Opinion
No. 2193 C.D. 2012
05-20-2013
Josh Packard, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Josh Packard (Claimant) petitions for review of the October 19, 2012 order of the Unemployment Compensation Board of Review (Board). The Board concluded that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), because he was absent from work without proper notice and without good cause in violation of Lowe's Home Center's (Employer) policy. We affirm.
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 or her unemployment is due to discharge for willful misconduct connected to his or her work. 43 P.S. § 802(e).
Following discharge by Employer, Claimant filed for unemployment compensation benefits at the Indiana Unemployment Compensation Service Center. (Record Item (R. Item) 1, Claim record.) On April 20, 2012, a Service Center representative for the Department of Labor and Industry issued a determination finding Claimant ineligible for unemployment compensation benefits due to willful misconduct. (R. Item 4, Notice of Determination.) Claimant appealed to the Referee and a hearing was held on June 18, 2012, at which Claimant, his witness Ina Grove, and Employer's Human Resources Manager for the Chambersburg store, Dawn Wolford, all testified. (R. Item 8, Referee Hearing Transcript (H.T.).) In a June 25, 2012, decision and order, the Referee affirmed the determination of the Service Center representative and concluded that Claimant was ineligible for unemployment compensation benefits due to discharge for willful misconduct. (R. Item 9, Referee decision and order.) Claimant appealed to the Board.
In unemployment compensation proceedings, the Board is empowered to resolve conflicts in the evidence and determine the credibility of witnesses; when supported by substantial evidence, the Board is the ultimate finder of fact and its findings are binding and conclusive on appeal. On Line Inc. v. Unemployment Compensation Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
The Board found the following facts:
1. For the purposes of this appeal, the claimant was last employed as a full-time night stocker for Lowe's Home Center at an hourly rate of $9.56.
2. The [C]laimant was aware, or should have been aware, of the employer's policy providing that employees who are absent for three
consecutive workdays without proper notice and without good cause will have their employment terminated due to job abandonment.(Board Findings of Fact (F.F.) ¶¶1-12.) The Board also found that there was a conflict between the testimony of Employer's Human Resources Manager and Claimant's witness concerning whether Claimant's witness called Employer to report Claimant's absences after January 19, 2012, and that the conflict must be resolved in favor of Employer, because Claimant's witness could offer no details on when she called or who she spoke to. (Board Discussion, ¶4.)
3. The [C]laimant received a copy of the employee handbook containing the policy during his orientation.
4. The [C]laimant last worked on the morning of January 19, 2012.
5. On January 18, 2012, the [C]laimant was scheduled to appear in Dauphin County Court for sentencing on a guilty plea entered to a charge of theft of lost property.
6. The [C]laimant did not report for his Court hearing on January 18, 2012, because he could not find transportation.
7. The [C]laimant notified his public defender of the transportation issue, and the public defender informed the claimant that a judge might issue a bench warrant but the claimant could appear on the following morning for a sentencing hearing.
8. On the morning of January 19, 2012, the [C]laimant reported to the Dauphin County Sheriff and was placed under arrest in the Dauphin County Prison until January 25, 2012, when he was released for a twelve-month probation and a fine of $50.00.
9. On January 19, 2012, the employer received a call from a female stating that the [C]laimant would not be in for work for the night shift.
10. The [C]laimant was a no call/no show for his next scheduled shifts on January 22, January 23, and January 24, 2012.
11. On January 25, 2012, the [C]laimant called the assistant store manager, and the employer told him not to report to work on January 25, 2012, until the employer decided how to proceed.
12. The employer subsequently discharged the [C]laimant for being a no call/no show on January 22, January 23, and January 24, 2012, in violation of the employer's policy.
The Board concluded that incarceration for failing to appear at a sentencing hearing did not constitute good cause for failing to call or show up for work in violation of Employer's policy. (Board Discussion, ¶5.) The Board also concluded that Claimant did not offer sufficient credible testimony or evidence to support his assertion that he was incarcerated in violation of his due process rights. (Id.) The Board affirmed the decision of the Referee concluding that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant appealed.
In unemployment compensation appeals, this Court's scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Maskerines v. Unemployment Comp. Bd. of Review, 13 A.3d 553, 555 n.3 (Pa. Cmwlth. 2011). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On Line Inc., 941 A.2d at 788 n.7.
Before this Court, Claimant contends that his actions do not rise to the level of willful misconduct, that he had good cause for violating Employer's work rule because he was incarcerated under a bench warrant in violation of the Pennsylvania Rules of Criminal Procedure and his Constitutional right to Due Process, and that the Board erred in concluding that he was ineligible for benefits under Section 402(e) of the Law.
Specifically, the Rules of Criminal Procedure provide, in relevant part: an "individual shall not be detained without a bench warrant hearing on that bench warrant longer than 72 hours, or the close of the next business day if the 72 hours expires on a non-business day." 234 Pa. Code. § 150(A)(5)(b). --------
Whether or not a claimant's activities constitute "willful misconduct" is a question of law over which this Court has review. Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 266, 676 A.2d 194, 197 (1996). Willful misconduct has been defined as: (1) an act of wanton or willful disregard of the employer's interest, (2) a deliberate violation of the employer's rules, (3) a disregard of standards of behavior which the employer has a right to expect of an employee, or (4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). The employer has the burden of proving willful misconduct. County of Luzerne v. Unemployment Compensation Board of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992). Where it is alleged that the claimant has violated a work rule, to meet its burden the Employer must establish the existence of the rule and the violation. Id. Once the employer satisfies its initial burden, the burden then shifts to the claimant to prove that his or her actions did not constitute willful misconduct under the facts, or that there was good cause for the behavior. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Whether or not the violation constitutes willful misconduct is then examined to determine if, in light of all the circumstances, the Employer's application of the rule is reasonable in that it is fair, just and appropriate to pursue a legitimate interest. Caterpillar, 550 Pa. at 123, 703 A.2d at 457.
Here, Employer provided Claimant with a copy of its employee handbook outlining its policy concerning absences from scheduled shifts, including what to do if he missed work and what the consequences were of failing to call out from or show up to work. Claimant violated this policy by failing to call or show up to scheduled shifts on January 22, 23, and 24, 2012.
Claimant argues that he would not have missed his scheduled shifts on January 23 and 24, 2012, if he had not been incarcerated in violation of his Due Process Rights and Pennsylvania Rule of Criminal Procedure 150, which, in part, requires an individual detained on a bench warrant to be provided with a hearing within seventy-two (72) hours.
Claimant did not appear for a scheduled sentencing hearing with full knowledge that failure to do so could result in a bench warrant. Claimant failed to inform Employer of his circumstances and that there was a real possibility he would have to be absent from work. A bench warrant was issued for Claimant and he was taken into custody on January 19, 2012. Claimant remained in custody until January 25, 2012. Claimant contends that he should have been released on January 23, 2012. The Board stated that "[C]laimant did not offer sufficient credible testimony or evidence to support his assertion that he was unlawfully incarcerated, in violation of his due process rights." (Board Discussion, ¶5.) The Board's conclusion is supported by Claimant's own testimony at the Referee hearing that his public defender elected to waive a bench hearing and proceed straight to sentencing on Claimant's underlying charge. (H.T. at 10.) As a result, Claimant has demonstrated a tragic case of poor prior planning, but has failed to meet his burden of demonstrating that he had good cause for deliberately violating Employer's policy or that Employer's application of its no call/no show policy was unreasonable.
The Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 20th day of May, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge