A.H. Muhammad v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdal H. Muhammad, :
Petitioner :
: No. 1342 C.D. 2015
v. :
: Submitted: January 22, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 8, 2016
Abdal H. Muhammad (Claimant) petitions, pro se, for review of the June
29, 2015 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision that Claimant was ineligible for unemployment
compensation benefits pursuant to section 402(e) of the Unemployment
Compensation Law (Law).1 For the following reasons, we affirm.
1
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 an employee shall be ineligible for benefits for
any week in which his unemployment is due to his discharge from work for willful misconduct
connected with his work.
Facts and Procedural History
Bon Appétit Company (Employer) employed Claimant as a line cook
from February of 2014, through his last day of work on February 8, 2015. (Referee’s
Finding of Fact No. 1.) Employer’s Attendance and Lateness Policy (Policy)
provided for termination of employment for three incidents of “no call, no show”
within any twelve-month period. Id. at No. 2. Claimant was aware of the Policy by
his signed acknowledgment. Id. at No. 3. On March 24, 2014, Employer issued a
final, written warning to Claimant for not calling or reporting for work on March 23,
2014. Id. at No. 4.
On February 8, 2015, Claimant left work early due to a urinary tract
infection. Id. at No. 5. On February 9, 10, and 11, 2015, Claimant was absent and
properly reported off from work. Id. at No. 6. Claimant returned to work on
February 12, 2015, but was still experiencing pain. Id. at No. 7. His manager, Jared
Budd (Manager), informed Claimant that “because he was still in pain, he could go
home as the employer brought an extra person on shift in case the [C]laimant did not
report for work.” Id. at No. 8. Manager told Claimant to rest over the weekend and
to report on February 15, 2015,2 for his next scheduled shift. Id. at No. 9. Claimant
is diabetic and uses insulin to control the condition. Id. at No. 10. Claimant,
2
Referee’s Finding of Fact No. 9 listed February 16, 2015, as the date of Claimant’s next
scheduled shift when he was to return to work. This was a typographical error because the date
evidenced in other areas of the referee’s decision, as well as the record, confirm that Claimant’s
return date was February 15, 2015. See Finding of Fact at No. 13 (“On February 15, 2015 and
February 16, 2015, the [C]laimant did not report for work or call to report his absences from
work.”), and Referee’s decision at 2 (“[Manager] testified that . . . the [C]laimant was not
discharged and was expected to return to work on February 15, 2015. The Referee finds the
testimony of [Manager] to be credible with respect to the events leading up to the [C]laimant’s
discharge from employment.”). See also Notes of Testimony (N.T.) at 2, 3-4, 10; Employer’s
Exhibit 5.
2
however, was not taking his insulin at that time because he could not afford the
medication. Id. at 11. During this conversation, Manager noted that Claimant
seemed to be more aggressive when he was not taking his insulin and could not be
trusted around the students. Id. at 12.
On February 15 and 16, 2015, Claimant did not show for work or report
his absences from work. Id. at No. 13. On February 17, 2015, after receiving no
contact from Claimant, Manager began the process for terminating Claimant’s
employment. Id. at 14. On February 24, 2015, Employer terminated Claimant for
three occurrences of “no call, no show” for work within a twelve-month period. Id. at
15. Claimant has multiple medical issues and physical injuries; however, Claimant is
able and available for work. Id. at 16.
Claimant filed a claim for benefits with the local job center, which
determined that Claimant was ineligible for benefits under sections 402(e) and
401(d)(1)3 of the Law. Claimant appealed the local service center’s denial of benefits
and a hearing was scheduled before a referee on May 11, 2015.
Manager testified that Claimant was employed full-time as a line cook
beginning in February of 2014. Manager described the events leading up to
Claimant’s termination as follows. He testified that, on February 8, 2015, Claimant
left work early with a urinary tract infection. Although Claimant was absent from
work on February 9, 2015, February 10, 2015, and February 11, 2015, he indicated
that they communicated with each other on those days.
3
Section 401(d)(1) provides that compensation shall be payable to any employee who is or
becomes unemployed, and who “is able to work and available for suitable work.” Section 401(d)(1)
of the Law, 43 P.S. §801(d)(1).
3
Manager stated that Claimant reported for work on February 12, 2015,
but was still in a lot of pain. Manager explained that he told Claimant to take the day
off, that he already had someone in for Claimant, to rest the next two days, and to
return to work on February 15, 2015.4 Specifically, Manager testified that, after
discussing Claimant’s continued pain, he informed Claimant:
. . . that we had brought an extra person on the shift just in
case and that why not he just rest, just to take the day off.
It’s okay. No penalty. He was not scheduled for the next
two days, so we came to the agreement that the next day,
which, the next day he worked . . . would have been . . .
Sunday the 15th. And it was agreeable. We came to a
decision. [Claimant] said that he would rest over the
weekend and then he would see us then.
(N.T. at 4.) According to Manager, at the end of their meeting on February 12, 2015,
it was understood that Claimant was still on the schedule and that Employer wanted
him to work. Manager asserted that there was nothing in the conversation that would
have led Claimant to believe he was terminated and he fully expected to see Claimant
the next week. (N.T. at 3-4, 6, 10-11.)
Manager noted that Claimant did not call or show up for work on
February 15, 2015, the return date they had agreed upon. Further, he indicated that
he never heard from Claimant after the last day Claimant worked on February 12,
2015. Manager explained that Claimant’s “no call, no show” the next day, February
16, 2015, constituted his third within a one-year time period. Claimant’s first “no
call, no show” was evidenced by documentation dated March 24, 2014. (N.T. at 4;
Employer’s Exhibit 4.) Manager testified that, pursuant to the Policy, if there are
4
Claimant was not scheduled to work on February 13 and 14, 2015. (N.T. at 3-4.)
4
three “no call, no shows” within one year, Employer pursues termination.
Employer’s Policy, dated June 28, 2007, provided in relevant part:
Should you fail to show up for work or notify your
supervisor three (3) days in a row, this will be recorded as
job abandonment. Three (3) one day incidents of “no call,
no show” in any twelve (12) month period will result in
termination regardless of the number of other occurrences
documented within the past twelve (12) month period. If
you are absent for three (3) or more consecutive says [sic], a
doctor’s release may be required before or on the day you
return to work.
(Employer’s Exhibit 1) (emphasis added).
Manager stated that he submitted a request for Claimant’s termination on
February 17, 2015. Claimant was terminated by letter dated February 24, 2015, (N.T.
at 3-4), which provided:
Effective February 24, 2015, your employment with Bon
Appétit Management Company at Lafayette College is
considered involuntarily terminated due to no call, no
shows on the following dates:
March 23, 2014
February 15, 2015
February 16, 2015.
This is (3) occurrences within a 1 year period.
(N.T. at 2; Employer’s Exhibit 5.)
With regard to the conversation of February 12, 2015, Manager
informed Claimant that he could no longer trust Claimant around students. Manager
explained that Claimant’s position placed him in an open kitchen, behind a hot grill,
and with students constantly in front of him. Manager asserted that Claimant’s
5
behavior became aggressive in stressful situations when his insulin was low.
Manager testified that he was concerned that, in such a situation, Claimant would
have a volatile reaction to students or staff members. Manager acknowledged his
discomfort with Claimant’s location out front near the students, but denied that his
concern was related to Claimant’s attendance or work performance. Manager
indicated that when an employee did not show up for work, he generally would
contact them. Manager testified that it was difficult contacting Claimant when he
was absence because Claimant listed another person’s name and phone number for
his contact information. However, Manager had no knowledge of whether Claimant
was contacted on February 15, 2015, because Manager was not working that day.
(N.T. at 6, 11-12.)
Claimant confirmed that he was aware of the Policy and signed an
acknowledgment that he received the Policy. However, Claimant asserted that
Manager terminated him during their February 12, 2015 conversation. Claimant
explained that Manager informed Claimant that he could not trust Claimant around
the students any longer because he was not taking his insulin so he should go home,
and that he had someone else to fill Claimant’s position. Claimant stated that he was
no longer employed because Manager filled his position. Claimant further stated that
it was Manager’s past practice to call Claimant for any missed days of work, but
Manager never contacted him after the conversation of February 12, 2015.
Therefore, according to Claimant, he had no impression other than that he was
terminated. Further, Claimant asserted that Manager’s testimony regarding his
contact information pertained to his emergency contact number, and that he could be
directly contacted via his cell phone number which has not changed. (N.T. at 6-8, 11-
12; Referee’s Exhibits 1-2.)
6
Claimant testified to his medical condition of diabetes which required
him to take insulin, but denied any aggressive behavior or incidents due to the lack
thereof. Although he was in contact with Manager on February 9, 10, and 11, 2015,
he stated that the discussion pertained to his wages being insufficient to cover his
medical expenses and, therefore, he was unable to obtain insulin. Claimant indicated
that when the state picked up his medical coverage in April or May of 2015, he was
able to resume taking insulin again. (N.T. at 6-9.)
In the service center’s record of oral interview of Claimant, dated April
15, 2015, Claimant indicated that he was not able to work. At the hearing, Claimant
testified that he was unable to work because he did not have insulin at that time.
Claimant testified that he was now able to work because he has been able to obtain
insulin through state-provided medical coverage. Claimant also testified that he has
cataracts and glaucoma, which affect his ability to see small print, had neuropathy,
and that future surgeries were required for his hand and foot. Claimant indicated that
he filed a claim for Supplemental Security Income (SSI) benefits and a hearing was
pending to determine whether he was disabled. (N.T. at 8-9.)
By decision and order dated May 11, 2015, the referee affirmed the
determination of the local job center that Claimant was ineligible for benefits under
section 402(e) of the Law, but reversed the local job center’s determination that
Claimant was also ineligible for benefits under section 401(d)(1) of the Law. 5 The
referee made the following findings of fact. Claimant was employed by Employer as
a line cook and last worked on February 8, 2015. (Finding of Fact No. 1.) Claimant
was aware of Employer’s Policy, which provided for an employee’s termination for
three absences from work in any twelve-month period without calling Employer to
5
Claimant did not appeal the referee’s decision section 401(d)(1) of the Law.
7
report off work (“no call, no shows”). Id. at Nos. 2, 3. Claimant’s first “no call, no
show” within the last twelve-month period was on March 23, 2014. Id. at No. 4. On
February 8, 2015, Claimant left work early due to a urinary tract infection. Id. at No.
5. Claimant was absent and properly reported off from February 9, 2015, to February
11, 2015. Id. at No. 6. When Claimant returned to work on February 12, 2015, he
was still experiencing pain from the infection. Id. at No. 7. On that date, Manager
informed Claimant that “because he was still in pain, he could go home as the
employer brought an extra person on shift in case the [C]laimant did not report for
work.” Id. at No. 8. After telling Claimant to rest over the weekend, Manager told
him to report for his next scheduled shift, which was February 15, 2015. Id. at No. 9.
Claimant did not show up or report from work on February 15, 2015, and February
16, 2015. Id. at No. 13. When Manager had no contact from Claimant, he began
processing Claimant’s termination. Id. at 14. By letter dated February 24, 2015,
Employer terminated Claimant pursuant to the Policy for three occurrences of “no
call, no show” for work within a twelve-month period. Id. at 15.
Further, the referee considered the conflicting testimony regarding the
February 12, 2015 conversation, and specifically credited Employer’s testimony with
respect to the events leading up to Claimant’s discharge. (Referee’s decision at 2.)
The referee concluded that Employer established the existence of the Policy which
authorized termination for three “no call, no show” absences within a twelve-month
period, that Claimant was aware of the Policy, and that Claimant knowingly violated
the same. Hence, the referee determined that Employer sustained its burden of
proving that Claimant’s discharge was for willful misconduct in connection with
Claimant’s work, and that Claimant did not have good cause for his actions, thereby
rendering him ineligible for benefits pursuant to section 402(e) of the Law.
8
Claimant appealed the referee’s decision to the Board, claiming that he
did not violate the Policy because he was terminated in the conversation of February
12, 2015, due to his medical condition. He asserted that such termination was
apparent in the referee’s Finding of Fact No. 8, which provided “[M]anager told the
[C]laimant that because he was still in pain, he could go home as the employer
brought an extra person on shift in case the claimant did not report for work.”
By order dated June 29, 2015, the Board affirmed the decision of the
referee, determining that the referee’s decision was proper under the Law, and
adopted the findings and conclusions of the referee.
On appeal to this Court,6 Claimant argues that the Board erred because
he did not violate the Policy; rather, he was terminated during the conversation of
February 12, 2015. Claimant contends that Manager’s testimony as to the
conversation is not credible. Further, he asserts that contentions began with
Employer in January of 2015 when he confronted Manager about a discrepancy in
Claimant’s pay.
The Board contends that its unchallenged findings conclusively establish
that Claimant violated the Policy by failing to report or call off work three times
during a twelve-month period. The Board maintains that Employer sustained its
burden of proving that Claimant’s actions rose to the level of willful misconduct.
6
In an unemployment compensation appeal, our review is limited to determining whether
constitutional rights were violated, whether an error of law was committed, or whether necessary
findings of fact are supported by substantial evidence. Leace v. Unemployment Compensation
Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014). Substantial evidence is evidence
which a reasonable mind would accept as adequate to support a conclusion. Umedman v.
Unemployment Compensation Board of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012). Where
substantial evidence supports the Board’s findings, they are conclusive on appeal. Ductmate
Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth.
2008).
9
Discussion
Section 402(e) of the Law provides that an employee shall be ineligible
for benefits for any week in which his unemployment is due to his discharge from
work for willful misconduct connected with his work. Section 402(e) of the Law, 43
P.S. §802(e). While willful misconduct is not defined in the Law, our courts have
defined it as:
(1) a wanton or willful disregard for an employer’s
interests; (2) a deliberate violation of an employer’s rules;
(3) a disregard for standards of behavior which an employer
can rightfully expect of an employee; or (4) negligence
indicating an intentional disregard of the employer’s
interest or an employee’s duties or obligations.
Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d
186, 190 (Pa. Cmwlth. 2012).
The determination of whether Claimant’s actions constitute willful
misconduct is a question of law subject to this Court’s review. Ductmate Industries,
Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008). The prevailing party below is entitled to the benefit of all reasonable
inferences drawn from the evidence. See id. However, we note that the Board is the
ultimate fact-finder in unemployment compensation proceedings. Chapman v.
Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth.
2011). It is within the exclusive province of the Board to determine the weight and
credibility of evidence, and the Board is free to reject even uncontradicted testimony.
Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1164 (Pa.
Cmwlth. 2013).
Where the alleged willful misconduct is based on violation of a work
rule, the employer must establish the existence of the rule, the reasonableness of the
10
rule, the claimant’s knowledge of the rule, and its violation. Yost v. Unemployment
Compensation Board of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012). If
employer meets its burden, the burden shifts to the claimant to show good cause for
the conduct. Philadelphia Parking Authority v. Unemployment Compensation Board
of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Good cause exists where the
claimant’s actions were justified or reasonable under the circumstances. Ellis, 59
A.3d at 1164.
Claimant argues that the Board erred in affirming the referee’s decision
because he did not violate the Policy. Claimant contends that Manager called
Claimant into his office, informed Claimant that he hired someone else for his
position, told Claimant that he could not trust him around the students, and then told
him to punch out and go home. Claimant asserts that the February 12, 2015
conversation with Manager constituted a termination, and that any reasonable person
would interpret it as such. Further, Claimant argues that Manager’s testimony was
not credible.
The Board argues that the referee’s factual findings, adopted by the
Board, are unchallenged and, thus, conclusive on appeal. The Board notes that all
conflicts in testimony were resolved in favor of Employer, and the referee credited
Employer’s testimony that Claimant was not discharged on February 12, 2015.
Claimant was scheduled to work on February 15, 2015, but failed to either call or
report to work on February 15, 2015, and February 16, 2015. According to the
Board, Employer sustained its burden of proving the existence of the Policy,
Claimant’s awareness of the Policy, and Claimant’s violation of the Policy for failing
to call or report for work on March 23, 2014, February 15, 2015, and February 16,
2015. The Board maintains that it properly determined that Claimant did not show
11
good cause for his actions, rendering Claimant ineligible for benefits pursuant to
section 402(e).
Similarly, in Bruce v. Unemployment Compensation Board of Review, 2
A.3d 667 (Pa. Cmwlth. 2010), the employer discharged the claimant for not calling or
reporting for work on March 5, 2009, and March 6, 2009, in violation of the
employer’s policy providing that two days of “no call/no show” for work resulted in
termination. The claimant testified that her aunt notified the employer of her
absence, whereas the employer testified that no notification was received. The Board
resolved the conflict in favor of the employer, and found that the claimant violated
the policy by failing to call or report for work on March 5, 2009, and March 6, 2009,
rendering her ineligible for benefits pursuant to section 402(e) of the Law. On appeal
to this Court, the claimant challenged the Board’s finding that her aunt did not
provide notification to employer. We noted the Board’s authority to assess credibility
and make factual findings, which are conclusive on appeal if supported by substantial
evidence in the record. We held there was substantial evidence to support the
Board’s finding, and affirmed the decision of the Board. Id. at 669-77.
Additionally, in Beck v. Unemployment Compensation Board of Review,
2015 WL 5446409 (Pa. Cmwlth., No. 2001 C.D. 2014, filed June 26, 2015), the
employer had a policy providing that “[i]nstances of no call/no show (absent from
work for an entire scheduled shift without proper notification as defined by
department policy) will continue to be treated as ground for termination after 2 (two)
occurrences . . . .” Id. at *1. The claimant was discharged for failing to call or report
for work on March 29, 2014, March 30, 2014, and May 4, 2014. According to the
employer’s testimony, no phone calls or text messages were received by any of the
individuals to whom absences were to be reported. The claimant testified that his
12
calls to employer went unanswered, and that he sent a text message advising of his
absence, but acknowledged that this was not a proper method of notification under
the policy. The referee credited the employer’s testimony, and determined that the
claimant violated the employer’s policy for three “no call/no shows,” rendering the
claimant ineligible for benefits. The Board affirmed, and adopted the referee’s
findings. Id. at *2. On appeal, we concluded that there was substantial evidence of
record to support the Board’s findings and affirmed the decision of the Board. Id. at
*4.
Here, the record also supports Claimant’s awareness and violation of
Employer’s Policy, which provides for termination of employment upon the
occurrence of three “no call, no shows” within a twelve-month period. Claimant’s
failure to make phone calls for the unexcused absences on March 24, 2014, February
15, 2015, and February 16, 2015, were a violation of the Policy which justified
Claimant’s discharge. Employer sustained its burden of proof establishing willful
misconduct in connection with Claimant’s employment, and the burden shifted to
Claimant to show good cause7 for violation of the Policy.
Claimant’s proffered explanation of good cause for violating the Policy
is the belief that he was terminated and Claimant maintains that Employer’s
testimony was not credible. In essence, Claimant asks this Court to accept his own
version of the events that occurred on February 12, 2015. The referee, however,
considered and rejected Claimant’s testimony regarding the same. (Referee’s
7
Whether good cause exists is an issue for resolution by the Board, as fact finder and arbiter
of the weight and credibility of the evidence. Therefore, all questions of credibility and conflicts in
testimony are resolved by the Board. However, whether a claimant has proven good cause is a
question of law subject to this Court’s review. Docherty v. Unemployment Compensation Board of
Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
13
decision at 2.) The referee credited Employer’s testimony regarding the events
leading up to Claimant’s termination, and specifically found that Claimant was
instructed to return to work on February 15, 2015 for his next scheduled shift.
(Referee’s decision at 2; Finding of Fact No. 9.) As we explained in Bruce, “[t]hat
[C]laimant may have given ‘a different version of the events, or . . . might view the
testimony differently than the Board, is not grounds for reversal if substantial
evidence supports the Board’s findings.’” 2 A.3d at 671-72 (citing Tapco, Inc. v.
Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa.
Cmwlth. 1994)). Upon review of the record, we conclude that the referee’s finding
that Claimant was expected to return to work on February 15, 2015, is supported by
substantial evidence and is conclusive on appeal. Hence, Claimant’s contention that
he was terminated on February 12, 2015, is without merit.
Given this record, we conclude that Employer sustained its burden of
proof establishing that Claimant’s actions constituted willful misconduct and
Claimant failed to show good cause for violation of Employer’s Policy. 8
8
For the first time on appeal, Claimant refers to a prior disagreement with Employer over
his pay. Our review, however, is limited, to the existing record. See Pa.R.A.P. No. 1551(a).
Because these facts do not appear of record, Claimant has waived any issues regarding the same on
appeal. See B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (“For
purposes of appellate review, that which is not part of the certified record does not exist. . . . ‘[I]t is
the responsibility of the appellant to supply this Court with a complete record for purposes of
review. The failure by an appellant to insure that the original record certified for appeal contains
sufficient information to conduct a proper review constitutes waiver of the issues(s) sought to be
examined.’”) (citation omitted).
14
Conclusion
Claimant failed to call or report for work on March 23, 2014, February
15, 2015, and February 16, 2015, in violation of Employer’s Policy, which provided
for termination of employment for three incidents of “no call, no show” within a one-
year period. Employer sustained its burden of proof establishing that Claimant’s
actions constituted willful misconduct and Claimant failed to show good cause for
violation of Employer’s Policy. We find no error in the Board’s affirmance of the
referee’s decision, which determined that Claimant committed willful misconduct and
was ineligible for benefits pursuant to section 402(e) of the Law.
Accordingly, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdal H. Muhammad, :
Petitioner :
: No. 1342 C.D. 2015
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 8th day of August, 2016, the June 29, 2015 order of
the Unemployment Compensation Board of Review is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge