Opinion
No. 1006 C.D. 2013
06-16-2014
Wallace Kenney, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Wallace Kenney (Claimant), proceeding pro se, petitions for review of the April 24, 2013 Order of the Unemployment Compensation (UC) Board of Review (Board) that affirmed a UC Referee's (Referee) decision finding Claimant ineligible for UC benefits under Section 402(e) of the UC Law (Law). The Board found that Claimant violated R.R. Donnelly & Sons' (Employer) Attendance and Punctuality policy (Policy) when Claimant's absence was not reported within the two-hour window in which an absence should be reported, resulting in that absence being classified as his second "did not report" (DNR). (Policy at 3-4.) On appeal, Claimant argues that the Board erred by not crediting his testimony that he was not scheduled to work on August 5, 2012, rendering his first DNR invalid, and in concluding that he did not timely report his September 10, 2012 absence.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week the employee's unemployment is due to willful misconduct connected with the employee's work).
The Board also affirmed the Referee's determination that Claimant had a fault overpayment and imposing penalty weeks. (Referee Decision at 3; Board Order.) Claimant does not raise any specific arguments related to this issue in his appeal to this Court.
We have reordered Claimant's issues on appeal.
Claimant worked for Employer as a full-time material handler from January 29, 2010 until September 12, 2012, when he was discharged for not complying with Employer's Policy on September 10, 2012. (Referee Decision, Findings of Fact (FOF) ¶¶ 1, 10.) Claimant applied for UC benefits, and the local UC Service Center found Claimant ineligible based on Section 402(e) and that a fault overpayment had occurred. (Notices of Determination, R. Item 5.) Claimant appealed the Notices of Determination, and the matter was assigned to the Referee for a hearing. At the hearing, Employer's Manufacturing Supervisor (Supervisor), Claimant, and Claimant's girlfriend (Girlfriend) testified.
Claimant was represented by counsel before the Referee.
Supervisor testified that Claimant was aware of the Policy because it was reviewed during his orientation and, pursuant to the Policy, two DNRs in a rolling twelve-month period leads to discharge. (Hr'g Tr. at 8, R. Item 9.) Supervisor stated that Claimant failed to call off in accordance with the Policy on August 5, 2012 and September 10, 2012. (Hr'g Tr. at 8-9, 11-12.) According to Supervisor, Claimant's first DNR occurred when he did not report for the midnight shift he was scheduled to work on August 5, 2012. (Hr'g Tr. at 11-12.) With regard to Claimant's second DNR, Supervisor indicated Claimant was scheduled to work at 8:00 a.m. on September 10, 2012, and that a female called at 10:15 a.m. and left a message indicating that Claimant was calling off. (Hr'g Tr. at 9-10.) Supervisor explained that, when the call came in it was after 10:00 a.m., he was on the phone with someone else, but when he hung up he got the message, wrote down the time of the message, and sent an email indicating that he had received Claimant's official call off for the day. (Hr'g Tr. at 10-11.)
Employer also introduced documentary evidence. The Policy states, in relevant part:
Employees should provide notice as soon as possible and the expectation is that this notice should be at least [two] hours prior to the start of their scheduled shift, which allows time to find replacement coverage. In some cases this is not possible. In these cases, notice must be received no later than two hours after the scheduled start time. . . . One [DNR] in a rolling twelve . . . month period will result in a Final Warning. Two [DNRs] in a rolling twelve-month period may result in separation.(Policy, Referee's Ex. 15 at 4, R. Item 4.) Employer presented an acknowledgment form, signed by Claimant, indicating that he had received Employer's handbook and policies. (Acknowledgment Form, Employer's Ex. E-1, R. Item 9.) Employer also produced the "Positive Counseling" reports related to Claimant's August 5, 2012 and September 10, 2012 DNRs. The August 5, 2012 report indicates that Employer warned Claimant that if he "were to incur another DNR prior to 8/5/2013, he could be separated from the company." (Positive Counseling Report at 2, August 8, 2012, Referee's Ex. 18, R. Item 4.) The September 10, 2012 report states that Claimant has "incurred his 2nd DNR in less than a year" and that, pursuant to Employer's Policy, "this constitutes separation from the company." (Positive Counseling Report at 2, September 10, 2012, Referee's Ex. 17, R. Item 4.)
Claimant testified that he was not scheduled to work the midnight shift on August 5, 2012 because he worked the 8:00 a.m. to 4:00 p.m. shift the first week of August 2012. (Hr'g Tr. at 13-14.) With regard to his absence on September 10, 2012, Claimant explained that he was unable to report to work that morning because he was sick in Philadelphia and he asked his sister to have Girlfriend call Employer on his behalf. (Hr'g Tr. at 15.) Girlfriend testified that she received a phone call from Claimant's sister at around 9:10 a.m. asking her to call Employer for Claimant. (Hr'g Tr. at 16.) Girlfriend explained that she called and left a message on Employer's answering machine at around 9:50 a.m. or 9:55 a.m. (Hr'g Tr. at 16.)
Based on this evidence, the Referee made the following relevant findings of fact:
1. The claimant was employed from January 29, 2010, until September 12, 2012 at [Employer] as a full-time material handler, earning approximately $13.73 per hour.
2. The employer has a call off policy, of which the claimant was aware, in which an employee must call to report an absence or tardiness within two hours of the start of the shift.(FOF ¶¶ 1-10.) The Referee concluded that, because Girlfriend left a message with Employer on Claimant's behalf at 10:15 a.m., Claimant's call off was after the two hour window provided by the Policy and constituted a second DNR. (Referee Decision at 2.) Concluding that Claimant did not show good cause for his absence on September 10, 2012 or for failing to properly call off, the Referee held that Employer met its burden of proving that Claimant committed willful misconduct and, therefore, was ineligible for UC benefits under Section 402(e) of the Law. (Referee Decision at 2-3.)
3. Under the policy, a call off after two hours of the start of the shift is considered a "d[id] not report" (DNR).
4. Under the employer's attendance policy, two DNR's [sic] within a 12-month period will result in discharge.
5. On August 5, 2012, the claimant accrued his first DNR after he failed to report for a scheduled shift.
6. The claimant was scheduled to work from 8:00 a.m. to 4:00 p.m. on September 10, 2012.
7. On September 10, 2012, the claimant was absent from work because he was in Philadelphia and was unable to report to work on time.
8. On September 10, 2012, the claimant had his girlfriend call to report his absence.
9. On September 10, 2012, the claimant's girlfriend left a message at 10:15 a.m., which was beyond the two hour window under the employer's call off policy.
10. On September 12, 2012, the claimant was discharged for accruing two DNR's [sic] within a 12-month rolling calendar year.
The Referee made additional findings of fact regarding the issue of overpayment of UC benefits.
Claimant appealed to the Board. The Board affirmed the Referee's decision, and adopted and incorporated the Referee's findings and conclusions into its Order. (Board Order.) Additionally, the Board specifically credited Supervisor's testimony that Claimant did not timely report his absence on September 10, 2012, and rejected Claimant's testimony that he was not scheduled to work on August 5, 2012. (Board Order.) Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant argues that the Board should have credited his testimony that he was not scheduled to work the midnight shift on August 5, 2012 and, therefore, he did not have two DNRs and was not subject to discharge. However, the Board is the ultimate finder of fact in UC cases and questions regarding the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That Claimant might view the testimony differently from the Board does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1109 (Pa. Cmwlth. 1994). Here, the Board credited Supervisor's contrary testimony, this testimony supports the Board's finding that Claimant had a DNR on August 5, 2012, (FOF ¶ 5), and it is not error or an abuse of discretion for the Board to credit Employer's evidence over Claimant's evidence.
Substantial evidence is defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995).
Claimant next asserts that the Board erred in concluding that he did not timely report his September 10, 2012 absence and, therefore, he is entitled to UC benefits. Claimant contends that Girlfriend persistently attempted to contact Employer before 10:00 a.m. to notify Employer of Claimant's absence and, alternatively, that, per Employer's Policy, being fifteen minutes late does not require a call to Employer; therefore, receiving a call two hours and fifteen minutes after the beginning of a shift to report an absence should not be considered a violation of Employer's Policy. Finally, Claimant argues that he did not receive a final warning in association with his August 5, 2012 DNR as required by the Policy.
Claimant also argues that "43 P.S. § 402" was repealed in 1933 and "it was not clear from [the] Board's opinion which title it is referring to." (Claimant's Br. at 11.) Although 43 P.S. § 402 was repealed in 1933, the Board's holding was based on Section 402(e) of the Law, 43 P.S. § 802(e), which addresses circumstances where an employee may not be eligible for UC benefits due to willful misconduct in connection with the employee's work.
Section 402(e) of the Law provides, in pertinent part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e) (emphasis added). While the Law does not define "willful misconduct," our Court has defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for 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) (emphasis added). When the discharge is based on a rule violation, the employer must prove the existence of the rule and the rule's violation. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The employer must also establish that the claimant was aware of the work rule. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). The claimant's actions must be intentional and deliberate. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003). The requirement that the violation of a work rule be deliberate has been in effect since 1951. Detterer v. Unemployment Compensation Board of Review, 77 A.2d 886, 888 (Pa. Super. 1951) (quoting the definition of "Misconduct Precluding Payment of Unemployment Insurance," 48 Am. Jur. 541, 542, § 38).
As early as 1945, scholars have discussed the necessity, in UC matters, "that the disqualification be limited to intentional acts or negligence of equal culpability." Kempfer, Katherine, DISQUALIFICATIONS FOR VOLUNTARY LEAVING AND MISCONDUCT, 55 YALE L.J. 147, 162 (1945).
"If mere mistakes, errors in judgment or in the exercise of discretion, minor and but casual or unintentional carelessness or negligence, and similar minor peccadilloes must be considered to be within the term 'misconduct,' and no such element as wantonness, culpability or willfulness with wrongful intent or evil design is to be included as an essential element in order to constitute misconduct . . . then there will be defeated . . . the principal purpose and object under the act of alleviating the evils of unemployment . . . ."
If the employer satisfies its burden, the burden shifts to the claimant to show that he or she had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). A determination of willful misconduct requires a consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Rebel v. Unemployment Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998). If a claimant has "good cause for the conduct, it [is] not willful misconduct." Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 198 (Pa. 1996). Whether a claimant's actions constituted willful misconduct is a question of law subject to de novo review. Docherty, 898 A.2d at 1209. Moreover, whether a claimant had good cause is also a question of law that should be viewed in the light of all the attendant circumstances. Id. at 1208.
Based on these principles, we are mindful that our inquiry in these cases is comprised of two questions—first, did the employer establish that the claimant intentionally and deliberately violated a known work rule, and, if so, second, did the claimant establish that he or she had good cause for doing so? In answering these questions, we are cognizant that this inquiry involves questions of law subject to our de novo review. Id. at 1208-09. We begin with the question of whether Employer satisfied its burden of proof.
The General Assembly and our Supreme Court have indicated that willful misconduct requires a certain state of mind. See 43 P.S. § 802(e) (disqualifying employees who commit willful misconduct); Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa. 1993) (stating that an employer must produce evidence demonstrating that the employee's actions were intentional and deliberate in nature). The state of mind necessary for a determination of whether a rule violation constitutes willful misconduct is whether the violation was deliberate, Philadelphia Parking Authority, 1 A.3d at 968, and intentional, Grieb, 827 A.2d at 426. This Court has explained that the definitions of "willful," "deliberate," and "intentional" "all include an element indicating a consciousness of wrongdoing on the part of the employee." Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 n.6 (Pa. Cmwlth. 2004). Requiring an employer to show that its employee deliberately or intentionally violated a work rule before the employee is found ineligible for UC benefits is consistent with the Law's remedial purpose, which mandates that the "'disqualification provisions, such as Section 402(e), should be narrowly construed and a claimant must not be denied compensation unless he is unequivocally excluded by the plain language of these provisions.'" Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209, 1217 (Pa. 2012) (quoting Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984)).
"Willful" is defined as "done deliberately: not accidental or without purpose." Webster's Third New International Dictionary 2617 (2002).
"Intentionally" means "in an intentional manner: with intention: PURPOSELY"; "intentional" means "an intended object: AIM, END"; "purposely" means a "deliberate intent; in order to attain an end"; and "deliberate" is "characterized by presumed or real awareness of the implications or consequences of one's actions . . . or by fully conscious often willful intent." Webster's Third New International Dictionary 596, 1176, 1847 (2002). --------
Employer has established through credible evidence that: it has a Policy whereby an employee must call and report an absence within two hours of the beginning of the employee's work shift; the failure to comply with this Policy results in a DNR; two DNRs within a rolling twelve-month period may result in separation; and Claimant was aware of this Policy. (Hr'g Tr. at 8, 10; Policy, Referee's Ex. 15 at 4; Acknowledgment Form, Employer's Ex. E-1.) Employer showed that Claimant had a DNR on August 5, 2012 for failing to report for his scheduled midnight shift, and that Claimant was advised that a second DNR could lead to his discharge. (Hr'g Tr. at 11-12; Positive Counseling Report at 2, August 8, 2012, Referee's Ex. 18.) However, while the Board found that Claimant violated the Policy on September 10, 2012 by calling to report his absence outside the two-hour window required by that Policy, the Board made no finding or determination regarding whether Claimant violated the work rule with a consciousness of wrongdoing, i.e., intentionally and deliberately, as set out in Eshbach, 855 A.2d at 947 n.6. Absent this finding, we cannot review whether Employer satisfied its burden of proof in this matter.
Accordingly, we vacate the Board's Order and remand this matter to the Board for a determination of whether Claimant's violation of Employer's Policy was intentional and deliberate.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 16, 2014, the Order of the Unemployment Compensation Board of Review (Board) entered in the above-captioned matter is hereby VACATED, and this matter is REMANDED to the Board for a determination of whether Wallace Kenney's violation of R.R. Donnelly & Sons' Policy was intentional and deliberate.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Id. (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)).