             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric J. Vanbenthuysen,                          :
                              Petitioner        :
                                                :
                      v.                        :    No. 1842 C.D. 2016
                                                :    Submitted: March 31, 2017
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: August 1, 2017


       Eric J. Vanbenthuysen (Claimant) petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming the
Decision of a UC Referee (Referee) finding Claimant ineligible for UC benefits
pursuant to Section 402(e) of the UC Law (Law).1 Claimant argues that Classic
Granite, LLC (Employer) did not meet its burden of proving, with substantial
evidence, that he was discharged for committing willful misconduct and, if it did,


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week
the employee’s unemployment is due to discharge or temporary suspension from work for willful
misconduct connected with the employee’s work).
he had good cause for his actions. He also asserts the Referee did not follow the
rules of practice and procedures for UC hearings because she acted as Employer’s
advocate. Because there is substantial evidence to support that Claimant engaged
in and was discharged for willful misconduct and the Referee complied with the
hearing procedures, we affirm.
      Claimant worked for Employer as a full-time helper from December 2015
until May 20, 2016, when he was discharged. Claimant applied for benefits,
asserting Employer discharged him because it did not have any light-duty work,
which he needed due to a work-related injury. Employer did not respond to a
request for an oral interview. The Local UC Service Center found Claimant not
ineligible for benefits pursuant to Section 402(e), and Employer appealed. The
Referee held a hearing, at which documentary evidence was presented, and
Employer’s owners, Anastasia and Rafal Kolawa (together, Owners), and Claimant
testified.2 Following the hearing, the Referee issued the following findings of fact:

      1. The claimant was employed from around December, 2015
      through May 20, 2016 as a full-time helper with [Employer], earning
      $20 per hour.

      2. The employer has an attendance policy that after [2] days of
      reporting off sick, any other illness will require a doctor’s note in
      order to be excused.

      3. The employer has an unwritten policy that employees are
      required to call the employer to notify any absence or tardiness in
      order for the employer to find a replacement.

      4. The claimant was aware of the employer’s expectations and
      policies.


      2
          Mrs. Kolawa represented Employer, and Claimant had counsel.



                                              2
5. The claimant had previously worked for the employer and upon
his re-hire the employer sat down with the claimant to make sure he
understood the employer’s expectations regarding attendance.

6. The employer has a 3 strikes you’re out policy with a verbal
warning, written warning and final warning.

7.   The claimant should have been aware of the employer’s policy.

8. The claimant was absent from work on February 17, 2016 and
was contacted by the employer to find out where he was when he was
supposed to work at 7:00 a.m.

9. The claimant received a written warning on February 18, 2016
for his failure to contact the employer before the start of his scheduled
shift to report his absence.

10. On March 28, 2016, the claimant reported off work and did not
provide a doctor’s note to support his absence and received a written
warning due to already using two sick days.

11. On May 9, 2016, the claimant failed to report for his scheduled
shift and failed to call the employer to report his absence.

12. The claimant reported to work on May 10, 2016 and provided a
doctor’s note.

13. The claimant was advised that due to his no-call/no-show, he was
receiving a final written warning, which he signed.

14. After this incident, the employer discovered that on May 6, 2016,
the claimant clocked in at 6:59 a.m. and clocked out at 4:18 p.m. and
[had] gone to a doctor’s appointment without notifying the employer.

15. The claimant did not request off work to go to a doctor’s
appointment on May 6, 2016.

16. When the employer questioned the claimant about whether he
went to a doctor’s appointment on May 6, 2016 during work hours,
the claimant denied and alleged he went after work hours.




                                   3
      17. The employer contacted Med Express to clarify when the
      claimant had gone to his medical appointment, to which the claimant
      indicated he had gone during work hours.

      18. On May 20, 2016, the claimant was discharged from his
      employment, with a final incident of May 6, 2016 for going to a
      doctor’s appointment on company time without notifying the
      employer and getting paid for it.

(Referee Decision, Findings of Fact (FOF) ¶¶ 1-18.) The Referee concluded
Employer’s “3 strikes you’re out policy” (Three Strikes Policy) was “very easily
interpreted and is verbal regarding attendance.” (Referee Decision at 3.) The
Referee found Claimant’s conduct on February 17, March 28, and May 9, 2016
violated Employer’s attendance policies, expressly crediting Owners’ testimony
over Claimant’s contrary testimony.            Additionally, the Referee considered
Claimant’s going to the doctor on May 6, 2016 during work hours without advising
Employer “doing personal business during work hours and getting paid for it” as
his final incident. (Id.) The Referee found Claimant ineligible for benefits because
“[C]laimant’s conduct was contrary to the standards of behavior which the
employer has the right to expect.” (Id.)
      Claimant appealed to the Board, which concluded the Referee’s
determination was proper under the Law. The Board “credit[ed] the testimony of
the employer’s witnesses that the claimant reported off from work via text message
after the start of his shift on both February 17, 2016 and May 9, 2016,” and noted
Claimant “received warnings for both of those incidents.”           (Board Order.)
Therefore, the Board “adopt[ed] and incorporate[d] the Referee’s findings and




                                           4
conclusions” as its own and affirmed. (Id.) Claimant now petitions this Court for
review.3
       Claimant raises numerous challenges to the determination that he is
ineligible for benefits pursuant to Section 402(e) of the Law. He first argues
Employer did not meet its burden of proof because: it did not establish that it had
clear rules of which Claimant was aware; it did not establish Claimant’s violation
of those rules; and its rule requiring a doctor’s note after two absences due to
illness is unreasonable. As part of this argument, Claimant specifically challenges
numerous findings of fact as not being supported by substantial evidence because
Owners’ testimony and Employer’s written warnings and notices (Warnings) are
confusing, unclear, and/or conflicting.
       The following legal principles guide us in reviewing Claimant’s allegations.
Section 402(e) of the Law provides, in pertinent part, that “[a]n 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.” 43 P.S. § 802(e). While the Law does not define
“willful misconduct,” our Supreme Court has defined it to include a “deliberate
violation of an employer’s rules” or a “disregard for standards of behavior which
an employer can rightfully expect of an employee.”                   Caterpillar, Inc. v.
Unemployment Comp. Bd. of Review, 703 A.2d 452, 456 (Pa. 1997). “Where a
violation of the employer’s work rule is alleged to be the basis for termination of


       3
          “The Court’s review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, whether a practice or procedure of the Board
was not followed or whether the findings of fact are supported by substantial evidence in the
record.” W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2
(Pa. Cmwlth. 2006).



                                             5
employment, the employer must show that the rule existed, that the rule was
reasonable and that the claimant was aware of the rule and violated it.” Oyetayo v.
Unemployment Comp. Bd. of Review, 110 A.3d 1117, 1121 (Pa. Cmwlth. 2015).
Moreover, receiving pay for hours not worked or using work time to attend to
personal affairs without authorization can constitute willful misconduct. Temple
Univ. v. Unemployment Comp. Bd. of Review, 772 A.2d 416, 419 (Pa. 2001);
Oyetayo, 110 A.3d at 1124. If the employer meets its burden of proving willful
misconduct, the burden shifts to the claimant to show good cause for his actions.
McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa.
Cmwlth. 1993). “A claimant has good cause if his . . . actions are justifiable and
reasonable under the circumstances.” Docherty v. Unemployment Comp. Bd. of
Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).            Whether a claimant’s
conduct rises to the level of willful misconduct is a question of law reviewable by
this Court. Id.
      We are also mindful that the Board is the ultimate fact-finding body and
“[q]uestions of credibility and the resolution of evidentiary conflicts are within the
discretion of the [Board] and are not subject to re-evaluation on judicial review.”
Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth.
2007). “The Board’s findings are conclusive on appeal so long as the record, when
viewed in its entirety, contains substantial evidence to support the findings.” W. &
S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2 (Pa.
Cmwlth. 2006).      Substantial evidence is “such relevant evidence which a
reasonable mind would accept as adequate to support a conclusion.” Guthrie v.
Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
Employer, as the prevailing party before the Board, is entitled to “the benefit of all



                                          6
inferences that can logically and reasonably be drawn from the testimony” to
determine if substantial evidence exists for the findings. U.S. Banknote Co. v.
Unemployment Comp. Bd. of Review, 575 A.2d 673, 674 (Pa. Cmwlth. 1990)
(quoting Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa.
1977)). A party’s belief that a different version of events occurred does not create
grounds for judicial reversal if substantial evidence supports the findings. Tapco,
Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108–09 (Pa.
Cmwlth. 1994). “It is irrelevant whether the record contains evidence to support
findings other than those made by the fact-finder; the critical inquiry is whether
there is evidence to support the findings actually made.” Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
      Claimant first asserts Employer did not prove what exactly its rules entail or
that Claimant was aware of all of the rules. Therefore, he argues, findings of fact
3, 4, and 7 (relating to the rules’ existence and Claimant’s awareness of those
rules) are not supported by substantial evidence. A review of the record, however,
reveals that, although Owners’ testimony was imprecise and confusing at times,
there is substantial evidence to support these findings of fact.
      Mrs. Kolawa testified that, when Claimant was re-hired, she explained to
him that, if he was sick, he was to call Employer in the morning before work began
or as soon as he knew he was sick if it was before that time, and Claimant said
“Fine. That’s what I’ll do.” (Hr’g Tr. at 22-24 (emphasis added).) Mr. Kolawa
stated that Claimant was told when he was re-hired that he had two sick days a
year after which he had to bring in a doctor’s excuse and that, if he was sick,
Claimant was expected to call before the beginning of his shift or as soon as he
knew he would be calling off. (Id. at 45-46.) Claimant himself agreed that



                                           7
Employer discussed this sick leave policy prior to his return to work. (Id. at 66-
67.) The Board, in adopting the Referee’s findings, credited Employer’s evidence.
A reasonable mind would accept such credited evidence, viewed in the light most
favorable to Employer, as support for the findings related to the rules’
requirements and Claimant’s knowledge thereof.
      Claimant next asserts Employer’s evidence does not clearly establish how he
violated Employer’s rules on February 17, March 28, May 6, and May 9, 2016, or
how he was warned. Thus, Claimant argues findings of fact 8, 9, 10, 11, 13, and
18 (related to Claimant’s violations and the warnings he received) are not
supported by substantial evidence. Again, after reviewing the record, there is
substantial evidence to support those findings.
      Owners credibly testified Claimant: did not call off before his shift began on
February 17, 2016, and only contacted Employer, via text, after Employer called
him to ask where he was; and Claimant was sick on March 28, 2016, after he had
already used his two sick days, and did not submit a doctor’s note for that day. (Id.
at 17-18, 21, 28, 48-52.) Mr. Kolawa stated that, on May 9, 2016, Claimant did
not contact Employer prior to the beginning of his shift that he would be absent.
(Id. at 53-54.) Mrs. Kolawa also testified Claimant went to Med Express on May
6, 2016, for an hour and a half on company time without advising Employer that he
was doing so. (Id. at 30-32.) Mr. Kolawa explained his employees know that if
they want to do a personal errand during the work day they are to tell him, and
Claimant did not do so on May 6, 2016. (Id. at 54-55, 57.) Claimant himself
testified he only provided a doctor’s note for his May 9, 2016 absence and agreed
that he did not tell Employer of the May 6, 2016 appointment. (Id. at 75-76.) The
Warnings for February 17, March 28, and May 9, 2016, which Claimant signed, all



                                         8
describe the type of violation (attendance) and indicate that Claimant was being
warned. (Exs. E-2, E-4, 2g.) The May 9, 2016 Warning specifically indicates that
it was a verbal and written warning and that it was a final warning. (Ex. E-4.)
Although Claimant testified he complied with Employer’s call off procedures
(Hr’g Tr. at 65, 69-70, 75), Employer’s contrary evidence was credited. This
credited evidence constitutes substantial evidence that supports the findings that
Claimant violated Employer’s rules on these particular days and was provided
warnings for those violations.
      Claimant also argues Employer did not prove that its rule requiring a
doctor’s note after using two sick days is reasonable. Claimant asserts it is patently
unreasonable because two days is a very low number of days and Employer does
not provide health insurance to its employees, so to obtain a doctor’s note would
require the employee to pay out-of-pocket.
      In reviewing the reasonableness of a work rule, we look to whether it “is
reasonable in light of all the circumstances” and whether its application “is fair,
just and appropriate to pursue a legitimate interest.” Caterpillar, Inc., 703 A.2d at
456-57.     A rule that is “demanding” is not necessarily unreasonable.
Chambersburg Hosp. v. Unemployment Comp. Bd. of Review, 41 A.3d 896, 900
(Pa. Cmwlth. 2012). Here, Employer’s rule does not preclude employees from
taking sick leave. It gives employees two sick days, after which they must provide
a doctor’s note proving that the employee is sick in order for the day to be an
excused absence. Mr. Kolawa explained that Employer needs this rule because it
is “a small company, so [it] . . . count[s] on [its] employee[s]” to be at work so it
can prepare and complete its granite installation jobs for customers. (Hr’g Tr. at
45.) Because this rule, which may be demanding, aids Employer in its legitimate



                                          9
purpose of ensuring that it can meet its obligations to its customers and there is no
assertion that the rule has been applied unfairly or unjustly, the rule is not
unreasonable.
      Based on the findings made, which are supported by Employer’s credited
evidence, Employer met its burden of proof. Therefore, the burden shifted to
Claimant to establish he had good cause for his actions. Claimant asserts he had
good cause for his absence on May 9, 2016, and for going to Med Express on May
6, 2016, during work hours because both were related to his work injury.
      Claimant was discharged following the final incident of his performing a
personal errand on company time without advising Employer of his medical
appointment. (FOF ¶ 18.) Although that appointment, and the May 9, 2016
absence, may have been connected to a work-related injury, this does not excuse
Claimant from having to inform Employer that he would be attending a medical
appointment during the work day or from calling off in accordance with
Employer’s call-off rule. When asked why he did not inform Employer of the
appointment, Claimant stated “I don’t know,” “Don’t know,” and that he “just
didn’t.” (Hr’g Tr. at 77.) Claimant also said, when confronted by Employer, that
he had gone after work, which he later admitted was not accurate. (Id. at 33-35;
FOF ¶¶ 16-17.) Under these circumstances, Claimant’s actions were not justifiable
or reasonable.
      Claimant next argues Employer’s asserted reason for discharging him is pre-
textual, and he was really fired because Employer did not have light-duty work for
him. There was conflicting testimony about Employer’s reason for discharging
Claimant, Employer’s evidence was credited, and, as discussed above, this
evidence supports that he was discharged, pursuant to the Three Strikes Policy, for



                                         10
violating Employer’s attendance policies more than three times. That Claimant
believes a different version of events occurred does not create grounds for judicial
reversal because substantial evidence supports the findings.4 Tapco, Inc., 650 A.2d
at 1108–09.
       Finally, Claimant maintains the Referee did not impartially discharge her
duties as required by Section 101.21(a) of the Board’s Regulations, 34 Pa. Code §
101.21(a), but acted as an advocate for Employer during the hearing. Claimant
further asserts the Referee should have allowed Claimant to answer questions
regarding his work-related injuries and restrictions.
       Section 101.21(a) of the Board’s regulation provides:

       In a hearing the tribunal may examine the parties and their witnesses.
       Where a party is not represented by counsel the tribunal before whom
       the hearing is being held should advise him as to his rights, aid him in
       examining and cross-examining witnesses, and give him every
       assistance compatible with the impartial discharge of its official
       duties.

34 Pa. Code § 101.21(a). “[R]eferees should reasonably assist pro se parties to
elicit facts that are probative for their case” and have the “responsibility . . . to
assist a pro se [party] at a hearing,” in order to adequately develop the facts
necessary for a decision “to insure that compensation will not be paid in cases in

       4
         To the extent Claimant appears to assert there was disparate treatment of him and a co-
worker, who had also gone to the doctor at the same time on May 6, 2016, but was only
suspended for doing so, there is no evidence the co-worker was similarly situated to Claimant.
Thus, Claimant cannot establish this affirmative defense.           Geisinger Health Plan v.
Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 (Pa. Cmwlth. 2009) (stating the
affirmative defense of disparate treatment requires a claimant to show that the employer
discharged claimant, but not the “other employees who engaged in similar conduct”; the claimant
and the other employees were similarly situated; and the claimant was discharged based on an
improper criterion).



                                              11
which the claimant is not eligible and that compensation will be paid if the facts,
thoroughly developed, entitled the claimant to benefits.”               Hackler v.
Unemployment Comp. Bd. of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011)
(quoting Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259 (Pa.
Cmwlth. 1982)) (emphasis in original). Referees are not, however, to assume the
role as advocate for the pro se party. Stugart v. Unemployment Comp. Bd. of
Review, 85 A.3d 606, 609 (Pa. Cmwlth. 2014).
      After carefully reviewing the record, we discern no violation of the
regulation by the Referee in this matter. Here, Claimant was represented by
counsel at the hearing, but Employer was acting pro se. Employer’s witnesses
were, at times, disorganized and imprecise, and the Referee assisted them to the
extent it was necessary to thoroughly develop the facts necessary to make a
determination on Claimant’s eligibility. Although the Referee questioned Owners
and sometimes referenced the other Owner’s testimony in doing so, it was in an
attempt to clarify the testimony and obtain information relevant to Claimant’s
eligibility for benefits. She also asked Claimant questions to elicit facts necessary
to make that determination. This was her responsibility under the regulation.
Moreover, there was nothing improper in the Referee not permitting Claimant to
go into great detail about his work-related injuries. The Referee acknowledged the
conflict regarding why Claimant was discharged, and she allowed some testimony
and evidence about the doctor’s notes restricting Claimant to light-duty work and
Claimant’s belief he was discharged as a result. (Hr’g Tr. at 43-44, 62-63, 67, 80-
82, 85.) That the Referee did not allow Claimant to go into specific detail on his
workers’ compensation claim does not mean she was advocating for Employer or




                                         12
violated the regulation because those details were not relevant to the question
before her – Claimant’s eligibility for UC benefits.
      Because Employer met its burden of proving that Claimant engaged in and
was discharged for willful misconduct and the Referee complied with the hearing
procedures, we affirm.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric J. Vanbenthuysen,                   :
                         Petitioner      :
                                         :
                  v.                     :   No. 1842 C.D. 2016
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


      NOW, August 1, 2017, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
