Opinion
No. 6 C.D. 2014
07-17-2014
James Horvath, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
James Horvath (Claimant) petitions for review of the December 5, 2013 order of the Unemployment Compensation Board of Review (Board), which held that Claimant is ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that a claimant is ineligible for compensation for any week in which his unemployment is due to his discharge for willful misconduct connected to his work.
Claimant was employed by Sherwood Winding, L.L.C. (Employer) as a maintenance technician at Employer's apartment complexes, from September 2011 to March 2013. Although Claimant was employed as a technician, he frequently acted as an interim maintenance supervisor. Claimant was acting as an interim supervisor on February 13, 2013, when Employer gave him three written disciplinary notices alleging misconduct. The alleged misconduct included lying to Employer about speaking to a tenant, failing to inspect an apartment, and removing copper from old appliances owned by Employer and selling it for personal gain. (Board's Findings of Fact Nos. 1-4, 7-10.)
Employer also discovered that a tenant had moved into one of Employer's apartments without a lease, another tenant was living in an apartment without paying rent, and Claimant was aware of these arrangements. In addition, Employer learned that Claimant collected a $150.00 security deposit from a tenant, which he was not authorized to do. On February 19, 2013, Employer hired a new full-time maintenance supervisor and decided to terminate Claimant's employment the next day. However, Claimant did not return to work after that day, and Employer discharged Claimant by letter dated March 5, 2013. (Board's Findings of Fact Nos. 11-16, 18-19, 21-22.)
The local job center determined that Claimant was ineligible for compensation under section 402(e) of the Law because he had stolen Employer's property. Claimant appealed, and the matter was assigned to a referee.
Claimant testified that many of the actions for which he was disciplined were authorized by a former property manager, Mary Wilson (Wilson). Claimant said he believed that Wilson had approved the arrangements in which tenants were living without a lease on file or without paying rent. Claimant also stated that he had collected the $150.00 security deposit per Wilson's request and had passed it along to her. Claimant testified that he had no authority to challenge Wilson's decisions and that the tenancies at issue were common knowledge among employees. (Reproduced Record (R.R.) at 34-36.)
We note that Claimant's reproduced record fails to include the lower case "a" following the page number as required by Pa.R.A.P. 2173.
Claimant also testified that on February 19, 2013, he showed the new full-time supervisor around Employer's premises. Claimant stated that he was surprised when the new supervisor arrived that day. He explained that he was unaware that Employer had been looking for a full-time supervisor because one of Employer's property managers, Gary Rieder (Rieder), had expressed his approval of Claimant's work as an interim supervisor. (R.R. at 36, 43.)
According to Claimant, he was absent from work beginning February 20, 2013, because he was sick. Claimant stated that he called the office on February 20, 2013, February 21, 2013, and February 22, 2013, to alert Employer of his illness, and then he began calling Rieder instead. Claimant testified that he was suffering from a respiratory infection while he was out but did not see a doctor. (R.R. at 39-40.)
Jeanine Russo (Russo), another property manager for Employer, testified that prior to Claimant's discharge, Employer discovered that one tenant had moved in without a lease and another was not paying rent. Russo stated that the tenant who did not have a lease said that she had arranged her tenancy with Claimant and that, after she moved in, another employee prepared a lease for her. Russo presented a copy of that lease and stated that it was initialed by another former property manager, Kristen M. Bartholomew (Bartholomew), who apparently had prepared the lease after the tenant had moved into the apartment. According to Russo, Employer discharged Bartholomew for lowering the rent on this apartment to match the amount Claimant had agreed upon with the tenant. Russo also stated that Employer had no account of the security deposit that Claimant admitted to collecting from this tenant. (R.R. at 27-32.)
Russo testified that Claimant admitted that he knew about the tenant who was not paying rent and admitted that Rieder was not aware of the situation. According to Russo, Claimant informed her that the tenant was a part-time employee of Employer who was "hard down on his luck." Russo said she did not know whether Wilson was involved. She testified that Employer discharged Wilson in the beginning of February 2013, prior to Russo's employment, but Employer had not accused Wilson of any misconduct. (R.R. at 23, 26-27, 30.)
Russo explained that Employer planned to terminate Claimant on February 20, 2013. She stated that the three disciplinary actions were a factor in Employer's decision to discharge Claimant but the decision was primarily based on Employer's belief that Claimant was authorizing tenants to live in apartments without paying the proper rent. Russo confirmed that Employer was unable to discharge Claimant on February 20, 2013, because Claimant called in sick that day. She testified that Claimant called in sick on the following two days as well and that Employer did not hear from him again. Russo stated that, given Claimant's absences, Employer terminated Claimant's employment by letter dated March 5, 2013. (R.R. at 18-19, 23.)
The referee found that Claimant stopped coming to work after February 19, 2013, and did not communicate with Employer after February 22, 2013. The referee determined that Claimant was not sick on or after February 20, 2013, but instead had voluntarily terminated his employment because he assumed that Employer was going to discharge him. Accordingly, the referee held that Claimant was ineligible for benefits under section 402(b) of the Law.
Section 402(b) of the Law provides that a claimant is ineligible for compensation for any week in which his unemployment is due to his voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. §802(b). We note that anticipation of possible discharge does not constitute cause of a necessitous and compelling nature. Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, 772-73 (Pa. Cmwlth. 1996).
Claimant appealed to the Board, arguing that the referee erred in determining that Claimant quit his job when the evidence unequivocally demonstrates that he was fired. (R.R. at 79-80.) The Board specifically found that: Employer suspected Claimant's involvement in two mismanaged tenancies; Employer had planned to discharge Claimant on February 20, 2013; and Claimant stopped working after Employer hired a new supervisor on February 19, 2013. The Board also accepted Russo's testimony as more credible than that offered by Claimant and determined that Claimant had not contacted Employer after February 22, 2013. (Board's Findings of Fact Nos. 10, 18-22.)
The Board determined that Employer discharged Claimant due to his absences and failure to contact Employer, as well as his alleged involvement in unauthorized tenancies on Employer's property. The Board held that Claimant's absences without good cause amounted to willful misconduct rendering him ineligible for benefits under section 402(e) of the Law.
On appeal to this Court, Claimant argues that his absence from work alone is insufficient to constitute willful misconduct. Claimant further asserts that there is no admissible evidence of his conduct at work that would support a finding of willful misconduct. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially, we note that while the Law does not define the term "willful misconduct," our courts have defined it as including: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of the employer's rules; (3) the disregard of standards of behavior that an employer can rightfully expect from his employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
It is well settled that an employer has the right to expect that its employees will attend work when they are scheduled and that they will arrive on time. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013). Thus, an employer does not need to prove the violation of a specific attendance policy in order to show that an employee has committed willful misconduct due to absences. Id. However, "[a]bsenteeism alone . . . is not a sufficient basis for a denial of unemployment benefits. An additional element, such as lack of good cause, is necessary." Runkle v. Unemployment Compensation Board of Review, 521 A.2d 530, 531 (Pa. Cmwlth. 1987); see also Unemployment Compensation Board of Review v. Ciotti, 356 A.2d 368, 376 (Pa. Cmwlth. 1976) (holding that an employee's failure to provide her employer with good cause for a single absence was sufficient to constitute willful misconduct, despite the fact that she had notified her employer of her intention to miss work).
Based on Claimant's own admission, the Board found that Claimant had been absent from his employment for nearly two weeks before Employer discharged him. Although Claimant testified that he was sick during this time, the Board found that his testimony was not credible. The Board also accepted Russo's testimony that Claimant only called in the first few days that he was absent and did not contact Employer thereafter. In unemployment cases, the Board is the ultimate fact-finder, empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1385 (Pa. 1985). Having made these findings, the Board did not err in concluding that Claimant's failure to report to work was without good cause and constituted willful misconduct.
Claimant also argues that the Board erred by relying on Russo's hearsay testimony with regard to the events for which he was disciplined and the mismanaged tenancies. We need not address this issue because "a claimant who has been discharged for multiple reasons is disqualified from receiving benefits even if only one of those reasons amounts to willful misconduct." Glenn, 928 A.2d at 1172.
We note, however, that Russo did not testify to Claimant's underlying actions, only to the disciplinary measures which were taken and the conversations she had. Thus, her testimony was not hearsay. More importantly, the Board did not issue findings with regard to the validity of the disciplinary measures or Claimant's involvement in the tenancies, nor did the Board base its determination on those events. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of July, 2014, the December 5, 2013 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge