                        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sidney P. Holmes,
                          Petitioner              :
                                                  :
                   v.                             :
                                                  :
Unemployment Compensation                         :
Board of Review,                                  :   No. 2393 C.D. 2013
                 Respondent                       :   Submitted: June 20, 2014

BEFORE:            HONORABLE BERNARD L. McGINLEY, Judge
                   HONORABLE PATRICIA A. McCULLOUGH, Judge
                   HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                     FILED: August 11, 2014
                   Sidney P. Holmes (Claimant) challenges the order of the
Unemployment Compensation Board of Review (Board) which affirmed the
referee’s denial of benefits under Section 402(e) of the Unemployment
Compensation Law (Law).1


                   The facts, as initially found by the referee and confirmed by the
Board, are as follows:

                   1.    The Claimant was last employed as a full-time
                   Communications Director earning $67,000 per year with Public
                   Citizens for Children and Youth. The Claimant began
                   employment sometime in April 2008, and last worked on
                   February 11, 2013.
                   ….


          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
3.     The Employer maintains an employee handbook, which
it provides to all employees upon initial hire, which contains
various policies including a sick leave benefits policy which
contains the pertinent language: ‘Employees who are unable to
report to work due to illness or injury should notify their direct
supervisor before the scheduled start of their workday if
possible. The direct supervisor must also be contacted on each
additional day of absence.’

4.   The Claimant was, or should have been, aware of the
Employer’s sick leave benefits policy described above.

5.     Although the Employer’s written policy contained in
their employee handbook provided that employees must contact
their direct supervisor when calling off due to illness or injury,
it was the Employer’s past practice to allow employees to leave
a voice mail [sic] message if they were calling off due to a short
term illness or injury.

6.    On the Claimant’s last day of work the Claimant suffered
a reoccurrence of a previous back injury.
….
8.    The Claimant did not report to work after February 11,
2013.

9.    The Claimant contacted the Employer and left a message
on the voice message system each workday after February 11,
2013, up until, on or around, March 4, 2013.
....
11. The Claimant’s direct supervisor was, Ms. Brenda
Cooper (Cooper), the Employer’s Executive Director.

12. The Claimant at no point during his absence contacted
Cooper to report his absence or discuss the reasons for his
absence.

13. On February 19, 2013 and again on February 27, 2013,
Cooper e-mailed the Claimant to request a note and an update
on his status regarding his return to work.



                                2
             14. The Claimant had access to e-mail and communicated
             with another individual from the Employer’s Board via e-mail.

             15. The Claimant did not respond to either of Cooper’s two
             e-mails requesting a medical note and a status update.

             16. On, or around, February 19, 2013, the Claimant e-mailed
             a Ms. Gail Smith (Smith) and requested a copy of the
             Employer’s employee handbook.

             17. Ms. Smith mailed a copy of the employee handbook
             shortly thereafter.

             18. Ms. Cooper never received any verbal or written
             communication from the Claimant other than the daily voice
             messages the Claimant left on the voicemail system.

             19. After the Claimant exhausted all entitlement to sick and
             vacation leave, which the Employer extended for three
             additional grace days, and failed to contact the Employer as
             requested, Cooper decided to discharge the Claimant.

             20. By letter dated March 5, 2013, Cooper notified the
             Claimant he was discharged effective March 4, 2013, for failure
             to follow prescribed procedures for use of sick leave and job
             abandonment.
Referee’s Decision, September 6, 2013, (Decision), Findings of Fact (F.F.) Nos. 1,
3-6, 8-9, and 11-20 at 1-2.


             The referee determined:

             [T]he Referee finds that the Employer has presented sufficient
             competent evidence to establish the existence of an Employer
             rule regarding reporting absences to the direct supervisor of
             which the Claimant was, or should have been, aware and that
             the Claimant violated the rule. Additionally, the Referee finds
             that the Claimant’s failure to respond to Cooper’s emails or to
             contact her at all during his extended absence to represent a

                                           3
              disregard of the standards of behavior the Employer had a right
              to expect of the Claimant regardless of any rule.
Decision at 3-4.


              The referee also concluded:

              Regardless of whether the Claimant received and was aware of
              Ms. Cooper’s e-mails directing him to contact her, the Referee
              must find the Claimant’s failure to contact the Employer
              directly to report and discuss his extended absence was a
              knowing and intentional disregard of standards of behavior
              which the Employer has the right to expect of an employee.
              The Claimant has failed to establish good cause for said
              behavior and benefits must be denied under Section 402(e) of
              the Law.
Decision at 4.


              The Board affirmed the referee’s findings of fact and determined they
were supported by substantial evidence.


              Claimant essentially contends that the Board erred when it ignored
Claimant’s contention that Public Citizens for Children and Youth (Employer)
submitted false reasons for Claimant’s termination and that the Board erred when it
failed to consider Employer’s witnesses perjured their testimony2 when it made its
credibility determination. 3

       2
             Claimant contends that Employer’s witnesses committed perjury during their
testimony concerning the reasons for Claimant’s termination.
        3
          This Court’s review in an unemployment compensation case is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
essential findings of fact were not supported by substantial evidence. Lee Hospital v.
Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).



                                                 4
            Claimant was denied benefits pursuant to Section 402(e) of the Law,
which provides that an employee 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…” 43 P.S.
§ 802(e). Whether a Claimant’s conduct rises to the level of willful misconduct is
a question of law subject to this Court’s review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991).              Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
an Employer’s interest, deliberate violation of rules, disregard of standards of
behavior which an Employer can rightfully expect from the employee, or
negligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard for the Employer’s interest or employee’s duties and
obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d
879 (Pa. Cmwlth. 1977).


            The Employer bears the burden of proving that it discharged an
employee for willful misconduct.       City of Beaver Falls v. Unemployment
Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). Employer
also bears the burden of proving the existence of the work rule and its violation.
Once the Employer establishes that, the burden then shifts to the Claimant to prove
that the violation was for good cause. Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383 (Pa. 1985).


            Claimant does not dispute that Employer had a sick leave policy of
which he was aware.       Claimant admitted receiving a copy of the employee



                                            5
handbook containing the absentee policy when he was hired and again in February
2013, during his absence. While Employer admitted that in past practice it was
acceptable to leave a voice message with the office manager to report absenteeism,
Employer expected employees to contact their direct supervisor to report and
discuss any long-term absences. It is undisputed that Claimant did not contact his
supervisor at any time during his absence.


            Claimant testified:


            Claimant’s Lawyer (CL):          And despite what the
            handbook stated regarding the policy of calling out, the
            policy that was in practice for the five years, where you
            called the number and leave [sic] a message.
            Claimant (C):                    Leave a message with
            Steven or Gail.

            CL: And during you [sic] five years that you’re with
            PCCY [Employer], were you ever instructed to not [sic]
            Gail or Steve but to call the supervisor directly?
            C:    No, it was call Steven or Gail. Ms. Anoff was very
            explicit about that.

            CL: Okay. And have you ever in the five years you
            were employed with PCCY have [sic] write ups
            regarding not showing up to work or not returning to
            work?
            C:     No.
            ….
            Employer’s Lawyer (EL):          Now, that was more for
            the day or two, if a person woke up and didn’t – and felt
            under the weather, is that correct?
            C:                               That was the policy. I
            had never been out for that period of time, so I couldn’t
            tell you.
            ….

                                             6
            EL: And you were out an extended period of time and
            you didn’t feel any obligation to communicate directly
            with your supervisor Ms. Cooper, you know, when your
            – when you were planning to get back in the office, you
            didn’t feel that obligation?
            C:     I just answered that phone call, I just left a
            voicemail message and I sent her my doctor’s notes.

            EL: But you left a message, you didn’t communicate
            with Ms. Cooper directly?
            C:     No.
            ….
            EL: But the handbook says that you have to notify your
            direct supervisor, correct?
            C:     Yes.

            EL: And you didn’t do that.
            C:           But that’s not what the procedure was – that
            was not the procedure. I’ve been there five years.
Notes of Testimony (N.T.) at 54-61.


            The Employer’s witness and Claimant’s direct supervisor, Ms.
Cooper, gave the following testimony:


            Referee (R):                    All right.     Now how
            would the Claimant be aware of this policy Ms. Cooper?
            Employer Witness (EW1):         When people are new
            employees they get a copy of the employee manual. And
            the employee manual was in place when Sid [Claimant]
            came to work on (inaudible) is not here, so Ms. Smith
            would be able to attest to Sid’s receipt of that manual
            when he was hired. On February 19th Mr. Smith – Mr.
            Holmes asked for another copy of the manual and
            received that, so he had it when he was employed and
            then he asked for a copy on the 19th and received it.
            ….



                                           7
            R:          If the Claimant would report off to Ms.
            Smith would that be, would you consider that to be in
            compliance with the Employer’s policy?
            EW1:        I might sir if it was for one day or two days,
            for an extended period of time there’s nobody in the
            office who I would expect to take extended time off
            without communicating with their direct supervisor.
            ….
            EW1:        And I emailed him on two occasions asking
            him to apprise me of his illness, what it was, what was
            going on, when he would be returning to work, no
            response. So then, still no response. On two occasions I
            emailed him. On one occasion, I called him.
Notes of Testimony, September 3, 2013, at 14, 19, 23.


            Claimant’s sole argument is that he never received notice to contact
his supervisor regarding his absence. However, Employer established through the
credible testimony of Ms. Cooper that employees were informed of the rule in the
employee manual of which Ms. Cooper testified Claimant had a copy.              In
unemployment compensation proceedings, the Board is the ultimate fact-finding
body empowered to resolve conflicts in evidence, to determine the credibility of
witnesses, and to determine the weight to be accorded evidence. Unemployment
Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975).
Findings of fact are conclusive upon review provided that the record, taken as a
whole, provides substantial evidence to support the findings.            Taylor v.
Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).


            Employer’s witness, Ms. Cooper, testified that she emailed Claimant
twice, to his work and home email accounts, requesting a note and an update on his
status regarding his return to work. Claimant argues that he never received the


                                           8
emails, but did admit to using his email account during his sick leave. Claimant
contends that he sent medical documentation to his direct supervisor regarding his
absence, which Ms. Cooper denied receiving.             The Board found Employer’s
witness to be credible on this issue. Claimant’s behavior constituted a knowing
and intentional disregard of standards of behavior which Employer had the right to
expect of an employee.4


             Claimant failed to contact his Employer regarding Claimant’s
prolonged absence and failed to establish good cause for his actions. Therefore,
benefits were properly denied pursuant to Section 402(e) of the Law.


             Accordingly, this Court affirms.


                                         ____________________________
                                         BERNARD L. McGINLEY, Judge




      4
         In his brief, Claimant repeatedly argues that Employer’s witnesses lied.   Once again, a
determination of the veracity of a witness is left to the Board as factfinder.



                                                9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sidney P. Holmes,                 :
                    Petitioner    :
                                  :
             v.                   :
                                  :
Unemployment Compensation         :
Board of Review,                  :      No. 2393 C.D. 2013
                 Respondent       :


                                 ORDER


             AND NOW, this 11th day of August, 2014, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.




                                      ____________________________
                                      BERNARD L. McGINLEY, Judge
