IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination, :

Petitioner :

:

v. : No. 910 C .D. 20 1 6 : Submitted: January 6 , 20 1 7 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE R ENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: January 31, 2017

Casey Ball Supports Coordination (Employer) petition s from th e
Unemployment Compensation (UC) Board of Review ’s (Board) order affirming the

Unemployment Compensation Referee’s (Referee) decision finding Penny Greenfield

(Claimant) not in eligible for unemployment compensation benefits under Section

402 (e) of the Unem

ployment Compensation Law (Law) 1 because her discharge was

not due to willful misconduct. We affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §§

751

– 918.10

. Section 402(e) provides, in pertinent part:

An employe shall be ineligible for compensatio n for any week

—

* * *

(Footnote continued on next page...)2

Claimant worked full

- time as a supports coordinator for Employer from

January 8 , 2016

, through February 5, 2016

, when she was discharged. In February

20 16, Claimant filed for benefits with the Erie UC Service Center (Service Center)

stating that she was discharged due to absenteeism

, but explaining:

I called in sick on [February 8, 2016 and February 9, 2016 ]

. I had a severe migraine [headache] complete with vision problems and medication made it unsafe to drive to work. Severe head pain made it difficult to work. This happens only on rare [occasions]. I received an email telling me that I abandoned my job and I was to return materials to [the] office. I called [the] supervisor both days and sent emails both days. I was never given an employee handbook with the proper call off procedures so I did what any reasonable person would do and I called [and] sent emails.

(Reproduced Record (R.R.) at 10a.)

In the UC Questionnaire and in a follow

- up call placed by the Service

Center , Employer stated that it discharged Claimant for willful misconduct 2 because

(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 Although the Law does not define the term “willful misconduct,” the courts have defined it

as:

(1) wanton or willful disregard for an employer’s interests; (2)

deliberate violation of an employer’s rules; (3) a disregard for the

standards of behavior which an employer can rightfully expect of an (Footnote continued on next page...)3

she missed two consecutive days of work during her initial 90

- day probationary

period . Employer deni ed receiving prior notification from Claimant that she would

be absent from work as required by the employee handbook wh ich provides, in

pertinent part, “ If it becomes necessary for an employee to miss work, he/she is

required to notify the Chief Executive Officer, Casey Ball. ” (R.R. at 88a ). 3

The Service Center determined that Claimant was eligible for benefits

because

, although she was discharged for absenteeism

, Employer failed to

demonstrate a specific incident of willful misconduct under Section 402 (e) of the

Law. Employer appealed

, contending that Claimant was given an employee

handbook during her first week of employment which explain ed that she had to notify

Casey Ball directly if she was going to be absent from work

.

(continued...)

employee; or (4) negligence indicating an intentional disregard of the employer’s interest or an employee’s duties or obligations.

Philadelphia Parking Authority v. Unemployment Compensation Board of Review , 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the

burden to show that the claimant was aware that the work rule existed and that the claimant violated

the rule. Id. The employer m ust also establish that the claimant’s actions were intentional and deliberate, and the employee’s actions must be considered in light of all the circumstances, including the reasons for his or her non

- compliance with the employer’s directives. Id.

3 Whi le absenteeism standing alone is grounds for discharge, it is not willful misconduct. Lyons v. Unemployment Compensation Board of Review , 533 A.2d 1144, 1145 (Pa. Cmwlth. 1987). Absenteeism can constitute willful misconduct if any of the following additi onal elements are present: (1) excessive absenteeism; (2) failure to notify the employer of the absence in advance; (3) lack of good or adequate cause for the absence; (4) disobedience of existing employer rules, regulations, or policy regarding absenteei sm; and (5) disregard of warnings regarding absenteeism. Pettey v. Unemployment Compensation Board of Review , 325 A.2d 642, 643 (Pa. Cmwlth. 1974).4

Before the Referee, Casey Ball (Ball) , Employer’ s chief executive

o fficer, testified that when Claimant was hired

, she was placed on a 90

- day

probationary period to determine her performance and to evaluate her abilities to

follow policies and procedures. Ball testified that on Ja nuary 11, 201 6

, shortly after

she was hired, an email was sent to Claimant at her company email address

containing the employee handbook outlining Employer’s policies and procedures

regarding absenteeism of employees. Ball stated that those policies requi red that “[i]f

an employee is calling off . . . an employee must contact me directly by phone or e

mail.” (R.R. at 59a.) However, after further questioning by the Referee, Ball

admitted that Claimant neither acknowledged receipt of the email nor returned to

Employer the acknowledgment form contained at the end of the employee handbook.

Regarding Claimant ’s absence from work , Ball testified that Claimant never directly

contacted her but i nstead c ontacted Nicole Hohn

, Employer’s director of service

coordin ation, who received the emails and then forwarded them to Ball

.

Nicole Hohn (Hohn) testified that Claimant contacted her on both days

in question, by both voicema il and email , explaining that she needed to call off work

because she was suffering migraine headache s . Hohn stated that because Ball was

not included in either email, Hohn forwarded those emails to Ball

. Hohn admitted

that she did not respond to Claimant or inform her that she need ed to directly contact

Ball. Hohn explained that after Claiman t missed both days of work, Employer’s

managerial staff held a meeting where it was determined that because she could not

comply with company policies and procedures

, she was to be discharged from her

employment

.5

Claimant testified that because she was s uffering debilitating migraine

headaches on February 8 and 9, 2016, she had to call off work. Claimant stated that

she called and emailed Hohn explaining that she was ill and would not be coming in

to work. She did not hear back from Hohn on either day s he was absent. Claimant

denied ever receiving an employee handbook from Employer or signing any form

indicating that she received the employee handbook . She did, however, receive an
email informing her that one would be sent to her in the future.

The R eferee affirmed the Service Center’s determination that Claimant

was not ineligible for benefits under Section 402(e) of the Law. As pertinent, the

Referee found credible Claimant’s testimony that she did not receive the employee

handbook and w as unaware of the specific call

- off procedure. The Referee also

found that Employer failed to present credible testimony demonstrating that Claimant

received the employee handbook. Employer appealed to the Board which affirmed,

specifically adopting the Referee’s f indings and conclusions. Employer then filed

this petition for review. 4

On appeal, Employer contends that the Board erred when determining

that Claimant is not ineligible for benefits under Section 402(e) of the Law because it

is undisputed that Employe r had a call

- off policy that Claimant violated

, and the

record does not contain substantial evidence to support the Board’s finding that

Claimant did not receive the employee handbook

.

4 Our review of the Board ’ s decision is limited to determining whether an error of law was committed, whet her constitutional rights were violated, or whether necessary findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review , 833 A.2d 1181, 1183 n. 4 (Pa. Cmwlth. 2003).6

Contrary to Employer’s contention, the Board found Claimant ’s

testimon y credible that she called off work because she suffered from migraine

headaches and did so by contacting Hohn , as opposed to Ball, via voicemail and

email

, because she never receive d an employee handbook. Moreover, Ball admi t t ed

that Claimant never ackno wledged re ceipt of the employee handbook and Hohn,

despite knowing proper procedure, admitted that she did not respond to Claimant or

tell her to directly contact Ball when she received the voicemails and emails

.

B ecause Claimant testi fied that she did n ot receive th e employee

handbook or otherwise kno w Employer’s call

- off policy that Ball had to be

personally contacted when absent from work, substantial evidence supports the

Board’s find ing that Claimant did not willfully fail to follow Employer’s call

- o ff

procedure

. According ly, the Board’s order is affirmed.

___________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination, :

Petitioner :

:

v. : No. 910 C .D . 201 6

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 31 st day of January , 201 7 , the order of the

Unemployment Compensation Board of Review dated May 10, 2016, at No. B

589024, is affirmed

.

____ _______________________________ DAN PELLEGRINI, Senior Judge