Opinion
No. 975 C.D. 2011
03-21-2012
Frank E. Tisdale, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
This case was assigned to the opinion writer prior to January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Frank E. Tisdale (Claimant) appeals from the Unemployment Compensation Board of Review's (UCBR) April 29, 2011 order which reversed the Referee's determination and denied Claimant's unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). The issues before this Court are: (1) whether there was substantial evidence in the record to support the UCBR's finding that Auntie Anne's, Inc. c/o TALX (Employer) properly followed its disciplinary process when it discharged Claimant, and (2) whether the UCBR erred as a matter of law by concluding that Claimant's last attendance violation rose to the level of willful misconduct. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Employer hired Claimant on January 21, 2008 as a full-time oven operator and terminated his employment on November 10, 2010 for violation of Employer's attendance policy. The facts of Claimant's discharge are not in dispute. Employer provided Claimant its handbook which contained Employer's attendance policy. The policy required employees to call off work within one hour of their start time and a failure to do so would be deemed a no call/no show. A second no call/no show would result in employment termination.
On November 6, 2010, Claimant called Employer and reported that he was running late; however, he never arrived at work that day, resulting in a no call/no show. When asked by Employer why he did not report for work that day, Claimant merely said he could not make it. On November 9, 2010, Employer issued Claimant a "final warning," which stated that another work incident would result in employment termination. See Notes of Testimony, February 3, 2011 (N.T.) at Employer's Exs. 2, 3. On November 10, 2010, Claimant called Employer at 7:02 a.m., one hour and two minutes past his scheduled start time, stating that he was running late, but would be at work in 20 minutes. Shortly after Claimant reported to work that day, Employer terminated Claimant's employment for failure to call within an hour of his scheduled start time, which represented a second no call/no show. See N.T. at Employer's Ex. 2.
Claimant filed for unemployment compensation (UC) benefits which the Lancaster UC Service Center denied pursuant to Section 402(e) of the Law. Claimant filed a timely appeal. After a hearing on February 3, 2011, the Referee reversed the UC Service Center's determination and granted benefits. Employer appealed to the UCBR which, by decision and order issued April 29, 2011, reversed the Referee's decision. Claimant sought reconsideration of the UCBR's decision, which was denied. Claimant now appeals to this Court.
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. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
Claimant argues on appeal that there was not substantial evidence in the record to support the Board's finding that Employer properly followed its disciplinary process when it discharged Claimant. Because Claimant failed to raise this issue before the UCBR, or in his petition for review, it has been waived.
Claimant's petition for review avers that the UCBR erred by finding that: a) "claimant committed willful misconduct, where claimant was not a no show-no call on his last day of employment" because he did report and worked part of the day; b) "claimant's alleged violation of employer's policy was deliberate and without good cause" in light of the fact that he worked ten-hour days, seven days per week for 30 days straight; and c) there was not substantial evidence that "claimant's policy violation was deliberate and without good cause." Petition for Review at ¶ 3. It is clear that those averments relate specifically to whether Claimant's work rule violation rose to the level of willful misconduct. There was no averment in Claimant's petition for review that Employer failed to properly follow its progressive disciplinary policy for attendance, nor was that averment raised before the UCBR. That allegation appeared for the first time in Claimant's brief.
Pennsylvania Rule of Appellate Procedure 1551(a) states in pertinent part: "Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit . . . ." Moreover, this Court has specifically stated that "issues not stated in the petition for review but raised first in the brief are waived." Greene Cnty. Children & Youth Servs. v. Dep't of Pub. Welfare, 913 A.2d 974, 981 n.5 (Pa. Cmwlth. 2006). Because Claimant failed to raise the specific allegation of Employer's alleged failure to follow its progressive disciplinary policy before the Board, that issue is waived and cannot now be decided by this Court.
Next, Claimant argues on appeal that the UCBR erred by finding that Claimant was discharged for willful misconduct. We disagree.
Under Section 402(e) of the Law, an employee is not eligible for benefits if "his unemployment is due to his discharge . . . for willful misconduct connected with his work . . . ."
Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from his employee; or (4) negligence which manifests culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064, 1069 n.7 (Pa. Cmwlth. 2009). "Whether a claimant's conduct constituted willful misconduct is a question of law subject to this Court's review. The employer bears the burden of establishing that the claimant was discharged for willful misconduct on the job." Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009) (citation omitted). "In the case of a work rule violation, the employer must establish the existence of the rule, the reasonableness of the rule and its violation." Lindsay v. Unemployment Comp. Bd. of Review, 789 A.2d 385, 389 (Pa. Cmwlth. 2001). "Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove that his actions were justified or reasonable under the circumstances." Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). "A finding of willful misconduct does not hinge on an employee's intent to wrong his employer; such a finding may be based on an employee's conscious indifference to the duty owed his employer." Grigsby v. Unemployment Comp. Bd. of Review, 447 A.2d 705, 707 (Pa. Cmwlth. 1982).
Here, it is undisputed that Employer has express rules and standards of behavior expected from its employees. According to the record, when Claimant was hired, he received Employer's handbook which set forth Employer's expectations about his attendance:
You are required to call in to report your absence within one (1) hour of the start of your scheduled shift. . . . You are only permitted three (3) call-in's within a 3 month period before termination. First call-in will result in a verbal warning; Second call-in will result in a written warning; Third call-in will result in final written warning; and a Fourth call-in will result in termination. . . . If you fail to notify your supervisor of an absence within the allotted time, it will be viewed as a no call/no show absence, and a written warning will be issued on the first occurrence. If you fail to notify your supervisor of an absence the second time, you will be terminated from your employment with Auntie Anne's. . . .N.T. at Employer's Ex. 4. Because the record is clear that a work rule existed, and there is no apparent challenge to its reasonableness, we look now at whether Employer proved that Claimant violated the rule.
The Board's Finding of Fact 2 incorrectly states: "The employer's policy provides that employees are required to report an absence one hour prior to the start of their scheduled shift." Board Decision at ¶ 3. In its brief, however, the UCBR recognized its error and corrected itself, stating that an employee is required to call in to report an absence within one hour prior to the start of their scheduled shift. See UCBR Br. at 6.
The UCBR's findings that Claimant's last attendance violation rose to the level of willful misconduct are supported by substantial evidence. "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). Claimant asserts that Employer improperly applied its absenteeism policy to his actions of being late on November 10, 2010. However, it is undisputed that Employer's notice of Claimant's employment termination, issued November 10, 2010, states that Claimant was discharged because he failed to call his supervisor within one hour of his scheduled work time, thereby, making it a no call/no show for that day. Because that was his second no call/no show after failing to report to work on November 6, 2010, Employer's absenteeism policy provided for employment termination. Employer established a prima facie case of willful misconduct.
Employer's tardiness policy was as follows:
[I]f you are late you will receive a verbal warning. If you are late two (2) times within a three (3) month period, you will receive a written warning. If you are late three (3) times within a three (3) month period, you will receive a final written warning. If you are late four (4) times within a three (3) month period, you will be terminated from your employment with Auntie Anne's. . . .N.T. at Employer's Ex. 4.
The burden then shifted to Claimant to prove that his actions were justified or reasonable under the circumstances. Claimant attempted to establish good cause for his attendance violation on November 10, 2010 by stating that he was experiencing residual health problems related to a February 2010 prostate surgery, which resulted in him being tired from working long hours for numerous consecutive days. The record reflects that Claimant had numerous absenteeism incidents before November 2010, some of which were due to illness, and which were the basis for prior progressive discipline. However, the only excuse proffered for his failure to timely report to work on November 10, 2010 was, "I set my alarm. It didn't really go off." N.T. at 15. The UCBR did not deem Claimant's testimony credible. Instead, the UCBR declared that Claimant did not establish good cause for his conduct on November 10, 2010, under circumstances in which he was under a final written warning based upon Employer's work rules.
"In unemployment compensation proceedings, the [UCBR] is the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence and to determine the credibility of witnesses." Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008). Where, as here, substantial evidence supports the Board's findings, credibility determinations made by the UCBR are not subject to review by this Court. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994). Because there was substantial evidence to support the UCBR's findings, the UCBR did not err by finding that Claimant was discharged for willful misconduct.
Accordingly, the UCBR's decision is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 21st day of March, 2012, the April 29, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE McCULLOUGH
I respectfully dissent. Although the record reflects that Auntie Anne's, Inc. (Employer) discharged Frank E. Tisdale (Claimant) "for having a second no call, no show, in violation of [Employer's] reporting off policy," (Board's Finding of Fact No. 15), the record does not reflect that Claimant's conduct with respect to his tardiness on November 10, 2010, violated Employer's policy.
As the Board found, Employer's policy "provides that employees are required to report an absence one hour prior to the start of their scheduled shift." (Board's Finding of Fact No. 2.) In addition, an employee's "failure to notify a supervisor of an absence within the allotted time will be viewed as a no call, no show and will result in a written warning." (Board's Finding of Fact No. 3.) "A second incident of no call, no show" will result in an employee's discharge. (Board's Finding of Fact No. 4.) On November 6, 2010, Claimant reported that he would be late but never came to work, which constituted his first incidence of no call, no show. (Board's Finding of Fact No. 10.)
On November 10, Claimant was scheduled to start work at 6:00 a.m., but he called Employer at 7:02 a.m. to say he would be arriving late. Claimant reported to work at 7:26 a.m., and Employer discharged him for having a second no call, no show, in violation of Employer's reporting off policy. (Board's Findings of Fact Nos. 12-15.)
The local service center denied Claimant's application for benefits, but the referee reversed. On appeal, the Board held that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law, concluding that Claimant's conduct constituted a second no call, no show, in violation of a policy of which he was aware.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
However, Employer's Attendance Policy, (Certified Record (C.R.), Employer's ex. 4), includes separate provisions addressing Absenteeism and Tardiness, plainly distinguishing those infractions. Of significance here, the call in requirements included in the Absenteeism provisions are not similarly included in the Tardiness section of the Attendance Policy.
In its entirety, Employer's attendance policy provides as follows:
ATTENDANCE POLICY(C.R., Employer's ex. 4.) --------
As an employee, you are expected to be punctual and regular in your attendance. When you are absent or late for work, others must perform your work just as you must perform their work when they are absent.
You are expected to report to work on time and be prepared to start work at your regularly scheduled starting time. You are also expected to remain at work through the end of your schedule except for regularly scheduled breaks or authorized leaves.
ABSENTEEISM
Absenteeism is disruptive to a successful manufacturing operation. Excessive absenteeism will lead to termination.
In order for an absence to be excused, you must obtain prior approval from your supervisor. You are required to call in to report your absence within one (1) hour of the start of your scheduled shift. You must speak to your supervisor.
You are only permitted three (3) call-in's within a 3 month period before termination. First call-in will result in a verbal warning; Second call-in will result in a written warning; Third call-in will result in final written warning; and a Fourth call-in will result in termination. For each three (3) month period without a call-in, one (1) call-in incident will drop off your record.
If you fail to notify your supervisor of an absence within the allotted time, it will be viewed as a no call/no show absence, and a written warning will be issued on the first occurrence. If you fail to notify your supervisor of an absence the second time, you will be terminated from your employment with Auntie Anne's.
An employee who fails to call in for two (2) successive days will be deemed to have voluntarily resigned his/her employment.
TARDINESS
It is our policy that employees will be at their workstation ready to go to work at the time their shift is scheduled to begin. During your Introductory/Probationary Period, if you are late one (1) time, you will receive a written warning. If you are late a second time, it will result in termination of employment.
After your introductory period, if you are late you will receive a verbal warning. If you are late two (2) times within a three (3) month period, you will receive a written warning. If you are late three (3) times within a three (3) month period, you will receive a final written warning. If you are late four (4) times within a three (3) month period, you will be terminated from your employment with Auntie Anne's. For each three (3) month period without an incident, one (1) tardy incident will drop off your record. This includes being late for work, breaks and lunch.
Not only is there no call in requirement in the Tardiness provisions, Employer offered no testimony to establish that, in practice, it requires employees to call an hour before the start of their scheduled shift if they will be tardy, perhaps recognizing that circumstances which cause such delay are often unanticipated. Correspondingly, Employer offered no evidence that its employees were aware of this unwritten requirement. In the absence of such evidence, the Board erred in concluding that Claimant's failure to report his tardy arrival on November 10th violated Employer's reporting off policy. (Board's decision, p.3.)
It is well settled that the issue in a willful misconduct case is not whether the employer had the right to discharge the employee for the conduct in question but whether the Commonwealth is justified in reinforcing that decision by denying benefits under section 402(e) of the Law. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Pennsylvania State Police v. Unemployment Compensation Board of Review, 578 A.2d 1360 (Pa. Cmwlth. 1990).
We have consistently held that the burden of proving willful misconduct rests with the employer. Hager v. Unemployment Compensation Board of Review, 482 A.2d 1368 (Pa. Cmwlth. 1984). Here, Employer failed to demonstrate that Claimant violated the call in directives set forth in Employer's Attendance Policy.
Accordingly, I would reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge