Opinion
No. 562 C.D. 2012
03-07-2013
Robert B. Harrison, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Robert B. Harrison (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was not eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), because he committed willful misconduct by failing to call out sick from work in accordance with his employer's absenteeism policy. Claimant contends that he is eligible for benefits because he did not violate the work rule about reporting absences. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, as follows:
An employe shall be ineligible for compensation for any week -
43 P.S. §802(e).
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(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work ....
Claimant was employed by Jetstream Ground Services, Inc. (Employer) as a full-time grounds services supervisor beginning in March 2011. Claimant's last day of work was October 7, 2011. Claimant took a personal day on October 8th, took a sick day on October 9th, and had scheduled days off on October 10th, 11th and 12th. Claimant then took sick days on October 13th and 14th. Employer fired Claimant on October 14, 2011, for the stated reason that Claimant violated company policy by not calling to report his absence on October 14th.
Claimant applied for unemployment benefits. The Duquesne UC Service Center denied benefits, and Claimant appealed. A Referee held a hearing where both Claimant and Employer appeared and presented evidence.
General manager, Jim Stratthaus, testified for Employer. Stratthaus testified that Employer has a "no-call, no-show" absenteeism policy that can result in termination if an employee fails to notify Employer that he will be absent from work. Reproduced Record at 6a (R.R. ___). Employer fired Claimant after he failed to report for his shift or call off on October 14, 2011.
Plant manager Michael Parker also testified on behalf of Employer. Claimant notified Parker on October 9, 2011, that Claimant was going to be out sick that day. Parker next heard from Claimant on October 18th, when Claimant left Parker a voicemail message asking where things stood with his job.
Employer submitted into evidence copies of Employer's Rules of Conduct, its Attendance and Absenteeism Policy and its Handbook, all of which Claimant signed on February 14, 2011, acknowledging their receipt. These documents require that absences from work be reported to Employer. The Rules of Conduct instruct that:
In his brief, Claimant points out that there was no testimony that he actually signed the documents or was aware of the absenteeism policy. However, when the documents were admitted at the hearing, Claimant did not object that he did not sign the documents or claim that he was not aware of the policy.
Any absence from work, and the reason for the absence (e.g., illness, tardiness, no transportation etc.), must be reported to an employee's supervisor as soon as possible, but no later than the time established by the Company which is 3 hours prior to start time.R.R. 31a. The Rules of Conduct explain that an unauthorized absence from work "may result in disciplinary action up to termination of employment." Id.
The Attendance and Absenteeism Policy states, in relevant part, as follows:
The company handbook contains almost identical language.
Personnel will be expected to notify their immediate supervisor of changes in their schedules at least 3 hours before [the start of a shift]. If you can not (sic) contact your Shift Supervisor then you must contact the Station Manager.R.R. 35a (emphasis in original). The Policy further states that "[i]n order to determine excessive absenteeism, [the] Human Resources Department will look for" various employee conduct, including "[n]ot calling in on the day of absence." Id. (emphasis added).
Absenteeism without notification (no call/no show) may lead to disciplinary action including but not limited to three (3) days suspension or employment termination.
Claimant testified in support of his claim. He stated that Employer permitted him to take a personal day on October 8, 2011, to help his sister, who is legally blind, with her transportation needs. Claimant called Employer on October 9th to report that he would not be coming to work that day due to illness. Claimant had regularly scheduled days off on October 10th, 11th, and 12th. On October 13th, Claimant's next scheduled work day, Claimant called Employer's answering service before the start of his shift and reported that he was not coming to work because he was still sick. In the voice message, Claimant stated that his illness was "coming and going" and that he "possibly need[ed] to see a doctor at that point." R.R. 20a. Claimant did not report for his scheduled shift on October 14th and did not call in sick on that day. Claimant testified that he felt his voice message from October 13th would cover the 14th as well, because Claimant had stated in the message that he "would update [Employer], you know, after I got a doctor's appointment." R.R. 21a.
Employer stipulated that Claimant was, in fact, ill during that time.
Claimant presented testimony from a witness; however, we do not summarize that testimony because it is not relevant to the issues raised on appeal.
The Referee denied benefits, concluding that Claimant committed willful misconduct by not calling out sick on October 14, 2011, as required by Employer's absenteeism policy. Claimant appealed, and the Board made its own findings and conclusions. The Board found that Claimant called on October 13, 2011, and left a message on Employer's voicemail stating that he was sick and would see a doctor. The Board also found that Employer discharged Claimant for violating the absenteeism policy because he did not report for work and did not call off on October 14, 2011. The Board concluded that Claimant engaged in willful misconduct because he violated Employer's absenteeism policy when he failed to report off on October 14, 2011, and Claimant did not show good cause for failing to contact Employer after October 13th. Accordingly, the Board held Claimant ineligible for benefits under Section 402(e) of the Law. Claimant now petitions this Court for review.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987). We must view the record in the light most favorable to the party that prevailed before the Board, giving that party the benefit of all reasonable inferences that can be drawn from the evidence. Big Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).
On appeal, Claimant presents two issues for our consideration. First, Claimant argues that the Board erred in concluding that Claimant engaged in willful misconduct because he did not violate Employer's absenteeism policy. Second, Claimant argues that the Board made an erroneous finding regarding Claimant's use of a personal day on October 8, 2011.
We begin with a review of the law on willful misconduct. An employee who engages in willful misconduct is ineligible for unemployment compensation benefits under Section 402(e) of the Law. The employer has the burden of proving willful misconduct on the part of a discharged employee. Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 164 (Pa. Cmwlth. 2004). Willful misconduct includes a "deliberate violation of the employer's rules." Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998). The employer must prove that a work rule exists, is reasonable, and that the claimant deliberately violated the rule. Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004). An absence "not properly reported in accord with an employer's rules" can constitute willful misconduct. Gettig Engineering v. Unemployment Compensation Board of Review, 473 A.2d 749, 751 (Pa. Cmwlth. 1984).
The burden then shifts to the claimant to show good cause for his action, meaning that his action was justifiable or reasonable under the circumstances. Eshbach, 855 A.2d at 948. Whether a claimant's action constitutes willful misconduct and whether a claimant proved good cause are both questions of law fully reviewable by this Court. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1016 (Pa. Cmwlth. 2008).
Claimant acknowledges that he did not call off work on October 14, 2011, but asserts that he did not violate Employer's absenteeism policy, which requires an employee to call out sick "at least 3 hours before" the start of a shift. R.R. 35a. Claimant contends that he called off for October 14th when he called on October 13th, which was well prior to three hours before the start of his October 14th shift and, thus, in full compliance with Employer's absenteeism policy. Claimant argues that Employer's policy does not proscribe the practice of calling off for multiple days in a single phone call.
The Board responds that it is not relevant whether Employer's policy permitted employees to report off for multiple days at once. Claimant's message on October 13th was that he needed to see a doctor and would be in contact after the doctor's appointment. This message did not communicate Claimant's intention not to report to work on October 14th. We agree.
Employer intervened and submitted a brief in support of the Board's determination.
The Board also asserts that Claimant did not properly call off work for October 13th because he left a voice message on that date rather than speaking to a supervisor as required by Employer's policy. In addition, Employer suggests that Claimant violated its rules because his call on October 13th came only two hours before the start of that shift, not the requisite three hours. The Board made no findings that Claimant did not properly call off work for October 13th, instead focusing solely on his failure to call Employer for October 14th. Therefore, we are concerned only with October 14th.
It is undisputed that Employer has a strict "no call/no show" absenteeism policy. The Board found that Claimant violated the policy by not calling or reporting for work on October 14, 2011. A fair reading of the policy is that notice at least "3 hours prior to start time" means that the notification must be made on the day of the absence. In addition, the policy lists "not calling in on the day of absence" as a component of absenteeism.
However, even if the policy allows an employee to make one call for multiple days, Claimant did not do so. Claimant's October 13th message stated that he was sick, needed to see a doctor and "would update [Employer]...after [he] got a doctor's appointment." R.R. 21a. This message covered October 13th, but it did not state that Claimant would not be coming to work on October 14th. Accordingly, this message did not satisfy Employer's absenteeism policy.
In addition, Claimant did not establish good cause for his failure to contact Employer about his October 14th absence or to explain the outcome of his doctor appointment. Claimant gave no reason why he could or did not call.
Indeed, the only evidence was Parker's testimony that he did not hear from Claimant again until October 18th, when Claimant called asking about the status of his job. --------
In his second issue, Claimant argues that the Board erred when it found that "[t]he claimant took October 8, 2011 off as a personal day, although the employer had denied his request." Board Adjudication at 2, Finding of Fact 6. Claimant points out that Employer initially denied Claimant the use of a personal day on October 8, 2011, but Claimant's supervisor subsequently gave him permission to take the personal day. The Board admits that this finding of fact is incorrect and that Employer permitted Claimant to take a personal day on October 8th. However, because Claimant's absence on October 8th did not factor into the denial of benefits, the mistake is, at most, harmless error.
For these reasons, we affirm the Board.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 7th day of March, 2013, the order of the Unemployment Compensation Board of Review dated March 26, 2012, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge