Opinion
No. 2125 C.D. 2011
06-14-2012
Lisa J. Pietras, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Lisa J. Pietras (Claimant) appeals from the Unemployment Compensation Board of Review's (UCBR) October 20, 2011 order affirming a decision of the Referee finding Claimant ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law). Claimant presents three issues for this Court's review: (1) whether the UCBR erred when it considered the issue of Claimant's willful misconduct; (2) whether substantial evidence supports the UCBR's conclusion that Claimant committed willful misconduct; and (3) whether substantial evidence supports the Referee's conclusion that Claimant voluntarily left her employment. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant worked as a full-time attorney for Mintzer Sarowitz Zeris Ledva & Meyers, LLP (Employer) from June 14, 2010 through December 23, 2010. On December 30, 2010, Employer granted Claimant an unpaid maternity leave from January 3 through March 25, 2011. On March 3, 2011, Claimant notified Employer by email that she was recovering from some infections, but that she would like to return to part-time work from home. On March 4, 2011, Employer responded to Claimant that part-time work was against its policy and reminded Claimant that her leave expired after March 25, 2011. Claimant failed to return to work or contact the employer after March 25, 2011. On March 28, 2011, Employer discharged Claimant for failure to return to work after her maternity leave, considering it job abandonment. Reproduced Record (R.R.) at 39a, Finding of Fact ¶ 6.
Claimant subsequently applied for unemployment compensation (UC) benefits. On June 3, 2011, the Scranton UC Service Center issued a determination that Claimant was ineligible for UC benefits under Section 402(b) of the Law. Claimant appealed, and a hearing was held by a Referee. On August 3, 2011, the Referee mailed her decision affirming the UC Service Center's determination and finding Claimant ineligible for UC benefits under Section 402(b) of the Law. Claimant appealed to the UCBR. On October 20, 2011, the UCBR affirmed the decision of the Referee, and found Claimant ineligible for benefits under Section 402(e) of the Law. Claimant appealed to this Court.
43 P.S. § 802(e).
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 the UCBR should not have considered the issue of willful misconduct. Specifically, Claimant contends that because the UC Service Center and the Referee found her ineligible for benefits under Section 402(b) of the Law, it was error for the UCBR to find her ineligible for benefits under Section 402(e) of the Law. We disagree.
At the hearing before the Referee, prior to Claimant's attorney questioning her, this issue was addressed on the record as follows:
R: And -- okay. All right. Since the Service Center ruled on 402(b), and you have the burden of proof, I'm going to allow Mr. Oster [Claimant's attorney] to please begin questioning.R.R. at 21a (emphasis added). Claimant cannot now contend the UCBR erred by considering the specific section of the Law that Claimant requested the Referee to consider. Moreover, the UCBR is the ultimate finder of fact in unemployment compensation cases. Baldauf v. Unemployment Comp. Bd. of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004). Here, the UCBR specifically found as a fact that Claimant was discharged.
CL: If I could ask, it is our position that the termination should have been made pursuant to 402(e) as opposed to 402(b), and I was hoping to get testimony on the record regarding that fact.
R: Okay. The Referee will note for the record that the Notice of Hearing indicates that other issues that may be considered at this hearing are Section[s] 402(e) and 401(d) (1) and (2) of the Law. Mr. Bobber [Employer's attorney], any objection to the Referee considering all relevant sections of law that may be appropriate in this matter?
EL: No objection.
R: All right, very good. Then the Referee will take all testimony into consideration and rule accordingly. All right, Mr. Oster, continue.
Claimant argues that Bilsing v. Unemployment Compensation Board of Review, 382 A.2d 1279 (Pa. Cmwlth. 1978) supports her position. However, the Court in Bilsing held that, "if the Bureau in notifying a claimant of his ineligibility for reasons of wilful [sic] misconduct describes the offending misconduct, fairness and the regulation . . . require that the evidence adduced at the referee's hearing be limited to the kind of conduct described in the notice." Id., 382 A.2d at 1281. The UC Service Center, the Referee, and the UCBR all considered the same conduct in determining Claimant's eligibility for UC benefits, i.e., her failure to return to work without contacting Employer after her maternity leave expired. Accordingly, the UCBR did not commit legal error in finding Claimant ineligible for UC benefits under Section 402(e) of the Law.
See Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006) (wherein the job center denied benefits to the claimant on the grounds that the claimant voluntarily terminated his employment, however, both the referee and the UCBR concluded that the claimant was discharged, and, because the employer did not appeal the determination, the Court was not required to address it). --------
Claimant next argues that the substantial evidence does not support the UCBR's conclusion that Claimant committed willful misconduct. We disagree.
"Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Pittsburgh, Dep't of Pub. Safety v. Unemployment Comp. Bd. of Review, 927 A.2d 675, 676 n.1 (Pa. Cmwlth. 2007) (quotation marks omitted).
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 n.4 (Pa. Cmwlth. 2000) (citation omitted). Here, Claimant testified at the hearing before the Referee that, although she was advised on March 4, 2011 that she could not work from home when her maternity leave ended, and that she had to return to work on March 28, 2011, she did not return. Moreover, she made no contact with Employer whatsoever from March 3, 2011 until after March 28, 2011. Specifically, when questioned regarding the above she testified as follows:
R: All right. On March 25th, did you inform -- on or about March 25th, did you inform the Employer that due to a medical condition you would be unable to return to work at the scheduled end, of your leave?R.R. at 28a. Clearly, this testimony is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that Claimant exhibited a disregard of standards of behavior which Employer had a right to expect of an employee, or negligence indicating an intentional disregard of Employer's interest, or a disregard of the employee's duties and obligations to Employer. Accordingly, substantial evidence supported the UCBR's conclusion that Claimant committed willful misconduct.
C: No, I did not.
R: Okay. Did you advise them of your medical condition?
C: No, I did not- Other than that email, no, I did not.
R: Okay. Did you ask them to work part-time, other than in this March 3rd . . .
C: No.
Finally, Claimant argues that the substantial evidence did not support the Referee's conclusion that Claimant voluntarily left her employment. Although not pertinent to the UCBR's determination, we will address this issue. Specifically, Claimant contends she had a compelling and necessitous reason for leaving her employment. We disagree.
An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve her employment.Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Here, as stated above, although Claimant asked to work from home due to complications from her pregnancy, once she was advised that she could not, she made no further attempt to contact Employer. Clearly, there is substantial evidence to support the conclusion that Claimant did not make a reasonable effort to preserve her employment. Accordingly, substantial evidence supported the Referee's conclusion that Claimant abandoned her job.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 14th day of June, 2012, the Unemployment Compensation Board of Review's October 20, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge