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 compens ation benefits under Section 402 ( e ) of the Unemployme nt Compensation Law (Law) 1 because 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. F our days later, on June 27, 2014, Claimant provided Employer with a physician’s d isability 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 pape rwork 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 7 th and July 9 th through July 11 th , 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 “emp loyment” 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 Unemploy ment Compensation Service Center denied , finding him ineligible under Sections 402(b) 3 and 401(d)(1) 4 of 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 , there fore , 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 w ork 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 do ctor’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 nec essitous and compelling nature....
43 P.S. §802(b).

4 Sect ion 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

B efore 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 incapacit ated from June 18 th 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 FM LA 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 submissio n 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 contin ued to work for her, albeit, with reduced hours, and t hat 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 b etween the dates of his injury and his termination was on June 18 th when
he advised that he would be unable to work until June 23 rd . 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 23 rd and on June 27 th

, and that Employer received the disability certificate excusing Claimant from work until July 7 th

.

Ms. Snyder recalled that on June 27 th , she advised Claim ant 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

superv isor. She explained that on July 7 th , the date Claimant was sc heduled 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 11 th and informing him that he needed to speak to his supervisor. Although Claimant was scheduled to work on July 9 th and 10 th , he neither reported to work nor called off those days. He did, however, call Ms. Snyder6

and request that she resend him the FMLA paperwork via fax, which she did, 6 and reiterated that he needed to contact his supervisor. On July 11 th , Claimant again failed to report to work or to call off.

According to Ms. Snyder, on July 11 th , 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 15 th , she received a voicemail that Claimant left on July 11 th informing her that the doctor could not fill out the paperwork. When s he did not hear back from Claimant after leaving him a voicemail on July 14 th , she called him again on July 15 th

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

. She continued, “I informed him that we needed the paperwor k 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 7 th through July 21 st , again noting Claimant’s total incapacitation. At the same time, Claimant’s FMLA paperwork was faxed to Employer. On September 17 th , 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 of

fer 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 21 st and his certificate releasing
Claimant witho ut restrictions as of September 17 th , and acknowledged that “maybe from July 21, maybe he could d o some work.” ( Id. at 17.) Also, Claimant’s FMLA paperwork indicated that as of the date it was completed (July 16 th ), C laimant was unable to stand, walk, si t 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 term i nation on July 15 th 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,
201 4, because Claimant was totally incapacitated until September 17 th as per his doctor’s disability certificates. See 43 P.S. § 801(d)(1). The Referee noted that8

Claimant’s ineligibility under Section 401(d)(1) of the Law ended as of the week ending Septemb er 20 th . 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 cas e 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

w as able and available to work ligh t

- 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 11 th , and waited until July 11 th 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 t his 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). W here 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 disregar d 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 t he 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 O ur review is limited to determining whether the B oard’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 unemployme nt 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) (intern al 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 Cl aimant’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 abs ences, 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. Unemplo yment 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 e lement, such as “[f]ailure to notify the employer in advance of the absence,” is present); see11

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

une mployment 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 no tice 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 appe ared at work on July 11 th to retrieve har d 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 18 th through the date of his termination. For t hese 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. O stensibly, 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 subje cted 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 15 th , 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 termi nation on July 15 th , 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 re ported to work after September 17 th , the day
on which he was released without restrictions. 12

Ac cordingly, 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 cont rary, 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 th at 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 10 th day of September , 2015, the order of the Unemployment Compensation Board of Review dated February 24, 2015, at No. B

575425, is affirmed.

DAN PELLEGRINI, President Judge