B. Ross v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara Ross, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1874 C.D. 2007 Submitted: February 29, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 14, 2008 Barbara Ross (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) determining she was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law),1 relating to willful misconduct. She asserts the Board erred as a matter of law and abused its discretion by concluding she had good cause for her absences from work but not for her failure to report off work in violation of Employer s unwritten policy. Discerning no error, we affirm. Adopting the referee s findings of fact, the Board found as follows. Keyco Distributors, Inc. (Employer)2 hired Claimant as a general office worker. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). 2 Employer filed an amicus curiae brief pursuant to Pa. R.A.P. 531. Employer requires employees to report to work on time. If an employee cannot report to work as scheduled, he or she must notify Employer as soon as possible. Claimant knew of Employer s policy and abided by it on prior occasions. On May 11, 2007, Employer discharged Claimant on the ground she failed to report to work or call off work on two consecutive days, May 9 and 10, 2007. Claimant was absent from work because she slept through most, but not all, of these days after taking prescription medication. Notwithstanding, Claimant could have called off work. The Board concluded Claimant had good cause for her work absences but not for her failure to call off work in violation of Employer s policy. The Board denied Claimant benefits under Section 402(e) of the Law. Claimant appeals.3 She claims inconsistency in the Board s finding that good cause excused her absences from work but not her failure to notify Employer. Concomitantly, Claimant challenges the Board s finding she could have contacted Employer to report her absences. As support, Claimant cites testimony establishing that: the prescription medication for her health condition caused confusion and lethargy; she did not have an after-hours contact number for Employer; and, Employer does not have a written policy regarding reporting absences from work. 3 We are limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). 2 At the outset, we note Section 402(e) of the Law states in part: [a]n employe[e] shall be ineligible for compensation 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 ¦. Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer s interests, a deliberate violation of the employer s work rules, or a disregard of standards of behavior that the employer can rightfully expect from its employees. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997). When asserting discharge due to a violation of a work rule, an employer must establish existence of the rule and its violation. Lausch v. Unemployment Comp. Bd. of Review, 679 A.2d 1385 (Pa. Cmwlth. 1996). The employer bears the initial burden of proving a claimant engaged in willful misconduct. Frazier v. Unemployment Comp. Bd. of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003). Whether a claimant s actions rise to the level of willful misconduct is a question of law fully reviewable on appeal. McLean v. Unemployment Comp. Bd. of Review, 476 Pa. 617, 383 A.2d 533 (1978). Further, the Board is the ultimate fact-finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc). It is irrelevant whether the record contains evidence to support findings contrary to those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Minicozzi v. Workers Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). Where 3 substantial evidence supports the Board s findings, they are conclusive on appeal. Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 879 A.2d 388 (Pa. Cmwlth. 2005). Employer, as the prevailing party below, is entitled to the benefit of all reasonable inferences drawn from the evidence. Landy & Zeller, Attorneys At Law v. Unemployment Comp. Bd. of Review, 531 A.2d 1183 (Pa. Cmwlth. 1987). Claimant asserts error in the Board s finding of good cause for her absences from work but not for her failure to report off work. She claims the finding is internally inconsistent because her health condition and the prescribed medical treatment prevented her from notifying Employer she could not report to work. Claimant s argument fails. The Board found, in relevant part: 3. Employer requires that employees report to work on time, when scheduled, and that employees who cannot be at work on time, when scheduled, notify Employer accordingly, as soon as possible. ¦. 7. Claimant was absent from work on May 9 and May 10, 2007, because she slept through most, but not all, of the workday, each day. 8. Apparently, Claimant slept through most of the workday on May 9 and May 10, 2007, because of a medical condition and/or medication for that condition. ¦ 4 10. Claimant could have contacted Employer on May 9 and/or May 10, 2007, notwithstanding her medical condition and/or the medication she was taking. 11. Claimant had good cause for her absences on May 9 and May 10, 2007, but did not have good cause for failing to properly report her absences to Employer. Referee Op., July 27, 2007, at 1-2 (emphasis added). The Board s findings show Employer met its initial burden of proving Claimant engaged in willful misconduct. That is, Employer has a policy requiring employees to notify Employer of tardiness/absences and Claimant violated Employer s policy. The record supports the Board s findings. Notes of Testimony (N.T.), July 25, 2007, at 4-6; 10. Once Employer met its burden of proving willful misconduct, the burden shifted to Claimant to demonstrate good cause for her actions. McClean. Rejecting Claimant s testimony that her condition and medication prevented her from calling Employer, the Board concluded: [e]ven in the absence of any particular policy, in writing or otherwise, it goes without saying that missing work without notice for two consecutive days is contrary to any employer s reasonable expectations of behavior. Claimant had good cause for the absences, but did not have good cause for failing to notify Employer of her whereabouts and situation. Her testimony that her medical condition and/or medication for that condition prevented her from calling Employer was not persuasive. She had on prior occasions telephoned Employer when she was unable to report to work, notwithstanding her medical condition and the medication, and was by her own admission awake for at least part of the workday on both May 9 and May 10, 2007. She could have at least 5 called Employer, at some point during either [day]. Her failure to call was without good cause. Referee Op., at 2 (emphasis added). The Board pointedly found Claimant s testimony unpersuasive given she previously complied with Employer s directive while taking the same medication. Contrast N.T. at 8 (Claimant began taking medication in January 2007) with id. at 7 (identifying 13 post-medication dates when Claimant reported off work). As the fact-finder, the Board was free to give greater weight to the evidence of a past documented practice and less weight to Claimant s explanation. There is further support for the Board s determination in the record. In particular, Claimant admitted she could have called Employer to report her absences: On the night leading into the 9th of May and also the 10th of May, I did not really fall asleep until between 4:00 and 5:00 in the morning. I literally slept through the work day. When I woke up, it was close to three o clock both days, and maybe I should have called in, but I didn t. N.T. at 8 (emphasis added). Additional testimony showed Claimant called Employer on 17 other occasions when she was late for or absent from work; most of the absences occurred after she began taking medication in January 2007. Id. at 6-7. Sometimes Claimant reported her absence in a timely fashion, other times she did not. Id. at 5. Viewing the record in favor of Employer as the prevailing party, we discern no error in the Board s conclusion Claimant could have called Employer after she awoke on May 9 and 10 to report her absences. 6 In addition to the record, common sense supports the Board s determination. The exertion required to attend work is significantly greater and more prolonged than the exertion required to place a telephone call to work. By distinguishing between the two efforts and excusing the more formidable, the Board did not err or abuse its discretion. Our decision in Pauline v. Unemployment Compensation Board of Review, 423 A.2d 55 (Pa. Cmwlth. 1980), upon which Claimant relies, does not compel an award of benefits. There, the employer required the claimant to submit medical excuses to corroborate future absences. The employer later discharged the claimant because she failed to produce medical documentation. On appeal from a denial of benefits, this Court reversed. The Court noted that absenteeism may justify discharge of an employee. However, standing alone, absenteeism is not disqualifying conduct for unemployment compensation purposes. Only if the absences are not justified or not properly reported according to the employer s rules or directives are they disqualifying. Id. The Court concluded the record did not support the Board s finding the claimant was guilty of disqualifying absenteeism where her absences were due to an injury and an illness at work. We also concluded the record lacked direct evidence the employer required the claimant to produce medical documentation. Here, Claimant places emphasis on the disjunctive or in Pauline to conclude the Board could not find she had good cause for her absences but not for her failure to call off work. Since her absences were justified, Claimant contends, 7 she cannot be guilty of willful misconduct because the failure to call off work in and of itself does not constitute willful misconduct. Pet r Br. at 9. Claimant s argument, however, misapprehends the reasons for her discharge. Employer did not discharge Claimant for absenteeism but rather for a failure to call off work in violation of Employer s policy. Contrary to Claimant s assertions, even if an absence itself is justified, the failure to comply with a known call-off requirement can constitute willful misconduct. Sedor v. Unemployment Comp. Bd. of Review, 522 A.2d 118 (Pa. Cmwlth. 1987); Yerger v. Unemployment Comp. Bd. of Review, 457 A.2d 1333 (Pa. Cmwlth. 1983). Here, Claimant admittedly knew of Employer s policy to call off work. N.T. at 8; 10. Other than stating the medication caused extreme fatigue, Claimant presented no evidence to establish the severity of her condition rendered her physically incapable of contacting Employer.4 As such, Claimant s reasons for 4 Claimant admitted into evidence the patient prescription information sheet distributed with her medication. One of the recognized side effects is mental/mood/behavior changes. Claimant s Ex. 1. However, the Board made no findings relative to the information sheet and did not refer to the exhibit in its discussion. The Board s decision not to rely on the exhibit is understandable. Claimant testified only that she wasn t thinking correctly when she awoke on May 9 and 10. Notes of Testimony (N.T.) at 9. She did not claim the prescription medication caused any cognitive impairment. As fact-finder, the Board could afford the prescription information sheet little evidentiary weight. See Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc). Further, Claimant included in the reproduced record an unverified statement of her treating physician indicating the prescribed medication caused some increased sedation and lethargy, as well as an altered mental state at times. Reproduced Record (R.R.) at 77a. However, we may not consider the letter because Claimant obtained it after the referee hearing; as such, it is outside the record. See McCaffrey v. Pittsburgh Athletic Ass n, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972) (appellate court cannot consider anything which is not part of the record in the case ). 8 noncompliance do not constitute good cause for her failure to comply with Employer s policy. Claimant s arguments to justify her conduct on the ground Employer failed to provide her with an emergency call-off number lack merit. Employer s pre-hearing submissions show two instances where Claimant reported to or called off work midday. See Certified Record (C.R.) at Item 3, at 9; 10. Specifically, Claimant reported to work at 12:00 p.m. about a month prior to her discharge. Id. Item 3 at 9. Similarly, she concurrently reported two days of absences at 12:30 p.m. during the week prior to her termination. Id., Item 3 at 10. Thus, Claimant clearly understood the importance of calling off work regardless of when she did so. Finally, we reject Claimant s assertions Employer s lack of a written policy excuses her failure to report her work absences. It is not necessary that Employer s directive be in writing in order for the Court to determine Claimant s conduct constituted willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004). Employer had the burden of proving it had a policy addressing call off procedures, Claimant knew of the policy, and she failed to abide by it. As shown above, Employer met this burden. Accordingly, we affirm. ROBERT SIMPSON, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara Ross, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1874 C.D. 2007 ORDER AND NOW, this 14th day of April, 2008, the order of the Unemployment Compensation Board of Review is AFFIRMED. ROBERT SIMPSON, Judge

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