Opinion
No. 232 C.D. 2011
10-26-2011
Ronald J. Choplinsky, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ronald J. Choplinsky (Claimant) petitions for review of the December 28, 2010, order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision denying Claimant benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). We vacate and remand.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides 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 to prove that a discharged employee was guilty of willful misconduct. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993).
Claimant was employed by the School District of Philadelphia (Employer) as an auto body teacher. On July 23, 2010, Employer, by letter, discharged Claimant for failing to obtain a Level 1 teacher's certification. Employer explained as follows:
Your credentials have been carefully reviewed and evaluated. It has been determined that you failed to complete the requirements of the Intern Certificate and upgrade to a Level I Certificate as mandated by the Public School Code. Since you do not have a valid certificate to teach the subject of your appointment, your actions are considered to be a willful violation of the school laws of the Commonwealth. Due to the requirements of the No Child Left Behind legislation, as well as the Public School Code and the School District of Philadelphia we regret to advise you that you must be separated from service effective July 31, 2010.(Exhibit No. 9, Original Record Item 2.)
Claimant applied for unemployment benefits, which were denied by the local service center pursuant to section 402(e) of the Law. Claimant appealed, and a referee conducted a hearing on October 28, 2010.
Employer presented the testimony of its unemployment specialist, Rhonda Boone, who testified that Claimant's employment was terminated because his Internship Certificate had expired and he had not yet upgraded to a Level 1 Certification as required by state law. (Notes of Testimony (N.T.) at 5.) Boone testified that she believed that the certification was good for six years, (Id.), and that she did not know why Claimant did not upgrade his certification. (N.T. at 7.) In addition, Boone testified that Claimant went on sick leave on September 16, 2009, and never returned to work. (N.T. at 5.)
Claimant testified that in order to upgrade his teaching certification he was required to complete six courses within six years, (N.T. at 8), and that he became aware of that requirement sometime in 2005. (N.T. at 9.) He stated that he completed his first course in the spring of 2006 at Temple University and enrolled in a second course for the fall of 2007. However, Claimant had emergency heart bypass surgery in October of 2007, and the university granted him medical leave and partially refunded his tuition. (N.T. at 9.) Claimant testified that he was unable to return to work until September of 2008. (Id.) Moreover, Claimant testified that his problems were compounded in July of 2008, when he was hospitalized for stomach problems and then subsequently was injured in a major car accident. (N.T. at 11.) Claimant explained that he tried to complete his college courses, but his disability made it hard to do so. (Id.)
In September of 2008, Claimant returned to work as a vocational teacher for Employer. However, Claimant testified that, during the 2008 school year, he was assaulted and threatened several times by students. (N.T. at 10-14.) Further, Claimant testified that he was diagnosed with post traumatic stress disorder and that Employer placed him on medical leave on September 16, 2009. (N.T. at 12.) Claimant remained on medical leave until he was discharged on July 23, 2010.
After reviewing the evidence, the referee made the following pertinent findings of fact:
2. The claimant was hired and given an intern certification to teach.
3. The claimant was required by the School District of Philadelphia and the Commonwealth of Pennsylvania to complete six courses within six years to upgrade to a Level 1 certificate.
4. The claimant completed one course in 2006.
5. The claimant had emergency heart bypass surgery in October 2007.(Referee's Decision at 1-2.) The referee recognized that Claimant experienced medical problems and incidents involving students but was not convinced that those reasons prevented Claimant from completing six courses in six years. Accordingly, the referee determined that Claimant's failure to upgrade his teaching certification rose to the level of willful misconduct and that his claim for benefits must be denied under section 402(e) of the Law.
6. The claimant returned to work following his surgery in September 2008.
7. The claimant was in a major car accident on July 1, 2008.
8. On October 16, 2008, the School District of Philadelphia received a letter from the claimant, reporting that a student had assaulted him.
9. The claimant suffers from post traumatic stress disorder.
10. The claimant never completed the requirements necessary to upgrade to a Level 1 certification.
11. On July 23, 2010, the employer ... discharge[d] the claimant because he failed to upgrade to a Level 1 certification.
Claimant appealed to the Board, which affirmed the referee's decision, adopting the referee's findings of fact and conclusions of law. This appeal ensued.
On appeal to this Court, Claimant contends that the Board erroneously concluded that he engaged in willful misconduct because the facts found by the Board failed to fully recognize all of the circumstances and obstacles that prevented him from completing the required courses. Claimant also argues that the Board's findings are incomplete, asserting that the Board's findings do not clearly show that Claimant was not out of time to get his Level 1 Certification at the time his employment was terminated, and that the Board's findings do not acknowledge his periods of disability and the assaults he experienced in the course of his employment.
Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Thompson v. Unemployment Compensation Board of Review, 723 A.2d 743 (Pa. Cmwlth. 1999).
Initially, we note that while the Law does not define willful misconduct, our courts have defined that term as including: (1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024 (Pa. Cmwlth. 2009). The burden of proving willful misconduct rests with the employer. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011). Once the employer meets its burden to show willful misconduct, the burden then shifts to the claimant to establish good cause for his actions. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667 (Pa. Cmwlth. 2010). A claimant has good cause when his actions are justifiable and reasonable under the circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Chapman.
The failure to secure or maintain a license or certification may render a claimant ineligible for benefits. In Jones v. Unemployment Compensation Board of Review, 513 Pa. 45, 518 A.2d 1150 (1986), our Supreme Court held that a teacher was ineligible for benefits because, for reasons of personal convenience, she failed to obtain a permanent teaching certificate before her emergency certificate expired. The Jones court reasoned:
It is clear that Mrs. Jones delayed pursuing the last required college course work for nearly nine months until the summer of 1981, allowing two college semesters to pass without completing any course work. Mrs. Jones's reason for the delay, as stated supra, was that she was working full time as a teacher in addition to attending to her responsibilities as a wife and mother. While we are not insensitive to the demands placed on a wife and mother who also works full-time outside the home; nevertheless, we cannot escape the conclusion that Mrs. Jones's freely made decision to delay the remaining course work until the following summer contributed directly to her inability to complete the required course work before expiration of her emergency teaching certificate. Because the decision to delay pursuit of the remaining required course work was made out of concern for the convenience of Mrs. Jones, the risk that the delay might result in her unemployment properly falls upon Mrs. Jones.Id., 513 Pa. at 52, 518 A.2d at 1153 (emphasis added). Furthermore, in Township of Darby v. Unemployment Compensation Board of Review, 429 A.2d 1223 (Pa. Cmwlth. 1984), we held that a claimant engaged in willful misconduct when he delayed in applying for a driver's license. We observed in Darby that the claimant had no particular reason for waiting to apply for the license and behaved in a lackadaisical manner.
In contrast to Jones and Township of Darby, this is not a case where Claimant articulated no reason for failing to upgrade his teaching certificate or made no effort to complete the necessary course work. Rather, the Board found as fact that Claimant completed one course in 2006, but subsequently experienced a series of hardships: he underwent emergency bypass surgery in October 2007; he sustained injuries as a result of a major car accident in July 2008; he suffers from post traumatic stress disorder; and Claimant reported he was assaulted by a student. Although the Board concluded that Claimant's problems did not preclude him from earning his teaching certification, the Board did not make sufficient findings of fact to support that conclusion, which deficiency prevents meaningful appellate review.
The Board found that Claimant did not work from October 2007 to September 2008; however, the Board made no findings on whether Claimant was disabled during this period or any other period of time and whether the disability rendered him unable to take classes. The Board made no finding based on Boone's testimony that Claimant was on sick leave from September 16, 2009, to the date of his termination, July 23, 2010, which is a period in excess of 10 months. Regarding the classes, the Board made no finding with regard to Claimant's testimony that he enrolled for a second class in the fall of 2007, but was forced to withdraw due to his medical condition. It appears from the record that, following the cancellation of his second class in 2007, Claimant worked for only one year, from September 2008 to September 2009, and was on medical leave the remainder of the time. It also appears that the one year Claimant worked was punctuated by series of assaults by students, the circumstances of which are not developed in the Board's findings.
Furthermore, although it found that Claimant was required to complete six courses within a period of six years to secure his teaching certification, the Board made no finding as to the dates on which that six year period commenced and expired. Without this necessary finding, we cannot address Claimant's argument that he was not out of time to earn the certificate on the date his employment was terminated.
Even though this case turns on the question of whether Claimant failed to comply with state education law by not timely completing his course requirements, Employer did not introduce into evidence a copy of the education statute or regulation that Claimant purportedly violated, and the Board did not cite the relevant statute or regulation in either its decision or brief. This Court has no duty to cull through the Laws of Pennsylvania or the Pennsylvania Code for a statute or regulation that appears pertinent, and a lay witness's characterization of the law and/or vague references to "state law" are no substitute for providing the actual statute or regulation. --------
In light of the foregoing, we vacate the Board's order and remand the case for additional fact finding and the issuance of a new decision consistent with this opinion.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of October, 2011, the December 28, 2010 order of the Unemployment Compensation Board of Review is hereby vacated. This case is remanded for a new decision consistent with this opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge