T.P. O'Donnell v. UCBR ( 2016 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Timothy P. O'Donnell,                         :
    Petitioner       :
    :
    v.                            :   No. 2281 C.D. 2015
    :   Submitted: June 17, 2016
    Unemployment Compensation                     :
    Board of Review,                              :
    Respondent                :
    BEFORE:         HONORABLE ROBERT SIMPSON, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE SIMPSON                              FILED: July 27, 2016
    Timothy P. O’Donnell (Claimant) petitions for review from an order
    of the Unemployment Compensation Board of Review (Board) that denied him
    unemployment compensation (UC) benefits under Section 402(e) of the UC Law
    (Law).1 Claimant contends the Board erred in determining his conduct rose to the
    level of willful misconduct. He also asserts the Board erred in failing to correct the
    referee’s alleged error in excluding a doctor’s note from the record. Upon review,
    we affirm.
    I. Background
    Claimant worked for J.B. Hunt Transport, Inc. (Employer) as a full-
    time yard jockey from April 8, 2013, until his termination on May 26, 2015.
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
    §802(e).
    Beginning in March 2015, Claimant did not work for a period of seven or eight
    weeks because of foot surgery. On May 18, Claimant’s physician released him for
    full-time duty. Employer notified Claimant he needed to work on May 23 and
    May 25, the Saturday and Monday of Memorial Day weekend. Upon his initial
    return to work on May 18, Claimant requested vacation time for May 23 and May
    25. Employer denied this request. Employer requires two-week notice from its
    employees prior to taking vacation time. Employer ultimately terminated Claimant
    on May 26 after he took unauthorized vacation time on May 23 and May 25.
    Thereafter, Claimant applied for UC benefits, which a local service
    center granted. Employer appealed, and a referee’s hearing ensued.
    At the referee’s hearing, Employer was represented by counsel while
    Claimant was unrepresented. Employer’s account manager, Rosemary Downey
    (Account Manager), testified for Employer. Account Manager testified Claimant
    did not report to work on May 23 and May 25, and he requested vacation time
    because he had a vacation planned with his girlfriend. Account Manager further
    testified Claimant was aware of Employer’s two-week notice policy for use of
    vacation time, and despite receiving a medical clearance from his doctor on May
    18, Claimant did not provide documentation for the days he missed on May 23 and
    May 25. Account Manager also testified that Employer disciplined Claimant for
    absenteeism on three prior occasions; once in October 2014 and twice in
    November 2014.
    2
    Employer’s     operations    supervisor,   Katie   Shaak   (Operations
    Supervisor), testified by telephone for Employer. Operations Supervisor testified
    Claimant told her on May 18 he wanted to schedule vacation on May 23 and May
    25. Operations Supervisor further testified, because Claimant did not request
    vacation time two weeks in advance, Employer denied Claimant’s request and
    required him to work on those dates. She also testified that Claimant did not
    provide her any documentation on May 18 that would substantiate a medical need
    for the requested vacation time.         Lastly, Operations Supervisor confirmed
    Claimant’s prior disciplinary actions for absenteeism in October and November
    2014.
    Claimant testified on his own behalf. Claimant testified he returned to
    work after his surgery on May 18 with a doctor’s note substantiating his absences
    for the past seven to eight weeks. Claimant testified his doctor told him, “if there
    was [sic] any issues I could come back and see him, in which I did during the time
    that I was out on Memorial Day weekend.” Referee’s Hr’g, Notes of Testimony
    (N.T.), 8/10/15, at 9. Claimant further testified he told Operations Supervisor he
    needed vacation time on May 23 and May 25 because his foot was sore. Claimant
    sought to introduce a doctor’s note dated May 26 as “proof … [the doctor] gave me
    the days off.” N.T. at 9. Although Employer’s counsel objected to the admission
    of this note, and the referee ultimately excluded it, the referee permitted Claimant
    to testify regarding the content of the note.
    When asked what he told Operations Supervisor as to whether he
    needed May 23 and May 25 to rest his foot or go on vacation, Claimant testified,
    3
    “[v]acation was a side note.”     N.T. at 10.    On cross-examination, Claimant
    admitted he went “to the [s]hore” over the Memorial Day weekend, and
    “documentation [for May 23 and May 25] wasn’t provided because [he] was
    terminated.” N.T. at 12, 13.
    After the hearing, the referee made the following pertinent findings:
    2.    [E]mployer’s work rules provide, in part, that a worker
    must give two weeks notice [sic] for vacation days.
    3.     [C]laimant was aware of [E]mployer’s rules.
    4.    On October 29, 2014, [E]mployer gave [C]laimant a
    verbal warning for absences.
    5.    On November 13, 2014, [E]mployer gave [C]laimant a
    written warning for absences.
    6.    On November 17, 2014, [E]mployer gave [C]laimant a
    second written warning for absences.
    7.     Beginning in March 2015, [C]laimant was out of work
    for seven or eight weeks because of a foot injury.
    8.     [C]laimant was subsequently released by his physician
    for full duty.
    9.    On May 18, 2015, [E]mployer informed [C]laimant he
    was scheduled for [a] mandatory overtime shift on May 23,
    2015 and a regular work day on May 25, 2015.
    10. [C]laimant informed [E]mployer[’s] representative he
    was taking vacation.
    11. [E]mployer responded that [C]laimant did not give notice
    for vacation and was required to work the shifts.
    12. [C]laimant did not report to work or call off on May 23
    and May 25, 2015.
    4
    13. [E]mployer discharged [C]laimant for absence without
    report.
    14. [C]laimant asserts he was taking off to go away on
    vacation and because his foot was sore.
    Referee’s Dec., 6/22/15, Finding of Fact (F.F.) Nos. 2-14 (emphasis added). On
    the issue of whether Claimant’s absenteeism was based on a legitimate medical
    need, the referee found Employer’s witnesses’ testimony credible and therefore
    resolved this conflict in Employer’s favor.            As such, the referee determined
    Employer terminated Claimant for excessive absenteeism and denied benefits
    under Section 402(e) of the Law.
    On appeal, the Board affirmed the referee’s decision and adopted his
    critical findings.2 In denying benefits, the Board reasoned (with emphasis added):
    The Board specifically rejects [C]laimant’s testimony that he
    took off work on May 23, 2015 and May 25, 2015 because his
    foot was sore. The [O]perations [S]upervisor credibly testified
    that [C]laimant did not provide a reason for being off on those
    days other than that he was taking a vacation. … On appeal,
    [C]laimant provides documents absent from the record before
    the Referee. The Board may not consider extra-record evidence
    and avoided doing so here.
    Bd. Op. at 1. Claimant now petitions for review to this Court.3
    2
    The Board modified the referee’s Finding of Fact No. 7 to indicate Claimant was out of
    work for several weeks because of foot surgery rather than because of an injury.
    3
    Our review is limited to determining whether necessary findings of fact were supported
    by substantial evidence, whether errors of law were committed, or whether constitutional rights
    were violated. Oliver v. Unemployment Comp. Bd. of Review, 
    5 A.3d 432
     (Pa. Cmwlth. 2010)
    (en banc).
    5
    II. Issues
    Claimant first contends the record does not contain substantial
    evidence to show his absenteeism rose to the level of willful misconduct. Claimant
    also asserts the Board erred in failing to acknowledge and correct the referee’s
    alleged prejudicial error of excluding Claimant’s May 26 doctor’s note, which
    excused his absences on May 23 and May 25.
    III. Discussion
    The Board is the ultimate fact-finder in UC cases.            Oliver v.
    Unemployment Comp. Bd. of Review, 
    5 A.3d 432
     (Pa. Cmwlth. 2010) (en banc).
    Thus, matters of credibility and the weight to be given conflicting testimony fall
    within the Board’s exclusive province. 
    Id.
     The Board may reject the testimony of
    the claimant if it concludes it is not worthy of belief. Adams v. Unemployment
    Comp. Bd. of Review, 
    373 A.2d 1383
     (Pa. Cmwlth. 1977). Additionally, we must
    view the record in the light most favorable to the prevailing party before the Board,
    and give that party the benefit of all reasonable inferences that can be drawn from
    the evidence. Sanders v. Unemployment Comp. Bd. of Review, 
    739 A.2d 616
     (Pa.
    Cmwlth. 1999).
    Further, it is irrelevant whether the record contains evidence to
    support findings other than those made by the Board; the critical inquiry is whether
    there is substantial evidence in the record to support the findings actually made.
    Wise v. Unemployment Comp. Bd. of Review, 
    111 A.3d 1256
     (Pa. Cmwlth. 2015);
    Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 
    949 A.2d 338
     (Pa.
    Cmwlth. 2008).
    6
    Section 402(e) of the Law states an employee shall be ineligible for
    compensation for any week in which his unemployment is due to willful
    misconduct connected to his work. 43 P.S. §802(e). Willful misconduct within
    Section 402(e) is defined by the courts as: (1) a wanton and willful disregard of an
    employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards
    of behavior that an employer can rightfully expect from an employee; or, (4)
    negligence that manifests culpability, wrongful intent, evil design, or an intentional
    and substantial disregard for the employer’s interest or the employee’s duties and
    obligations. Guthrie v. Unemployment Comp. Bd. of Review, 
    738 A.2d 518
     (Pa.
    Cmwlth. 1999).      The burden of proving willful misconduct rests with the
    employer. 
    Id.
     Whether an employee’s conduct constitutes willful misconduct is a
    question of law subject to this Court’s review. 
    Id.
    A.
    Claimant first argues the Board erred in determining he committed
    willful misconduct. Despite the Board’s finding, he contends he needed the time
    off to rest his foot following surgery. Claimant also asserts he visited his doctor
    during that time.
    While absenteeism may not always support a finding of willful
    misconduct, an employee’s use of unauthorized vacation time, when specifically
    directed not to by an employer, amounts to willful misconduct under the Law.
    Hymon v. Unemployment Comp. Bd. of Review, 
    466 A.2d 275
     (Pa. Cmwlth.
    1983); Travor v. Unemployment Comp. Bd. of Review, 
    449 A.2d 814
     (Pa.
    Cmwlth. 1982). Thus, this Court repeatedly holds the use of unauthorized vacation
    7
    time constitutes willful misconduct under the Law.                      Hymon; Milne v.
    Unemployment Comp. Bd. of Review, 
    457 A.2d 224
     (Pa. Cmwlth. 1983); Fanelly
    v. Unemployment Comp. Bd. of Review, 
    422 A.2d 1214
     (Pa. Cmwlth. 1980);
    Adams.
    Here, substantial evidence supports the Board’s finding that Employer
    terminated Claimant’s employment for taking unauthorized vacation time. N.T. at
    5, 7-8; Referee’s Decision & Order, 8/11/15, at 2.                To that end, the Board
    specifically rejected Claimant’s testimony that he took off work because his foot
    was sore.4 Bd. Op. at 1. The Board also determined Claimant did not provide
    Employer with good cause for his absenteeism, other than wanting to take vacation
    time. 
    Id.
     As these determinations are amply supported, Claimant’s argument fails.
    Bd. Op. at 1; N.T. at 5, 7-8; F.F. Nos. 10-12. In turn, based on its supported
    findings, the Board properly determined Claimant’s use of unauthorized vacation
    time constituted willful misconduct. Hymon; Fanelly; Adams.
    Of further note, when the referee asked Claimant exactly when he
    went to his doctor, Claimant replied: “I had seen [sic] the doctor on the 26th.” N.T.
    at 10. Claimant went to his doctor after Employer terminated his employment.
    N.T. at 13. If, as Claimant suggests, he was aware that on May 18 he needed to
    4
    Claimant argues his case is akin to Travor v. Unemployment Compensation Board of
    Review, 
    449 A.2d 814
     (Pa. Cmwlth. 1982), and W.R. Grace v. Unemployment Compensation
    Board of Review, 
    412 A.2d 1128
     (Pa. Cmwlth. 1980). In these cases benefits were granted
    because claimants’ absences were the result of illness. Based on the Board’s finding that
    Claimant’s absence here was neither not caused by illness or medical necessity, these cases are
    inapposite.
    8
    take off on May 23 and May 25 to rest his foot, it is unclear why Claimant did not
    obtain a doctor’s note prior to his termination from employment on May 26.
    B.
    Claimant also argues the referee’s exclusion of his May 26 doctor’s
    note, and the Board’s refusal to consider the note, constitute prejudicial error. We
    disagree.
    Section 101.130(e) of the Board’s regulations requires that when
    testimony is given with the aid of a document not previously in the record, the
    document must be circulated to all parties in advance of a telephonic hearing. 
    34 Pa. Code §101.130
    (e).      Further, “[a] document not provided as required by
    §101.130(e) (relating to notice of testimony by telephone and use of documents)
    may not be admitted nor testimony given or taken from it unless consent has been
    requested from and given by all parties. Testimony taken or given in violation of
    this subsection will be excluded from consideration, as will the document.” 
    34 Pa. Code §101.131
    (h).
    Here, the record reveals, after a series of continuances, Claimant
    received notice of this requirement through a July 27, 2015 Notice of Hearing. See
    Certified Record, Item No. 8 (Board Notice of Hr’g, 7/27/15, at 2). Because
    Claimant did not produce his May 26 doctor’s note in advance of the hearing, the
    referee properly excluded it upon Employer’s objection. 
    34 Pa. Code §101.131
    (h).
    9
    Nevertheless, Claimant argues strict compliance with Section
    101.130(e) is not required as only Employer’s Operations Supervisor testified
    telephonically, and both Employer’s counsel and Account Manager appeared in
    person. Our case law reveals no support for this argument.
    To the contrary, in Ellis v. Unemployment Compensation Board of
    Review, 
    749 A.2d 1028
     (Pa. Cmwlth. 2000), we required strict compliance with
    Section 101.130(e) of the Board’s regulations when employer presented two in-
    person witnesses and only one witness appeared telephonically. Thus, we apply a
    literal construction of 
    34 Pa. Code §101.131
    (h) and hold that a document “may not
    be admitted nor testimony given or taken from it unless consent has been requested
    from and given by all parties.” Collins v. Unemployment Comp. Bd. of Review
    (Pa. Cmwlth., No. 1078 C.D. 2013, filed March 13, 2014), Slip Op. at 9, 
    2014 WL 1004114
     at *4 (unreported); see also Ellis. As such, in light of the objection raised
    by Employer’s counsel, the referee properly excluded Claimant’s doctor’s note.
    Beverly Hall Corp. v. Unemployment Comp. Bd. of Review, 
    106 A.3d 829
     (Pa.
    Cmwlth. 2014) (upon a party’s objection, referee is obligated to exclude
    documents that are not produced in compliance with the telephone hearing
    regulations).5
    5
    In any event, the referee allowed Claimant to testify regarding the content of the note.
    Indeed, Claimant testified as to the note’s existence and legitimacy, and he claimed he was
    medically excused on the days in question. Referee’s Hr’g, Notes of Testimony, 8/10/15, at 10.
    Thus, the content of the May 26 doctor’s note is in the record by virtue of Claimant’s testimony.
    However, as explained above, the Board rejected Claimant’s testimony as not credible.
    10
    Based on the foregoing, we affirm.
    ROBERT SIMPSON, Judge
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Timothy P. O'Donnell,                  :
    Petitioner     :
    :
    v.                          :   No. 2281 C.D. 2015
    :
    Unemployment Compensation              :
    Board of Review,                       :
    Respondent         :
    ORDER
    AND NOW, this 27th day of July, 2016, the order of the
    Unemployment Compensation Board of Review is AFFIRMED.
    ROBERT SIMPSON, Judge