Opinion
No. 2218 C.D. 2014
07-22-2015
Luis A. Perez, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Luis A. Perez (Claimant) petitions this Court for review of the Unemployment Compensation (UC) Board of Review's (UCBR) December 3, 2014 order affirming the Referee's decision denying Claimant UC benefits under Sections 402(e) and 401(d)(1) of the UC Law (Law). Claimant presents one issue for this Court's review: whether Claimant had good cause for his failure to notify Orefield Cold Storage (Employer) of his absences. After review, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 802(e) (relating to discharge for willful misconduct), 801(d)(1) (relating to able and available for work requirement).
Claimant was employed as a full-time fork lift operator by Employer from August 29, 2009 until August 8, 2014. Employer had a long-standing attendance policy under which two consecutive absences without proper notification would result in discharge for job abandonment. On January 23, 2014, Claimant signed an acknowledgment that he received and understood Employer's revised attendance policy. On August 6, 2014, Claimant's wife and parents told Claimant that they had made arrangements for Claimant to enter a drug and alcohol treatment facility. Claimant agreed to go, and flew to Florida that day, but did not notify Employer that he was entering an in-patient treatment program. Claimant was scheduled to work on August 7 and 8, 2014. On August 8, 2014, Employer discharged Claimant for job abandonment because he was a no call/no show for two consecutive days in violation of Employer's policy.
Upon arriving at the facility through August 12, 2014, Claimant had no access to his telephone. On August 11, 2014, the treatment facility contacted Employer regarding Claimant's status. On August 19, 2014, Claimant requested leave under The Family and Medical Leave Act of 1993 (FMLA). On August 24, 2014, while in treatment, Claimant applied for UC benefits. On September 10, 2014, Claimant was released from the facility. On September 11, 2014, the Allentown UC Service Center determined that Claimant was not eligible for UC benefits under Sections 402(b) and 401(d)(1) of the UC Law. Claimant appealed and a Referee hearing was held. On October 2, 2014, the Referee affirmed the UC Service Center's determination, as modified, denying Claimant UC benefits under Sections 402(e) and 402(d)(1) of the Law. Claimant appealed to the UCBR which affirmed the Referee's decision. Claimant appealed to this Court.
43 P.S. § 802(b) (relating to voluntary separation).
"Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence." Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014). --------
Claimant argues that he did not commit willful misconduct when he failed to report his absences in accordance with Employer's policy because Claimant's family assured him that the drug and alcohol treatment facility would contact Employer.
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). "When an employee is discharged for violating a work rule, the employer must prove the existence of the rule and the fact of its violation." Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012). "Once the employer has met its initial burden, the burden then shifts to the claimant to show either that the rule is unreasonable or that claimant had good cause for violating the rule." Cnty. of Luzerne v. Unemployment Comp. Bd. of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).
Moreover, the law is well established that:
[T]he [UCBR] is the ultimate fact-finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Where substantial evidence supports the [UCBR's] findings, they are conclusive on appeal.Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted). This Court has explained:
Substantial evidence is relevant evidence upon which a reasonable mind could base a conclusion. In deciding whether there is substantial evidence to support the [UCBR's] findings, this Court must examine the testimony in the light most favorable to the prevailing party, in this case, the Employer, giving that party the benefit of any inferences which can logically and reasonably be drawn from the evidence.Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999).
Here, Employer had a "General Work Rules Policy" (Policy) which provided in relevant part:
No Call/No Show - Failure to call in or show up for work will result in progressive disciplinary action. Two consecutive no call/no shows will be considered a voluntary resignation. Two no calls within a 6[-]month period will result in immediate termination and will be considered a voluntary resignation.Original Record Item No. 3 at 7. Claimant signed an acknowledgement of the Policy on June 3, 2009. Id. at 12. In 2014, Employer revised its attendance policy and procedures. The new policy (Revised Policy) included the following:
Call Out Procedure - If you are going to be absent or tardy, you (not another member of your family unless you are totally incapacitated) are expected to call the official call off line a minimum of 30 minutes prior to the start of your shift. The call off line number is . . . .
No Call - No Show - An employee [who] fails to follow the call out procedure to report an absence to the appropriate call out number and also fails to report to work is considered a 'No Call - No Show[.]' Each incidence of 'No Call - No show' counts as two (2) points towards Attendance Tracking, and any two (2) No Call - No Show
occurrences within a six month period will result in termination and will be considered a voluntary resignation.Id. at 14-16 (emphasis added). On January 23, 2014, Claimant signed an acknowledgement of the Revised Policy. Id. at 18. The UCBR concluded: "[E]mployer presented documentary evidence establishing the job abandonment policy. By way of the signed acknowledgment, [C]laimant was aware of [E]mployer['s Revised P]olicy. By not reporting to work or notifying [E]mployer of an absence for more than two consecutive workdays [C]laimant violated [E]mployer['s Revised P]olicy. [E]mployer['s] burden has been met." Reproduced Record (R.R.) at 3.
With respect to notifying Employer of his absence, Claimant testified as follows:
R[eferee] And, when did you become aware that you were going to be taking a flight down to Florida to go into [the drug and alcohol treatment facility]?
C[laimant] Same day.
R August 6th?
C Yes.
R And, you said you went onto the flight yourself?
C Yes.
R And, at that point, you were aware of where you were going?
C Yes.
R And, did you have your phone with you at that point?
C I did.
R And, did you ever notify the Employer that you were going into this rehab?
C I didn't because my mom told me everything was taken care of, so I thought she went there and did something with the work or something . . . my mom told me that the clinic was going to do everything for me.R.R. at 16 (emphasis added). The UCBR opined: "[C]laimant had no good cause for his failure to call off from work in violation of [E]mployer's policy." R.R. at 3. The UCBR thus concluded: "[C]laimant had not met [his] burden." Id.
Claimant asserts that the FMLA excuses him from complying with Employer's policy. However, Section 825.303(c) of the FMLA Regulations provides:
Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. However, if an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved. If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.29 C.F.R. § 825.303(c) (emphasis added). According to Claimant's testimony he was aware on August 6, 2014 that he would not be at work on August 7 and 8, 2014. Claimant also stated he had his telephone with him while traveling to Florida. Pursuant to Employer's Revised Policy, Claimant - not anyone else - had to contact Employer. Accordingly, the above provision of the FMLA Regulations does not excuse Claimant of this obligation.
Claimant cites Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943 (Pa. Cmwlth. 2004) to support his position that because Claimant believed he would eventually qualify for FMLA leave, he did not have to follow Employer's call-out procedures. However, Eshbach is inapposite. In Eshbach, the claimant had a conversation with human resources about taking FMLA leave prior to her absence and, based on that discussion, the claimant believed she was approved for FMLA. The Eshbach Court held that, based upon that belief, Claimant had good cause not to follow the employer's call-out policy. In the instant case, Claimant had no reason to have a similar belief. Assuming, arguendo, that Claimant understood that he would eventually qualify for FMLA leave, he did not have FMLA approval prior to his absence and he knew that under Employer's policy, he personally had to call Employer. Thus, Eshbach is not controlling.
Viewing the evidence in a light most favorable to Employer, as we must, we hold that there was substantial record evidence to support the UCBR's findings of fact. Further, because Claimant failed to meet his burden of proving good cause for violating Employer's policy, we hold that the UCBR properly determined that Claimant engaged in willful misconduct.
Moreover, Claimant could not qualify for UC benefits for waiting week ending August 30, 2014 because he was not able and available for work. Section 401(d)(1) of the Law requires a Claimant be "able to work and available for suitable work" to qualify for UC benefits. 43 P.S. § 801(d)(1). Claimant expressly testified:
C[laimant's] L[awyer] When were you released from [the drug and alcohol treatment] facility?
C[laimant] It was 9/10/2014.
CL And, when did you come back to -- when you were [inaudible]?
C Same day, 9/10/14.
CL During this period when you were in the treatment, were you able to work?R.R. at 13. Because Claimant was not released from treatment until September 10, 2014, he was not able and available for work for the waiting week ending August 30, 2014 and, thus, was ineligible for UC benefits under Section 401(d)(1) of the Law.
C No.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 22nd day of July, 2015, the Unemployment Compensation Board of Review's December 3, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge