Ross
v.
Unemployment Comp. Bd. of Review

This case is not covered by Casetext's citator
COMMONWEALTH COURT OF PENNSYLVANIADec 6, 2018
No. 436 C.D. 2018 (Pa. Cmmw. Ct. Dec. 6, 2018)

No. 436 C.D. 2018

12-06-2018

Denise Ross, Petitioner v. Unemployment Compensation Board of Review, Respondent


BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI

Denise Ross (Claimant) petitions for review of the Unemployment Compensation Board of Review (Board) decision finding her ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because she engaged in willful misconduct when she failed to follow her employer's policy and directive to call her supervisor prior to being absent from work. For the following reasons, we affirm.

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

I.

Claimant was employed from April 24, 2017, to July 24, 2017, as a full-time housekeeper with MCAP Willow Grove Operator, L.L.C. (Employer). Employer has a policy that employees must always call their immediate supervisor to report an absence, and failure to adhere to this policy could result in the employee's termination at Employer's discretion.

On June 21, 2017, July 13, 2017, and July 14, 2017, Claimant was absent from work without properly reporting her absences in accordance with Employer's policy. On July 20, 2017, Employer provided Claimant with the following warning:

Employee must always call out to the Supervisor and cannot leave a message with Receptionist. Each day you are out you must call. If you do not have Supervisor's number, front desk can provide it to you.

(Record (R.) at Item No. 13, Referee's Hearing: Transcript of Testimony w/ Exhibits, 10/25/17, p. 11.) Claimant's immediate supervisor was Theresa Hamm (Hamm). Hamm's cell phone number was posted in the workplace.

On July 25, 2017, Claimant was scheduled to work from 7:00 a.m. to 3:00 p.m. Claimant had a doctor's appointment that day to address muscle spasms. At approximately 3:00 a.m., she left a voice message with a maintenance supervisor, Matthew Vance (Vance), informing him that she would not be reporting for work that day. She did not contact Hamm, her immediate supervisor. On that same day, she was discharged for excessive call outs.

Claimant filed for UC benefits and the UC Service Center issued a determination denying benefits, finding that she was ineligible under Section 401(d)(1) of the Law because Claimant stated in her application that she was unable to work due to muscle spasms. (R. at Item No. 2, Internet Initial Claims, 7/26/17.) Claimant appealed, stating that she "[m]isunderstood the question on [her] availability to perform suitable work" and that she would be available, depending on the type of work. (R. at Item No. 7, Claimant's Petition for Appeal from Determination, 9/15/17.)

Section 401(d)(1) of the Law provides that compensation will be provided for any employee who "[i]s able to work and available for suitable work. . . ." 43 P.S. § 801(d)(1).

At a hearing before the Referee, both Claimant and Employer presented testimony and evidence on the issues of Claimant's availability pursuant to Section 401(d)(1), as well as whether she had been discharged due to willful misconduct, making her ineligible for benefits under Section 402(e) of the Law. Employer presented the testimony of Katherine Yahner (Yahner), Employer's Regional Director, regarding Claimant's tardiness and absenteeism prior to the incident on July 25, 2017. Yahner testified:

EL [Employer Attorney]: [D]id you just say that there were times when [Claimant] appeared late for work and failed to have an excuse?
EW [Yahner]: Yes.
EL: And about how often did that occur?

EW: I - I would actually [inaudible] - I had saw [sic] at least four in a three-month period.
EL: Okay. And she was notified that this was a failure to follow procedure?
EW: Yes, by her Supervisor, definitely.
EL: All right. Now the instances . . . where she had not appeared for work and did not provide prior notice, as well as arriving for work late, did all of those instances contribute to her eventual termination on July 25?
EW: Yes.

(R. at Item No. 13, Referee's Hearing: Transcript of Testimony w/ Exhibits, 10/25/17, p. 13.) Yahner went on to testify that Claimant had been warned in writing that in the event she would be absent from work, she would need to inform her immediate supervisor, Hamm:
R [Referee]: Had [Claimant] previously [been] warned about her attendance?
EW: Yes.
R: Was she previously warned about the need to call off to her Supervisor?
EW: Yes, in writing.
R: When was that?
EW: The 20th.
R: Of what month and what year?

EW: July . . . [crosstalk].
R: Sorry, [crosstalk].
C: [Claimant] July of 2017. July 20th.

(Id. at 10.)

Claimant testified that she was unable to report her absence on July 25, 2017, to her immediate supervisor, stating:

C: [Claimant] On the - on the 25th, I called Matthew directly ... [crosstalk] ... and left a message on the phone.
R: Ms. Ross, my question to you is who is your immediate supervisor?
C: Theresa is.
R: Okay. What is the reason you did not contact Theresa on ... [crosstalk].
C: Because I didn't have her ... [crosstalk].
R: Let me finish - on July 25th, 2017, to report your absence?
C: I never had Theresa's phone number.
R: Did you ever ask for it?
C: Yes.

R: Now, is it true that you received a written warning on July 20th, 2017, from Theresa, about the need to call off to your Supervisor when reporting an absence?
C: Yes.
R: Were you advised that if you do not have your Supervisor's number, the front desk could provide it?
C: Yes, but the front was never ... [crosstalk].
R: Okay. My question to you, again, is why didn't you call Theresa Hamm to report your absence? [crosstalk].
C: Because I didn't have her number.
R: Did you call the front desk to get it?
C: No one was there at the front desk.
R: Did you ask Ms. Hamm for it?
C: Yes, I did.
R: When?
C: The day that I wrote - the day that I got the - the writeup.

(Id. at 23 - 24.)

While finding that Claimant was eligible under Section 401(d)(1) because she was available for work, the Referee found that she was ineligible for benefits under Section 402(e) because she committed willful misconduct when she failed to follow Employer's policy and direction that she contact her immediate supervisor, Hamm, in the event she was absent from work.

Claimant appealed and the Board affirmed, finding that Employer established the existence of a policy requiring employees to report an absence to their immediate supervisor and that Claimant failed to act according to said policy. The Board also found Employer was credible in its witness's testimony that the cell phone number of Claimant's immediate supervisor was posted in the workplace. It found that:

In light of the [C]laimant's July 20, 2017 warning, the [C]laimant should have written down her supervisor's cell phone number to report future absences. While the [C]laimant testified that she asked for her supervisor's telephone number and it was not provided, the Board does not find the [C]laimant's testimony to be credible.

(R. at Item No. 19, Board's Decision and Order, 3/1/18 (Ineligible), p. 3.) This petition for review followed.

Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of facts are supported by substantial evidence. Leace v. Unemployment Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014).

II.

Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e). The Law does not define "willful misconduct," but this Court has held that it includes "a deliberate violation of employer's rules." County of Luzerne v. Unemployment Compensation Board of Review, 611 A.2d 1335, 1337 (Pa. Cmwlth. 1992). An employer alleging willful misconduct bears the burden of proving the existence of a reasonable work rule and its deliberate violation. Chester Community Charter School v. Unemployment Compensation Board of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016). In cases of absenteeism, even if an absence is justified, the failure to comply with a reporting-off requirement, of which the employee is aware, can constitute willful misconduct. Schlernitzer v. Unemployment Compensation Board of Review, 420 A.2d 1358 (Pa. Cmwlth. 1980).

A.

Claimant argues that the Board erred in finding that she engaged in acts that could be construed as "willful misconduct" because Employer failed to meet its burden of establishing that she violated its policy and the policy was reasonable. However, Yahner testified before the Referee that Employer relayed the following directive to Claimant on July 20, 2017, after she was issued a warning about improper calling off:

Claimant points to a seemingly contradictory policy in Employer's handbook, which states:

If you call in sick, you must notify your supervisor on each day of any illness as soon as possible, but not less than 8 hours prior to your scheduled starting time, except in the case of an emergency where such notice is not possible. In the event the immediate supervisor is unavailable, you will be responsible for notifying a manager or other supervisor on duty.


Employee must always call out to the Supervisor and cannot leave a message with Receptionist. Each day you are out you must call. If you do not have Supervisor's number, front desk can provide it to you.

(R. at Item No. 13, Referee's Hearing: Transcript of Testimony w/ Exhibits, 10/25/17, p. 11.) Both the Referee and the Board found Employer's witness's testimony to be credible. In unemployment cases, the Board is the ultimate fact-finder and is empowered to make all determinations regarding witness credibility and evidentiary weight, and its findings are binding on appeal when supported by substantial evidence. Leace v. Unemployment Compensation Board of Review, 92 A.3d 1272, 1276 (Pa. Cmwlth. 2014).

In any event, Claimant admitted during the Referee's hearing that she was aware of Employer's policy that she notify Hamm in the event she needed to call off work:

R: Now, is it true that you received a written warning on July 20th, 2017, from Theresa, about the need to call off to your Supervisor when reporting an absence?
C: Yes.

(R. at Item No. 13, Referee's Hearing Transcript of Testimony w/ Exhibits, 10/25/17, pp. 23 - 24.) There is no question that Claimant did not follow this policy, of which she was admittedly aware, and notify Hamm that she would be absent that day.

B.

Claimant also argues that even if she did not follow the policy, Employer's policy is unreasonable because it only provided for one person to be called, and that her call to Vance, the maintenance supervisor, satisfied her call off requirement because Employer had sufficient notice of Claimant's absence from work.

In reviewing the reasonableness of a work rule, we look to whether it "is reasonable in light of all the circumstances" and whether its application is fair, just and appropriate to pursue a legitimate interest. Chambersburg Hospital v. Unemployment Compensation Board of Review, 41 A.3d 896, 900 (Pa. Cmwlth. 2012). The failure of an employee to report his or her absence in accordance with the reasonable rules of his or her employer can constitute willful misconduct even if not colored by past violations. Maxwell v. Unemployment Compensation Board of Review, 423 A.2d 430, 432 (Pa. Cmwlth. 1980). A finding of willful misconduct is particularly warranted in cases where the employee has been warned or reprimanded for prior similar conduct. Gochenauer v. Unemployment Compensation Board of Review, 429 A.2d 1246 (Pa. Cmwlth. 1981).

In this case, Employer has a policy that provides a specific procedure for who to call when calling off work. After three incidents of noncompliance with this policy, Claimant was given specific directions to call Hamm when she could not work. Yet, even after she received those instructions and warnings, Claimant once again failed to follow the procedure by not calling Hamm, her immediate supervisor. By failing to follow this policy, she engaged in willful misconduct, making her ineligible for UC benefits under Section 402(e) of the Law.

C.

Even if Employer met its burden of showing that Claimant failed to follow proper procedure when she did not notify Hamm that she was calling off, Claimant contends that her misconduct should be excused because she had good cause for violating the policy. See Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999) (stating that once an employer satisfies its burden of establishing a reasonable policy, the burden shifts to the employee to show that he or she had good cause for violating the policy). Claimant asserts that she had good cause because Hamm's cell phone number was not given to her even though she requested it from Hamm. However, while that may be good cause to excuse her misconduct, the Board did not find her testimony in this regard to be credible. To the contrary, it found that Hamm's phone number was displayed in the workplace and that Claimant should have written it down so that she could follow the policy in the event she needed to call off. Consequently, we agree with the Board that Claimant did not meet her burden of establishing good cause for failing to adhere to Employer's policy.

Accordingly, because Employer established that Claimant failed to follow its reasonable policy and specific direction for calling off, and Claimant did not establish good cause for violating that policy, we affirm the Board's decision finding Claimant ineligible for benefits under Section 402(e) of the Law.

/s/_________


DAN PELLEGRINI, Senior Judge ORDER

AND NOW, this 6th day of December, 2018, the order of the Unemployment Compensation Board of Review dated March 1, 2018, is affirmed.

/s/_________


DAN PELLEGRINI, Senior Judge

(R. at Item No. 13, Referee's Hearing: Transcript of Testimony w/ Exhibits, 10/25/17, Exhibit C-4) (emphasis added). However, the Referee deemed this policy to be inapplicable to Claimant because, by its own language, Employer's Sick/Personal Days policy only applied to employees who were eligible for sick leave. The policy also states, "Hourly full-time team members will be eligible for paid sick time after 520 regular work hours." (Id.) Claimant, who began employment on April 24, 2017, and was terminated on July 25, 2017, never accumulated the requisite 520 work hours for the policy to apply to her.