Opinion
No. 1812 C.D. 2013
04-30-2014
Eugenia G. Hayes, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Eugenia G. Hayes (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because Claimant violated the attendance and tardiness policy of Deer Meadows Retirement Community (Employer). For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
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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, irrespective of whether or not such work is "employment" as defined in this act.
Claimant was employed as a full-time Certified Nursing Assistant with Employer from November 10, 1988, through March 27, 2013. Employer maintains an attendance and tardiness policy which provides, in relevant part, that "[c]locking out late, that is, more than six (6) minutes after the assigned ending time, is an unacceptable attendance action which creates unauthorized overtime, and is subject to appropriate disciplinary action." (Certified Record at 3) (emphasis in original). The policy further provides that if formal discipline is required, it usually will proceed in the following progressive steps: verbal warning, written warning, final written warning, suspension and termination of employment. (Id.)
Between March and July 2012, Claimant received a verbal warning for unauthorized overtime; received a written warning for an unrelated attendance issue; and was suspended for allegedly making threatening remarks. At the time of her suspension, Employer warned Claimant that her employment was at risk and that any future violations could result in termination of her employment. On March 12, 2013, Claimant was scheduled to work from 7 a.m. to 3:30 p.m., but clocked out at 3:45 p.m. in violation of Employer's policy. On March 27, 2013, following a meeting at which Claimant did not deny that she failed to clock out in a timely manner on March 12, 2013, Employer terminated Claimant's employment.
Claimant filed for unemployment compensation benefits with the UC Service Center, which denied benefits, and Claimant appealed. Before the Referee, Bruce McNamee (McNamee), Employer's Director of Employee Relations, testified that Claimant was aware of Employer's attendance and tardiness policy and that Claimant violated that policy by clocking out 15 minutes late on March 12, 2013. He further testified that the policy is uniformly enforced, and that Claimant did not dispute or provide any specific reason for clocking out late on the date in question at her termination meeting. Despite receiving notice, Claimant did not appear at the Referee hearing. Finding that Employer met its burden of proving that Claimant's violation of the attendance and tardiness policy constituted willful misconduct and that Claimant failed to establish good cause for the violation, the Referee denied benefits.
Babu Abraham, Employer's Director of Nursing, also testified that Claimant clocked out 15 minutes late on March 12, 2013, and did not provide a reason for doing so at her termination meeting.
Claimant then appealed to the Board, arguing that her actions did not constitute willful misconduct and that she did not appear at the Referee hearing because her attorney was unable to provide a written request for a continuance prior to the hearing. The Board specifically found that "[n]either the claimant nor the claimant's attorney requested a continuance or notified the Referee's office of their inability to appear at the hearing." (Board's September 6, 2013 Order). With respect to Claimant's explanation for not attending the hearing, the Referee concluded that "the claimant's stated reason for requesting a remand hearing is vague and is legally insufficient to show good cause for failing to appear at the hearing." (Id.) The Board also upheld the Referee's finding that Claimant's actions constituted willful misconduct. Accordingly, the Board affirmed the Referee's denial of benefits and held that a remand hearing was not warranted. This appeal by Claimant followed.
Claimant's appeal states, in relevant part:
Claimant retained counsel on Friday, May 24, 2013, and counsel was unavailable and unable to provide a written request for a continuance of the hearing scheduled for Tuesday, [M]ay 28, 2013, the day after Memorial Day, prior to the hearing so the hearing proceeded without Claimant present and able to provide good cause necessary to meet her burden in the event that Employer was able to establish that Claimant violated a rule.(Certified Record at 11). Although this portion of the appeal does not explicitly request a remand hearing, the Board considered it to be such a request and addressed whether a remand hearing would be appropriate.
Our review is limited to determining whether the Board's decision is in violation of constitutional rights, whether an error of law has been committed, or whether the factual findings are supported by substantial evidence. Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 n.2 (Pa. Cmwlth. 2011). --------
On appeal, Claimant argues that the Board erred in denying her request for a remand hearing. In her brief, Claimant alleges, for the first time, that her attorney contacted the Referee via telephone on the morning of May 28, 2013, at which time he advised the Referee of his inability to attend the hearing and that the Referee "informally" denied her attorney's request for a continuance.
The Department of Labor and Industry's (Department) regulations address requests for reopening the record where a party does not attend a scheduled hearing:
If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute "proper cause," the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing;
[and] shall give reasons believed to constitute "proper cause" for not appearing[.]34 Pa. Code §101.24(a). Our Supreme Court has held that "[i]f a party fails to appear at a scheduled hearing, that party must show good cause for that failure before the Board will delay the final disposition of the case by remanding for additional hearings. Were it otherwise, there would be no incentive to appear at the initial hearing." McNeill v. Unemployment Compensation Board of Review, 510 Pa. 574, 579, 511 A.2d 167, 169 (1986). If the reasons proffered for a party's failure to attend a hearing "are clearly legally insufficient to support the finding of proper cause," a remand is unnecessary. Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 47 n.12 (Pa. Cmwlth. 2012). The decision to grant or deny a request to reopen a hearing is within the Board's discretion. Cannady v. Unemployment Compensation Board of Review, 487 A.2d 1028, 1030 (Pa. Cmwlth. 1985).
Here, the sole reason proffered by Claimant before the Board for her nonappearance at the Referee hearing was that her attorney, whom she retained on the Friday of a holiday weekend before the Tuesday hearing, was "unavailable and unable to provide a written request for a continuance." That reason is insufficient to support a finding of proper cause for Claimant's nonappearance because her attorney's inability to formally request a continuance in no way prevented or excused her from attending the hearing.
With respect to Claimant's allegation that the Referee "informally" denied her attorney's request for a continuance on the morning of the May 28, 2013 Referee hearing, Claimant did not raise this issue in her appeal to the Board. Accordingly, this issue has been waived. See Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (allegation not raised before Referee or Board is considered waived for purposes of appeal). See also, Tri-State Scientific v. Unemployment Compensation Board of Review, 589 A.2d 305, 307 (Pa. Cmwlth. 1991) (party who fails to attend hearing after referee's denial of continuance request may not challenge denial of the continuance when the issue was not raised in the notice of appeal to the Board). Moreover, there is no evidence in the Certified Record supporting Claimant's contention that her attorney requested a continuance prior to the hearing, and we are "bound by the facts certified in the record on appeal." Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990).
Accordingly, because Claimant did not show proper cause for failing to attend the Referee hearing, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of April, 2014, the order of the Unemployment Compensation Board of Review, dated September 6, 2013, at No. B-555576, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Although the Law does not define the term "willful misconduct," the courts have defined it as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances. Id.