           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy P. O'Donnell,                         :
                             Petitioner       :
                                              :
                v.                            :   No. 2281 C.D. 2015
                                              :   Submitted: June 17, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: July 27, 2016

                Timothy P. O’Donnell (Claimant) petitions for review from an order
of the Unemployment Compensation Board of Review (Board) that denied him
unemployment compensation (UC) benefits under Section 402(e) of the UC Law
(Law).1 Claimant contends the Board erred in determining his conduct rose to the
level of willful misconduct. He also asserts the Board erred in failing to correct the
referee’s alleged error in excluding a doctor’s note from the record. Upon review,
we affirm.


                                      I. Background
                Claimant worked for J.B. Hunt Transport, Inc. (Employer) as a full-
time yard jockey from April 8, 2013, until his termination on May 26, 2015.


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
Beginning in March 2015, Claimant did not work for a period of seven or eight
weeks because of foot surgery. On May 18, Claimant’s physician released him for
full-time duty. Employer notified Claimant he needed to work on May 23 and
May 25, the Saturday and Monday of Memorial Day weekend. Upon his initial
return to work on May 18, Claimant requested vacation time for May 23 and May
25. Employer denied this request. Employer requires two-week notice from its
employees prior to taking vacation time. Employer ultimately terminated Claimant
on May 26 after he took unauthorized vacation time on May 23 and May 25.


            Thereafter, Claimant applied for UC benefits, which a local service
center granted. Employer appealed, and a referee’s hearing ensued.


            At the referee’s hearing, Employer was represented by counsel while
Claimant was unrepresented. Employer’s account manager, Rosemary Downey
(Account Manager), testified for Employer. Account Manager testified Claimant
did not report to work on May 23 and May 25, and he requested vacation time
because he had a vacation planned with his girlfriend. Account Manager further
testified Claimant was aware of Employer’s two-week notice policy for use of
vacation time, and despite receiving a medical clearance from his doctor on May
18, Claimant did not provide documentation for the days he missed on May 23 and
May 25. Account Manager also testified that Employer disciplined Claimant for
absenteeism on three prior occasions; once in October 2014 and twice in
November 2014.




                                        2
             Employer’s     operations    supervisor,   Katie   Shaak   (Operations
Supervisor), testified by telephone for Employer. Operations Supervisor testified
Claimant told her on May 18 he wanted to schedule vacation on May 23 and May
25. Operations Supervisor further testified, because Claimant did not request
vacation time two weeks in advance, Employer denied Claimant’s request and
required him to work on those dates. She also testified that Claimant did not
provide her any documentation on May 18 that would substantiate a medical need
for the requested vacation time.         Lastly, Operations Supervisor confirmed
Claimant’s prior disciplinary actions for absenteeism in October and November
2014.


             Claimant testified on his own behalf. Claimant testified he returned to
work after his surgery on May 18 with a doctor’s note substantiating his absences
for the past seven to eight weeks. Claimant testified his doctor told him, “if there
was [sic] any issues I could come back and see him, in which I did during the time
that I was out on Memorial Day weekend.” Referee’s Hr’g, Notes of Testimony
(N.T.), 8/10/15, at 9. Claimant further testified he told Operations Supervisor he
needed vacation time on May 23 and May 25 because his foot was sore. Claimant
sought to introduce a doctor’s note dated May 26 as “proof … [the doctor] gave me
the days off.” N.T. at 9. Although Employer’s counsel objected to the admission
of this note, and the referee ultimately excluded it, the referee permitted Claimant
to testify regarding the content of the note.


             When asked what he told Operations Supervisor as to whether he
needed May 23 and May 25 to rest his foot or go on vacation, Claimant testified,



                                           3
“[v]acation was a side note.”     N.T. at 10.    On cross-examination, Claimant
admitted he went “to the [s]hore” over the Memorial Day weekend, and
“documentation [for May 23 and May 25] wasn’t provided because [he] was
terminated.” N.T. at 12, 13.


            After the hearing, the referee made the following pertinent findings:

            2.    [E]mployer’s work rules provide, in part, that a worker
            must give two weeks notice [sic] for vacation days.

            3.     [C]laimant was aware of [E]mployer’s rules.

            4.    On October 29, 2014, [E]mployer gave [C]laimant a
            verbal warning for absences.

            5.    On November 13, 2014, [E]mployer gave [C]laimant a
            written warning for absences.

            6.    On November 17, 2014, [E]mployer gave [C]laimant a
            second written warning for absences.

            7.     Beginning in March 2015, [C]laimant was out of work
            for seven or eight weeks because of a foot injury.

            8.     [C]laimant was subsequently released by his physician
            for full duty.

            9.    On May 18, 2015, [E]mployer informed [C]laimant he
            was scheduled for [a] mandatory overtime shift on May 23,
            2015 and a regular work day on May 25, 2015.

            10. [C]laimant informed [E]mployer[’s] representative he
            was taking vacation.

            11. [E]mployer responded that [C]laimant did not give notice
            for vacation and was required to work the shifts.

            12. [C]laimant did not report to work or call off on May 23
            and May 25, 2015.

                                        4
              13. [E]mployer discharged [C]laimant for absence without
              report.

              14. [C]laimant asserts he was taking off to go away on
              vacation and because his foot was sore.

Referee’s Dec., 6/22/15, Finding of Fact (F.F.) Nos. 2-14 (emphasis added). On
the issue of whether Claimant’s absenteeism was based on a legitimate medical
need, the referee found Employer’s witnesses’ testimony credible and therefore
resolved this conflict in Employer’s favor.            As such, the referee determined
Employer terminated Claimant for excessive absenteeism and denied benefits
under Section 402(e) of the Law.


              On appeal, the Board affirmed the referee’s decision and adopted his
critical findings.2 In denying benefits, the Board reasoned (with emphasis added):

              The Board specifically rejects [C]laimant’s testimony that he
              took off work on May 23, 2015 and May 25, 2015 because his
              foot was sore. The [O]perations [S]upervisor credibly testified
              that [C]laimant did not provide a reason for being off on those
              days other than that he was taking a vacation. … On appeal,
              [C]laimant provides documents absent from the record before
              the Referee. The Board may not consider extra-record evidence
              and avoided doing so here.

Bd. Op. at 1. Claimant now petitions for review to this Court.3


       2
         The Board modified the referee’s Finding of Fact No. 7 to indicate Claimant was out of
work for several weeks because of foot surgery rather than because of an injury.
       3
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010)
(en banc).



                                              5
                                     II. Issues
             Claimant first contends the record does not contain substantial
evidence to show his absenteeism rose to the level of willful misconduct. Claimant
also asserts the Board erred in failing to acknowledge and correct the referee’s
alleged prejudicial error of excluding Claimant’s May 26 doctor’s note, which
excused his absences on May 23 and May 25.


                                  III. Discussion
             The Board is the ultimate fact-finder in UC cases.            Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Thus, matters of credibility and the weight to be given conflicting testimony fall
within the Board’s exclusive province. Id. The Board may reject the testimony of
the claimant if it concludes it is not worthy of belief. Adams v. Unemployment
Comp. Bd. of Review, 373 A.2d 1383 (Pa. Cmwlth. 1977). Additionally, we must
view the record in the light most favorable to the prevailing party before the Board,
and give that party the benefit of all reasonable inferences that can be drawn from
the evidence. Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616 (Pa.
Cmwlth. 1999).


             Further, it is irrelevant whether the record contains evidence to
support findings other than those made by the Board; the critical inquiry is whether
there is substantial evidence in the record to support the findings actually made.
Wise v. Unemployment Comp. Bd. of Review, 111 A.3d 1256 (Pa. Cmwlth. 2015);
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa.
Cmwlth. 2008).



                                         6
             Section 402(e) of the Law states an employee shall be ineligible for
compensation for any week in which his unemployment is due to willful
misconduct connected to his work. 43 P.S. §802(e). Willful misconduct within
Section 402(e) is defined by the courts as: (1) a wanton and willful disregard of an
employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards
of behavior that an employer can rightfully expect from an employee; or, (4)
negligence that manifests culpability, wrongful intent, evil design, or an intentional
and substantial disregard for the employer’s interest or the employee’s duties and
obligations. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa.
Cmwlth. 1999).      The burden of proving willful misconduct rests with the
employer. Id. Whether an employee’s conduct constitutes willful misconduct is a
question of law subject to this Court’s review. Id.


                                          A.
             Claimant first argues the Board erred in determining he committed
willful misconduct. Despite the Board’s finding, he contends he needed the time
off to rest his foot following surgery. Claimant also asserts he visited his doctor
during that time.


             While absenteeism may not always support a finding of willful
misconduct, an employee’s use of unauthorized vacation time, when specifically
directed not to by an employer, amounts to willful misconduct under the Law.
Hymon v. Unemployment Comp. Bd. of Review, 466 A.2d 275 (Pa. Cmwlth.
1983); Travor v. Unemployment Comp. Bd. of Review, 449 A.2d 814 (Pa.
Cmwlth. 1982). Thus, this Court repeatedly holds the use of unauthorized vacation



                                          7
time constitutes willful misconduct under the Law.                      Hymon; Milne v.
Unemployment Comp. Bd. of Review, 457 A.2d 224 (Pa. Cmwlth. 1983); Fanelly
v. Unemployment Comp. Bd. of Review, 422 A.2d 1214 (Pa. Cmwlth. 1980);
Adams.


              Here, substantial evidence supports the Board’s finding that Employer
terminated Claimant’s employment for taking unauthorized vacation time. N.T. at
5, 7-8; Referee’s Decision & Order, 8/11/15, at 2.                To that end, the Board
specifically rejected Claimant’s testimony that he took off work because his foot
was sore.4 Bd. Op. at 1. The Board also determined Claimant did not provide
Employer with good cause for his absenteeism, other than wanting to take vacation
time. Id. As these determinations are amply supported, Claimant’s argument fails.
Bd. Op. at 1; N.T. at 5, 7-8; F.F. Nos. 10-12. In turn, based on its supported
findings, the Board properly determined Claimant’s use of unauthorized vacation
time constituted willful misconduct. Hymon; Fanelly; Adams.


              Of further note, when the referee asked Claimant exactly when he
went to his doctor, Claimant replied: “I had seen [sic] the doctor on the 26th.” N.T.
at 10. Claimant went to his doctor after Employer terminated his employment.
N.T. at 13. If, as Claimant suggests, he was aware that on May 18 he needed to



       4
         Claimant argues his case is akin to Travor v. Unemployment Compensation Board of
Review, 449 A.2d 814 (Pa. Cmwlth. 1982), and W.R. Grace v. Unemployment Compensation
Board of Review, 412 A.2d 1128 (Pa. Cmwlth. 1980). In these cases benefits were granted
because claimants’ absences were the result of illness. Based on the Board’s finding that
Claimant’s absence here was neither not caused by illness or medical necessity, these cases are
inapposite.



                                              8
take off on May 23 and May 25 to rest his foot, it is unclear why Claimant did not
obtain a doctor’s note prior to his termination from employment on May 26.


                                        B.
            Claimant also argues the referee’s exclusion of his May 26 doctor’s
note, and the Board’s refusal to consider the note, constitute prejudicial error. We
disagree.


            Section 101.130(e) of the Board’s regulations requires that when
testimony is given with the aid of a document not previously in the record, the
document must be circulated to all parties in advance of a telephonic hearing. 34
Pa. Code §101.130(e).      Further, “[a] document not provided as required by
§101.130(e) (relating to notice of testimony by telephone and use of documents)
may not be admitted nor testimony given or taken from it unless consent has been
requested from and given by all parties. Testimony taken or given in violation of
this subsection will be excluded from consideration, as will the document.” 34 Pa.
Code §101.131(h).


            Here, the record reveals, after a series of continuances, Claimant
received notice of this requirement through a July 27, 2015 Notice of Hearing. See
Certified Record, Item No. 8 (Board Notice of Hr’g, 7/27/15, at 2). Because
Claimant did not produce his May 26 doctor’s note in advance of the hearing, the
referee properly excluded it upon Employer’s objection. 34 Pa. Code §101.131(h).




                                         9
              Nevertheless, Claimant argues strict compliance with Section
101.130(e) is not required as only Employer’s Operations Supervisor testified
telephonically, and both Employer’s counsel and Account Manager appeared in
person. Our case law reveals no support for this argument.


              To the contrary, in Ellis v. Unemployment Compensation Board of
Review, 749 A.2d 1028 (Pa. Cmwlth. 2000), we required strict compliance with
Section 101.130(e) of the Board’s regulations when employer presented two in-
person witnesses and only one witness appeared telephonically. Thus, we apply a
literal construction of 34 Pa. Code §101.131(h) and hold that a document “may not
be admitted nor testimony given or taken from it unless consent has been requested
from and given by all parties.” Collins v. Unemployment Comp. Bd. of Review
(Pa. Cmwlth., No. 1078 C.D. 2013, filed March 13, 2014), Slip Op. at 9, 2014 WL
1004114 at *4 (unreported); see also Ellis. As such, in light of the objection raised
by Employer’s counsel, the referee properly excluded Claimant’s doctor’s note.
Beverly Hall Corp. v. Unemployment Comp. Bd. of Review, 106 A.3d 829 (Pa.
Cmwlth. 2014) (upon a party’s objection, referee is obligated to exclude
documents that are not produced in compliance with the telephone hearing
regulations).5




       5
         In any event, the referee allowed Claimant to testify regarding the content of the note.
Indeed, Claimant testified as to the note’s existence and legitimacy, and he claimed he was
medically excused on the days in question. Referee’s Hr’g, Notes of Testimony, 8/10/15, at 10.
Thus, the content of the May 26 doctor’s note is in the record by virtue of Claimant’s testimony.
However, as explained above, the Board rejected Claimant’s testimony as not credible.



                                               10
Based on the foregoing, we affirm.




                         ROBERT SIMPSON, Judge




                          11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy P. O'Donnell,                  :
                        Petitioner     :
                                       :
           v.                          :   No. 2281 C.D. 2015
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                     ORDER

           AND NOW, this 27th day of July, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      ROBERT SIMPSON, Judge
