 2013, and did not return to work on Monday, August 19, 2013.
14. On the evening of Sunday, August 18, 2013, [Claimant] sent an email to [Employer] that she "forgot all about the doctor appointment Monday" and that she would not be in until Tuesday, August 20, 2013.
15. [Claimant] presented [Employer] with a doctor's note dated August 19, 2013, indicating that [Claimant] was cleared for light duty work.(R. Item 15, Board Decision and Order, Findings of Fact (F.F.) ¶¶1-12.) In addition to its findings of facts, the Board also found that Claimant's testimony was credible and resolved any conflicts between her testimony and the testimony offered by Employer's witnesses in Claimant's favor. (R. Item 15, Board Decision and Order, Discussion at 3.) Employer appealed the Board's decision to this Court for review.
16. [Claimant] had a doctor's appointment on August 19, 2013.
17. [Claimant] provided [Employer] with a second doctor's note dated August 22, 2013, asking [Employer] to excuse [Claimant] from August 12, 2013, to August 19, 2013, for chronic flare-ups.
18. [Claimant's] doctor's notes indicated that [Claimant] could not perform in a light duty capacity during her extended absence.
19. [Employer] discharged [Claimant] on August 27, 2013, for excessive absenteeism.
20. [Claimant] was not excessively absent.
In an unemployment compensation appeal, this Court's scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, and whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; On Line Inc. v. Unemployment Compensation Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 647 n.4 (Pa. Cmwlth. 2012). --------
Before this Court, Employer argues that the Board's order is not supported by substantial evidence. The Board contends that Employer has failed to specifically challenge any of its findings and that Employer's argument merely amounts to a recitation of Employer's own version of the facts. The Board is the ultimate finder of fact and empowered to make credibility determinations and weigh the evidence. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1387 (Pa. 1985). Where supported by substantial evidence, the Board's findings are conclusive on appeal. Id. Whether a claimant has committed willful misconduct is a question of law subject to de novo review. Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. 1996).
An employer may discharge an employee for any reason, including absenteeism, or for no reason at all. If an employer discharges an employee, the employee is presumed to qualify for unemployment compensation benefits, except where the Law specifically excludes the employee from receiving benefits, including instances where the employer has shown that the employee's discharge from employment was due to willful misconduct. 43 P.S. § 802(e). The burden to demonstrate that the employee requesting unemployment compensation benefits was discharged for willful misconduct is borne by the employer. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
Excessive absenteeism may constitute willful misconduct under the Law. Grand Sport Auto v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). However, absenteeism alone is an insufficient basis on which to deny a claimant unemployment compensation; an additional element, such as lack of good cause, is necessary to find a claimant ineligible for unemployment compensation. Runkle v. Unemployment Compensation Board of Review, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). In addition to lack of good cause, the following factors have been found to constitute willful misconduct when coupled with absenteeism: excessive absences; failure to notify the employer in advance of the absence; disregard of warnings regarding absenteeism; and disobedience of existing company rules, regulations, or policy with regard to absenteeism. Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).
If an employer has demonstrated that the claimant was discharged due to willful misconduct, the burden shifts to the claimant to demonstrate that good cause exists for the claimant's conduct because the actions taken by the claimant were justifiable or reasonable under the circumstances. Docherty, 898 A.2d at 1208. Illness constitutes good cause for an absence from employment, but a claimant has the burden to demonstrate that the absence was due to illness. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 1112, 114 (Pa. Cmwlth. 1993). The failure of an employee to provide reasonable medical documentation of illness where required by an employer can constitute willful misconduct. LeGare v. Unemployment Compensation Board of Review, 444 A.2d 1151, 1153-1154 (Pa. 1982); Lausch v. Unemployment Compensation Board of Review, 679 A.2d 1385, 1393 (Pa. Cmwlth. 1996).
Claimant had been warned about her attendance and the warning clearly stated that if Claimant missed work again without a justifiable excuse she would be terminated from employment. (R. Item 15, F.F. ¶¶3-4.) Claimant was absent from work from August 12, 2013 until August 19, 2013. (Id., F.F. ¶5.) When Claimant returned to work, Claimant provided two doctors notes and documentation of a hospital visit to justify her absence. (Id., F.F. ¶¶8-9, 15, 17-18.) Employer does not dispute that Claimant submitted documentation of her illness, but contends that this documentation was insufficient to establish good cause. Employer confuses its own right to terminate Claimant from employment with the issue of whether Claimant is ineligible to receive unemployment compensation benefits. Employer may not have found the documentation submitted by Claimant or the testimony offered by Claimant sufficient and credible to maintain her employment; however, the Board found the medical documentation submitted by Claimant and the credible testimony concerning her illness sufficient to find good cause for her absence from work. The Board made the necessary findings of facts and they are supported by substantial evidence. Employer's argument to the contrary simply asks this Court to reweigh the evidence in its favor, an exercise which is well beyond this Court's authority. Where a claimant has demonstrated good cause for work absences, a claimant is not ineligible under the Law to receive unemployment compensation benefits due to willful misconduct. Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 798 (Pa. Cmwlth. 2000); Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1052 (Pa. Cmwlth. 1985); Bogan v. Unemployment Compensation Board of Review, 447 A.2d 708, 710 (Pa. Cmwlth. 1982). Accordingly, Claimant was properly granted unemployment compensation benefits.
The order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 6th day of January, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge