Opinion
No. 1264 C.D. 2013
02-25-2014
Phyllis A. Swint, Ph.D., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Phyllis A. Swint, Ph.D. (Claimant) petitions for review of the July 3, 2013 order of the Unemployment Compensation Board of Review (Board), affirming the decision of a referee that Claimant is ineligible for unemployment benefits under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
Claimant last worked for Thomas Jefferson University as a full-time residential director from August 9, 2010, to January 25, 2013. Claimant's position was an exempt, salaried position which required Claimant to work a minimum of seventy hours bi-weekly and to be available for additional hours without additional compensation. Claimant often worked additional hours. Claimant did have a scheduled work shift of 8:30 a.m. to 4:30 p.m., Monday through Friday. However, Claimant was also considered on call twenty-four hours a day, seven days a week for emergencies. (Findings of Fact, Nos. 1-3.)
The referee found that Claimant's last date of employment was January 2, 2013. However, the Board amended this finding to reflect that Claimant's last day was January 25, 2013.
Sometime in November 2012, Claimant received an offer to teach a class at Drexel University. The teaching position required Claimant to work at Drexel University one day per week each Friday from 9:00 a.m. to 1:00 p.m. for a period of approximately ten weeks. Claimant notified Employer of the job offer and her supervisor stated that she would consider Claimant's request for permission to teach the class. Claimant subsequently inquired about flex-time but her supervisor never gave Claimant approval or a final answer to her request. Nevertheless, on January 11, 2013, Claimant began working for Drexel University, during her scheduled work hours with Employer. (Findings of Fact, Nos. 4-8.)
Following a meeting with her direct supervisor, Kate Vandergrift, on January 25, 2013, Claimant was placed on indefinite suspension and was asked to return her I.D. badge and keys. By letter dated January 29, 2013, Vandergrift informed Claimant that her indefinite suspension had been changed to a seven-day, unpaid disciplinary suspension. Vandergrift directed Claimant to return to work on February 6, 2013. However, her return to work was premised on two conditions: (1) she immediately cease all non-Employer professional activities during her regularly scheduled work hours, including teaching, instruction, lecturing, or correspondence; and (2) she provide Employer with certification upon her return to work of her separation from her teaching, instruction, or lecturing position with any institution which occurs during her regularly scheduled work hours. (Findings of Fact, Nos. 9-11.)
Claimant did not agree with the terms and conditions set forth in this letter and she notified Employer of the same in a letter from her attorney dated February 5, 2013. Claimant did not terminate her employment with Drexel University, nor did she return to work with Employer. By letter dated February 8, 2013, Employer notified Claimant that her failure to meet with her supervisor or provide a viable explanation for her disregard of the directives set forth in the January 29, 2013 letter constituted insubordination and that her failure to return to work or communicate for two consecutive shifts or forty-eight hours constituted a violation of Employer's attendance policy. Employer noted that either action by Claimant warranted her termination, effective as of the date of the letter. (Findings of Fact, Nos. 12-15.)
Claimant applied for unemployment compensation, and on March 18, 2013, the local job center determined that Claimant was ineligible for benefits pursuant to section 402(b) of the Law, 43 P.S. §802(b). Claimant appealed, and the matter was assigned to a referee. The referee conducted a hearing on April 23, 2013. Claimant appeared with counsel, but Employer did not attend.
The local job center noted a conflict regarding whether Claimant quit or was discharged. The local job center found that Claimant had voluntarily quit because she did not agree with the conditions under which she was to return to work following her disciplinary suspension, thereby implicating section 402(b) of the Law. Section 402(b) provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to her voluntarily leaving work without cause of a necessitous and compelling nature.
The referee stated that notice of the hearing was sent to Employer's last known mailing address and was not returned as undeliverable. The referee also noted that Employer did not contact his office to request a continuance or otherwise explain its non-appearance.
Claimant testified as to the facts described above. Claimant explained that Employer offered her the position as residential director in a letter dated July 16, 2010. This letter included the offer of an "exempt position . . . at an [sic] salary of $68,000.00 based on 70 hours bi-weekly." Claimant described an "exempt position" as "a salaried position that's not on a time clock." (Notes of Transcript (N.T.) at 8.) Claimant stated that she worked seventy hours bi-weekly for the first three months and routinely worked from 8:30 a.m. to 7:00 p.m. nightly thereafter. Specifically, Claimant testified that she was the residential director of My Sister's Place, a substance abuse treatment program for pregnant and parenting women and their children, ages newborn to seven years. Claimant described the program as "a 24 hour operation in that the women there with their children and receive treatment, substance abuse treatment and services." (N.T. at 9.) The treatment programs and services are provided five days a week during normal business hours. Claimant stated that she was always on call for problems that would arise outside of normal business hours.
A copy of this letter was submitted as part of Claimant's appeal to the referee and is included in the record.
Claimant acknowledged that she was offered a teaching position with Drexel University in November 2012 and that she accepted the offer and began teaching on January 11, 2013. This position required Claimant to be in a classroom at Drexel University every Friday, from 9:00 a.m. until 1:00 p.m., for a period of ten weeks. Claimant testified that, prior to accepting this position, she discussed the offer with her supervisor, Vandergrift, and that Vandergrift informed her that she would think about it. However, Vandergrift never gave her an answer regarding this offer. Claimant denied knowledge of any Employer policy preventing her from working elsewhere during her regularly scheduled hours, but she admitted that her hours were "8:30 to 4:30 on paper." (N.T. at 11.) Claimant conceded that she did not return to work on February 6th or 7th or otherwise communicate with Employer on those days, but noted that her counsel had previously advised Employer via letter that she objected to the conditions imposed by Employer and would not be returning to work.
Upon questioning by the referee, Claimant explained that she did not feel that Vandergrift was justified in placing conditions on her return to work because the teaching position at Drexel University "did not involve or influence the job [she] was doing" for Employer. (N.T. at 13.) Claimant stressed that she was regularly working nearly twelve hours per day for Employer, but she acknowledged that the Drexel University teaching position hours conflicted with the hours required on paper by Employer. Claimant stated that the schedule of an exempt employee can be adjusted and only requires the employee to work thirty-five hours per week.
By decision and order dated May 3, 2013, the referee affirmed the determination of the local job center that Claimant was ineligible for benefits, but modified the determination to reflect Claimant's ineligibility under section 402(e) of the Law. The referee determined that there was sufficient evidence in the record to establish that Claimant was discharged, in part, for insubordination related to failing to follow Employer's directive to report to work. The referee concluded that Employer's directive was reasonable given that Claimant's outside employment was performed during her regularly scheduled work hours with Employer. The referee noted that Employer did not approve Claimant's acceptance of the Drexel University teaching position or her request for flex-time in relation to the same. The referee also concluded that Claimant failed to establish that her refusal to follow Employer's directive was reasonable given Employer's lack of approval and the conflict with Claimant's scheduled work hours. Claimant appealed, but the Board affirmed, adopting the referee's findings and conclusions as its own.
As noted above, the Board amended the referee's findings of fact to reflect Claimant's last day of work as January 25, 2013. The Board also corrected a typographical error in the reasoning section of the referee's decision.
On appeal to this Court, Claimant argues that the Board erred in concluding that Employer met its burden of proof or that Claimant herself satisfied Employer's burden under section 402(e). More specifically, Claimant argues that Employer failed to establish the existence of a rule, notice to Claimant, the reasonableness of the rule, and the fact of its violation. Assuming arguendo that Employer's burden was met, Claimant argues that the Board erred in failing to find that she had good cause for violating Employer's directives. We disagree with both of Claimant's arguments.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704. --------
The Law does not define the term "willful misconduct," but our courts have defined it as including: the wanton or willful disregard of the employer's interests; the deliberate violation of the employer's rules; the disregard of standards of behavior that an employer can rightfully expect from an employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1214 (Pa. Cmwlth. 1996). The employer bears the burden of proving that the employee's actions rose to the level of willful misconduct. Stauffer v. Unemployment Compensation Board of Review, 455 A.2d 300 (Pa. Cmwlth. 1983). Whether a claimant has committed willful misconduct is a question of law, reviewable by this Court. Harris v. Unemployment Compensation Board of Review, 447 A.2d 1060 (Pa. Cmwlth. 1982).
Claimant places heavy emphasis on the lack of any evidence of a work rule or policy that she violated. This issue is not in dispute. Indeed, the referee noted in his decision that Employer's failure to appear and establish the existence of an attendance policy, coupled with Claimant's objection to inclusion of the same in the record during the hearing, precludes a finding of willful misconduct related to Claimant's purported violation of this policy.
However, Claimant's February 8, 2013 termination letter referenced both her violation of Employer's attendance policy and her insubordination in failing to follow the directives of Vandergrift's January 29, 2013 letter directing her to return to work on February 6, 2013, and to cease all non-Employer work activities during her regularly scheduled work hours. We have previously held that "a claimant who has been discharged for multiple reasons is disqualified from receiving benefits even if only one of those reasons amounts to willful misconduct." Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007) (citation omitted). Claimant admitted before the referee that she did not comply with Employer's directives as set forth in Vandergrift's January 29, 2013 letter, i.e., she did not return to work and she did not quit teaching at Drexel University. We agree with the Board that Employer's requests that Claimant return to work and cease all non-Employer work activities during her regularly scheduled work hours were reasonable.
Next, we consider whether the Board erred in failing to find that she had good cause for violating Employer's directive. Good cause is established where the action of the employee is justified or reasonable under the circumstances. Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12 (Pa. Cmwlth. 2009). Claimant acknowledged before the referee that Employer had directed her to return to work on February 6, 2013, and that she did not comply with this directive. To the extent that Claimant argues that she had good cause for not complying with Employer's directive because she was on-call twenty-four hours a day, seven days a week, she did not have any regular work hours, and Employer never disapproved of her request to teach the class at Drexel University, we disagree. These facts reflect only Claimant's obligations to Employer and Employer's lack of response to her request. Moreover, where the record reflects that the job Claimant sought permission to accept required her to be away from her job with Employer every Friday during normal business hours, we cannot conclude that Employer's lack of response constituted a tacit approval. Thus, the Board did not err in concluding that Claimant failed to establish good cause for violating Employer's directive.
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 25th day of February, 2014, the order of the Unemployment Compensation Board of Review, dated July 3, 2013, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge