           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carnell A. Jefferson Jr.,       :
                   Petitioner   :
                                :
           v.                   :
                                :
Unemployment Compensation Board :
of Review,                      : No. 473 C.D. 2015
               Respondent       : Submitted: August 21, 2015


BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                             FILED: September 10, 2015


            Carnell A. Jefferson Jr. (Claimant) petitions pro se for review of an
order of the Unemployment Compensation Board of Review (Board) finding him
ineligible for unemployment compensation benefits under Section 402(e) of the
Unemployment Compensation Law (Law)1 because his termination was due to willful
misconduct. For the reasons that follow, we affirm.

      1
         Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §§751–914. Section 402(e) provides, in pertinent part:

            An employe shall be ineligible for compensation for any week—

                                          ***

(Footnote continued on next page…)
                                               I.
                 The following facts are not in dispute.       Since 2013, Claimant was
employed as a full-time cook by Blue Ridge Senior Housing (Employer). Following
his out-of-work injury on June 18, 2014, Claimant notified his supervisor that he
would not report to work as scheduled but that he planned to return to work on June
23, 2014. However, on that date, Claimant called off again. Four days later, on June
27, 2014, Claimant provided Employer with a physician’s disability certificate stating
that he would be totally incapacitated until July 7, 2014, when he could return to
work. Around the same time, Employer provided Claimant with paperwork to apply
for leave pursuant to the Family and Medical Leave Act (FMLA),2 which Claimant
did not submit by the deadline established by Employer. After failing to report to
work on July 7th and July 9th through July 11th, Employer discharged Claimant on
July 15, 2014. Subsequently, Claimant provided another disability certificate in
which his physician released him to work without restrictions as of September 17,
2014.




(continued…)

                       (e) In 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).

        2
            See 29 U.S.C. §2616(a)(1).




                                               2
                 Claimant filed a claim for benefits which the Unemployment
Compensation Service Center denied, finding him ineligible under Sections 402(b)3
and 401(d)(1)4 of the Law with regard to the waiting week ending July 19, 2014,
because: (1) Claimant voluntarily quit when he failed to timely provide Employer his
FMLA documentation and, therefore, failed to show a necessitous and compelling
reason for quitting; and (2) he failed to demonstrate that he was able to perform and
available for suitable work since he was under a total work restriction.


                 Claimant appealed, contending that he did, in fact, submit his FMLA
documentation and that he did not voluntary quit his employment. Rather, Claimant
submitted that he was terminated after he advised Employer that he was capable of
performing light-duty work as per his doctor’s orders, and Employer informed him
that it had no such jobs available.




        3
            Section 402(b) further disqualifies a claimant from receiving benefits with regard to any
week:

                 In which his unemployment is due to voluntarily leaving work
                 without cause of a necessitous and compelling nature, irrespective of
                 whether or not such work is in “employment” as defined in this act:
                 Provided, That a voluntary leaving work because of a disability if the
                 employer is able to provide other suitable work, shall be deemed not a
                 cause of a necessitous and compelling nature….

43 P.S. §802(b).

        4
         Section 401(d)(1) of the Law provides, in part, that “[c]ompensation shall be payable to
any employee who is or becomes unemployed and who… [i]s able to work and available for
suitable work.” 43 P.S. §801(d)(1).




                                                   3
                 Before a Referee,5 Claimant testified that after he sustained non-work
related rib and back injuries, he provided Employer with a physician’s note dated
June 27, 2014, stating that he was totally incapacitated from June 18th through July
7th. Claimant stated that he would have been able to return to light-duty work on July
7th, advised Employer of this fact, but Employer had no light-duty jobs available.
Claimant further testified that he was not released without restrictions until
September 17, 2014, and that he was never formally terminated by Employer.


                 With regard to the FMLA paperwork, Claimant recalled that Employer
requested that he return the completed documentation by July 7, 2014, but that his
doctor was unable to complete the forms until July 16th when the doctor’s office
faxed them to Employer. Because the submission was untimely, Employer neither
accepted the forms nor approved the requested leave.

       5
           Specifically, the Notice of Hearing stated:

                 SPECIFIC ISSUES to be considered in this appeal…

                 # 15  Section 402(b)  Whether claimant’s unemployment was due
                 to voluntarily leaving work without cause of necessitous and
                 compelling nature.

                 # 10 – Section 401(d)(1),(2)  Whether the claimant was able and
                 available for suitable work.

                 OTHER ISSUES that may be considered…

                 # 17 – Section 402(e)  Whether claimant’s unemployment was due
                 to discharge or temporary suspension from work for willful
                 misconduct connected with employment.

(Certified Record [C.R.], Notice of Hearing (9/10/2014) at 1.)




                                                    4
            Claimant also presented the testimony of Denen Timms, for whom
Claimant works as a home health aide. Ms. Timms verified that at the time of
Claimant’s injury, he continued to work for her, albeit, with reduced hours, and that
his employment with her is ongoing.


            In opposition to Claimant’s appeal, Rebecca Snyder, Employer’s
business office manager, testified that the only time Claimant communicated with his
supervisor between the dates of his injury and his termination was on June 18 th when
he advised that he would be unable to work until June 23 rd. She explained that during
that conversation, Employer notified Claimant that he needed to provide a doctor’s
note but one was not provided. She further stated that Claimant called off again on
June 23rd and on June 27th, and that Employer received the disability certificate
excusing Claimant from work until July 7th.


            Ms. Snyder recalled that on June 27th, she advised Claimant of the need
to complete his FMLA paperwork and asked him to contact her to further discuss this
matter the following week, but that he did not do so and did not return calls from his
supervisor. She explained that on July 7th, the date Claimant was scheduled to return
to work, he texted one of the other cooks, advising that he would be unable to return.
Later that day, Ms. Snyder contacted Claimant, granting him an extension with regard
to the FMLA paperwork until July 11th and informing him that he needed to speak to
his supervisor. Although Claimant was scheduled to work on July 9 th and 10th, he
neither reported to work nor called off those days. He did, however, call Ms. Snyder




                                          5
and request that she resend him the FMLA paperwork via fax, which she did,6 and
reiterated that he needed to contact his supervisor. On July 11 th, Claimant again
failed to report to work or to call off.


             According to Ms. Snyder, on July 11th, Claimant contacted her, stating
that he did not receive the FMLA paperwork but would pick up a hard copy from her
office by noon. At 3:00 p.m., Claimant appeared for the paperwork and advised that
he was taking it straight to his physician’s office for completion and that he would
fax a final copy to Employer by the end of the day. However, Ms. Snyder stated that
on July 15th, she received a voicemail that Claimant left on July 11th informing her
that the doctor could not fill out the paperwork. When she did not hear back from
Claimant after leaving him a voicemail on July 14th, she called him again on July 15th,
and he advised that the paperwork would not be completed until at least July 16 th.
She continued, “I informed him that we needed the paperwork back by the previous
Friday, and I also informed him that due to the fact that he has no – had no contact
with his supervisor whatsoever and he’s been a no-call, no-show for three times that
his employment was terminated.” (C.R., Referee’s Hearing (9/22/2014) at 12.)


             The next day, Ms. Snyder received another disability certificate excusing
Claimant from work from July 7th through July 21st, again noting Claimant’s total
incapacitation.    At the same time, Claimant’s FMLA paperwork was faxed to
Employer.     On September 17th, Claimant’s physician provided another disability


      6
         Ms. Snyder further testified that she received a confirmation receipt of her fax.
Nonetheless, she did not offer the receipt into evidence.




                                            6
certificate, releasing Claimant to return to work without restrictions. With respect to
light-duty work, Ms. Snyder explained, “We have a few employees that are on light
duty that we offer light duty for. I didn’t have a light duty slip from [Claimant].” (Id.
at 20.)


             The Referee noted the gap between the physician’s disability certificate,
noting total disability which expired on July 21 st and his certificate releasing
Claimant without restrictions as of September 17th, and acknowledged that “maybe
from July 21, maybe he could do some work.” (Id. at 17.) Also, Claimant’s FMLA
paperwork indicated that as of the date it was completed (July 16 th), Claimant was
unable to stand, walk, sit for prolonged periods of time or lift over 15 pounds.


             Based on the testimony and evidence presented at the hearing, the
Referee determined that Claimant had a necessitous and compelling reason for not
returning to work from June 19, 2014, through July 7, 2014, because he was unable to
work as a result of his injury and, therefore, that he was not ineligible for benefits
under Section 402(b) of the Law for this period. See 43 P.S. §802(b). However, the
Referee concluded that Claimant did not have a necessitous and compelling reason
for failing to submit the required disability certificates and FMLA paperwork to
Employer prior to his termination on July 15th and, as such, that Claimant was
ineligible for benefits under Section 402(b) of the Law with regard to the claim week
ending July 19, 2014. The Referee also reasoned that Claimant was ineligible for
benefits under Section 401(d)(1) of the Law for July 19, 2014, through September 13,
2014, because Claimant was totally incapacitated until September 17 th as per his
doctor’s disability certificates. See 43 P.S. §801(d)(1). The Referee noted that



                                           7
Claimant’s ineligibility under Section 401(d)(1) of the Law ended as of the week
ending September 20th.           As a result, the Referee affirmed the Unemployment
Compensation Service Center’s order as modified.7


                Claimant appealed to the Board, which remanded the matter for another
hearing to allow for additional testimony regarding the merits of the case in light of
Section 402(e) of the Law, 43 P.S. §802(e), relating to willful misconduct.8
Subsequently, the Board affirmed the Referee’s decision in part and reversed in part,
holding that “[C]laimant is not disqualified from receiving benefits under the
provisions of Section 401(d)(1) of the Law for the week at issue” but that he “is
ineligible for benefits under the provisions of Section 402(e) of the Law.” (Board’s
Decision and Order (2/24/15) at 4.) Specifically, the Board determined that Claimant
was able and available to work light-duty for the week at issue as demonstrated by
the fact that he was working a part-time job at that time. However, the Board found
that because Claimant failed to establish good cause for his unreported absences,
failed to return his FMLA paperwork by July 11th, and waited until July 11th to
provide the paperwork to his physician, Employer satisfied its burden of proving that
Claimant engaged in willful misconduct.9                  Claimant filed a request for
reconsideration which the Board denied and this appeal followed.10


       7
           The Referee made no determinations with regard to Section 402(e) of the Law, 43 P.S.
§802(e).

       8
          At the hearing that followed, the parties did not present any new evidence but only
reiterated their previous testimony.

       9
           “Willful misconduct” has been defined as:

(Footnote continued on next page…)

                                                  8
                                                 II.
                                                 A.
               On appeal, Claimant contends that he did not engage in willful
misconduct under the Law because he submitted his FMLA documents to his
Employer as soon as possible. An employer bears the burden of proving that a
claimant engaged in willful misconduct rendering the claimant ineligible for
unemployment compensation benefits.                   Walsh v. Unemployment Compensation
Board of Review, 943 A.2d 363, 36869 (Pa. Cmwlth. 2008). Where an employee’s
conduct is justifiable or reasonable under the circumstances, it does not constitute




(continued…)

               an act of wanton or willful disregard of the employer’s interest, a
               deliberate violation of the employer’s rules, a disregard of standards
               of behavior which the employer has a right to expect of an employee,
               or negligence indicating an intentional disregard of the employer’s
               interest or of the employee’s duties and obligations to the employer.

Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. 1996) (emphasis
added). To engage in willful misconduct, an employee must demonstrate a “serious disregard of his
responsibilities to his employer, in a manner that is in some real sense detrimental to his employer’s
interests. The question is primarily a matter of degree, and the inquiry must be framed in terms of
whether the employe[e]’s acts rise to the level of willful misconduct.” O’Keefe v. Unemployment
Compensation Board of Review, 333 A.2d 815, 818 (Pa. Cmwlth. 1975).

       10
          Our review is limited to determining whether the Board’s findings of fact are supported by
substantial evidence in the record, whether errors of law were committed, whether agency
procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment
Compensation Board of Review, 633 A.2d 1150, 1153 (Pa. 1993). We have defined “substantial
evidence” as such “relevant evidence that a reasonable mind might consider adequate to support a
conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n.3
(Pa. Cmwlth. 2013).




                                                  9
willful misconduct.   Id.   As we stated in Adept Corporation v. Unemployment
Compensation Board of Review:

            Absenteeism in and of itself does not amount to willful
            misconduct. Even excessive absenteeism, where justified
            or where properly reported according to company policy,
            although a legitimate basis for discharge, does not
            constitute willful misconduct or disqualify a claimant from
            receiving unemployment compensation benefits….

            …When an employee has good cause for his conduct and
            can show that his actions were justifiable or reasonable
            under the circumstances, he may not be charged with willful
            misconduct.


437 A.2d 109, 110 (Pa. Cmwlth. 1981) (internal citations omitted).


            In the instant case, it is not necessarily Claimant’s absences that are at
issue; indeed, Employer does not contend that Claimant lacked good cause for his
absences on July 7, 9, 10 or 11, 2014. Rather, Employer took issue with Claimant’s
failure to provide advance notice of the absences. Even where an employer has not
established the existence of a work policy governing absenteeism or the advanced
reporting of absences, an employee must uphold “certain standards of behavior which
the employer has the right to expect of [its] employees,” and this standard includes,
where reasonable under the circumstances and not “prohibitively onerous,” advanced
notice of impending absences. Thompson v. Unemployment Compensation Board of
Review, 381 A.2d 1024, 1026 (Pa. Cmwlth. 1978); Beck v. Unemployment
Compensation Board of Review, 370 A.2d 391, 393 (Pa. Cmwlth. 1977) (stating that
absenteeism rises to the level of willful misconduct only when an additional element,
such as “[f]ailure to notify the employer in advance of the absence,” is present); see

                                         10
also Blystone v. Unemployment Compensation Board of Review, 342 A.2d 772, 773
(Pa. Cmwlth. 1975) (affirming the Board’s order upholding a referee’s denial of
unemployment compensation benefits where the claimant left work early without first
notifying his employer and, therefore, engaged in willful misconduct).


               The undisputed evidence establishes that Claimant did not provide
advance notice to Employer of his absences on July 7, 9, 10 or 11, 2014. Although
those absences were very likely justified as medically necessary, Claimant’s failure to
provide advanced notice was neither justified nor reasonable under the circumstances.
Claimant has failed to establish any reason whatsoever why he could not have
provided Employer such notice with or without a physician’s certification,
particularly when he physically appeared at work on July 11th to retrieve hard copies
of the FMLA paperwork. Moreover, despite Employer’s directives to the contrary,
Claimant failed to contact his supervisor following his initial call on June 18th
through the date of his termination. For these reasons alone, there exists substantial
evidence to support the Board’s finding that Claimant engaged in willful
misconduct.11




       11
           We do not find, however, that Claimant’s failure to submit his FMLA paperwork in
compliance with the deadlines mandated by Employer establishes Claimant’s willful misconduct.
Indeed, Claimant was under no duty to request FMLA leave. Ostensibly, Claimant sought such
leave as a means of protecting his employment while he recovered from his injuries. Because his
leave ultimately was not approved, his absences were not protected under FMLA. Although his
failure to obtain FMLA leave subjected him to discharge for his absences, it did not establish willful
misconduct that disqualifies him from receiving unemployment compensation benefits.




                                                 11
                                                  B.
               Claimant further claims that his termination was never communicated to
him, verbally or in writing. Ultimately, this argument is irrelevant as the Board found
that Employer discharged Claimant on July 15 th, regardless of whether this fact was
communicated to Claimant on that date. At any rate, the record belies Claimant’s
argument. It is undisputed that after his termination on July 15th, Claimant never
attempted to return to work. If, as he contends, he was unaware of his discharge,
there is no reason he would not have reported to work after September 17th , the day
on which he was released without restrictions.12


               Accordingly, because substantial evidence supports the finding that
Claimant failed to provide Employer advanced notice of his absences and failed to
communicate with his supervisor during the course of his absences, despite
Employer’s directives to the contrary, Employer sustained its burden of proving that
Claimant engaged in willful misconduct, and the Board’s decision denying benefits
pursuant to Section 402(e) of the Law, 43 P.S. §802(e), is affirmed.




                                                       DAN PELLEGRINI, President Judge




       12
           Claimant also argues that he is not ineligible for benefits under Section 402(b) of the Law,
43 P.S. §802(b). However, because we have already determined that Claimant is ineligible for
benefits pursuant to Section 402(e) of the Law, 43 P.S. §802(e), for this period, we need not address
this issue. Likewise, we will not address Claimant’s contention that the Board erred in concluding
that he was not able or available to work since the Board, in actuality, found in Claimant’s favor on
this issue.



                                                 12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carnell A. Jefferson Jr.,       :
                   Petitioner   :
                                :
           v.                   :
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       : No. 473 C.D. 2015




                                 ORDER


            AND NOW, this 10th    day of September, 2015, the order of the
Unemployment Compensation Board of Review dated February 24, 2015, at No. B-
575425, is affirmed.




                                        DAN PELLEGRINI, President Judge
