Opinion
No. 735 C.D. 2012
11-09-2012
Michael Rothe, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Michael Rothe (Claimant), representing himself, petitions for review from an order of the Unemployment Compensation Board of Review (Board) that denied him benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant questions whether the Board erred in determining his former employer, Buck Hill Falls Co. (Employer), proved he committed willful misconduct. Concluding the Board's necessary factual findings are adequately supported and its decision is in accordance with the Law, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Employer, which operates a private residential community in the Poconos, for approximately 12 years as its certified water and sewer operator/manager. After his termination from employment, Claimant applied for unemployment compensation, which was initially denied. Claimant appealed, and a hearing ensued before a referee.
At the hearing, Employer presented the testimony of its controller/human resources manager and its president/chief operating officer. Claimant, represented by counsel, testified on his own behalf.
After the hearing, the referee issued a decision in which he made the following five findings (with emphasis added):
1. The claimant worked as a full-time certified operator/manager for Buck Hill Falls Company from April 1, 1999 until October 31, 2011.Referee's Dec., 12/30/11, Findings of Fact (F.F.) Nos. 1-5. Further, the referee explained (with emphasis added):
2. During the period of employment, the employer had problems with the claimant not reporting problems with the waste water plant timely, not reporting his time off properly, and resistance to being managed.
3. On October 10, 2011; October 12, 2011; October 20, 2011; October 24, 2011 through October 26, 2011; and October 28, 2011, the claimant was a no-call/no-show for work.
4. On October 26, 2011, the employer contacted the claimant to report for a meeting on October 31, 2011.
5. On October 31, 2011, the employer discharged the claimant for being a no-call/no-show for work.
In the present case, the employer's witness testified that on October 31, 2011, the employer discharged the claimant due
to his being a no-call/no-show for work. Furthermore, the claimant was a no-call/no-show for work on numerous occasions for the prior two-week period before being discharged. The claimant's assertion that the employer allowed the claimant to maintain his own schedule and not report or request time off is found to be incredible. Based on the evidence presented, the [r]eferee finds the claimant's actions did rise to the level of willful misconduct; accordingly, benefits must be denied under Section 402(e) of the Law.Referee's Dec. at 2. Claimant, representing himself, appealed to the Board. He also requested a remand hearing in order to present additional evidence.
Ultimately, the Board affirmed, adopting and incorporating the referee's findings and conclusions. The Board also rejected Claimant's remand request. Of further note, in its decision, the Board stated (with emphasis added):
[T]he Board resolves all relevant conflicts in testimony in favor of the employer, whose witnesses credibly established that (a) based on a memo from the company president to the claimant dated April 1, 2011, the claimant knew, or should have known, that he was required to notify the president by telephone or e-mail if he was planning to be absent from work; (b) the claimant was discharged after he failed to report to work or notify the president of his absences on October 10, October 12, October 20, October 24, October, 25, October 26, and October 28, 2011; and (c) when the president called the claimant on October 26, 2011, the claimant stated that he was taking time off. The claimant has failed to establish good cause for these final no call/no show incidents.Bd. Op., 2/24/12, at 1. Claimant subsequently requested reconsideration, which the Board denied. This appeal by Claimant followed.
As fact-finder, the Board is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Collier Stone Co. v. Unemployment Comp. Bd. of Review, 876 A.2d 481 (Pa. Cmwlth. 2005). The Board's findings are conclusive on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Lee.
"The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Stage Road Poultry Catchers v. Dep't of Labor & Indus., Office of Unemployment Comp., Tax Servs., 34 A.3d 876 (Pa. Cmwlth. 2011) (quoting Tapco v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994)). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Id. In determining whether substantial evidence exists, we view the record in the light most favorable to the party that prevailed before the Board, and give that party the benefit of all reasonable inferences that can be drawn from the evidence. Id.
On appeal, Claimant argues the Board erred in determining Employer proved he committed willful misconduct. Specifically, he asserts he verbally notified Employer's president that he was taking time off of work from October 24 to October 28, 2011. Claimant also points to Employer's president's testimony that he spoke with Claimant by telephone on October 26, and he did not question Claimant's whereabouts for any alleged days he was absent. Claimant argues Employer's failure to question his whereabouts shows Employer was not concerned about his whereabouts and, more likely, Employer knew he was on vacation. Claimant also maintains he did, in fact, attend work on October 10, 12 and 20. Additionally, Claimant contends Employer was unclear as to the type of notice it required for reporting absences.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc). --------
Claimant also argues the real reason for his abrupt termination from employment was the fact that he had knowledge of unsafe conduct occurring on Employer's premises, and Employer was concerned Claimant would make this information known publicly.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 42 P.S. §802(e). "Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interest, a deliberate violation of the employer's work rules, or a disregard of the standards of behavior an employer can rightfully expect from its employees." Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997)). Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002).
Absenteeism alone is not a sufficient basis for denial of unemployment compensation. Runkle v. Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987). In order for absenteeism to constitute willful misconduct, an additional factor is necessary. Id. Factors that are considered in leading to a showing of absenteeism constituting willful misconduct are: (1) excessive absences; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of existing company rules, regulations, or policy with regard to absenteeism; and, (5) disregard of warnings regarding absenteeism. Comp v. Unemployment Comp. Bd. of Review, 478 A.2d 503 (Pa. Cmwlth. 1984); Pettey v. Unemployment Comp. Bd. of Review, 325 A.2d 642 (Pa. Cmwlth. 1974).
Here, the Board expressly credited Employer's evidence over that presented by Claimant. Bd. Op. at 1. Contrary to Claimant's assertion that Employer was unclear as to the type of notice it required for absences, Employer presented a memorandum dated April 1, 2011, in which Employer's president specifically informed Claimant that he was required to notify Employer's president of any absences by telephone or email. Certified Record, Item #3, Service Center Ex. 10; see also Referee's Hearing, 12/28/11, Notes of Testimony (N.T.), at 16-17. Further, Employer's witnesses testified that Claimant did not notify Employer prior to his absences from work on October 10, 12, 20, 24, 25, 26 and 28, 2011. N.T. at 6-7 (testimony of Employer's human resources manager), 14-16 (testimony of Employer's president). Rather, Claimant was considered a "no call/no show" on those dates. N.T. at 15 (testimony of Employer's president). Moreover, Claimant presented no credible evidence of good cause for his failure to report to work on those dates.
In addition, the Board chose not to credit Claimant's testimony that he notified Employer regarding his absences on October 24, 25, 26 and 28 or that he reported to work on October 10, 12 and 20, 2011. Additionally, the Board did not credit Claimant's scant evidence that the real cause for his termination was Employer's concern that he would report unsafe conduct on Employer's premises. We cannot, nor will we, disturb the Board's resolution of evidentiary conflicts or issues of witness credibility. Lee.
In turn, the Board's findings that Claimant did not notify Employer in advance of his absences on seven days within a two-and-a-half week period and that Claimant did not establish good cause for his absences, support the Board's determination that Claimant committed willful misconduct. See White v. Unemployment Comp. Bd. of Review, 450 A.2d 770, 772 (Pa. Cmwlth. 1982) ("As to the claimant's unreported absence from work, the law is clear that absence for even one day without a credible justification and without notification to the employer is a basis for the denial of benefits.") Thus, no error is apparent in the Board's decision.
Nevertheless, Claimant also argues that after the referee's decision, he attempted to submit evidence to the Board to "prove that [Employer] was dishonest in [its] testimony." Pet'r's Br. at 12. Specifically, Claimant points out that at the referee's hearing Employer presented a violation notice that the Department of Environmental Protection (DEP) issued to Employer for failing to conduct performance monitoring of its drinking water during October 2011. Claimant asserts Employer presented the violation notice in an effort to show Claimant did not comply with his duties as Employer's water and sewer operator. Claimant argues the evidence he now seeks to present shows that, pursuant to DEP's regulations, the required monitoring report could not have been submitted to DEP until November 1, 2011, at the earliest, which was one day after Employer terminated his employment. As such, Claimant contends this evidence contradicts Employer's witnesses' testimony that Claimant did not submit the required report to DEP and, as a result, it undermines Employer's credibility. We reject this argument for several reasons.
First, Claimant did not raise this issue in his petition for review to this Court; therefore, it is waived. Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608 (Pa. Cmwlth. 2006).
Further, even if not waived, this argument fails. In declining Claimant's request for a remand for consideration of this evidence, the Board determined, among other things, this evidence was irrelevant to whether Claimant's absenteeism amounted to willful misconduct. Bd. Op. at 1. We agree. To that end, neither the referee nor the Board relied on the DEP violation notice submitted by Employer in determining Claimant committed willful misconduct.
In addition, at the referee's hearing, Claimant, with the aid of counsel, offered testimony in response to Employer's submission of the DEP violation notice, and he made no mention of the point he now seeks to raise. See N.T. at 31. Thus, contrary to Claimant's suggestions, he had ample opportunity to offer the evidence he now seeks to present and did not do so. As a result, even if Claimant properly preserved this issue, we would not disturb the Board's decision to reject Claimant's request for a remand to present additional evidence.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of November, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge