                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cathy L. Albert,                               :
                      Petitioner               :
                                               :   No. 1118 C.D. 2018
              v.                               :
                                               :   Submitted: January 4, 2019
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: May 23, 2019


              Cathy L. Albert (Claimant), proceeding pro se, petitions for review of the
June 13, 2018 decision of the Unemployment Compensation Board of Review (Board),
affirming a referee’s decision that found Claimant ineligible for unemployment
compensation (UC) benefits pursuant to section 402(e) of the Unemployment
Compensation Law (Law).1


                               Facts and Procedural History
              Claimant was employed as a toll collector with the Pennsylvania Turnpike
Commission (Employer) until December 13, 2017, when she was discharged for

       1
        Section 402(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(e). Section 402(e) provides that “an employe shall be ineligible for
compensation for any week . . . [i]n 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).
violating Employer’s attendance policy. Claimant applied for UC benefits, but the
local service center found her ineligible. Claimant appealed, and a referee conducted
a hearing at which Claimant and Employer appeared and presented testimony.
             Employer presented the testimony of three witnesses:              Pat Caro,
Employer’s Manager of Labor Relations, and Steve Miller and Darrell Coleman, both
Interchange Managers for Employer. Mr. Miller testified that Claimant was scheduled
to work a 7:00 a.m. to 3:00 p.m. shift on December 11, 2017, and pursuant to
Employer’s policy, employees requesting leave are required to notify Employer at least
two hours prior to the start of their shift. Mr. Miller stated that Claimant called him at
7:44 p.m. on the evening of December 11, 2017, after her shift had ended, stating that
she was having “family problems” and would not be in the following day. (Certified
Record (C.R.) at Item No. 8, Notes of Testimony (N.T.) at 1, 6-7.)
             Employer next presented the testimony of Mr. Coleman, who testified
that, prior to terminating an employee, it is Employer’s procedure to conduct an
interview with the employee in order to get the employee’s perspective. Mr. Coleman
stated that he conducted a termination interview with Claimant after the December 11
incident in order to “get her side of the story.” (C.R. at Item No. 8, N.T. at 8.) Mr.
Coleman stated that Claimant did not say anything or present any evidence during the
interview, and thus he proceeded with the termination. Id.
             Finally, Mr. Caro testified for Employer regarding Employer’s three-step
disciplinary policy. For the first disciplinary infraction, Mr. Caro stated that an
employee receives a warning letter, which remains in effect for six months—essentially
putting the employee on probation for that time period. If a second disciplinary
infraction occurs within those six months, Mr. Caro testified that the employee receives
a two-day suspension without pay, the probationary period restarts and remains in
effect for a period of 12 months. If a third disciplinary infraction occurs within that

                                            2
12-month period, Mr. Caro testified that the employee is discharged. (C.R. at Item No.
8, N.T. 9-10; C.R. at Item No. 3.)
             Employer submitted documentation showing that Claimant received a
warning letter on July 6, 2017, for exceeding three procedural errors in a six-month
period. The letter also provided the following warning: “Any violation that occurs
within six (6) months from 07/06/17 will result in further discipline up to and including
termination.” (C.R. at Item No. 3, Exhibit 10.) Because Claimant committed another
disciplinary infraction for “Reporting Late to Work Without Receiving Management
Permission” during the six-month period after receiving the warning letter, Claimant
received a two-day suspension without pay on October 11, 2017. (C.R. at Item No. 3,
Exhibit 7). The October 11, 2017 suspension letter likewise warned Claimant that any
violation that occurred within the next 12 months would result in “further discipline up
to and including termination.” Id. Finally, on December 15, 2017, Employer issued
Claimant a termination letter, advising her that she had been terminated as of December
13, 2017, for violating the Toll Collection-Fares Bulletin No. 4.4, (C.R. at Item No. 3,
Exhibit 6), regarding absent without leave status, because she failed to report to work
or call on December 11, 2017, which was within 12 months of her two-day suspension.
(C.R. at Item No. 3, Exhibit 11.)
             During her testimony, Claimant acknowledged that she was terminated;
she was aware of the policy about calling off two hours before a shift; that she had
received a warning in July and a suspension in October; that the next disciplinary step
for her would be termination; that she was scheduled to work on December 11, 2017;
and that she did not report to work that day or contact a manager until after the shift
ended. Claimant testified that she “was not able” to call a manager because she “was
going through withdrawals from [her] medication.” (C.R. at Item No. 8, N.T. at 10.)
Claimant stated that she was in the process of weaning off one medication in order to

                                           3
start another. (C.R. at Item No. 8, N.T. at 11.) Claimant indicated that, during the
night before her shift, she was “up all night long” because she was sick but, after she
did eventually fall asleep, she did not wake up until after her shift had ended on
December 11, 2017. (C.R. at Item No. 8, N.T. at 15.) Claimant acknowledged that she
did not immediately call Employer upon waking up, and instead called her doctor to
explain what happened. (C.R. at Item No. 8, N.T. at 13.)
               Claimant stated that she spoke with someone in human resources after
December 11th in order to file for FMLA leave2 “to protect [her]self from this . . .
situation.” (C.R. at Item No. 8, N.T. at 12.) When asked by the referee if Claimant
had medical documentation or paperwork indicating the symptoms to be expected
when withdrawing from the medication she was taking, she stated, “I don’t. It’s pretty
common knowledge.” (C.R. at Item No. 8, N.T. at 15.) However, Claimant submitted
a copy of the FMLA paperwork her doctor filled out on December 12, 2017. Claimant
admitted that she did not give her side of the story during the interview before her
termination, explaining that she did not want to tell people about her medical history
because, in her opinion, people would not understand her medical condition. (C.R. at
Item No. 8, N.T. at 13.)
               Claimant acknowledged she may have cited “family issues” as the reason
for her failure to come into work when she spoke with her manager because she was
“distraught” and “knew [she] was in big trouble.” (C.R. at Item No. 8, at 17.) Claimant
also admitted that she did not tell Employer about her health issues, apply for FMLA
leave, or otherwise seek time off prior to December 11, 2017, despite the fact that the
two-day suspension she received was also due to her health issues. Claimant stated, “I



      2
          FMLA refers to the Federal Family and Medical Leave Act of 1993, 29 U.S.C. §§2601-2654.



                                                4
had problems before and I didn’t want to be that person who was going to go on SMA [3]
again. I didn’t want to do that. I wanted to strive to stick it out. . . . I wanted to just try
to do the job at hand.” (C.R. at Item No. 8, N.T. at 14.)
              The referee issued a decision denying Claimant benefits and finding the
following pertinent facts:

           1. The [C]laimant was last employed as a full-time toll collector
              by [Employer] from March 9, 2012[,] until December 13,
              2017 . . . .
           2. The [E]mployer has an attendance policy which requires
              employees to call off at least two hours prior to a scheduled
              shift.
           3. The attendance policy provides for progressive discipline
              including a written warning, a suspension and termination.
           4. On July 6, 2017, the [C]laimant received a written warning
              for procedural errors.
           5. On October 11, 2017, the [C]laimant received a suspension
              for being late to work.
           6. The [C]laimant was diagnosed with [various medical
              conditions].
           7. The [C]laimant was scheduled to work at 7:00 a.m. on
              December 11, 2017.
           8. The [C]laimant did not report to work on December 11,
              2017.
           9. The [C]laimant did not contact her manager to report off until
              7:45 p.m.
           10.The [C]laimant told the manager that she was absent due to
              family issues.
           11.On December 12, 2017, the [C]laimant had her treating
              provider fill out Family [and] Medical Leave Act (FMLA)
              paper work [sic].
           12.The paperwork indicated that the [C]laimant would require
              intermittent leave up to twice a month for up to three days at
              a time.
           13.The [E]mployer discharged the [C]laimant under its policy
              for failing to call off.
 (Findings of Fact (F.F.) Nos. 1-13.)

       3
          SMA is not defined in the record. Claimant stated that SMA was “when you’re off for like
disability you know, to take off.” (C.R. at Item No. 8, at 12.)
                                                5
              In his opinion, the referee rejected Claimant’s testimony that she was
unable to contact Employer earlier than she did, observing that, if Claimant were as
sick as she claimed, she could have alerted Employer the night before. The referee also
observed that Claimant did not present any medical documentation showing that she
was withdrawing from medication or explaining the potential side effects of doing so.
The referee reasoned that, even if Claimant had not anticipated “passing out,” Claimant
nonetheless acknowledged that she did not contact her manager as soon as she had
awoken. (Referee’s op. at 2.) Thus, the referee determined that Claimant was ineligible
for benefits under section 402(e) of the Law because she was discharged for actions
that constituted willful misconduct. Claimant appealed to the Board, but the Board
affirmed, adopting and incorporating the referee’s findings and conclusions. (C.R. at
Item No. 14.)
              Claimant filed the present petition for review with this Court.4                  In
Claimant’s two-paragraph argument, she asserts that the referee erred in finding there
was insufficient evidence to show that Claimant’s medical and other problems required
her absence at work. In the first paragraph of her argument, Claimant quotes what
appears to be a portion of her collective bargaining agreement with Employer,
emphasizing the portion that states employees may only receive paid sick time if they
notify a supervisor within two hours of the start of their shift, “unless a proven
emergency prevents the employee from calling within said two (2) hours.”5
(Claimant’s brief at 9) (emphasis omitted). Claimant argues that “[p]roven medical

       4
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d 122,
126 n.3 (Pa. Cmwlth. 2015).

       5
        Claimant refers to the document as the “Pennsylvania Turnpike Commission Teamsters
Local Union NOS. 77 and 250 Field Agreement; Article 15 – Leave of Absence, Section 1.”
(Claimant’s brief at 9.)
                                                6
documentation was provided and proved the emergency/reason for [Claimant]’s
absence from work and inability to notify.” Id.
             The document Claimant quotes from, and bases her argument on,
however, does not appear in the record and the transcript of the hearing before the
referee does not show that Claimant attempted to introduce it. Because that information
lies outside the record in this case, we cannot consider it. “[I]t is a black letter law that
an appellate court cannot consider anything which is not a part of the record in the
case.” Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974) (quoting McCaffrey v.
Pittsburgh Athletic Association, 293 A.2d 51, 57 (Pa. 1972)).
             Moreover, the referee did not find that Claimant was not ill on the day she
failed to report to work. Instead, the referee found that Claimant did not have a
sufficient excuse for failing to report her illness to a manager prior to her shift.
Claimant’s FMLA paperwork did not show proof of an illness on December 11, nor
did it document her inability to call into work prior to 7:45 p.m. that evening. (C.R. at
Item No. 8, Ex. 1.) To the contrary, the FMLA paperwork indicated that, as of
December 12, it was her doctor’s opinion that Claimant would periodically require days
off due to her illnesses. Thus, even if Claimant had entered the document she quotes
from into the record, it would not show the referee’s finding regarding her failure to
timely call into work lacked substantial evidence.
             Accordingly, discerning no error, we are constrained to affirm the order
of the Board finding Claimant ineligible for benefits.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge



                                             7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cathy L. Albert,                   :
                   Petitioner      :
                                   :    No. 1118 C.D. 2018
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                ORDER


            AND NOW, this 23rd day of May, 2019, the decision of the
Unemployment Compensation Board of Review, dated June 13, 2018, is hereby
affirmed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
