Opinion
No. 2172 C.D. 2012
05-03-2013
Melany Fiato, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Melany Fiato (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because her termination from MultiConcept Group, Inc. (Employer) was due to willful misconduct. Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent part:
An employe shall be ineligible for compensation for any week -
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Willful misconduct has been defined as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.
Beginning on May 9, 2012, Claimant was employed as a shift manager at a Taco Bell owned by Employer. After three absences on May 26, 27 and 29, 2012, Claimant was terminated for absenteeism. She filed a claim for unemployment compensation benefits, which the Unemployment Compensation Service Center denied, finding that Claimant was discharged for willful misconduct, and she appealed.
Before the Referee, Claimant testified that she began work as a full-time shift manager and her last day on the job was May 23, 2012. She said she was scheduled to work on Friday, May 25, but called off due to "daycare issues," (Reproduced Record [R.R.] at 24a), and then she also found out her friend's grandmother passed away. She was again scheduled the following day, but called out of work because she was helping her friend with the funeral arrangements. Claimant testified that on that day, she spoke with a female manager, who told Claimant she knew she "was not going to be there Saturday or Sunday due to ... the child care ... and also the death in the family." Id. at 26a. Claimant later clarified that she was not actually related to her friend's grandmother, but she was "like a grandmother." Id. at 27a. She said her children normally attended daycare at a local YMCA or at a friend's daycare facility, but "[a]s far as Friday goes[, she] was switching daycares and ... the daycare is not open Saturday or Sundays." Id. She further testified that no family members or friends were able to watch her children while she worked because her family members generally go camping on Memorial Day weekend. Claimant admitted that when she was interviewed for the job, she was told she would be required to work days, nights and weekends, and she agreed to those terms and that she had her schedule approximately eight days in advance. She also testified that she had been taking her children to the YMCA's daycare, but was in the process of changing to another daycare that operated seven days a week at all hours.
Gene Pittack (Pittack), Employer's Director of Human Resources, testified that Claimant was terminated on May 29, 2012, because she did not show up for work for three days over the weekend. He said Claimant was scheduled for work on May 25, 2012, but she called off because she did not have childcare. Pittack unsuccessfully tried to help her find a babysitter, and when he called her back to inform her of this, she told him that her friend's grandmother had died as well. He said he covered her shift for that day. However, Claimant again called off on her next scheduled day of work, May 26, and failed to show up for work and did not call off on May 27. Finally, she was scheduled again from 12:00 p.m. to 8:00 p.m. on May 29, 2012, but called off the evening before and said she would not be at work the following day because she was going to a funeral. Pittack testified that Claimant came in on May 29, 2012, around 5:00 p.m. to get her schedule for that week, and she was discharged at that time. Pittack noted that Claimant's schedule was posted eight to nine days in advance, and that she was aware of the policy written in Employer's handbook which requires that an employee call off at least two hours before his or her shift begins.
Eric Young (Young), general manager of the Taco Bell restaurant at which Claimant worked, testified that Claimant had mentioned her childcare situation in passing on her last day of work, May 23, at which time he told her she needed to take care of it. He spoke with Claimant on the morning of May 25, 2012, when she said she would not be in because she could not get a babysitter and could not afford daycare, at which time he told Claimant that it would be a busy holiday weekend and she was in training so she needed to be at work. He said the next time he directly spoke with Claimant was on May 29 to confirm her termination. Young further testified that on May 18, 2012, Claimant called off work because of personal issues and was clearly upset; he told her that he would have to let it go that time, but it was a Friday and she was a trainee, so she needed to make sure she was available for weekends going forward.
Based on the testimony and evidence presented, the Referee found that Claimant received a verbal warning on May 18, 2012, for calling off for personal reasons and that Claimant was aware when she accepted the job that she would have to work different shifts and weekends. He further found that she called off on May 25, 2012, "because she did not have a babysitter and her friend's grandmother had passed away," id. at 33a, and again on May 26 because she did not have a babysitter and was helping with the funeral arrangements. Claimant was again scheduled to work on May 27, 2012, but did not report to work because she told an assistant manager the day before that she would not be in because she did not have a babysitter. The Referee further found that she did not report to work on May 29, 2012, because she was attending the friend's grandmother's funeral, and she was terminated for absenteeism that day when she came in to check her schedule.
Based upon these findings, the Referee found credible Claimant's testimony that she was off work because she did not have childcare for her children and was providing emotional support to her friend whose grandmother died. However, he further opined that "[a]lthough the lack of babysitting can be good reason for missing work, [C]laimant did not provide credible evidence and testimony to establish that she ever intended to come to work Memorial Day weekend, or made an exhaustive effort to find a babysitter." Id. at 34a. He further concluded that she had more than a week's notice in which to find a babysitter, and with regard to her friend's grandmother, such an excuse did not justify missing three days of work. He, therefore, concluded that Claimant was properly terminated for willful misconduct.
Claimant appealed to the Board, contending that she never received a warning from Employer and that she followed the proper procedure for calling off, so her actions could not be considered willful misconduct. The Board affirmed the decision of the Referee, and this appeal followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or findings of fact were not supported by substantial evidence. Myers, 533 Pa. at 377, 625 A.2d at 624. Whether the actions of an employee constitute willful misconduct is a question of law. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001). --------
On appeal, Claimant contends that the Board erred in determining that she committed willful misconduct because she did not violate Employer's policy for calling off. Specifically, she contends that she was in constant communication with Employer regarding her childcare issues and that the sudden passing of a family friend required her to take the weekend off. Alternatively, Claimant argues that even if willful misconduct was shown, she had good cause for not coming to work because her absences were justified.
Whether an employee's conduct constituted willful misconduct is a question of law subject to this Court's review. Glatfelter Barber Shop v. Unemployment Compensation Board of Review, 957 A.2d 786, 792 (Pa. Cmwlth.), appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008). Generally speaking, excessive absences may constitute willful misconduct if the absences are unjustified or not properly reported. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). The employee bears the burden of demonstrating good cause for her absences. Steth v. Unemployment Compensation Board of Review, 742 A.2d 251, 253 (Pa. Cmwlth. 1999). Lack of childcare may constitute good cause for an absence from work where the claimant is the primary caregiver and demonstrates that circumstances required her to be with her children. Id. In Shaffer v. Unemployment Compensation Board of Review, 928 A.2d 391, 394 (Pa. Cmwlth. 2007), we held that a claimant must not simply make a reasonable effort to find alternative childcare, but must demonstrate that she has "exhausted all other alternative childcare arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center."
In this case, Claimant was aware of her schedule more than a week in advance and knew she had to seek childcare. She had only been hired approximately three weeks before the weekend at issue, so she was quite recently made aware of the fact that she would be working evenings and weekends. Claimant testified that her children had been going to daycare in one place, but she was planning on changing to another facility. While she contacted some friends or family members immediately before the weekend, she did not demonstrate that she exhausted all her efforts in obtaining childcare, including returning to the YMCA daycare for her Friday shift or utilizing the new daycare. Simply, Claimant has failed to demonstrate that she had no viable options for childcare and, although she reported her absences, they were not justified by an emergency, as she knew of her schedule and the need to obtain childcare several days prior to her shifts. Additionally, while Claimant cites the loss of her friend's grandmother as another basis for her absences, as the Referee concluded, her "effort to provide emotional support does not justify missing work for three days." (R.R. at 34a).
Accordingly, we affirm the order of the Board.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 3rd day of May, 2013, the order of the Unemployment Compensation Board of Review, dated October 24, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). However, "an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature." Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (internal citation omitted).