IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carnell A. Jefferson Jr., :

Petitioner :

:

v. :

:

Unemployment Compensation Board :

of Review, : No. 473 C.D. 2015

Respondent : Submitted: August 21, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: September 10, 2015

Carnell A. Jefferson Jr. (Claimant) petitions pro se for review of an 

order of the Unemployment Compensation Board of Review (Board) finding him 

ineligible for unemployment compensation benefits under Section 402(e) of the 

Unemployment Compensation Law (Law)1because his termination was due to willful 

misconduct. For the reasons that follow, we affirm.

 

1 Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. 

(1937) 2897, as amended, 43 P.S. §§751–914. Section 402(e) provides, in pertinent part:

An employe shall be ineligible for compensation for any week—

* * *

(Footnote continued on next page...)
2

I.

The following facts are not in dispute. Since 2013, Claimant was 

employed as a full-time cook by Blue Ridge Senior Housing (Employer). Following 

his out-of-work injury on June 18, 2014, Claimant notified his supervisor that he 

would not report to work as scheduled but that he planned to return to work on June 

23, 2014. However, on that date, Claimant called off again. Four days later, on June 

27, 2014, Claimant provided Employer with a physician’s disability certificate stating 

that he would be totally incapacitated until July 7, 2014, when he could return to 

work. Around the same time, Employer provided Claimant with paperwork to apply 

for leave pursuant to the Family and Medical Leave Act (FMLA),2 which Claimant 

did not submit by the deadline established by Employer. After failing to report to 

work on July 7th and July 9th through July 11th, Employer discharged Claimant on 

July 15, 2014. Subsequently, Claimant provided another disability certificate in 

which his physician released him to work without restrictions as of September 17, 

2014.

 

(continued...)

(e) In which his unemployment is due to his discharge or 

temporary suspension from work for willful misconduct connected 

with his work, irrespective of whether or not such work is 

“employment” as defined in this act

43 P.S. §802(e).

2

See 29 U.S.C. §2616(a)(1).
3

Claimant filed a claim for benefits which the Unemployment 

Compensation Service Center denied, finding him ineligible under Sections 402(b)3

and 401(d)(1)4of the Law with regard to the waiting week ending July 19, 2014,

because: (1) Claimant voluntarily quit when he failed to timely provide Employer his 

FMLA documentation and, therefore, failed to show a necessitous and compelling 

reason for quitting; and (2) he failed to demonstrate that he was able to perform and 

available for suitable work since he was under a total work restriction.

Claimant appealed, contending that he did, in fact, submit his FMLA 

documentation and that he did not voluntary quit his employment. Rather, Claimant 

submitted that he was terminated after he advised Employer that he was capable of 

performing light-duty work as per his doctor’s orders, and Employer informed him 

that it had no such jobs available.

 

3

Section 402(b) further disqualifies a claimant from receiving benefits with regard to any 

week:

In which his unemployment is due to voluntarily leaving work 

without cause of a necessitous and compelling nature, irrespective of 

whether or not such work is in “employment” as defined in this act: 

Provided, That a voluntary leaving work because of a disability if the 

employer is able to provide other suitable work, shall be deemed not a 

cause of a necessitous and compelling nature....

43 P.S. §802(b).

4

Section 401(d)(1) of the Law provides, in part, that “[c]ompensation shall be payable to 

any employee who is or becomes unemployed and who... [i]s able to work and available for 

suitable work.” 43 P.S. §801(d)(1).
4

Before a Referee,

5 Claimant testified that after he sustained non-work 

related rib and back injuries, he provided Employer with a physician’s note dated 

June 27, 2014, stating that he was totally incapacitated from June 18th through July 

7

th

. Claimant stated that he would have been able to return to light-duty work on July 

7

th

, advised Employer of this fact, but Employer had no light-duty jobs available. 

Claimant further testified that he was not released without restrictions until 

September 17, 2014, and that he was never formally terminated by Employer.

With regard to the FMLA paperwork, Claimant recalled that Employer 

requested that he return the completed documentation by July 7, 2014, but that his 

doctor was unable to complete the forms until July 16th when the doctor’s office 

faxed them to Employer. Because the submission was untimely, Employer neither 

accepted the forms nor approved the requested leave.

 

5

Specifically, the Notice of Hearing stated:

SPECIFIC ISSUES to be considered in this appeal...

# 15  Section 402(b)  Whether claimant’s unemployment was due 

to voluntarily leaving work without cause of necessitous and 

compelling nature.

# 10 – Section 401(d)(1),(2)  Whether the claimant was able and 

available for suitable work.

OTHER ISSUES that may be considered...

# 17 – Section 402(e)  Whether claimant’s unemployment was due 

to discharge or temporary suspension from work for willful 

misconduct connected with employment.

(Certified Record [C.R.], Notice of Hearing (9/10/2014) at 1.)
5

Claimant also presented the testimony of Denen Timms, for whom 

Claimant works as a home health aide. Ms. Timms verified that at the time of 

Claimant’s injury, he continued to work for her, albeit, with reduced hours, and that 

his employment with her is ongoing.

In opposition to Claimant’s appeal, Rebecca Snyder, Employer’s 

business office manager, testified that the only time Claimant communicated with his 

supervisor between the dates of his injury and his termination was on June 18th when 

he advised that he would be unable to work until June 23rd. She explained that during 

that conversation, Employer notified Claimant that he needed to provide a doctor’s 

note but one was not provided. She further stated that Claimant called off again on 

June 23rd and on June 27th, and that Employer received the disability certificate

excusing Claimant from work until July 7th.

Ms. Snyder recalled that on June 27th, she advised Claimant of the need 

to complete his FMLA paperwork and asked him to contact her to further discuss this 

matter the following week, but that he did not do so and did not return calls from his 

supervisor. She explained that on July 7

th, the date Claimant was scheduled to return 

to work, he texted one of the other cooks, advising that he would be unable to return. 

Later that day, Ms. Snyder contacted Claimant, granting him an extension with regard 

to the FMLA paperwork until July 11th and informing him that he needed to speak to 

his supervisor. Although Claimant was scheduled to work on July 9th and 10th, he 

neither reported to work nor called off those days. He did, however, call Ms. Snyder 
6

and request that she resend him the FMLA paperwork via fax, which she did,6and 

reiterated that he needed to contact his supervisor. On July 11th, Claimant again 

failed to report to work or to call off.

According to Ms. Snyder, on July 11th, Claimant contacted her, stating 

that he did not receive the FMLA paperwork but would pick up a hard copy from her 

office by noon. At 3:00 p.m., Claimant appeared for the paperwork and advised that 

he was taking it straight to his physician’s office for completion and that he would 

fax a final copy to Employer by the end of the day. However, Ms. Snyder stated that 

on July 15th, she received a voicemail that Claimant left on July 11th informing her 

that the doctor could not fill out the paperwork. When she did not hear back from 

Claimant after leaving him a voicemail on July 14th, she called him again on July 15th, 

and he advised that the paperwork would not be completed until at least July 16th. 

She continued, “I informed him that we needed the paperwork back by the previous 

Friday, and I also informed him that due to the fact that he has no – had no contact 

with his supervisor whatsoever and he’s been a no-call, no-show for three times that 

his employment was terminated.” (C.R., Referee’s Hearing (9/22/2014) at 12.)

The next day, Ms. Snyder received another disability certificate excusing 

Claimant from work from July 7th through July 21st, again noting Claimant’s total 

incapacitation. At the same time, Claimant’s FMLA paperwork was faxed to 

Employer. On September 17th, Claimant’s physician provided another disability 

 

6 Ms. Snyder further testified that she received a confirmation receipt of her fax. 

Nonetheless, she did not offer the receipt into evidence.
7

certificate, releasing Claimant to return to work without restrictions. With respect to 

light-duty work, Ms. Snyder explained, “We have a few employees that are on light 

duty that we offer light duty for. I didn’t have a light duty slip from [Claimant].” (Id.

at 20.)

The Referee noted the gap between the physician’s disability certificate, 

noting total disability which expired on July 21st and his certificate releasing 

Claimant without restrictions as of September 17th, and acknowledged that “maybe 

from July 21, maybe he could do some work.” (Id. at 17.) Also, Claimant’s FMLA 

paperwork indicated that as of the date it was completed (July 16th), Claimant was 

unable to stand, walk, sit for prolonged periods of time or lift over 15 pounds.

Based on the testimony and evidence presented at the hearing, the 

Referee determined that Claimant had a necessitous and compelling reason for not 

returning to work from June 19, 2014, through July 7, 2014, because he was unable to 

work as a result of his injury and, therefore, that he was not ineligible for benefits 

under Section 402(b) of the Law for this period. See 43 P.S. §802(b). However, the 

Referee concluded that Claimant did not have a necessitous and compelling reason 

for failing to submit the required disability certificates and FMLA paperwork to 

Employer prior to his termination on July 15th and, as such, that Claimant was 

ineligible for benefits under Section 402(b) of the Law with regard to the claim week 

ending July 19, 2014. The Referee also reasoned that Claimant was ineligible for 

benefits under Section 401(d)(1) of the Law for July 19, 2014, through September 13, 

2014, because Claimant was totally incapacitated until September 17th as per his 

doctor’s disability certificates. See 43 P.S. §801(d)(1). The Referee noted that 
8

Claimant’s ineligibility under Section 401(d)(1) of the Law ended as of the week 

ending September 20th. As a result, the Referee affirmed the Unemployment 

Compensation Service Center’s order as modified.7

Claimant appealed to the Board, which remanded the matter for another 

hearing to allow for additional testimony regarding the merits of the case in light of

Section 402(e) of the Law, 43 P.S. §802(e), relating to willful misconduct.8 

Subsequently, the Board affirmed the Referee’s decision in part and reversed in part, 

holding that “[C]laimant is not disqualified from receiving benefits under the

provisions of Section 401(d)(1) of the Law for the week at issue” but that he “is 

ineligible for benefits under the provisions of Section 402(e) of the Law.” (Board’s

Decision and Order (2/24/15) at 4.) Specifically, the Board determined that Claimant 

was able and available to work light-duty for the week at issue as demonstrated by 

the fact that he was working a part-time job at that time. However, the Board found 

that because Claimant failed to establish good cause for his unreported absences,

failed to return his FMLA paperwork by July 11th, and waited until July 11th to 

provide the paperwork to his physician, Employer satisfied its burden of proving that 

Claimant engaged in willful misconduct.

9

 Claimant filed a request for 

reconsideration which the Board denied and this appeal followed.10

 

7

The Referee made no determinations with regard to Section 402(e) of the Law, 43 P.S. 

§802(e).

8 At the hearing that followed, the parties did not present any new evidence but only 

reiterated their previous testimony.

9

“Willful misconduct” has been defined as:

(Footnote continued on next page...)
9

II.

A.

On appeal, Claimant contends that he did not engage in willful 

misconduct under the Law because he submitted his FMLA documents to his 

Employer as soon as possible. An employer bears the burden of proving that a 

claimant engaged in willful misconduct rendering the claimant ineligible for 

unemployment compensation benefits. Walsh v. Unemployment Compensation 

Board of Review, 943 A.2d 363, 36869 (Pa. Cmwlth. 2008). Where an employee’s 

conduct is justifiable or reasonable under the circumstances, it does not constitute 

 

(continued...)

an act of wanton or willful disregard of the employer’s interest, a 

deliberate violation of the employer’s rules, a disregard of standards 

of behavior which the employer has a right to expect of an employee, 

or negligence indicating an intentional disregard of the employer’s 

interest or of the employee’s duties and obligations to the employer.

Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. 1996) (emphasis 

added). To engage in willful misconduct, an employee must demonstrate a “serious disregard of his 

responsibilities to his employer, in a manner that is in some real sense detrimental to his employer’s 

interests. The question is primarily a matter of degree, and the inquiry must be framed in terms of 

whether the employe[e]’s acts rise to the level of willful misconduct.” O’Keefe v. Unemployment 

Compensation Board of Review, 333 A.2d 815, 818 (Pa. Cmwlth. 1975).

10 Our review is limited to determining whether the Board’s findings of fact are supported by 

substantial evidence in the record, whether errors of law were committed, whether agency 

procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment 

Compensation Board of Review, 633 A.2d 1150, 1153 (Pa. 1993). We have defined “substantial 

evidence” as such “relevant evidence that a reasonable mind might consider adequate to support a 

conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n.3 

(Pa. Cmwlth. 2013).
10

willful misconduct. Id. As we stated in Adept Corporation v. Unemployment 

Compensation Board of Review:

Absenteeism in and of itself does not amount to willful

misconduct. Even excessive absenteeism, where justified 

or where properly reported according to company policy, 

although a legitimate basis for discharge, does not 

constitute willful misconduct or disqualify a claimant from 

receiving unemployment compensation benefits....

...When an employee has good cause for his conduct and 

can show that his actions were justifiable or reasonable 

under the circumstances, he may not be charged with willful

misconduct.

437 A.2d 109, 110 (Pa. Cmwlth. 1981) (internal citations omitted).

In the instant case, it is not necessarily Claimant’s absences that are at 

issue; indeed, Employer does not contend that Claimant lacked good cause for his 

absences on July 7, 9, 10 or 11, 2014. Rather, Employer took issue with Claimant’s 

failure to provide advance notice of the absences. Even where an employer has not 

established the existence of a work policy governing absenteeism or the advanced 

reporting of absences, an employee must uphold “certain standards of behavior which 

the employer has the right to expect of [its] employees,” and this standard includes, 

where reasonable under the circumstances and not “prohibitively onerous,” advanced 

notice of impending absences. Thompson v. Unemployment Compensation Board of 

Review, 381 A.2d 1024, 1026 (Pa. Cmwlth. 1978); Beck v. Unemployment 

Compensation Board of Review, 370 A.2d 391, 393 (Pa. Cmwlth. 1977) (stating that 

absenteeism rises to the level of willful misconduct only when an additional element, 

such as “[f]ailure to notify the employer in advance of the absence,” is present); see 
11

also Blystone v. Unemployment Compensation Board of Review, 342 A.2d 772, 773

(Pa. Cmwlth. 1975) (affirming the Board’s order upholding a referee’s denial of 

unemployment compensation benefits where the claimant left work early without first 

notifying his employer and, therefore, engaged in willful misconduct).

The undisputed evidence establishes that Claimant did not provide 

advance notice to Employer of his absences on July 7, 9, 10 or 11, 2014. Although 

those absences were very likely justified as medically necessary, Claimant’s failure to 

provide advanced notice was neither justified nor reasonable under the circumstances. 

Claimant has failed to establish any reason whatsoever why he could not have 

provided Employer such notice with or without a physician’s certification, 

particularly when he physically appeared at work on July 11th to retrieve hard copies 

of the FMLA paperwork. Moreover, despite Employer’s directives to the contrary, 

Claimant failed to contact his supervisor following his initial call on June 18th

through the date of his termination. For these reasons alone, there exists substantial 

evidence to support the Board’s finding that Claimant engaged in willful 

misconduct.11

 

11 We do not find, however, that Claimant’s failure to submit his FMLA paperwork in 

compliance with the deadlines mandated by Employer establishes Claimant’s willful misconduct. 

Indeed, Claimant was under no duty to request FMLA leave. Ostensibly, Claimant sought such 

leave as a means of protecting his employment while he recovered from his injuries. Because his 

leave ultimately was not approved, his absences were not protected under FMLA. Although his 

failure to obtain FMLA leave subjected him to discharge for his absences, it did not establish willful 

misconduct that disqualifies him from receiving unemployment compensation benefits.
12

B.

Claimant further claims that his termination was never communicated to 

him, verbally or in writing. Ultimately, this argument is irrelevant as the Board found 

that Employer discharged Claimant on July 15th, regardless of whether this fact was 

communicated to Claimant on that date. At any rate, the record belies Claimant’s 

argument. It is undisputed that after his termination on July 15th, Claimant never 

attempted to return to work. If, as he contends, he was unaware of his discharge, 

there is no reason he would not have reported to work after September 17th , the day 

on which he was released without restrictions.12

Accordingly, because substantial evidence supports the finding that 

Claimant failed to provide Employer advanced notice of his absences and failed to 

communicate with his supervisor during the course of his absences, despite 

Employer’s directives to the contrary, Employer sustained its burden of proving that 

Claimant engaged in willful misconduct, and the Board’s decision denying benefits 

pursuant to Section 402(e) of the Law, 43 P.S. §802(e), is affirmed.

 

 DAN PELLEGRINI, President Judge

 

12 Claimant also argues that he is not ineligible for benefits under Section 402(b) of the Law, 

43 P.S. §802(b). However, because we have already determined that Claimant is ineligible for 

benefits pursuant to Section 402(e) of the Law, 43 P.S. §802(e), for this period, we need not address 

this issue. Likewise, we will not address Claimant’s contention that the Board erred in concluding 

that he was not able or available to work since the Board, in actuality, found in Claimant’s favor on 

this issue.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carnell A. Jefferson Jr., :

Petitioner :

:

v. :

:

Unemployment Compensation Board :

of Review, :

Respondent : No. 473 C.D. 2015

O R D E R

AND NOW, this 10th day of September, 2015, the order of the 

Unemployment Compensation Board of Review dated February 24, 2015, at No. B575425, is affirmed.

 

 DAN PELLEGRINI, President Judge