Opinion
1741 CD. 2019
08-30-2021
Tyree Williams, Petitioner v. Unemployment Compensation Board of Review, Respondent
OPINION NOT REPORTED
Submitted: November 9, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge (P.) HONORABLE ELLEN CEISLER, Judge
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt served as President Judge.
MEMORANDUM OPINION
MICHAEL H. WOJCIK, Judge.
Tyree Williams (Claimant), proceeding pro se, petitions for review of the November 13, 2019 order of the Unemployment Compensation Board of Review (Board) affirming as modified a referee's determination that Claimant is ineligible for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law) because his employment was terminated due to willful misconduct for a work rule violation pertaining to unauthorized absences. On appeal, Claimant argues, inter alia, that the work rule prohibiting unauthorized absences did not apply to him because the absences for which he was fired were mandated by Employer, and he had good cause for his absences. Upon review, we reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
I. Background
Claimant worked full-time as the Assistant Director of Multicultural Affairs for Temple University (Employer) in its Admissions Department from December 12, 2016, until his last day of work on April 26, 2019. After his separation from employment, Claimant applied for UC benefits, which a local service center granted. Employer appealed, and a referee held a hearing.
Before the referee, Claimant, who was represented by counsel, and four witnesses for Employer, appeared. Certified Record (C.R.) at 49. Based upon the testimony and evidence presented, the referee concluded that Claimant violated Employer's work rule regarding absenteeism and failed to show good cause for his absences. Thus, the referee determined that Claimant was ineligible for benefits under Section 402(e) of the Law.
Because the Certified Record was filed electronically and was not paginated, the page numbers referenced in this opinion reflect electronic pagination.
Claimant appealed to the Board. The Board amended and adopted the referee's findings, as follows:
1. [Claimant] was employed from December 12, 2016, until April 26, 2019; at the time of separation, he was working full-time as the Assistant Director of Multicultural Affairs and was earning $25.18 per hour.
2. [Employer] has Rules of Conduct that [provide] for termination of employment if an employee has an unapproved work absence of 3 [three] consecutive days.
3. [Claimant] was or should have been aware of [Employer's] Rules of Conduct.
4. In his role as the Assistant Director of Multicultural Affairs, [Claimant] was often required to work outside his office; therefore, he was not in the office over 50% of the time already.
5.On April 24, 2019, [Claimant] returned to work after the expiration of an Employer-approved leave of absence for medical reasons that began October 23, 2018.
6. On or about April 16, 2019, [Claimant] submitted a request for [Americans with Disabilities Act (ADA) Accommodation to [Employer] which described the requested accommodation as follows: "Ability to work remotely instead of requiring [him] to be working exclusively from the office."
7. In support of [Claimant's] request, he supplied an "ADA Certification form," dated March 9, 2019, completed and signed by his physician; the Certification form also listed the requested accommodation as "Ability to work remotely instead of requiring [him] to be working exclusively from his desk."
8.[Claimant] severed his relationship with his physician who completed the ADA Certification form sometime between March 9 and April 24, 2019.
9.[Claimant] appeared for work on April 24-26, 2019.
10. On April 29, 2019, [Employer] responded to [Claimant's] request for accommodation by agreeing to allow [Claimant] to "work from home one day per month, as needed."
11. [Employer] requested that [Claimant] respond by either accepting [Employer's] accommodation and returning to work on April 30, 2019, or contacting
[Employer] to discuss any questions, information or assistance needed.
12. Claimant responded to the letter by informing [Employer] that he no longer had a doctor.
13. Sometime after April 29, 2019, [Claimant] informed [Employer] that he "no longer had a doctor to complete documentation in support of his request for an accommodation in excess of that offered by [Employer] or a medical leave of absence."
14. [Employer] responded by email, informing [Claimant] that his request for accommodation was not reasonable and giving [Claimant] until May 6, 2019, to either (a) supply medical documentation approving the offer; or (b) requesting a medical leave of absence. The email also warned [Claimant] that [his] failure to provide medical documentation in support of any request would subject him to disciplinary action.
15. [Claimant] did not provide the requested documentation.
16. [Claimant] was discharged from his position for failure to adhere to [Employer's] Rules of Conduct.
Board Op., 11/13/2019, at 1 (adopting Referee's Op., 9/18/2019, Findings of Fact (F.F.) No. 1-3, 5-16 and amending F.F. No. 4).
The Board credited the testimony of Employer's witnesses concerning the existence of its absentee policy and Claimant's awareness of it. The Board concluded that Claimant's requested accommodation was not reasonable. Based on the credible testimony that Employer submitted, the Board found Employer's expectation for Claimant to be in the office to meet people and to take them on campus tours to be reasonable. The Board rejected Claimant's argument that Employer's ultimatum was unreasonable. Instead, the Board determined that Employer gave Claimant choices to maintain his employment, and Claimant did not avail himself of any of them. The Board rejected Claimant's testimony that it was "impossible" to obtain medical documentation within the short period of time that Employer allowed. Board Op. at 1. Thus, the Board determined that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant's petition for review to this Court followed.
Our review is limited to determining whether necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. 2 Pa. C.S. §704; Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014).
II. Issues
Claimant argues that the Board erred in determining that he committed willful misconduct under Section 402(e) of the Law by violating Employer's work rule regarding absenteeism. In this regard, Claimant contends that Employer did not establish the existence of a work rule regarding absenteeism or his violation of it. According to Claimant, Employer terminated his employment by giving him an unreasonable ultimatum to request a medical leave of absence that would end his employment, and by refusing to engage in an interactive process to attempt to reasonably accommodate him. Claimant returned to work, but Employer refused to allow Claimant to continue working without an accommodation in place. Claimant contends that Employer did not give him reasonable time in which to respond to its ultimatum. He maintains that absence due to illness cannot constitute willful misconduct as a matter of law. Claimant also asserts that Employer penalized him for ending his relationship with his doctor even though Employer did not have a rule requiring Claimant to maintain that relationship. Claimant also contends that the referee was biased in Employer's favor and deprived him of a full and fair hearing.
III. Discussion
A. Willful Misconduct - Violation of Absenteeism Policy
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 . . . ." 43 P.S. §802(e). "[W]illful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014) (citing Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422 (Pa. 2002)).
When the conduct relates to absenteeism, "[a]bsenteeism alone, while grounds for discharge, is not a sufficient basis for the denial of [UC] benefits." Miller v. Unemployment Compensation Board of Review, 131 A.3d 110, 113 (Pa. Cmwlth. 2015). "An additional element, such as lack of good cause for absence, is necessary." Id. In determining whether absenteeism constitutes willful misconduct, we consider the following factors: "(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 policies with regard to absenteeism; and (5) disregard of warnings regarding absenteeism." Id.
The employer bears the initial burden of proving a claimant engaged in willful misconduct. Johns, 87 A.3d at 1009. When asserting a discharge based on a violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Id. (citing Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 344 (Pa. Cmwlth. 2008)). A determination of whether an employee's actions amount to willful misconduct requires a consideration of "all of the circumstances, including the reasons for the employee's noncompliance with the employer's policy or directives." Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001) (quoting Rebel v. Unemployment Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998)).
Once an employer meets its burden, the burden shifts to the employee to prove good cause for his actions. Johns, 87 A.3d at 1010. An employee establishes good cause where his actions are justified or reasonable under the circumstances. Miller, 131 A.3d at 113. "'Good cause' has been described as requiring a 'balanc[ing of] the reasonableness of the supervisor's directive against the reasonableness of [the claimant's] refusal.'" Connelly v. Unemployment Compensation Board of Review, 450 A.2d 245, 246 (Pa. Cmwlth. 1982) (quoting Patterson v. Unemployment Compensation Board of Review, 430 A.2d 1011, 1014 (Pa. Cmwlth. 1981)).
Further, in UC cases, the Board is the ultimate factfinder and is empowered to resolve all issues of witness credibility, conflicting evidence, and evidentiary weight. Ductmate, 949 A.2d at 342. It is irrelevant whether the record contains evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Additionally, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id. We are also mindful of the Law's "remedial and humanitarian" purpose. Unemployment Compensation Board of Review v. Jolliffe, 379 A.2d 109, 110 (Pa. 1977).
Here, Employer presented evidence regarding its rule against unauthorized absences for three or more consecutive days and that Claimant was aware or should have been aware of this rule. Felisha Brown (Brown), Employer's Employee Relations Manager, testified that "[Claimant] was terminated for D1, unauthorized absence for three or more consecutive days. According to our work rules, the violation, a D category violation, warrants immediate termination." C.R. at 58. She further testified that Employer provided a copy of its work rules to Claimant during his orientation. Id. Employer offered into evidence a copy of its work rules as well as a copy of an orientation sign-in sheet from January 10, 2017, bearing Claimant's signature. Id. at 58-59, 84-102. Brown testified that the work rules are also made available to the employees online. Id. at 59. Notably, Claimant did not dispute the existence of the rule or his awareness of it during his testimony. Although Claimant argues on appeal that Employer failed to establish the existence of such a work rule and his awareness of the rule, the Board specifically credited Brown's testimony in this regard. Employer's testimony and exhibits constitute substantial evidence to support the Board's findings regarding the existence of a work rule and Claimant's awareness of it.
Rule D.1 of Employer's Rules of Conduct provides:
D.1 Unauthorized Absence for Three Consecutive Days Including, but not limited to:
• Failure to notify supervision or appropriate managerial employee of work absence in the established and timely manner for three (3) consecutive absences.
• Failure to provide proper documentation for work absence.
• Any unapproved work absence for 3 consecutive days.C.R. at 98 (emphasis in original).
As for whether Claimant violated this work rule, there is no dispute that Claimant was absent from work for more than three consecutive days. Claimant readily admits that he was absent from April 29 to May 3, and May 6 to May 9, his date of termination. C.R. at 11. We must ascertain whether Claimant's absence was in violation of Employer's policy, and, if so, whether Claimant had good cause for his absence.
Claimant was on an Employer-approved leave of absence until April 24, 2019, under the Family Medical Leave Act. C.R. at 57, 63. On April 16, 2019, in anticipation of returning to work, Claimant submitted a request for a disability accommodation to Employer seeking the "[a]bility to work remotely instead of requiring [him] to be working exclusively from the office." F.F. No. 6; C.R. at 105. Claimant described that the accommodation will significantly "reduce anxiety and stress caused by [the] office environment . . . ." C.R. at 105. In support, Claimant attached an "ADA Certification Form," which was completed and signed by his physician on March 9, 2019. Id. at 80-82. According to the ADA Certification Form, Claimant's physician recommended an accommodation described as the "[a]bility to work remotely instead of requiring [him] to be working exclusively from his desk." F.F. No. 7; C.R. at 82. Claimant testified he was not seeking an accommodation to work remotely from home, but rather to work remotely on Employer's campus, but away from his desk/office, as needed. C.R. at 75.
Employer reviewed Claimant's proposed accommodation, which it interpreted as a request to work remotely from home as needed. C.R. at 56, 64, 71-72. Employer determined that, due to the essential functions of Claimant's job, it could not allow him to work from home as needed. Id. at 68, 71. In order for Claimant to return to work, Employer and Claimant needed to agree upon a workable accommodation. Id. at 56. Employer's witnesses testified that there was an interactive process, a "back and forth" conversation so to speak, between Claimant, his department, and the administrative staff, regarding a feasible accommodation. Id. at 61, 63, 72, 74, 137.
Claimant returned to work on April 24, 2019, and worked through April 26, 2019. C.R. at 69. However, because Claimant returned to work without an agreed-upon accommodation in place, Claimant's return was against Employer's policy. Id. at 56. Brown testified that Claimant's return to work was contingent upon his acceptance of Employer's accommodation. Id. at 56. Without an accommodation in place, Brown testified, "we were not allowed to have him work, report back to work." Id. (emphasis added). Claimant understood that he was not authorized to report for work unless he accepted Employer's proposed accommodation or provided another suggestion or solution for Employer to consider. Id. at 137.
By email and a letter dated April 29, 2019, Employer formally responded to Claimant's accommodation request by offering to allow Claimant to "work from home one day per month, as needed." C.R. at 107-08. Employer directed: "If you agree with this accommodation, you should report to work tomorrow, Tuesday, April 30." Id. at 107.
Claimant did not accept the accommodation nor report to work on April 30th. Instead, Claimant responded to Employer that he wanted a doctor to review and approve Employer's proposed medical accommodation prior to his acceptance. C.R. at 112. However, Claimant was no longer under a doctor's care, and he relayed the same to Employer. F.F. No. 12; C.R. at 66-67, 110, 112, 136-37.
By email dated April 30, 2019, Employer advised Claimant that he must either accept Employer's accommodation and return to work or request a leave of absence. C.R. at 63. Specifically, Employer gave Claimant until Monday, May 6, 2019, to either:
1.Supply us your medical documentation that approves our offer of accommodation to allow you to work remotely one day per month as needed, or
2. Request a medical leave of absence as we have determined that your accommodation is not reasonable. Please note that at that juncture, your department will move forward with posting the position of Assistant Director of Multicultural Admissions.Id. at 112. Both options required Claimant to produce medical documentation. Id. at 66, 70, 72. The letter continued: "Failure to provide any medical documentation will subject you to disciplinary action under our rules of conduct as it pertains to attendance up to and including termination." Id. at 112.
Obtaining the requested medical documentation in the timeframe allotted served as an impediment to Claimant's return because he was no longer under a doctor's care. Claimant did not accept or reject either option. He also did not return to work because Employer made it clear that he was not to return to work unless he supplied Employer with medical documentation approving its accommodation. C.R. at 112.
By email dated May 8, 2019, at 5:26 p.m., Employer noted that Claimant had not returned to work and asked Claimant if he wished to apply for a medical leave of absence. C.R. at 109. If so, Employer directed that Claimant's medical provider must complete the necessary paperwork for a leave of absence and return the same to Employer by May 22, 2019, with no extensions granted. Id. at 109. Employer further advised Claimant that his current "status is absent without leave." Id. at 109. Employer reiterated that, if Claimant desired to return to work, his position required that the balance of his job be performed in his "on-campus office/workspace," but that Employer would accommodate Claimant by allowing him to work from home one day a month. Id. at 109. Employer demanded an immediate response: "[Y]ou must let [Employer] know today if you wish to apply for leave." Id. at 109 (emphasis added).
Claimant did not timely respond. The next day, Employer terminated Claimant's employment, citing his violation of Employer's absenteeism policy as the basis for termination. C.R. at 114.
Upon review, Claimant's consecutive absences between April 29 to May 3, 2019, were authorized by Employer. Claimant attempted to return to work. However, Employer would not permit Claimant to work without an agreed-upon accommodation for his disability in place. C.R. at 56. Employer gave Claimant until Monday, May 6, 2019, to accept Employer's proposed accommodation. Therefore, Claimant's absences from Monday, April 29, 2019, to Friday, May 3, 2019, do not constitute an unauthorized absence for three consecutive days in violation of Employer's work policy.
As for Claimant's consecutive absences between May 6 until May 9, 2019, these absences occurred after Employer's deadline of May 6, 2019, within which Claimant was required to accept Employer's proposed accommodation and return to work or request a medical leave of absence. Because Claimant failed to exercise either option, his status was absent without leave. C.R. at 109. Unlike the absences preceding the deadline, these absences were not similarly authorized by Employer and were in violation of Employer's policy. Under Employer's policy, an unauthorized absence for three or more consecutive days warrants "immediate termination." Id. at 58; see id. at 89.
As for whether Employer's counteroffer violated the ADA, an appeal of a UC determination is not the proper forum in which to adjudicate alleged violations of the ADA.
However, for UC purposes, absenteeism alone is not a sufficient basis for the denial of UC benefits. Miller, 131 A.3d at 113. An additional element, such as lack of good cause, is necessary. Id. As for whether Claimant had good cause for his absences, Employer did not lift its demand for new medical documentation approving its proposed accommodation enabling Claimant to work remotely from home one day a month as needed. Although it was Claimant who initially expressed the need to have a doctor review Employer's accommodation, Employer formally required medical documentation, imposed a one-week deadline for doing so, and threatened disciplinary action, including termination, if Claimant failed to provide the medical documentation. C.R. at 112.
Claimant had already submitted the requisite medical documentation in support of his accommodation to work remotely away from his desk or office, as needed, which Employer both misinterpreted and rejected. Claimant was between medical providers when Employer demanded new medical documentation approving its proposed accommodation enabling Claimant to work remotely from home one day a month as needed. C.R. at 75-76. Claimant was having difficulty finding a new doctor and obtaining such documentation in the short timeframe allotted and informed Employer of the same. Id. at 77, 110. Claimant also expressed concerns regarding his continuing healthcare coverage given the tenuous nature of his employment. Id. at 110. Although it was not "impossible" for Claimant to obtain medical clearance during this time, Board Op., at 1, Claimant demonstrated good cause for his inability to obtain the required clearance and, consequently, his absences from work. Under the circumstances presented here, and considering the humanitarian purpose of the Law, we conclude that the Board erred in determining that Claimant was ineligible for UC benefits under Section 402(e) of the Law.
We also note that Employer's final communication with Claimant prior to termination, which again offered Claimant the ability to return to work or request a leave of absence to protect his employment status, was not presented in good faith. Employer sent the May 8, 2019 email at 5:26 p.m., after Employer's normal business hours, and demanded a same-day response, despite affording Claimant until May 22, 2019, to supply medical documentation for a leave of absence. C.R. at 110; see id. at 114 (Employer's normal business hours were 9:00 a.m. to 5:00 p.m.); id. at 79 (Claimant's normal work schedule was 8:30 a.m. to 5:00 p.m.). Employer did not give Claimant a fair opportunity to respond before terminating his employment the next day. However, our focus is not on whether Employer may discharge an at-will employee, but rather whether that employee may be disqualified from receiving UC benefits under the Law. See Miller.
In light of this determination, we will not address Claimant's other contentions related to the issue of willful misconduct.
B. Referee's Conduct
Next, Claimant contends that the referee acted inappropriately at the hearing and deprived him of a full and fair hearing. More particularly, Claimant avers that the referee repeatedly cut off his attorney during his cross-examination of Employer's witnesses, which impeded his ability to emphasize the deficiencies in their testimony. The referee aggressively made comments throughout the hearing, suggesting that the parties needed to speed things up. The referee also assisted Employer's case by eliciting answers to questions that favored Employer's position.
UC referees are "authorized to regulate the course of hearings and to take other action necessary or appropriate to the discharge of the duties vested in them." Powell v. Unemployment Compensation Board of Review, 157 A.3d 884, 893 n.11 (Pa. 2017); accord 1 Pa. Code §35.187(1), (10) ("Presiding officers . . . shall have the authority, within the powers and subject to the regulations of the agency," to regulate the course of hearings and to "take other action necessary or appropriate to the discharge of the duties vested in them, consistent with the statutory or other authorities under which the agency functions and with the regulations and policies of the agency."). While a referee may actively participate in the hearing to maintain control of the process, "the referee's role is not that of advocate." Fox v. Unemployment Compensation Board of Review, 522 A.2d 713, 714 (Pa. Cmwlth. 1987).
At the hearing, the referee instructed Claimant's counsel not to read documents already in the record. C.R. at 62. She directed: "If you've got a question, ask the question." Id. She also warned both parties to "not beat around the bush" and to get to the point. Id. at 63. Although the referee may have appeared brusque at times, the referee did not act inappropriately by maintaining control of the process. The parties had a full and fair opportunity to present their case.
Turning to Claimant's allegations of referee bias and favoritism, Claimant asserts that the referee assisted Employer by asking questions and "eliciting the answer that [Claimant] was expected to provide all documentation [] [E]mployer required." Petitioner's Brief at 30-31. The referee simply asked Employer "[i]s it the employee's responsibility to provide all the documentation requested?" C.R. at 72. The referee is permitted to ask questions and was performing her duty to ensure a complete record. Upon review, the referee faithfully discharged her obligations and did not act inappropriately or with bias. We discern no merit in Claimant's allegations of impropriety.
Accordingly, for the foregoing reasons, we reverse the Board's order.
ORDER
AND NOW, this 30 th day of August, 2021, the order of the Unemployment Compensation Board of Review, dated November 13, 2019, is REVERSED.