Opinion
No. 1515 C.D. 2011
03-30-2012
Steven L. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Steven L. Johnson (Claimant), pro se, petitions this Court for review of the July 28, 2011 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of the Referee denying Claimant unemployment compensation (UC) benefits. There are essentially two issues before this Court: (1) whether Claimant is entitled to a remand, and (2) whether the UCBR erred when it concluded that Claimant was discharged for willful misconduct. We affirm.
Claimant was last employed on March 2, 2011, as a full-time staff facilitator with It Takes a Village (Employer). He worked at Employer's Harrisburg and Philadelphia locations. Claimant had a history of tardiness. On July 16, 2010, Employer warned Claimant regarding his tardiness. On November 30, 2010, Claimant was late for a team meeting. On January 20, 2011, February 11, 2011 and February 18, 2011, Claimant was again tardy. On March 1, 2011, Claimant notified Employer that he would be unable to travel to Philadelphia for work that day because he did not have transportation. Employer directed Claimant to take a bus or train as he had to be in Philadelphia. Claimant did not report to Philadelphia or to Employer's Harrisburg location. On March 2, 2011, Claimant contacted Employer and told him he could not travel to Philadelphia because he still did not have transportation. Employer directed Claimant to come to Philadelphia or to consider his employment terminated. Claimant again, failed to report to work. Claimant's employment was terminated that same day.
Claimant subsequently applied for UC benefits. On March 18, 2011, the Lancaster UC Service Center issued a determination finding Claimant eligible for benefits under the Unemployment Compensation Law (Law). Employer appealed and, on June 2, 2011, a hearing was held by a Referee. Employer appeared at the hearing. Although Claimant was notified of the date, time and location of the hearing, he did not attend. On June 6, 2011, the Referee mailed his decision reversing the UC Service Center's determination and denying Claimant UC benefits. Claimant appealed to the UCBR. On July 28, 2011, the UCBR affirmed the order of the Referee and denied Claimant's request for a remand. Claimant appealed to this Court.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751 - 914.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant argues that he was entitled to a remand, because if his evidence had been presented at the hearing, he would have been deemed eligible for benefits. We disagree.
Section 101.51 of the UCBR's Regulations states:
[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing
may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code § 101.51. When a party fails to appear at a hearing and later requests that the matter be remanded for the presentation of additional evidence, the UCBR determines whether the party had proper cause for its failure to appear. 34 Pa. Code § 101.24(a). If it finds proper cause, the UCBR remands the matter for a hearing and the case is reopened. Id. A UCBR decision denying remand will only be reversed in the event of a clear abuse of discretion. Asplundh Tree Expert Co. v. Unemployment Comp. Bd. of Review, 470 A.2d 1097 (Pa. Cmwlth. 1984). A claimant's own negligence does not constitute proper cause. Savage v. Unemployment Comp. Bd. of Review, 491 A.2d 947 (Pa. Cmwlth. 1985).
Here, Claimant's reason for failing to appear at the hearing is that he was moving and he misplaced the hearing notice. He did not deny receiving notice of the hearing or assert that he was unaware that the hearing was scheduled to occur on June 2, 2011. Further, he did not request that the hearing be rescheduled. Thus, Claimant failed to demonstrate proper cause for his failure to appear at the hearing. Accordingly, the UCBR did not abuse its discretion in finding that Claimant was not entitled to a remand.
Attached to Claimant's Petition for Appeal to the UCBR was a letter dated June 11, 2011, wherein Claimant explained that his reason for failing to appear at the hearing was because he was "moving, and misplaced the appropriate notice." Certified Record, Petition for Appeal. --------
Having determined that the UCBR did not err when it refused to remand the matter for the taking of additional evidence, we must consider whether the UCBR's decision to deny UC benefits was proper based upon the evidence before it.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the
burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted). In a case involving a rule violation, it is the employer's burden to prove the existence of the rule and its violation by the claimant. Metropolitan Edison Co. v. Unemployment Comp. Bd. of Review, 606 A.2d 955 (Pa. Cmwlth. 1992). "Once the employer meets its burden, a claimant may then prove he had good cause for his actions. Good cause is established where the action of the employee is justifiable or reasonable under the circumstances." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (citation and quotation marks omitted).
This Court has held that "[a]bsenteeism alone does not constitute willful misconduct." Lacomis v. Unemployment Comp. Bd. of Review, 525 A.2d 442, 443 (Pa. Cmwlth. 1987). However, this Court has also noted that "[a]n employer has the right to expect that his employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission." Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). "[C]hronic tardiness particularly after a warning and unjustified absenteeism constitute willful misconduct." PMA Reinsurance Corp. v. Unemployment Comp. Bd. of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989).
In the instant matter, the UCBR determined that on July 16, 2010, Claimant was warned regarding his tardiness. Yet after receiving this warning, Claimant was late four more times and was absent twice, despite Employer's direct order to report to work. Claimant explained his reasons for his tardiness and absenteeism in his June 11, 2011 letter, which he attached to his Notice of Appeal to the UCBR. However, the UCBR cannot consider evidence that was not submitted to the Referee. 34 Pa. Code § 101.106; see also Lock Haven Univ. of Pa. of State Sys. of Higher Educ. v. Unemployment Comp. Bd. of Review, 559 A.2d 1015 (Pa. Cmwlth. 1989); Perrelli v. Unemployment Comp. Bd. of Review, 426 A.2d 1272 (Pa. Cmwlth. 1981). Claimant's brief also provides explanations for his tardiness and absenteeism, but such evidence is not part of the record and therefore, cannot now be considered by this Court. See Lausch v. Unemployment Comp. Bd. of Review, 679 A.2d 1385 (Pa. Cmwlth. 1996). Accordingly, there is no evidence in the record establishing good cause for Claimant's failure to adhere to Employer's directive.
"The [UCBR] is the ultimate fact finder and is empowered to make credibility determinations." Baldauf v. Unemployment Comp. Bd. of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004). Moreover, where substantial evidence supports the UCBR's findings, credibility determinations made by the UCBR are not subject to review by this Court. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994). Here, the UCBR adopted the Referee's finding that Employer's evidence was credible and that Claimant was discharged for willful misconduct. Because there is substantial evidence to support its findings, we discern no error in the UCBR's decision.
For all of the above reasons, we affirm the UCBR's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 30th day of March, 2012, the July 28, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge