Opinion
No. 2367 C.D. 2008.
Submitted: May 8, 2009.
Filed: July 1, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Mary Mishkula petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the referee's decision to deny unemployment benefits to Mishkula. She questions whether the record contains substantial evidence to support a determination that she refused to work on April 7, 2008 and whether the Board erred in considering evidence that was not set forth in the original Notice of Determination.
Mishkula was employed in maintenance work for Cherry Lane Realty (Employer), and she was terminated on April 7, 2008. The Bureau of UC Benefits and Allowances (Bureau) mailed a Notice of Determination on April 18, 2008 finding that Mishkula was last employed on March 27, 2008. She was terminated for insubordination for failing to report to work as requested. The Bureau found that Mishkula's actions did not constitute willful misconduct 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).
On appeal, Employer's owners Amanda Stiles and Charlotte Bergdoll testified along with employee Stephanie Elzinga. Mishkula also testified and was represented by counsel. The referee found that Mishkula was last employed on March 27, 2008 as a part-time maintenance employee earning $12 per hour. Referring to Employer's attachments to its Questionnaire, the referee found that on January 4, 2008 Mishkula was issued a written warning regarding her attendance for failure to give adequate notice of missing work; failure to call her supervisor to let her know where she was and the status of her work; and failure to provide time sheets to her supervisor for billing purposes (Service Center Ex. 6). On March 10, 2008, she was given a second and final notice for falsifying hours; failing to call each day and to contact her supervisor as requested; refusing to do requested work; and arguing constantly (Service Center Ex. 7). A note dated April 7, 2008 and signed by Stiles stated that Mishkula did not report to work on March 19, 20, 21, 24, 25, 26, 28 and 31 and on April 1, 2, 3 and 4, 2008; she did not properly call off and continually stated that she would be in the following day (Service Center Ex. 8). Mishkula objected to Exhibits 6, 7 and 8 on the ground that the Bureau's notice was not based upon them, but the objection was overruled.
On April 7, 2008, Mishkula did not report to work as scheduled. She called and spoke with Elzinga to see what work was available. Elzinga could not give details of all available work and advised her to contact another individual after 9:00 a.m. When Mishkula spoke with the other individual she was advised that work was available and that if she did not come to work she would be terminated. She was told there was at least three hours of work if not more. The referee found that Mishkula made a personal choice not to come to work and that on April 7, 2008 she was discharged for her failure to work as requested. The referee reasoned that Mishkula had been advised to contact her direct supervisor by cell phone on days she could not report and to contact that person when she completed a task. Mishkula refused to follow that order. At the end of March and the beginning of April she was off work for over a week due to personal issues. Mishkula spoke with the supervisor after 9:00 and was given the choice to work as requested or to be terminated. The exact amount of work available was never discussed, but it was at least three hours. Mishkula testified that she refused to report due to the price of gasoline and her inability to work so few hours. Because she was not advised of a specific number of hours, the referee determined that her refusal was not justified. Thus her actions constituted willful misconduct, and the referee denied benefits.
On Mishkula's appeal the Board made similar findings. It added that Mishkula told Employer in the first telephone call on April 7, 2008 that it did not financially benefit her to work for only two hours. The Board found that in the second telephone conversation Mishkula said that she would not come in for only two hours of work, and Employer told her that failure to report would result in discharge. Mishkula did not report; at least six hours of work was available that day. The Board noted the case law definition of "willful misconduct" as well as the rule that where an employee is discharged for refusing or failing to follow an employer directive, both the reasonableness of the demand and the reasonableness of the refusal must be examined. Employer established a reasonable request.
The burden shifted to Mishkula, who asserted that she did not refuse to report to work but rather was discharged before she made the second telephone call around 9:00 a.m. The Board found that Employer credibly testified that Mishkula contacted it the second time and that she refused to report to work. The Board noted also that Mishkula requested a remand for a new hearing. She claimed that she was prejudiced by the admission of information not considered by the Department, citing 34 Pa. Code § 101.87. The Board stated that after its independent review, it considered only properly admitted testimony and evidence. Refusal to comply with Employer's directive is a form of insubordination, which was the issue. Accordingly, Mishkula was ineligible under Section 402(e).
The Court's review of the Board's decision is limited to determining whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed and whether the findings of fact are supported by substantial evidence in the record. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169 (Pa.Cmwlth. 2007).
Mishkula first argues that the record does not contain substantial evidence to support the Board's finding that she refused to work on April 7, 2008. She cites Feinberg v. Unemployment Compensation Board of Review, 635 A.2d 682 (Pa.Cmwlth. 1993), and stresses that the Court has reversed a decision of the Board where the sole evidence relied on in finding in favor of the claimant was the claimant's own self-controverted testimony. In Feinberg the claimant submitted a statement on the date that she applied for benefits listing several reasons for dissatisfaction with working conditions of her job as a dental assistant/receptionist. Based on that and statements by the employer the Bureau denied benefits on the ground of voluntary separation. At a hearing on her appeal, the claimant testified that she had been fired. Based on the summary interview form of the claimant and the testimony of another employee, the referee affirmed the Bureau's decision. The Board, without taking new evidence, reversed the referee, finding that the claimant was discharged and that the employer failed to meet its burden to establish willful misconduct. This Court reversed the Board, concluding that the self-controverted testimony of the claimant was neither substantial nor reasonable. Her testimony was not only contradicted by the employer's witnesses, which the Board was free to dismiss on credibility grounds, "but also by her own written statement which flatly and decisively states the opposite of what she asserts in her testimony." Feinberg, 635 A.2d at 684.
Willful misconduct has been defined as "the wanton and willful disregard of the employer's interests; the deliberate violation of rules; the disregard of standards of behavior which an employer can rightfully expect of its employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations." Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 78 n1 (Pa.Cmwlth. 2005). When willful misconduct is based on violation of a work rule, the employer must establish its existence, its reasonableness and its violation, and the claimant must then show good cause for his/her actions. Burchell v. Unemployment Compensation Board of Review, 848 A.2d 1082 (Pa.Cmwlth. 2004).
Mishkula asserts that the only evidence to support a finding that she refused work is the testimony of Bergdoll that she gave Mishkula an ultimatum, which Mishkula contends is contradicted by the testimony of Stiles. Bergdoll testified that Mishkula initiated the second call and informed Bergdoll that she would not come to work, and Bergdoll issued an ultimatum. Mishulka's version is that Bergdoll initiated the second call before 9:00 and terminated Mishulka without any ultimatum. She maintains that the Board ignored a critical contradiction in the testimony of Stiles. Refusal to complete assigned tasks could not be known until it was discovered that they were not completed, but Stiles testified that she was not involved in the termination of Mishkula because it had happened before she came in at 9:00, reflecting the kind of "neutralizing" testimony discussed in Feinberg. The Board contends that Stiles' testimony does not "flatly and decisively" rebut Employer's position based in Bergdoll's testimony.
The Court agrees with the Board that this case is not like Feinberg. A finding of the referee and the Board that Mishkula does not address is that she was scheduled and was expected to report to work on April 7, not to call and make inquiries about what work was available. In this context, Mishkula's calling and telling Elzinga that she would not come in for two hours' work and then telling Bergdoll the same thing (as the Board expressly found) amounts to refusal to work. Moreover, Mishkula's claim that Stiles' testimony fatally undercuts Bergdoll's, where the discrepancy is whether Mishkula called at or around 9:00 and Stiles stated that the matter was over when she arrived at 9:00, is simply not tenable. These are not statements by one person that are deemed to be "flatly and decisively" contradictory as in Feinberg.
Next Mishkula contends that the Board erred in relying upon instances of willful misconduct that were not set forth in the Notice of Determination. The regulation at 34 Pa. Code § 101.87, relating to issues considered on original appeal from a determination of the Department of Labor and Industry, provides:
When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby.
Mishkula asserts that this provision has been interpreted not only to prevent the shifting of legal theories on appeal, see Hine v. Unemployment Compensation Board of Review, 520 A.2d 102 (Pa.Cmwlth. 1987), but also to limit the inquiry to the basis stated in the notice. In Bilsing v. Unemployment Compensation Board of Review, 382 A.2d 1279 (Pa.Cmwlth. 1978), the Bureau determined that a claimant was terminated for violations of an absentee/lateness policy and denied benefits under Section 402(e) of the Act. The employer provided evidence also relating to a dryer left unattended by the claimant in violation of policy. The referee affirmed the denial of benefits on both bases, and the Board affirmed. Mishkula notes that the Court reversed (actually vacated and remanded), stating that if the Bureau gives notice of ineligibility based upon described misconduct, fairness and 34 Pa. Code § 101.87 require that the evidence be limited to the conduct as described.
Mishkula points out that the Bureau's notice described the misconduct as insubordination for refusal to come to work on one specific instance. Therefore, the Board's Findings of Fact 3, 4, and 5 were irrelevant under Section 101.87. The Board's response is that this case is distinguishable from Bilsing as those findings simply show a historical context of the relationship that existed. They did not go to the issues at hand. Also, where the Board in Bilsing considered a separate instance of misconduct not ruled on by the Bureau, Mishkula was denied benefits for refusing to comply with a directive, which is a form of insubordination.
Alternatively, if the Court concludes that the three Findings were improper, the Board contends they alone are not enough to reverse. It compares this case to Keay v. Unemployment Compensation Board of Review, 551 A.2d 391 (Pa.Cmwlth. 1988), where the Board found that a claimant was dismissed for consuming beer during lunch and for leaving a trailer where he was told to wait. The Board conceded that there was no support for the second half of the finding. The Court concluded, however, that under its duty to determine that necessary findings have support, the second half was not necessary; therefore, that lack of support did not merit reversal.
The Court agrees with the Board that this case is not similar to Bilsing where the Bureau's notice was ineligibility based on willful misconduct consisting of absenteeism and lateness only. The Court vacated the Board's decision to deny benefits and remanded for further proceedings because fairness and 34 Pa. Code § 101.87 required that when the Bureau described the willful misconduct in the notice, the evidence must be limited to the kind of misconduct described. In a later case of Sharp Equip. Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa.Cmwlth. 2002), however, the employer first responded only that the claimant was an independent contractor, and the Bureau rejected that defense and awarded benefits. The referee determined that the claimant was an employee and refused to consider the employer's claim of voluntary quit, and the Board affirmed. On appeal the Court affirmed as to the employee ruling. It observed, however, that 34 Pa Code § 101.87 has been interpreted to allow a referee to consider issues other than those expressly ruled upon by the Bureau so long as a claimant is not surprised or prejudiced. The claimant could not claim surprise as the issue of voluntary separation was raised by the employer in its notice of appeal.
The Court also agrees that the challenged findings provided a context of the basic charge of insubordination on April 7, 2008 for refusal to come to work. Mishkula could not claim surprise because the documents forming the basis were attached to Employer's initial response. Mishkula was not terminated for missing work in the weeks before April 7. Her extensive absences for personal reasons in that period as well as her history of disciplinary problems, however, formed the context in which on April 7 Mishkula did not show up as scheduled but rather called and announced that she would not come in for just two hours of work. In addition, Mishkula plainly did not respond positively to Bergdoll's ultimatum. The referee and the Board did not err, and the Court therefore affirms the Board's order.
ORDER
AND NOW, this 1st day of July, 2009, the order of the Unemployment Compensation Board of Review is affirmed.