IN THE COMMONWEALTH COURT OF PENNSYLVANIA Schuylkill Energy Resources, Inc. : Petitioner : : v. : No. 164 C.D. 2014 : Submitted: July 25, 2014 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 SENIOR JUDGE COLINS FILED: October 6, 2014 Schuylkill Energy Resources, Inc. (Employer) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding Francis A. Jadosh (Claimant) not ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. 1 We affirm. Claimant was employed by Employer as a plant equipment operator from May 1, 2006 through August 15, 2013. (Record Item (R. Item) 16, Board s Decision and Order, Findings of Fact (F.F.) 1.) Employer notified him that he 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 402(e), as amended, 43 P.S. 802(e). Section 402(e) provides that an employee 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).
was discharged from his employment by letter dated August 19, 2013, sent by certified mail. 2 Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible. Employer appealed and the referee conducted a hearing at which Claimant testified, together with five Employer witnesses, including Employer s General Manager, Operations Supervisor, Control Room Operator, Shift Supervisor, and an Administrative Assistant. The referee reversed the Service Center s determination and held Claimant ineligible for benefits because he was discharged from his employment for willful misconduct in connection with his work. 3 Claimant appealed to the Board, and on January 10, 2014, the Board reversed the referee s determination. Employer timely filed a petition for review appealing the Board s order to this Court. 4 2 The record reflects that Claimant received notice of availability of the letter that terminated his employment on August 21, 2013, but the letter was not picked up at the post office until August 26, 2013. (R. Item No. 9, Referee s Hearing Transcript of Testimony with Employer Exhibits (H.T.) at 7, Exhibit 2.) However, when Claimant arrived at work on August 23, 2013, the Shift Supervisor handed him a copy of the termination letter. (H.T. at 13, 19.) 3 To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer s interests, (2) deliberate violation of the employer s rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer s interests or the employee s duties or obligations. Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 (Pa. 2001). 4 Our scope of review of the Board s decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; Temple University, 772 A.2d at 418 n.1. 2
The record evidence establishes that Employer maintained a mandatory call-in policy whereby employees were required to be on call-in status once every eight weeks, for a continuous seven-day period that coincided with their seven-day off schedule. (R. Item No. 6, Employer s Petition for Appeal from Department s Determination w/attachments, Policy on Employee Call-Ins (Procedure No. 1002), at 58-59.) Employees on the call-in list are required to provide the Operations Supervisor or Control Room personnel with a phone number where they may be contacted while on call-in status. (Id. at 59.) The policy states that if contacted while on call-in status, employees are expected to report to work as expeditiously as possible, and sets forth disciplinary action associated with failing to report to work, including a written warning, a suspension, and, for a third offense, termination. (Id.) The policy states that [d]isciplinary action shall take into account extenuating circumstances. (Id.) Both the referee and the Board found: (i) that Claimant had received multiple previous warnings concerning attendance deficiencies, including not being available when scheduled for mandatory on-call duty (R. Item No. 10, Referee s Decision and Order, Findings of Fact (F.F.) 1; R. Item No. 16, Board s Decision and Order, F.F. 2); and (ii) that on August 16, 2013 and August 17, 2013, Claimant was scheduled for mandatory on-call duty, and also that Claimant had agreed to substitute for another employee on August 18, 2013 (R. Item No. 10, F.F. 2-3; R. Item No. 16, F.F. 3.) The referee found that Claimant was not available when called to work on August 16-17, 2013, and did not report to work as scheduled on August 18, 2013, and that Claimant had alleged that the reason for his not working on those days had to do with alleged dental issues. (R. Item No. 10, F.F. 2-4.) The referee found that Claimant was discharged for willful 3
misconduct in connection with his work, reasoning that Claimant s testimony regarding not working on the days in question due to dental issues was not credible, and that Claimant lacked good cause for his absences. (R. Item No. 10, Referee s Decision and Order, Reasoning.) On appeal, however, the Board found that on August 16, 2013, Claimant notified Employer that he would be absent, and on August 17, 2013, Claimant again notified Employer, stating that he would not return to work until August 23, 2013. (R. Item No. 16, Board Decision and Order, F.F. 4-6.) The Board found that Claimant had been absent because of severe dental problems (F. F. 6), and opined: Here, [Employer] discharged [Claimant] for his absences on August 16 through 18, 2013. When a claimant has good cause to be absent and properly reports off or has good cause for failing to properly report off, the absence or failure to report off is not willful misconduct. [Claimant] acknowledged being warned for attendance problems, so he understood the importance of being reliable. [Claimant] admitted to being scheduled for mandatory on-call duty on August 16 and 17, 2013, and substituting for a coworker on August 18, 2013. [Claimant] also admitted to being absent all three days. [Claimant] properly reported his absences, so he must show good cause for being absent. [Claimant] testified that he was absent because of severe dental problems; the back of my teeth that are breaking apart and cutting into my gum and tongue, painful. Without explanation, the referee discredited [Claimant s] testimony. However, [Claimant] corroborated his testimony with two documents from dentists indicating that he was seen for an appointment on August 19, 2013, and August 21, 2013, the first one stating that [Claimant] had a severe dental condition and I recommended rest and re-evaluation. 4
(R. Item No. 16, Board s Opinion and Order at 2) (emphasis supplied.) Before this Court, Employer does not dispute that illness justifies an absence, but argues, first, that there is not substantial evidence to support the Board s conclusion that Claimant s testimony regarding his dental problems was corroborated by the two dentists notes. Employer asserts that these notes are dated August 19, 2013 and August 21, 2013, and do not relate to the dates when Claimant called off work or indicate that Claimant was incapable of working on August 16-18, 2013. Employer further challenges the Board s conclusion given the referee s finding that Claimant s testimony regarding his condition was not credible. In its brief, Employer argues that Claimant did not mention a dental problem when he called out of work on August 16, 2013 and August 17, 2013, and there is nothing in the record to establish that Claimant was experiencing dental problems at that time. We disagree. Here, the Board had substantial evidence to support its finding that Claimant credibly established that he had severe dental problems. The Board is the ultimate fact finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. The Board s findings are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings even if there is other contrary evidence. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth.), appeal denied, 12 A.3d 753 (Pa. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008); Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). The Board examined the dentists notes, and found that they corroborated Claimant s testimony. The Board was free to infer from the dentist s 5
reference in the August 19, 2013 note to Claimant s severe dental condition that Claimant could have been suffering the effects of this condition beginning three days prior on August 16, 2013. In determining whether there is substantial evidence to support the Board s findings, we must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 2013). The termination letter signed by the General Manager states: [y]ou called [Employer] Control Room personnel at approximately 1300h on August 16, 2013 and indicated that you would not be reporting to [Employer] for the purpose of working the mandatory 1800h call-in shift that evening, August 16, 2013, due to illness. (R. Item No. 6, Employer s Petition for Appeal from Department s Determination w/attachments.) (emphasis supplied.) Further, the Control Room Operator, to whom Claimant spoke on August 16, 2013 and again on August 17, 2013, testified that after he took Claimant s first call, he radioed the Shift Supervisor, who directed him to call Claimant back and tell him to call the Shift Supervisor on the Shift Supervisor s cellphone. (R. Item No. 9, Referee Hearing Transcript of Testimony (H.T.) at 16-17.) The Control Room Operator stated that he reached Claimant on Claimant s cell phone, but Claimant indicated he didn t have time, and he mentioned something about a doctor s excuse but had ended the call before I was able to relay the [Shift Supervisor s] cell phone number to him. (Id. at 16.) Claimant testified that the Control Room Operator had reached him while he was in a doctor s office, and Claimant told him where he was and that he would get back to him later; he testified further that after that conversation with the 6
Control Room Operator, he turned off his phone, and he was on medication for the next two days. (Id. at 20.) Employer also argues that Claimant demonstrated willful misconduct by violating its specific call-in policies and procedures, specifically Claimant s failure to remain available by telephone while remaining on on-call status for the week following the date on which he first called off work. Employer asserts that the Board failed to address the actual reason for Claimant s discharge from employment, and capriciously disregarded the evidence it presented, specifically the termination letter dated and mailed on August 19, 2013. We find this argument to be without merit. Employer s termination letter indicates that the General Manager attempted to call Claimant twice on August 16, 2013 and once on August 17, 2013 for the purpose of discussing Employer s mandatory call-in policy, but Claimant did not answer, and none of the caller s voice messages were returned. The termination letter lists a series of events leading to disciplinary action, and attaches the corresponding Corrective Action Reports issued to Claimant for these events; the reports document that Claimant called off from work on nine days in 2012, received a formal warning in January, 2013 for unavailability during a period when he was on call, and received a six-month probation and a three-day suspension in February, 2013 for poor attendance. However, the termination letter lists the final event leading to disciplinary action, which resulted in dismissal from employment, as [n]on- Compliance w/mandatory Call-In Provisions for 8/16 and 8/17, 2013; and, absenteeism of 8/18/2013. (Id.) The termination letter concludes, [b]ased on the aforestated events associated with your absenteeism from work as well as your 7
non-compliance with [Employer s] mandatory call-in procedures, please be advised that you are terminated from employment. (Id.) The termination letter also refers to two other record exhibits: Procedure 301, Employee Conduct and Discipline, which states that employees are expected to report to work as required; and Procedure 1001, which states that an employee may be discharged for a series of unexcused absences of less than three days, after oral and written warnings have been given. (R. Item 6.) The termination letter acknowledges that Claimant gave illness as a reason for inability to report for work on August 16, 2013, but further states that on August 17, 2013, when Claimant again called in to report he could not work that evening or on the following day, August 18, 2013, he was asked, but gave no reason why he would not be reporting to work. In sum, Employer argues that it was what Claimant did and failed to do in placing calls to the Control Room Operator on August 16, 2013 and August 17, 2013 that constitute willful misconduct; however, no policy or procedure requires an employee to do anything more than provide a phone number where he may be contacted, and to report expeditiously to work when called. Thus, we cannot conclude that the Board erred in reviewing the record and finding that Claimant was discharged from his employment for his absences on August 16-18, 2013, but credibly established that he had severe dental problems that justified his absences. While we recognize that Claimant received a series of Corrective Action Reports, we note that they relate either to his absenteeism from work or his unavailability for work on specified days when he was on call; none relates or refers to a failure to comply with a policy regarding the reporting of absences or procedures for calling off work. (R. Item No. 4, Employer Separation Information, 8
Corrective Action Reports.) The termination letter documents Employer s unsuccessful attempts to communicate further with Claimant following its receipt of phone calls from Claimant reporting off from work on August 16, 2013 and again on August 17, 2013. As previously noted, Employer s Policy on Call-Ins requires an employee to provide the Operations Supervisor or Control Room personnel with a phone number where he or she may be contacted while on call-in status, presumably in order that the employee can be notified that he or she is being called in to work. However, there is simply no record evidence of an existing Employer policy that requires its employees to remain available by phone after calling off work; indeed, there is no policy or procedure addressing the proper manner or method of reporting an absence due to emergency or illness at all. 5 Thus, we find no error in the Board s determination. Accordingly, we affirm the order of the Board. JAMES GARDNER COLINS, Senior Judge 5 Included in the certified record is Employer s Procedure No. 302, Work Rules. Among the delineated offenses are: Rule 2 Reporting a false reason for absence; Rule 7 Unreasonable refusal to work scheduled or emergency overtime; and Rule 10 Absence of three consecutive days without notice unless physically unable. (R. Item No. 6.) 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Schuylkill Energy Resources, Inc. : Petitioner : : v. : No. 164 C.D. 2014 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 6 th day of October, 2014, the order of the Unemployment Compensation Board of Review in this matter is hereby AFFIRMED. JAMES GARDNER COLINS, Senior Judge