Opinion
No. 1084 C.D. 2014
02-17-2015
Thomas C. Lockhart, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Thomas C. Lockhart (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that reversed the referee's decision that Claimant was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a full-time access to recoveries specialist by PMHCC, Inc. from November 11, 2011, at a final salary of $29,725.00 and his last day of work was November 15, 2013.
2. On November 13, 2013, the claimant attended a meeting with the employer to discuss the claimant's lateness in reporting to work.
3. The claimant was spoken to numerous times for excessive absenteeism and lateness.Board Opinion, May 29, 2014, (Opinion), Findings of Fact Nos. 1-11 at 1-2.
4. The claimant progressed through the employer's progression of discipline.
5. At the meeting, the claimant was told that he needed to notify his supervisor when he was not coming to work.
6. On November 18, 2013, the claimant called his supervisor and informed her that he slipped on leaves while walking his dog and that he would not be reporting to work.
7. The claimant was informed that a fitness for duty was required to return to work.
8. The claimant did not contact the employer on November 20, November 21, and November 22, 2013.
9. The claimant's supervisor did not tell the claimant that he did not have to contact her until he had his forms filled out.
10. On November 25, 2013, the claimant was discharged for failing to contact the employer.
11. On December 2, 2013, the claimant reported to the employer's office and indicated that he did not receive the termination letter.
Although Claimant provides a reproduced record, the reproduced record does not contain page numbers.
The Board determined:
Here, the claimant offered no credible reason for failing to contact the employer. The Board specifically rejects the claimant's testimony that he was informed that he did
not need to contact the employer while he was getting his forms filled out. Accordingly, benefits are denied under Section 402(e) of the Law.Opinion at 2.
Claimant contends that the Board's decision was unsupported by substantial evidence and that the Board erred when it determined that Claimant committed willful misconduct.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 693 (Pa. Cmwlth. 1994).
Initially, Claimant contends that the Board found that Claimant followed the call off policy of PMHCC, Inc. (Employer) on November 18, 2013, and that, in Finding of Fact No. 7, the Board found that Employer told Claimant not to return to work until he obtained a fitness for duty letter signed by his physician. Based on these findings, Claimant asserts that he had a reasonable basis for failing to call in to report his absences on November 20-22, 2013.
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer's interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The employer bears the burden of proving the existence of the work rule and its violation. Once the employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).
Here, Employer established that its policy manual stated that "[i]f an employee must be absent, supervisors should be given as much advance notice as possible." Policy 602 of PMHCC Policy Manual at 1. Employer further established that its policy concerning an unauthorized leave of absence stated:
An employee who is absent from his or her assigned work location or schedule without official leave approval by the person's supervisor and Program Director for three or more days shall be considered absent without authorized leave. Unless the employee can provide the Agency with acceptable and verifiable evidence of extenuating circumstances, the Agency shall regard the job as abandoned and the employee automatically terminated.Policy 613 of PMHCC Policy Manual at 1. Employer also submitted into evidence an acknowledgement signed by Claimant when he started employment that he would abide by Employer's Policy Manual.
Also, Rachel Holmes-Pittman, Employer's chief human resources officer, testified that because of prior issues with Claimant's work attendance, Employer conducted a meeting with him on November 13, 2013, to make sure he was aware "what the protocol and practice was for Thomas [Claimant] in coming to work and calling out when he needed to call out or notify his supervisor when he was not going to come to work." Notes of Testimony, February 14, 2014, (N.T.) at 6.
Tamika Lamkin (Lamkin), Claimant's supervisor, testified on cross-examination that she never told Claimant "not to contact me if you didn't get the forms." N.T. at 22.
Claimant testified that he was told by Lamkin, that he was not to come in or have any contact with Employer until he had the "paperwork filled out." N.T. at 27.
The Board specifically rejected Claimant's testimony. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
Employer established that it had a policy that required employees to call Employer if they would be absent that day. Employer established that Claimant was aware of the rule both by the signed acknowledgement of the Policy Manual and by his presence at the meeting on November 13, 2013. It is undisputed that Claimant did not follow the proper procedure when he was absent on November 20 through 22, 2013, but did not call Employer. Employer established willful misconduct.
In order to avoid ineligibility for benefits under Section 402(e), Claimant must establish good cause for his actions. At the hearing before the referee, Claimant attempted to prove that he was told not to contact Employer until he obtained the forms Employer required. The Board rejected this testimony.
Before this Court, Claimant argues for the first time that because he was told not to return to work without the fitness for duty form completed by a physician, Employer created an ambiguity and it was not clear to Claimant whether he should call Employer to report his absence. This argument conflicts with Claimant's prior testimony that he was told not to call until he had the completed fitness for duty form. Because Claimant failed to raise this argument when he had the opportunity before the referee and the Board, it is waived. Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1988). Claimant failed to establish good cause for his violation of Employer's policy.
Claimant testified that he received the completed form on November 23, 2013, but did not contact Employer until December 2, 2013. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 17th day of February, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge