J. R. Frick v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jason R. Frick, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 121 C.D. 2008 Submitted: June 13, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: July 25, 2008 Jason R. Frick (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that reversed a decision of a referee, thereby denying Claimant s application for unemployment compensation benefits. We affirm the Board s decision and order. The Board s factual findings are summarized below. Laspina Lawn Garden & Turf Equipment (Employer) employed Claimant as a sales and rental manager beginning on March 13, 2006. Under the terms of Claimant s hiring, he worked Monday through Friday, and every other Saturday. Claimant was scheduled to work on Saturday, July 28, 2007, based upon an agreement between Claimant and another sales manager who apparently had previously been scheduled to work that day, and who had received Employer s permission to take off that day. Claimant was aware of this responsibility, but elected not to report to work that day so he could join the other sales manager quad-riding. Although Claimant knew that Employer tried several times to contact him on his cell phone, Claimant did not respond to the calls. On July 30, 2007, when Employer asked Claimant why he did not appear for work or answer the phone calls, Claimant told Employer that he did not want to come to work and did not want to answer the phone calls. Employer s work policy permits it to impose discipline up to and including discharge for failure to show up for work. Although Employer never showed Claimant this policy, Claimant knew that he was required to provide Employer with notice if he wanted to take a day off. Claimant testified that he did not know that he was scheduled to work July 28, and that Employer had given him permission to take the day off. However, the Board made a factual finding that Claimant was aware that he was scheduled to work July 28. The referee granted benefits after concluding (1) that employer never specifically showed the discipline policy to Claimant, and (2) that the employer failed to establish that Claimant was scheduled to work July 28. However, the Board, whose findings are binding on this Court when supported by substantial evidence, Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 879 A.2d 388 (Pa. Cmwlth. 2005), disagreed with the referee s findings and determined that Claimant was responsible to work that day and knew that he was scheduled to work. The Board concluded that, despite the fact that Employer had not shown Claimant the work policy, Claimant lacked any good cause for failing to show up for work and failing to answer Employer s calls. The Board also determined that Claimant, a management employee, should have been aware of Employer s disciplinary policy for no shows. Ultimately, the Board concluded that Claimant s conduct constituted willful misconduct under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). 2 In this appeal,1 Claimant asserts that (1) the Board erred in concluding that his conduct constituted willful misconduct and that (2) findings of fact Nos. 4 and 17 are not supported by substantial evidence and, therefore, fail to support the Board s legal conclusion of willful misconduct. We will begin by addressing Claimant s challenges to the Board s factual findings. Claimant challenges Finding of Fact Nos. 4 and 17, which respectively state that Claimant was scheduled to work July 28 and that Claimant knew he was scheduled to work that day. Claimant asserts that the testimony of Employer s witness, Jeff Golias, supports a contrary determination that Employer had no set Saturday schedule for management employees and that Claimant was not definitely scheduled to work July 28. Based upon this assertion, Claimant contends that Employer failed to demonstrate that Claimant s absence was not authorized. However, Mr. Golias testified that [t]he reason [Claimant] was let go from the company was ¦ he failed to report to work on that Saturday [and] he was scheduled to work the entire day there ¦. (Notes of Testimony, p.4). This testimony constitutes substantial evidence in support of the Board s finding that Claimant was scheduled to work that day. Further, Finding of Fact No. 17, a finding that Claimant knew that he was scheduled to work that day, is supported by Mr. Golias testimony that Claimant responded to a request for an explanation for his absence by indicating that he did not want to come to work that day. (Notes of Testimony, p. 10). As the Board notes, Claimant did testify that he asked Employer to have off July 28. There is the suggestion in this testimony that Claimant and Employer may have misunderstood or 1 This Court s scope of review of a decision of the Board denying benefits is limited to determining whether substantial evidence supports necessary factual findings, and whether the Board erred as a matter of law or violated the Claimant s constitutional rights. 2 Pa.C.S. §704. 3 miscommunicated. However, in an unemployment compensation case, where the party below has presented substantial evidence, the Court must review the evidence in the light most favorable to the party that prevailed before the Board, Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003), and that party is entitled to all reasonable inferences that may be derived from the evidence. McCaughey v. Unemployment Compensation Board of Review, 684 A.2d 1110 (Pa. Cmwlth. 1996). The Board apparently deemed Mr. Golias s testimony more credible than Claimant s, and the Board was empowered to rely upon that testimony in rendering its factual findings. Because Mr. Golias s testimony establishes that Claimant was scheduled to work and knew that he was scheduled to work, we conclude that substantial evidence supports the factual findings Claimant seeks to challenge. Claimant also contends that the Board erred in concluding that his conduct amounted to willful misconduct. Although the Law does not define that term, courts have described willful misconduct as acts demonstrating a wanton or willful disregard of an employer s interests, a deliberate violation of an employer s rules, deviation from the standards of behavior that an employer has a right to expect of an employee, and negligence on the part of the employee suggesting a knowing disregard of the employer s interests. Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 676 A.2d 194 (1996). In this case, because Employer challenged Claimant s right to benefits on the basis of his alleged violation of a work rule, Employer bore the burden to show the existence of the work rule and that Claimant violated the rule. Arbster v. Unemployment Compensation Board of Review, 690 A.2d 805 (Pa. Cmwlth.), petition for allowance of appeal denied, 549 Pa. 718, 701 A.2d 579 (1997). Employer s work rule states as follows: 4 ATTENDANCE [U]nauthorized absences or tardiness, or a consistent pattern of chronic absences or tardiness, will not be tolerated, and may result in disciplinary action, up to and including dismissal. ¦ 1. You are expected to report for work at your scheduled work time, and should notify [Employer] whenever you will be unable to report for work. As much advance notice should be given as possible to permit a replacement to be scheduled. Failure to notify [Employer] of any anticipated absence or delay in reporting for work may result in loss of compensation during the absence and may be grounds for disciplinary action. (Record at Item No. 2). In this case, the Board determined that, although Employer never gave Claimant a copy of its rules and policies, as a management employee, he knew that he had to give notice if he wanted to take off a work day. As the Board points out, Claimant s testimony that he made a request to take off that day provides implicit evidence supporting a reasonable determination that Claimant was aware that he had to request time off and notify Employer if he was not going to be at work on a scheduled work day. Hence, we believe that the evidence supports the Board s finding that Claimant was aware of the work rule regarding requests for leave and notification of absences. Once an employer establishes the existence of a rule and that a claimant has violated the rule, the burden shifts to a claimant to prove that he had just cause for the violation. McClean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978). Claimant in this case has offered no evidence suggesting he 5 had reasonable justification for violating the rule. Hence, we must consider whether the Board correctly concluded that Claimant s single violation of Employer s rule regarding requests for leave and unexcused absences constitutes willful misconduct. A single knowing violation of an employer s rules or policies is sufficient to support the denial of benefits. Maxwell v. Unemployment Compensation Board of Review, 423 A.2d 430 (Pa. Cmwlth. 1980). Thus, Claimant s violation appears to form a sufficient basis upon which the Board could conclude that his actions constituted willful misconduct. Claimant, citing Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212 (Pa. Cmwlth. 1996), also asserts that Employer s rule is unreasonable because it failed to provide notice of the potential for discharge for violation of the rule. As Claimant notes, in considering the question of whether a rule is reasonable, courts must consider whether the application of the rule under the particular facts is fair and appropriate in the context of the employer s legitimate interests. However, we have already concluded that Claimant was aware of Employer s leave and absence notification rules; he simply may not have been aware of the consequences for violations of the rule. We cannot disagree with the Board s conclusion that Claimant s conduct rose to the level of willful misconduct. An employer has a reasonable expectation that employees scheduled to work will show up or, at a minimum, call in to report that they cannot be at work. The failure to show up to work could lead to a loss of business for an employer, which potential consequence supports the Board s conclusion that the rule is reasonable. Although an Employer must consistently apply and enforce a disciplinary policy, Remcom Plastics, Inc. v. Unemployment Compensation Board of Review, 651 A.2d 671 (Pa. Cmwlth. 1994), Claimant has neither argued, nor pointed to specific authority, for the proposition that before an Employer may exercise its disciplinary 6 powers, a Claimant must first have been aware of not only the rule but also the ramifications for violation of the rule, i.e., possible discharge for a first violation. Based upon the foregoing discussion, we conclude that the Board did not err in concluding that Claimant s conduct constitutes willful misconduct. Accordingly, we affirm the decision of the Board denying Claimant s application for unemployment compensation benefits. JOSEPH F. McCLOSKEY, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jason R. Frick, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 121 C.D. 2008 ORDER AND NOW, this 25th day of July, 2008, the order of the Unemployment Compensation Board of Review is affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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