          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Stewart,                           :
                    Petitioner           :
                                         :
             v.                          : No. 348 C.D. 2015
                                         : Submitted: October 16, 2015
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                     FILED: November 6, 2015


             David Stewart (Claimant) petitions pro se for review of the order of
the Unemployment Compensation Board of Review (Board) affirming the decision
of the Unemployment Compensation Referee (Referee) finding that Claimant was
discharged    for   willful   misconduct    thereby    making     him    ineligible   for
unemployment compensation (UC) benefits under Section 402(e) of the
Unemployment Compensation Law (Law).1              Finding no error in the Board’s
decision, we affirm.

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that, “[a]n employe shall be ineligible for
compensation for any week … [i]n which his unemployment is due to his discharge … from
work for willful misconduct connected with his work….”
             Claimant was employed by Tworog Holding, LLC (Employer) as a
full-time general manager. Employer had a vacation policy that provided that
requests for vacation time had to be submitted two weeks in advance and be
approved by management of which Claimant was aware.2 On August 5, 2014,
Claimant requested one week vacation leave from his direct supervisor and
Employer’s Regional Manager, Johnathan Shiffert. Claimant’s request was denied
due to operational needs and poor store performance.            Mr. Shiffert tried to
accommodate Claimant by suggesting that he would try to give him a Saturday and
Monday off work to afford him a long weekend. Claimant was instructed to follow
up with Mr. Shiffert as to when he wanted to take the time off.


             The store where Claimant works is open from Monday through
Saturday and Claimant’s schedule rotates either Wednesday or Saturday for his
second day off. During the discussion between Claimant and Mr. Shiffert, no dates
were mentioned as to when Claimant was planning on taking time off work.
Claimant never submitted a leave request.


             On Friday, August 15, 2014, Mr. Shiffert contacted Claimant’s store
and became aware that Claimant was not present because he had taken a long
weekend off work, and would be off work August 15, August 16 and August 18,
2014. Mr. Shiffert had not approved Claimant’s time off. On August 20, 2014,
Mr. Shiffert spoke with Claimant and Claimant informed him that there must have

      2
         Per Employer’s vacation policy, all vacations must be taken in one or two week
increments, where one week is defined as five consecutive working days and two weeks is
defined as ten consecutive working days.




                                          2
been a miscommunication. Claimant was then discharged for taking unauthorized
leave and insubordination.


             Claimant filed for UC benefits, which were granted, finding that
Employer did not meet its burden of proving Claimant’s insubordination.
Employer appealed.


             Before the Referee, Claimant testified that he was aware of
Employer’s vacation policy, which was entered into evidence, and, as such, had
approached Mr. Shiffert on August 5, 2014, to discuss submitting in writing his
request to take a week off. He testified that:

             C: When I first spoke to Mr. Shiffert I told him that I
             was working a lot of hours, under a lot of stress, that I
             had been having some health issues. I wanted to see if it
             would be feasible to use a vacation week prior to the end
             of the month in an effort to kind of regroup, take the time
             off, you know to have some time with the kids as well as
             he had mentioned prior to them returning to school. He
             told me not to bother submitting it, that it would not be
             approved. However, that particular weekend, which
             would’ve been -- I don’t have it right in front of me
             though, but not to take that particular weekend off but to
             take an extended. I asked him at that point specifically
             what day and if he was sure. That Saturday was my
             regular scheduled day off which was the 16th, and the 18th
             was my regular scheduled day off for the following
             week. So I did work Tuesday and Wednesday the 19 th
             and 20th when I returned.

             CL: Now during that conversation when you mentioned
             the health problems to Mr. Shiffert did he mention your
             ability to exercise leave under FMLA at all?

             C: No.

                                          3
CL: Did you receive any correspondence at all after that
from anyone at [Employer] regarding your ability to
exercise FMLA leave?

C: I did not.

CL: Okay. And just to clarify, after your conversation
with Mr. Shiffert what days exactly did you understand
Mr. Shiffert to have allowed you to take off?

C: The 15th, 16th, and 18th.

                         *     *   *

CL: Okay. And you’re saying that the 16th, Saturday,
and the 18th, Monday were days you were scheduled to
be off anyway?

C: Correct.

CL: So the only day in question was the 15th, Friday?

C: Yes.

CL: Okay. And what was your understanding as to the
nature of the leave on Friday since that was outside of
your normal scheduled time off, was that to be vacation
or sick or other?

C: My understanding it would’ve been a personal day
upon that conversation as Mr. Shiffert mentioned. And
he said he understood having a family, he’s got one of his
own. We can’t do this weekend but take the following
days. I asked him if he was sure. At that point in time I
did alter the schedules, posted them on my board, had all
staff on hand for the day I was not going to be there.
And the copies were in the system which can be viewed
by himself as well as [Employer] if I’m not mistaken.




                               4
(R. Item No. 9 at 23-24.) Claimant also testified that he made sure that the store
was fully staffed during his absences, and that he had tried to contact Mr. Shiffert
on that Friday, after hearing from a coworker that Mr. Shiffert had called the store,
but Mr. Shiffert never responded.


             Mr. Shiffert, on behalf of Employer, testified that Claimant was
discharged for insubordination and violation of Employer’s vacation policy after
taking unapproved vacation days.       Mr. Shiffert testified that after he denied
Claimant’s request to take a week of vacation, they discussed the possibility of
Claimant getting a long weekend, specifically a Saturday and a Monday off;
however, no actual date was discussed and Claimant never followed up.
Furthermore, Mr. Shiffert testified that even if Claimant had submitted a request
for vacation time in writing, it would not have been approved because it was
Employer’s standard operating procedure to not approve vacation time when a
store is under-performing and that Claimant had never mentioned any health
problems to him.     Mr. Shiffert also testified that as general manager of that
particular store, Claimant created the employee schedule on an online system, to
which Mr. Shiffert had access. With regard to Mr. Shiffert’s conversation with
Claimant about why he took the days off without approval, Mr. Shiffert testified:


             EW: I was going to say there had been a history of
             miscommunications with [Claimant] and the previous
             Regional Manager.         And so there was always
             misinterpreting, misunderstanding, you know, which I,
             you know, chalked up [to] nothing. But when we started
             talking I said why did you take first off Friday, the 15th?
             That’s our second busiest day of the month, why in the
             world would you think it’s okay to take that off? And he
             said well I just misunderstood, I thought you said I could

                                         5
            take a long weekend this weekend. And I said absolutely
            not, I said I told you that at some point to let me know
            when you wanted to and we could try to work within our
            schedule to take a Saturday and a Monday off to have a
            three day weekend with your family. So his reaction was
            okay, well, you know, sorry, you know,
            misunderstanding. And it was a lot bigger than that to us
            so that’s when we decided to, you know, I informed him
            that his employment with us would be terminated.

            R: I’m sorry, you said you told him at some point you
            could take or he could take a Friday, Saturday, and
            Monday?

            EW: No, I never said a Friday.

            R: Oh, what did you…

            EW: Ever.

            R: …say? What was it that…

            EW: I told him that we could work out a Saturday and a
            Monday so that he could have a three day weekend,
            including Sunday. And that was back to the original
            conversation which there were never any dates. But the
            conversation was [to] let me know when you want to take
            a weekend and we’ll work out to where a Saturday will
            be the day off for the first week and Monday will be your
            day off for the second week so that you could have three
            days to spend with your family.


(R. Item No. 9 at 12-13.)


            The Referee reversed the Service Center’s determination, finding that
Employer established willful misconduct on Claimant’s part and reasoning that


                                       6
although testimony regarding the conversation between Claimant and Mr. Shiffert
was conflicting, Claimant’s testimony was incredible because as the store’s general
manager, Claimant was aware of the importance of being present at the store on the
15th of each month. The Referee also found Mr. Shiffert’s testimony credible that
no specific dates were mentioned when discussing Claimant taking a long weekend
or that Claimant had cited health reasons for wanting to take leave.


              Claimant appealed to the Board which affirmed the Referee’s denial
of benefits, finding that Employer established willful misconduct on Claimant’s
part.       The Board found that Claimant’s testimony that there was a
miscommunication and that he believed he had prior approval to take the days off
of work was incredible as Claimant took a Friday off of work when Mr. Shiffert
had only previously discussed a Saturday and a Monday. The Board also found
Mr. Shiffert’s testimony credible that Claimant never raised any health issues.
Claimant then requested reconsideration, which the Board denied. This appeal
followed.3


              On appeal, Claimant argues that the Board’s finding of willful
misconduct is not supported by substantial evidence.4 The core of Claimant’s

        3
         Our scope of review of the Board’s decision is limited to determining whether an error
of law was committed, constitutional rights were violated, or whether the necessary findings of
fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of
Review, 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 2010).

        4
       Substantial evidence has been defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a finding of fact.” Seton Co. v. Unemployment
Compensation Board of Review, 663 A.2d 296, 299 n.3 (Pa. Cmwlth. 1995).




                                              7
argument relies on Claimant’s own testimony and version of the events, which the
Board did not find to be credible.              It is well settled that in unemployment
compensation cases, the Board is the ultimate fact finder, and findings of fact made
by the Board are conclusive on appeal as long as they are supported by substantial
evidence. Ryan v. Unemployment Compensation Board of Review, 547 A.2d 1283
(Pa. Cmwlth. 1988).            Where there is a conflict in testimony, credibility
determinations and the resolution of evidentiary conflicts are within the Board’s
discretion and not subject to re-evaluation on judicial review. Tapco, Inc. v.
Unemployment Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth.
1994). The Board found Mr. Shiffert’s testimony to be credible and resolved all
conflicts in the evidence in favor of Employer, and we will not disturb these
determinations on appeal.


               The employer bears the burden of proving willful misconduct if the
claimant has been discharged.5 Guthrie v. Unemployment Compensation Board of

       5
          Although willful misconduct is not defined in the Law, our Supreme Court has defined
willful misconduct in the context of unemployment compensation as: (a) wanton or willful
disregard for an employer’s interests; (b) deliberate violation of an employer’s rules; (c)
disregard for standards of behavior which an employer can rightfully expect of an employee; or
(d) negligence indicating an intentional disregard of the employer’s interest or an employee’s
duties or obligations. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703
A.2d 452 (Pa. 1997). An employee’s negligence constitutes willful misconduct only if it is of
“such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show
an intentional and substantial disregard of the employer’s interest or of the employee’s duties and
obligations to the employer.” Myers v. Unemployment Compensation Board of Review, 625
A.2d 622, 625 (Pa. 1976) (quoting Coleman v. Unemployment Compensation Board of Review,
407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)). However, an employer cannot demonstrate willful
misconduct by “merely showing that an employee committed a negligent act, but instead must
present evidence indicating that the conduct was of an intentional and deliberate nature.” Id.
(quoting Bucher v. Unemployment Compensation Board of Review, 463 A.2d 1241, 1243 (Pa.
Cmwlth. 1983)).
(Footnote continued on next page…)

                                                8
Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (citing Sacks v. Unemployment
Compensation Board of Review, 459 A.2d 461 (Pa. Cmwlth. 1983)). In willful
misconduct cases involving violation of a work rule, the employer bears the burden
of proving the existence of a reasonable work rule and the fact that the claimant
violated the work rule. Guthrie, 738 A.2d at 521; Brunson v. Unemployment
Compensation Board of Review, 570 A.2d 1096, 1098 (Pa. Cmwlth. 1990). Once
these elements have been established, the burden then shifts to the claimant to
prove he had good cause for his actions, meaning that his actions were justified or
reasonable under the circumstances. Guthrie, 738 A.2d at 522 (citing Frumento v.



(continued…)

       What is intentional or deliberate and amounts to willful misconduct requires a
consideration of “all of the circumstances, including the reasons for the employee’s
noncompliance with the employer’s directives.” Rebel v. Unemployment Compensation Board
of Review, 723 A.2d 156, 158 (Pa. 1998). Our Supreme Court further elaborated on this standard
when it stated:

              It is notable that the standard we have articulated makes reference
              to the employer’s interests, rules, and expectations, and
              emphasizes the totality of the circumstances. Implicit in this
              necessarily flexible approach to determining what constitutes
              willful misconduct on the part of an individual employee is a
              recognition of the myriad working conditions and work rules that
              apply throughout the Commonwealth. Thus, the conduct that rises
              to the level of willful misconduct may vary depending upon an
              individual employee’s specific occupation or work situation.
              Beyond recognizing that the specific circumstances governing a
              particular occupation or workplace may be relevant both in
              defining reasonable employer expectations and in assessing what
              amounts to willful misconduct in failing to meet them….

Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001).




                                              9
Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. Cmwlth.
1976)).


             Employer established the existence of a work rule, given Mr.
Shiffert’s testimony and the vacation policy that was entered into evidence.
Claimant was aware of the policy, as evidenced by his testimony and the fact that
he had had a discussion with Mr. Shiffert about requesting time off. The Board
credited Mr. Shiffert’s testimony that he never gave Claimant permission to take
the days off. However, Claimant went ahead and took the days off regardless,
thereby violating the policy. The burden then shifted to Claimant, who failed to
establish good cause for his actions.


             Claimant argues that he had good cause for his actions because he
ensured that the store was fully staffed while he was away and he attempted to call
Mr. Shiffert on that Friday and could not reach him. However, a claimant need not
“show a specific detriment resulting from [his or her] infraction or [his or her]
intent to defraud in order to establish willful misconduct. In many cases, it is not
the specific harm to the employer that disqualifies [a claimant] from benefits but
rather [his or her] abrogation of duties.” Rossi v. Unemployment Compensation
Board of Review, 676 A.2d 194, 198 (Pa. 1996).             Moreover, regardless of
Claimant’s attempts to contact Mr. Shiffert, he had already taken off work without
approval, thus violating the policy, and only attempted to contact Mr. Shiffert after
hearing that Mr. Shiffert had called the store.




                                          10
Accordingly, the order of the Board is affirmed.



                         ____________________________________
                         DAN PELLEGRINI, President Judge




                           11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Stewart,                     :
                   Petitioner      :
                                   :
            v.                     : No. 348 C.D. 2015
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :




                                ORDER


            AND NOW, this 6th day of November, 2015, the order of the
Unemployment Compensation Board of Review, dated January 14, 2015, at No. B-
574179, is affirmed.



                                   ____________________________________
                                   DAN PELLEGRINI, President Judge
