Opinion
No. 1127 C.D. 2011
02-23-2012
TEH Management, LLC, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter's term as President Judge ended.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner, TEH Management, LLC (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated June 3, 2011, affirming the Referee's decision and granting Eric Mullen (Claimant) unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits following his discharge from Employer. The Altoona UC Service Center (Service Center) found Claimant eligible for benefits under Section 402(e) of the Law. Employer appealed the Service Center's determination, and a hearing was held before a Referee on April 5, 2011. Following the hearing, the Referee issued a decision, in which he affirmed the Service Center's determination finding Claimant eligible for unemployment compensation benefits. (Reproduced Record (R.R.) at 15a.) Employer appealed the Referee's order to the Board, which affirmed the Referee's decision.
On appeal, the Board adopted the Referee's findings of fact, which included the following:
1. The claimant was employed as a laborer by TEH Management, LLC for approximately two weeks and his last day of work was November 23, 2010.(R.R. at 15a.) The Board found Claimant's testimony to be credible, and, based on that testimony, the Board found Claimant's separation to be involuntary. (Id.) The Board also adopted the Referee's conclusions of law. Specifically, the Board reasoned that Claimant's actions did not constitute willful misconduct as he notified Employer in advance of his obligation to appear in court in response to a subpoena issued against him. (Id.) Furthermore, the Board found that Claimant established good cause for his late arrival on the day of separation, but he was, nevertheless, terminated following his tardiness. (Id.) The Board, therefore, concluded that Claimant could not be denied benefits under Section 402(e) of the Law. (Id.)
2. Prior to November 23, 2010, the claimant made the employer aware that he would either be absent or late on that day because he had been subpoenaed to appear at the Norristown County Courthouse in connection with a Protection From Abuse matter involving his former wife.
3. The claimant appeared in Court as per his subpoena on the morning of November 23, 2010 and did not make it in to work until 12:30 p.m.
4. Upon his arrival at work, the claimant was instructed to call his supervisor about his job. The claimant did so and at the time was informed that he was being "let go" and that he need not report for work any longer.
5. The claimant did not voluntarily leave the employment.
Upon review, it appears that the Referee may have been attempting to refer to the Montgomery County Courthouse, located in Norristown, Pennsylvania.
On appeal, Employer argues that the Board's decision is not supported by substantial evidence and that the Board erred as a matter of law in concluding that Claimant's conduct did not rise to willful misconduct. We initially note that Employer does not identify with specificity the Board's findings of fact that it challenges. However, in its brief, Employer contends that Claimant never returned to work on November 23, 2010, or any day thereafter, contrary to the Board's findings of fact numbers 3 and 4. (Employer's Brief at 7.) We, therefore, will interpret Employer's argument as whether the Board's findings of fact numbers 3 and 4 are supported by substantial evidence.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
In an unemployment case, it is well settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000) (citing Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1386 (1985)). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). The mere fact that a party presents sufficient evidence as a matter of law does not guarantee his success; the evidence, must, in addition, be believed, meaning, found credible by the fact finder. Kirkwood v. Unemployment Comp. Bd. of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). "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." Tapco, Inc. 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. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Here, Employer contends that substantial evidence does not exist to support the finding that Claimant arrived to work on, or subsequent to, November 23, 2010. At the hearing, Claimant testified that he made Employer aware, in advance, of his potential absence on November 23, 2010. (R.R. at 13a.) Claimant further testified that on November 23, 2010, he arrived on the job site at approximately 12:30 p.m. and asked his coworker to specify his duties in order to begin working. (Id. at 12a.) Claimant testified that, at that point, his coworker instructed him to call his supervisor. (Id.) Claimant testified that during his discussion with his supervisor, the supervisor informed Claimant that he was no longer needed and was being "let go." (Id.) However, Employer's witness and human resources manager, Donna Vitabile, testified that Claimant simply stopped reporting for work. (Id. at 9a.) The Board found Claimant's testimony to be credible, as opposed to Employer's, which is well within the Board's discretion. Curran, 752 A.2d at 940; Kirkwood, 525 A.2d at 844. Based on Claimant's credited testimony, substantial evidence exists to support the Board's finding that Claimant appeared for work on November 23, 2010, and was discharged on that same date.
We next address Employer's contention that the Board erred in concluding that Claimant's actions did not rise to the level of willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). --------
(a) wanton or willful disregard of employer's interests, (b) deliberate violation of the employer's rules, (c) disregard of standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties and obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies must prove the existence of the rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. An employer has a right to expect that employees will attend work when scheduled and that they will be on time. Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). "Several elements can support a finding of absenteeism as willful misconduct, including excessive absences and a lack of good or adequate cause for the absence." Weems v. Unemployment Comp. Bd. of Review, 952 A.2d 697, 699 (Pa. Cmwlth. 2008). Absence, where properly reported, does not constitute willful misconduct. Welded Tube Co. of Am. v. Unemployment Comp. Bd. of Review, 401 A.2d 1383, 1385 (Pa. Cmwlth. 1979).
Once an employer has met its burden, however, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993) (citing Mulqueen v. Unemployment Comp. Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)). The employee establishes good cause where his actions are justified or reasonable under the circumstances. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (citing Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999)).
At the hearing, Employer's witness, Donna Vitabile, alluded to Employer's attendance policy. Specifically, Employer's counsel hypothetically questioned Ms. Vitabile as to the consequence of an unreported absence. (R.R. at 9a.) Ms. Vitabile responded that Claimant would have received a written warning had he continued to appear for work. (Id.) This exchange leads to the inference that Employer's policy for taking off work or arriving late without prior notification results in an unexcused absence. Furthermore, the exchange suggests that a written warning is given when absences are unexcused. However, there is no clear evidence in the record as to how many unexcused absences are permitted before termination. Moreover, there is no evidence indicating the manner in which this policy is implemented. At best, the exchange between Ms. Vitabile and Employer's counsel creates an inference of an attendance policy.
Additionally, upon review of the record, there is no evidence, beyond Ms. Vitabile's testimony, that Claimant violated this attendance "policy" or otherwise "disregarded the standard of behavior that an employer can rightfully expect." See Grieb, 573 Pa. at 600, 827 A.2d at 425. As previously addressed, the Board chose to find Claimant credible and resolved any conflicts in evidence in Claimant's favor. Curran, 752 A.2d at 940; Kirkwood, 525 A.2d at 844; DeRiggi, 856 A.2d at 255. As a result, this Court is bound by that credibility determination. Claimant credibly testified that he received a subpoena to appear in court regarding a Protection From Abuse matter. (R.R. at 13a.) Claimant also testified that he made Employer aware of the hearing in advance and provided Employer with a copy of the subpoena. (Id.) Employer, in its brief, essentially admits that Claimant "may have made a telephone call," alerting Employer of his absence on November 23, 2010. (Employer's Brief at 7, 8.) Moreover, Employer's separation form indicates that Claimant called off on November 22, 2010, and November 23, 2010. (R.R. at 1a.) Based on the testimony presented and evidence in the record, Employer failed to definitively establish its policy for unexcused absences, and, in any event, Claimant did not violate Employer's "policy" or disregard a standard of behavior an employer can reasonably expect, because he gave Employer advanced notice of his need to be absent or late for work. Claimant's conduct, therefore, did not rise to the level of willful misconduct.
Finally, Claimant justified his actions by establishing good cause. As noted above, good cause is established by proof that the employee's actions are reasonable and justifiable under the circumstances. Chapman, 20 A.3d at 607. Here, the Board concluded that Claimant established good cause for his actions. We agree. Claimant received a subpoena to appear at a hearing in Montgomery County. A required appearance at a hearing pursuant to a subpoena is a justifiable and reasonable circumstance for tardiness or absence at work. Therefore, even if Employer established willful misconduct, which it did not, Claimant demonstrated good cause for his actions.
Accordingly, the Board did not err in concluding that Employer failed to prove willful misconduct.
For the foregoing reasons, we affirm.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 23rd day of February, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge