Opinion
No. 615 C.D. 2012
10-11-2012
Alan B. Ziegler, 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
Alan B. Ziegler, (Employer) petitions for review from an order of the Unemployment Compensation Board of Review (Board) affirming the order of the Referee granting benefits to Jestine Malloy (Claimant) and finding that she was eligible for benefits because she was not discharged for willful misconduct, pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Finding no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Under Section 402(e) of the Law, an individual is not eligible for unemployment compensation benefits if his unemployment is due to "willful misconduct connected with his work."
Claimant was employed as a legal receptionist for Employer, with her last date of active employment being October 5, 2011, after which she did not report to work for medical reasons. Claimant met with Employer on October 17, 2011, at which time Employer expressed an interest in Claimant coming back to work on a part-time basis. Claimant then inquired about the possibility of receiving vacation pay, and Employer became irritated, told Claimant to never mind, and said, "I dare you to collect unemployment compensation." (Referee's Decision and Order dated February 2, 2012, at 1.) Claimant then cleaned out her desk while Employer watched. She subsequently applied for unemployment compensation benefits, which the Unemployment Compensation Service Center granted. Employer appealed.
Before the Referee, Claimant testified that she did not come to work on October 6, 2011, because she was ill, and she understood that Employer's policy for calling off was that "[s]omeone needed to make contact with the office prior to [her] start time." (Hearing Transcript dated January 30, 2012, at 10.) She further said that she was hospitalized from October 7 through October 12, 2011, and she did not contact Employer herself to disclose this because telephone use was limited in the hospital. Claimant said that as soon as she was discharged from the hospital on October 12, she called Employer and explained that she was discharged and would be in the next day with a letter from the hospital. Claimant met with Employer the next day and gave him the letter and disclosed her diagnoses. Claimant went to the office again on October 17, 2011, to get her paycheck, at which time she sat down with Employer and he said he wanted to bring her back to work part-time. She noted that the letter said she should not return to work until October 19, and she asked if she was entitled to any of her vacation pay. Claimant said Employer became irritated at the question, "said never mind, and he put his finger up and he said dare you to try to collect unemployment.[']" Id., at 14. Claimant then left the room and went to collect her personal items from her desk, and Employer watched her do so. She said she was prepared to return to work but understood Employer's statement regarding collecting unemployment as a termination of her employment.
Shane Steck (Steck), Claimant's boyfriend, testified that he called Employer's office between 7:30 a.m. and 7:45 a.m. on October 6, 2011, and again on October 7, 2011, to inform Employer that Claimant would not be in to work. He said he called Randy Henny (Henny), Employer's paralegal, on his cell phone the following Sunday evening to inform Employer that Claimant would not be in again on Monday, and he contacted Employer again on Tuesday morning to inform him that Claimant would be discharged from the hospital the next day.
Employer testified that Claimant worked for him from September 22, 2008, through October 5, 2011, and was paid through October 14, 2011, from accrued sick leave. He said that Claimant was out from work sick on Tuesday, October 4, 2011, and she worked six hours on October 5, 2011, with her sister sitting in the office while she worked. On October 6, 2011, Claimant's boyfriend called the office and said he was taking Claimant to the emergency room. The following day, Claimant's boyfriend called Employer's paralegal at home and said Claimant would not be in once again. She was out of work again the entire following week but did not contact Employer. Employer further testified that Claimant came into the office in the afternoon of October 14, 2011, with her boyfriend, and gave Employer the letter from the hospital. Employer said he wanted to work with her and asked if she would come back, either full- or part-time, and Claimant said she would have to talk to her doctor. Claimant came into the office again the following Monday to pick up her check, and Employer asked when she would be returning to work, to which she replied she did not think it was in her best interest to return yet. She also told Employer "she wanted her 14 days [of] vacation pay," id., at 7, and Employer said he would not accommodate that. At that point Claimant asked if she could take her personal items out of her desk; Employer acquiesced and Claimant left. Employer said he never told Claimant she was terminated and, in fact, wanted her to return.
Employer said that although Claimant testified to coming into the office on October 13, 2011, his notes indicated that the correct date was October 14, 2011.
Employer testified that he did not make a statement regarding collecting unemployment compensation that Claimant alleged; rather, he said he asked if she was returning, and she said she was not because of her health, so he assumed that she had quit. He also alleged that Claimant "became more and more agitated when she complained that she didn't get a raise for the previous year ... [and complained] as to her vacation pay." Id., at 21-22.
Based on the hearing testimony, the Referee found that Employer has a call-off policy which requires employees to call off in advance of their starting time and that Claimant informed Employer of all her absences between October 6, 2011, and October 14, 2011, in accordance with the policy. Resolving all issues of credibility in favor of Claimant, the Referee further found that on October 17, 2011, Employer expressed an interest in bringing Claimant back on a part-time basis, but after Claimant inquired about receiving vacation pay, he "then became irritated and said never mind. His final words were then 'I dare you to collect unemployment compensation.'" (Referee's Decision and Order dated February 2, 2012, at 1.) He also found that Employer watched Claimant clean out her desk without questioning why she was doing so. Based on his findings of fact, the Referee concluded that Claimant reasonably interpreted her conversation with Employer to mean she had been discharged and that Employer did not provide any evidence to suggest Claimant engaged in willful misconduct, so benefits were granted. Employer appealed to the Board, which affirmed the decision of the Referee. 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 v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993). "Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001). Absent an error of law or showing of fraud, the decision of the Board must be affirmed. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996). --------
On appeal, Employer argues that the Board erred in concluding that Claimant was terminated from her employment because there is not substantial evidence to establish that she had been terminated and had not voluntarily resigned. In making this argument, he contends that a reasonable mind could not conclude that Claimant was terminated based on her testimony.
In determining whether an employee is terminated or voluntarily resigned, if the employer's language contains both the immediacy and finality of a firing, the employee will be found to have been discharged. Bell v. Unemployment Compensation Board of Review, 921 A.2d 23 (Pa. Cmwlth. 2007). However, it is not necessary that the employer use the words "fired" or "discharged." Id., at 26 (citing Wise v. Unemployment Compensation Board of Review, 700 A.2d 1071 (Pa. Cmwlth. 1997)). Moreover, if a claimant's belief that he or she has been terminated is reasonable and "consistent with ordinary common sense, under circumstances that were real, substantial, and reasonable," the claimant did not voluntarily quit. Roberts v. Unemployment Compensation Board of Review, 432 A.2d 646, 648 (Pa. Cmwlth. 1981) (quoting Blacklick Valley School District v. Unemployment Compensation Board of Review, 425 A.2d 504 (Pa. Cmwlth. 1981)). Finally, in determining whether an employee was terminated or voluntarily resigned, "we must examine the testimony in the light most favorable to the party in whose favor the [Board] rendered its decision." Bell., 921 A.2d at 26 n.6.
Reviewing the testimony in favor of Claimant, Employer first told Claimant he would like her to return to work part-time, but after she inquired about vacation pay, he told her to never mind and dared her to collect unemployment. Employer also watched as Claimant cleaned her personal items from her desk and left the office without questioning her actions. Employer's words had the immediacy and finality of a discharge, and Claimant's belief that this was the case was reasonable. Specifically, a reasonable employee would believe that she was terminated when her employer speaks to collecting unemployment compensation and subsequently watches the employee clean out her desk. As the Referee noted, Employer did not present any evidence or testimony to suggest that Claimant engaged in willful misconduct so as to otherwise preclude her from receiving unemployment compensation benefits.
Accordingly, because there is substantial evidence to support the Board's decision to grant Claimant unemployment compensation benefits, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 11th day of October, 2012, the order of the Unemployment Compensation Board of Appeals, dated March 28, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge