Opinion
No. 1623 C.D. 2012
05-20-2013
Jennifer Strawn, 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 SENIOR JUDGE FRIEDMAN
Jennifer Strawn (Claimant) petitions for review of the July 27, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming a referee's decision to deny Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for benefits under sections 402(e) and 402.6 of the Unemployment Compensation Law (Law) because Claimant committed willful misconduct by being absent from work while serving time in prison. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(e) and 802.6. Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e). Section 402.6 of the Law was added by the Act of October 30, 1996, P.L. 738, as amended, 43 P.S. §802.6, and provides that an employee is ineligible for benefits for any week during which she is incarcerated after a conviction.
Claimant worked for The Guardian Life Insurance Company (Employer) as a full-time business consultant from April 28, 2003, until February 23, 2012. In September 2011, Claimant notified Employer that she had been charged with driving under the influence. (UCBR's Findings of Fact, Nos. 1-3.) On February 17, 2012, Claimant pled guilty to the offense and was sentenced to three days to six months in jail.
Claimant told Employer that she was eligible to participate in a work-release program; Employer declined to participate in the program. On February 24, 2012, Employer discharged Claimant. Claimant was incarcerated from February 27, 2012, through May 1, 2012. (UCBR's Findings of Fact, Nos. 4, 5, 7, and 8.)
Claimant applied for benefits with the local service center, which denied her benefits pursuant to sections 402(e) and 402.6 of the Law. Claimant appealed this determination to a referee. The referee held a hearing and affirmed the denial of benefits.
Claimant appealed to the UCBR. On July 27, 2012, the UCBR affirmed the referee's decision while adopting and incorporating the referee's findings and conclusions. Claimant petitioned this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
The UCBR filed a motion to quash the petition for review with this court. On November 21, 2012, this court issued an order granting the motion in part and denying the motion in part, limiting the issue on appeal to the fifth item in Claimant's petition.
The fifth item in Claimant's petition for review is:
The Respondent committed an error of law by failing to recognize the fact that [Claimant] was on a work release program approved by the Northampton County Court of Common Pleas.
Claimant argues that the UCBR erred in finding that Claimant's absence from work due to incarceration constituted willful misconduct because Claimant never actually missed any work prior to her discharge. We disagree.
"Willful misconduct has been defined as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, or evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations." Adams v. Unemployment Compensation Board of Review, 56 A.3d 76, 78 (Pa. Cmwlth. 2012). Absenteeism resulting from incarceration can support a finding of willful misconduct. Medina v. Unemployment Compensation Board of Review, 423 A.2d 469, 471 (Pa. Cmwlth. 1980).
In Weems v. Unemployment Compensation Board of Review, 952 A.2d 697, 699 (Pa. Cmwlth. 2008), an employee received a nine-month sentence for assault and was terminated from her job. The employee argued that she was eligible for work release and was, therefore, ready and able to work. Id. This court disagreed and noted that "[t]he decision by [the e]mployer not to participate in a work release program does not excuse [employee's] absence from work. [The employee] had an obligation to report to work regardless of whether [the e]mployer agreed to participate in the work release program." Id. at 700. Therefore, this court concluded that the employee's behavior constituted willful misconduct. Id.
Here, as in Weems, Employer had no obligation to participate in the work-release program. Claimant, however, had an obligation to report to work. By being absent from work due to her incarceration, Claimant committed willful misconduct.
Claimant attempts to distinguish this case from Weems by stressing that Employer terminated Claimant prior to her incarceration and before she missed a day of work. Claimant argues that "no work had been missed. And, had [Employer] allowed [Claimant] to continue working within the parameters of the work-release program, she never would have had to miss any work whatsoever." (Claimant's Br. at 8.) However, this argument merely attempts to shift responsibility for Claimant's absenteeism to Employer. Employer had no duty to accept a work-release program. When Employer discharged Claimant on Friday, February 24, 2012, the last working day before Claimant reported to prison on Monday, February 27, 2012, it was inevitable that Claimant's incarceration would necessitate an absence from work.
Claimant also argues that no violation of a work rule was established; however, excessive absences can support a finding of willful misconduct even without an official attendance or absentee policy. See Medina, 423 A.2d at 471. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 20th day of May, 2013, we hereby affirm the July 27, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge