Opinion
No. 1047 C.D. 2011
04-26-2012
Brian Flaherty, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Brian Flaherty (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed and adopted the decision of the Referee finding Claimant ineligible for Unemployment Compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e). On appeal, Claimant argues that the Board erred in concluding that he engaged in willful misconduct because Villanova University (Employer) was aware that he was taking a non-work-related course at the Delaware County Police Academy (Police Academy), and he advised Employer that he would be unable to work his mandatory overtime shift. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(e) provides that a claimant will be ineligible for UC benefits for any week his unemployment is due to willful misconduct related to his work.
Claimant's last day of work as a Patrol Safety Officer II for Employer was October 26, 2010, when he was discharged for attendance issues. Claimant applied for UC benefits, and the local service center found him eligible. Employer appealed, and the Referee held a hearing, at which Claimant and three witnesses for Employer testified. Based on that testimony, the Referee made the following findings of fact:
1. Claimant was employed by [Employer] as Patrol Safety Officer II at a rate of $16.72 per hour that began on January 10, 2005 and last worked on October 26, 2010.(Referee's Findings of Fact (FOF) ¶¶ 1-7.) The Referee noted that Employer has the burden of proof under Section 402(e) to show that Claimant engaged in willful misconduct in connection with his work. The Referee "in no way question[ed] [] Claimant's decision not to report as scheduled," but held that Claimant's "failure to do so [rose] to a level of willful misconduct in connection with [his] employment." (Referee's Decision at 2.) The Referee concluded that Claimant knew he was in danger of losing his job, having been placed on final warning status, and that Claimant made the personal decision to attend the Police Academy training class. Accordingly, the Referee found Claimant ineligible for UC benefits. Claimant appealed, and the Board affirmed, adopting the Referee's findings of fact and conclusions. Claimant now petitions this Court for review.
2. On July 13, 2010, Claimant was issued a final corrective action notice which indicated that further infractions would result in termination.
3. On October 12, 2010, [] Claimant did not report for mandatory training.
4. On October 22, 2010, Claimant failed to work mandatory overtime.
5. Claimant informed [] Employer that he was unable to report to work because he had paid to attend a Police Academy Training Course which was non[-]work[-]related.
6. Claimant was advised that if he could find someone to cover his shift then he could have off but that it was his responsibility to report for work as scheduled.
7. Claimant was not able to find someone to replace his shift nor did he report for work as scheduled and as a result was discharged.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010).
Claimant argues that the Board erred in upholding the finding of ineligibility pursuant to Section 402(e) because he had made arrangements with Employer to attend the Police Academy training classes, and Employer was aware that he would be unable to work his overtime assignment on October 22, 2010, due to a class he had to attend. Claimant contends that, despite Employer's knowledge that he had to attend this class on October 22, 2010, Employer scheduled him to work. In short, Claimant asserts that he had good cause for not working his overtime assignment on October 22, 2010. The Board responds that being absent with notice to an employer, but without permission or good cause, can constitute willful misconduct. Moreover, the Board asserts that willful misconduct exists where a claimant refuses to comply with a supervisor's reasonable directive without good cause. According to the Board, Claimant's personal choice to attend his Police Academy class did not qualify as good cause either for being absent without permission, or for disregarding his supervisor's directive to work on October 22, 2010.
Claimant contends that the October 22, 2010, work assignment was non-mandatory overtime and that he was discharged for using a family/emergency day on October 23, 2010. However, the Board implicitly credited Employer's witnesses' testimony that the overtime on October 22, 2010, was mandatory and that Claimant was discharged for his absence on October 22, 2010. (FOF ¶¶ 4, 7; Referee Hr'g Tr. at 6-8.)
We note that, although the Board argues in its brief that Claimant did not have good cause for not reporting for work, the Board acknowledges that it did not directly address this issue in its Order. (Board's Br. at 1.) Additionally, the Referee set forth Employer's burden of proof in his decision, but failed to indicate that Claimant could rebut that evidence by showing that he had good cause for his failure to report to work. Although the Referee implicitly addressed Claimant's "good cause" argument by saying that it was Claimant's personal decision to attend the training session, we find it troubling that the Referee and the Board are not more careful in setting out the relevant burdens of proof and whether those burdens are met. Because of the implicit consideration of this issue and the fact that whether a claimant has good cause is a legal question subject to de novo review, Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006), we address the Board's contention that Claimant did not have good cause here. --------
Section 402(e) provides, in relevant part, that "[a]n employe 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." 43 P.S. § 802(e). Although the Law does not define the term "willful misconduct," our Courts have defined it to include a disregard of the standard of behavior which the employer has a right to expect of an employee or a deliberate violation of an employer's rules. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). The absence of an employee with notice to the employer, but without permission or good cause, can constitute willful misconduct. Smith v. Unemployment Compensation Board of Review, 429 A.2d 119, 120 (Pa. Cmwlth. 1981). However, "absenteeism alone, while grounds for discharge, is not a sufficient basis for a denial of benefits." Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1051 (Pa. Cmwlth. 1985). Rather, "[s]ome additional element or elements must be present to justify the denial of benefits[, such as:] . . . excessive absenteeism. . . or . . . [a] disregard of warnings." Id. at 1051-52 (emphasis added) (citing Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974)). Moreover, a refusal to obey a reasonable directive from Employer without good cause likewise can constitute disqualifying willful misconduct. Dougherty v. Unemployment Compensation Board of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 1996). The employer bears the burden of proving that the claimant's actions rose to the level of willful misconduct. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). If the employer satisfies its burden, the burden shifts to the employee to show that he had good cause for his conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Docherty, 898 A.2d at 1208.
In Jimenez v. Unemployment Compensation Board of Review, 417 A.2d 870, 872 (Pa. Cmwlth. 1980), we held that studying for a graduate school exam did not constitute good cause to justify a claimant's absence from work and, therefore, the claimant was ineligible for benefits under Section 402(e). Similarly, in Kaminski v. Unemployment Compensation Board of Review, 101 A.2d 132, 132 (Pa. Super. 1953), the Superior Court held, in a voluntary termination matter, that "school attendance was a matter of personal choice rather than a necessity, and does not constitute good cause for leaving work."
The present matter is akin to Jimenez and Kaminski in that Claimant made the personal choice to attend his Police Academy training class rather than his mandatory shift with Employer. It is undisputed that Employer attempted to accommodate Claimant's schooling when it could, but that October 22, 2010, was not a day on which accommodation could be made because it was the Friday of Employer's homecoming weekend. (Referee Hr'g Tr. at 3-4, 6-8.) Despite knowing that he had been warned regarding his absenteeism, and that he would be discharged if he had another infraction, Claimant chose to attend his non-work-related training class rather than his scheduled shift. Thus, this is not a case of reviewing Claimant's eligibility for benefits based on "absenteeism alone"; rather, there were additional elements present, "excessive absenteeism" and "disregard of warnings," that rendered Claimant's absenteeism disqualifying willful misconduct. Vargas, 486 A.2d at 1051-52. Moreover, Employer clearly directed Claimant to report for his scheduled shift on October 22, 2010, if he could not find a replacement. (FOF ¶ 6.) Claimant neither found a replacement, nor reported for his scheduled shift, thereby not following Employer's reasonable directive. Such actions constitute disqualifying willful misconduct. Dougherty, 686 A.2d at 54.
Accordingly, we are constrained to affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 26, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge