               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher C. Segear,                         :
                              Petitioner       :
                                               :
                 v.                            :   No. 605 C.D. 2016
                                               :   Submitted: November 4, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE:          HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: March 24, 2017

                 Petitioner Christopher C. Segear (Claimant) petitions for review of a
decision and order of the Unemployment Compensation Board of Review (Board).
The Board reversed the decision of a Referee and determined Claimant ineligible
for benefits under Section 402(e) of the Unemployment Compensation Law
(Law),1 relating to willful misconduct. We affirm the Board’s order.
                 Claimant filed for unemployment compensation benefits on
September 13, 2015, after his employment ended as a shuttle loom fixer for Bally
Ribbon Mills, Inc. (Employer). The Allentown Unemployment Compensation
Service Center (Service Center) issued a notice of determination finding Claimant

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
ineligible for unemployment compensation benefits under Section 402(e) of the
Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed, and a Referee
conducted an evidentiary hearing. (C.R., Item No. 8)
               Robert Costello (Costello), Employer’s corporate vice president,
testified on behalf of Employer that Claimant voluntarily left his position as a
shuttle loom fixer. (Id. at 11.) Costello testified regarding Employer’s attendance
policy which states:
               Any employee absent from work three (3) or more
               consecutive days without notifying his/her Department
               Head/Supervisor or Manager will be considered
               self-terminated.
(Id. at 14.)    Costello testified that Claimant signed a document titled “New
Employee Checklist” which notifies new employees of the attendance policy. (Id.)
Costello further testified that Claimant was absent from work from
August 31, 2015, to September 4, 2015, and did not notify anyone that he would be
absent. (Id. at 14-15.) Thus, according to Costello, Employer considered Claimant
“self-terminated.” (Id. at 11.) Finally, Costello testified that while he could not
provide an exact date, sometime shortly after September 4, 2015, Employer sent
Claimant a letter informing him that he no longer had a position with Employer.
(Id. at 13.)
               Jason Whitesell (Whitesell), Claimant’s immediate supervisor,
testified on behalf of Employer that Claimant was absent from work in the weeks
leading up to August 31, 2015, and provided documentation from a doctor for that
time period. (Id. at 17-18.) Whitesell also testified that Claimant sent a text
message to him, advising Whitesell that he would return to work on
August 31, 2015.       (Id. at 17.)   During the text message exchange, Whitesell
informed Claimant that he would need a work release from his doctor in order to

                                           2
return to work.        (Id. at 19.)   Claimant never returned to work on or after
August 31, 2015. (Id. at 20.)
                 Claimant presented testimony that alluded to him going through a
mentally and emotionally trying time prior to the end of his employment.
Claimant acknowledged that he was aware of Employer’s attendance policy.
(Id. at 26.) He testified that he attempted to be treated for mental illness at various
treatment centers with little luck, seemingly due to his insurance. (Id. at 27.)
Regarding the end of his employment, Claimant testified, “I didn’t walk in and
physically say I quit . . . I just got so frustrated during the process, I lost track of
everything.”       (Id. at 24.)   Claimant testified that given the adversity he was
experiencing, he desired a medical leave of absence. (Id.) He faxed to Employer a
doctor’s note which released him to return to work on August 31, 2015.
(Id. at 26-27.)     He testified that when he requested medical leave, Whitesell
informed him that he needed to fill out documentation with Employer. (Id. at 26.)
Claimant testified that he relied on his mother to handle the medical leave
documentation. (Id. at 38.)
                 Following the evidentiary hearing, the Referee issued a decision,
affirming the Service Center’s determination while modifying the grounds of
ineligibility.    In a decision dated November 6, 2015, the Referee determined
Claimant ineligible for unemployment compensation benefits under Section 402(b)
of the Law,2 because he voluntarily left his position without cause of a necessitous
and compelling nature. (C.R., Item No. 9.)

       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to voluntarily leaving
(Footnote continued on next page…)

                                              3
              Claimant appealed the Referee’s order to the Board, which affirmed
the Referee’s decision with modification. By order dated March 4, 2016, the
Board determined, as the Service Center did, that Claimant was ineligible under
Section 402(e) of the Law, relating to willful misconduct. The Board specifically
found:
              1.     The claimant was last employed as a full time
                     shuttle loom fixer by the employer, Bally Ribbon
                     Mills, Inc., from November 14, 2007, through
                     August 2015, at a final rate of pay of $25.00 per
                     hour, and his last day at work was August 6, 2015.

              2.     The employer had a policy whereby it considered a
                     no show/no call for three consecutive days a
                     self-termination.

              3.     The claimant knew or should have known about
                     the employer’s policies.


(continued…)

work without cause of a necessitous and compelling nature. Whether a claimant had cause of a
necessitous and compelling nature for leaving work is a question of law subject to this Court’s
review. Wasko v. Unemployment Comp. Bd. or Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985).
A claimant who voluntarily quits her employment bears the burden of proving that necessitous
and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of
Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). A
necessitous and compelling cause for voluntarily leaving employment is one that “results from
circumstances which produce pressure to terminate employment that is both real and substantial,
and which would compel a reasonable person under the circumstances to act in the same
manner.” Mercy Hosp. of Pittsburgh v. Unemployment Comp. Bd. of Review, 654 A.2d 264, 266
(Pa. Cmwlth. 1995). Generally, in order to establish cause of a necessitous and compelling
nature, a claimant must establish that: (1) circumstances existed that produced real and
substantial pressure to terminate employment; (2) like circumstances would compel a reasonable
person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4)
the claimant made a reasonable effort to preserve her employment. Procito v. Unemployment
Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).



                                              4
            4.    The claimant had been excused from work up until
                  August 28, 2015, based on a doctor’s note that he
                  had provided to the employer.

            5.    On August 28, 2015, the claimant texted the
                  employer that he would return to work on Monday,
                  August 31, 2015.

            6.    The claimant was scheduled to work on August 31,
                  September 1, 2, 3, and 4, 2015.

            7.    The claimant was absent from work on August 31,
                  September 1, 2, 3, and 4, 2015.

            8.    The claimant did not call off pursuant to the
                  employer’s policy on August 31, September 1,
                  2, 3, and 4, 2015.

            9.    The claimant did not communicate with the
                  employer about his mental health issues or his
                  absences after August 31, 2015.

            10.   The claimant abandoned his job on or about
                  August 31, 2015, because he needed time to “fix
                  himself, to heal and just start over fresh.”

            11.   The employer considered the claimant to have
                  voluntarily quit his employment and sent him a
                  separation letter in the mail sometime after
                  September 4, 2015, discharging the claimant
                  because of his violation of policy.
(C.R., Item No. 15.) The Board reasoned:
                  In this case, the employer had a policy whereby it
            considered employees who did not notify it and did not
            report for a scheduled shift for three days in a row to
            have voluntarily terminated their employment. The
            claimant knew or should have known about the policy as
            it was contained in the company handbook, of which the
            claimant had a copy. The employer’s policy requiring
            attendance at work and notification of an upcoming
            absence was reasonable.

                                       5
                     The claimant was scheduled to work on August 31,
              September 1, 2, 3, and 4, 2015. The claimant neither
              notified his employer that he would be absent for those
              days, nor did he appear for work on those days. Thus,
              the claimant was in violation of the employer’s policy.
              The employer terminated the claimant for his multiple no
              call/no shows. The claimant testified that he had mental
              health issues for which he sought treatment and that he
              needed time to fix himself and start over fresh, which is
              why he did not return to his job. The claimant did not
              demonstrate why he could not and did not notify the
              employer of his impending absences. The claimant
              committed willful misconduct and did not prove good
              cause for his actions.
                     Also, even with the employer’s policy, not
              appearing for work for five (5) consecutive days and not
              notifying the employer about the absences is conduct that
              is so contrary to the interest of the employer that here it
              rises to the level of willful misconduct.
                     Much of the hearing focused on the claimant’s
              prior medical issues and absences; however, those issues
              are not relevant here. Neither party showed that those
              issues had an effect on the claimant’s ability to follow the
              call off policy.
                     In the alternative, even if the case were decided
              under Section 402(b) of the Law, a denial is warranted.
              By his actions of not appearing for work for five (5)
              straight days on which he was scheduled, and not
              notifying the employer that he would be absent, the facts
              could be treated as a voluntary separation, and one
              without necessitous and compelling reason.

(Id.)
              Claimant now petitions this Court for review of the Board’s order. On
appeal,3 Claimant argues that the Board erred in determining that he was ineligible

        3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
(Footnote continued on next page…)

                                               6
for unemployment compensation benefits under Section 402(e) of the Law. He
contends that the Board erred in failing to conclude that he had good cause for his
actions. Specifically, Claimant now argues for the first time that his mother called
to notify Employer that he was having health issues and seeking treatment.
Claimant alleges that he relied on his mother to inform Employer and acquire any
paperwork necessary for a family medical leave. Based on his belief that his
mother would take care of what needed to be done, Claimant argues that he had
good cause not to notify Employer of his continuing absences after
August 28, 2105.
              Claimant does not appear to dispute that Employer met its burden to
establish that he engaged in willful misconduct by violating Employer’s attendance
policy by failing to attend work without notice to Employer.4 Once an employer

(continued…)

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       4
         Section 402(e) of the Law provides, in part, that an employee shall be ineligible for
compensation for any week in which “his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work.” The term “willful
misconduct” is not defined by statute. The courts, however, have defined “willful misconduct”
as:
       (a) wanton or willful disregard for an employer’s interests; (b) deliberate violation
       of an employer’s rules; (c) disregard for standards of behavior which an employer
       can rightfully expect of an employee; or (d) negligence indicating an intentional
       disregard of the employer’s interest or an employee’s duties or obligations.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
      The burden of proving willful misconduct rests with the employer. Guthrie v.
Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Where an
employer seeks to prove willful misconduct by showing that the claimant violated the
employer’s rules or policies, the employer must demonstrate (1) the existence of the rule or
(Footnote continued on next page…)

                                                7
meets its burden to establish willful misconduct, the burden shifts to the claimant
to show good cause for his failure to comply with the rule or policy. Great Valley
Publ’g v. Unemployment Comp. Bd. of Review, 136 A.3d 532, 536 (Pa.
Cmwlth. 2016). A claimant has good cause if his actions are reasonable and
justifiable under the circumstances. Docherty v. Unemployment Comp. Bd. of
Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether an employee’s
conduct constitutes willful misconduct and whether a claimant has proved good
cause are questions of law subject to our review. Dep’t of Corr. v. Unemployment
Comp. Bd. of Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
              In this case, the Board did not err in concluding that Claimant failed to
establish good cause for his actions. Claimant missed five days of work without
calling Employer, despite knowing that these unexcused absences would result in
the loss of his job. At the hearing, Claimant did not provide any reason that he was
unable to at least notify Employer that he would be absent, with the exception that
he was embarrassed and still attempting to seek treatment.5 Claimant did not
provide testimony suggesting that the search for treatment prevented him from
notifying Employer.       We conclude, therefore, that Claimant did not meet his



(continued…)

policy and (2) that the claimant violated it. Walsh v. Unemployment Comp. Bd. of Review,
943 A.2d 363, 369 (Pa. Cmwlth. 2008). Moreover, the employer must establish that the
claimant’s actions were intentional or deliberate. Tongel v. Unemployment Comp. Bd. of Review,
501 A.2d 716, 717 (Pa. Cmwlth. 1985).
       5
          In his brief, Claimant suggests that his mother notified Employer. Claimant, however,
did not testify before the Referee that his mother contacted Employer, and we may not consider
facts not contained in the record.



                                              8
burden of demonstrating good cause for his failure to comply with the attendance
policy.
              Accordingly, we affirm the order of the Board.6




                                    P. KEVIN BROBSON, Judge




       6
         We recognize that whether a claimant’s separation from employment is the result of a
voluntary action or a discharge is a question of law subject to review by this Court and must be
determined from a totality of the facts surrounding the cessation of employment. Key v.
Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). Claimant,
however, does not contend that the Board erred in analyzing his claim under Section 402(e) of
the Law, relating to willful misconduct, as opposed to Section 402(b) of the Law, relating to
voluntary resignation. The Board, in determining Claimant ineligible for benefits under
Section 402(e), explained that if it were to analyze this matter under Section 402(b), it would
reach the same result. Were we to analyze this matter under Section 402(b), we, too, would
reach the same result. As noted by the Board, Claimant did not demonstrate why he could not
and did not notify Employer of his impending absences. Claimant, therefore, cannot establish
that he acted with ordinary common sense and made reasonable efforts to preserve his
employment. See Procito, 945 A.2d at 264.



                                               9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher C. Segear,                  :
                         Petitioner     :
                                        :
            v.                          :   No. 605 C.D. 2016
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :



                                      ORDER


            AND NOW, this 24th day of March, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                               P. KEVIN BROBSON, Judge
