IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Armstrong World Industries, Inc.,
:
Petitioner
: :
v.
:
No. 2292 C.D. 2001
:
Submitted: January 25, 2002
Unemployment Compensation
:
Board of Review,
:
Respondent
:
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE McCLOSKEY
FILED: March 5, 2002
Armstrong World Industries, Inc., (Employer), petitions for review of
a decision of the Unemployment Compensation Board of Review (Board),
reversing the decision of the Unemployment Compensation Referee (Referee),
which denied benefits. We reverse.
William Maroney (Claimant) was employed as an operations
technician by Employer from February 27, 1997, until March 20, 2001.
Employer's attendance policy required that, in the event they were to be late or
absent from work, all employees were to call their supervisors prior to the start of
their shifts. Failure to comply with this policy resulted in an AWOL or unexcused
absence.
An employee's first violation of the policy within a twelve-month period results in a
written warning. A second violation results in the employee being placed on probation
for six- months. A third violation results in a review for discharge. This policy was
implemented on February 1, 2001, at which time all employees' attendance records were
wiped clean. (R.R. at Item No. 15).
On February 8, 2001, Claimant called his supervisor after the start of his
shift in violation of Employer's attendance policy. Claimant received a written
warning. On February 17, 20, and 22, of 2001, Claimant reported to work late and
failed to call his supervisor prior to the start of his shift. Employer did not
immediately discipline Claimant for these violations.
Thereafter, Claimant took a leave of absence from February 23, 2001,
until March 17, 2001. Claimant returned to work on March 18, 2001. After
Claimant's shift on March 20, 2001, Employer terminated Claimant for excessive
unexcused absences in violation of Article 19.4 of the labor contract between
Employer and Claimant's union.
On March 27, 2001, Claimant filed for unemployment compensation
benefits. The Lancaster Unemployment Compensation Service Center (Job
Center) approved benefits under Section 402(e) of the Pennsylvania
Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.
Sess., P.L. (1937), as amended, 43 P.S. §802(e).
The Job Center concluded that
Employer failed to satisfy its burden of proving that the incident which caused
Claimant's separation was sufficiently related in time to the actual separation.
(R.R. at 8).
Employer appealed and a hearing was held before a Referee at which
Employer's human resources manager, Ronald Krause, testified. Mr. Krause
stated that Claimant was discharged from his employment because Claimant
incurred three or more AWOL's or unexcused absences within one twelve-month
period, thus requiring Employer to issue a review for discharge. (R.R. at Item No.
9, pp. 4-5). Mr. Krause further testified that Claimant was aware of the
ramifications of his actions since he attended a crew meeting on February 8, 2001,
at which the new provisions of the labor contract were discussed. Mr. Krause
testified that at the crew meeting, Claimant asked several pointed questions
concerning how unexcused absences and AWOL's would be treated under the new
contract provisions. (R.R. at Item No. 9, p. 7).
Mr. Krause further testified that Claimant failed to call his supervisor
prior to the start of his shift, thus incurring AWOL's on the following dates:
February 8, 2001; February 17, 2001; and February 20, 2001. On February 22,
2001, Claimant again called his supervisor after the start of his shift. Although this
constituted Claimant's fourth AWOL, Mr. Krause explained that Claimant was not
terminated until March 20, 2001, because Claimant called in sick on February 23,
2001, and notified Employer that he was taking a leave of absence beginning on
that day. Mr. Krause testified that Claimant returned to work on Sunday, March
18, 2001. He explained that two days after Claimant's return to work, i.e., on
Tuesday, March 20, 2001, Employer terminated Claimant at the end of his shift.
(R.R. at Item No. 9, p. 6). Finally, Mr. Krause testified that Employer had
previously placed Claimant on probation for AWOL violations on December 12,
2000, after Claimant received a written warning for another AWOL violation on
December 10, 2000. Mr. Krause explained that Claimant was not terminated on
February 8, 2001, which was his third AWOL within one twelve-month period,
because Employer wiped all employees' attendance records clean on February 1,
2001, pursuant to the implementation of the new labor contract. (R.R. at Item No.
9, p. 18).
In opposition, Claimant testified that he attended the crew meeting on
February 8, 2001, and admitted that he was aware of Employer's policy regarding
AWOL's. Additionally, Claimant testified that he failed to call his supervisor prior
to the start of his shift on February 8, 2001. (R.R. at Item No. 9, pp. 8-9).
Claimant further testified that his actions, which led to the recorded AWOL's,
were caused by depression and stress. Specifically, Claimant testified that he was
under a doctor's care for those conditions since September of 2000. Claimant
explained that his depression left him unable to function and therefore unable to
comply with Employer's policies. (R.R. at Item No. 9, pp. 9-10). Finally,
Claimant testified that he notified his supervisor about his condition and explained
how it was causing him to incur AWOL's. (R.R. at Item No. 9, p. 16).
On June 6, 2001, the Referee reversed the decision of the Job Center,
concluding that Claimant failed to satisfy his burden of proving that his willful
misconduct in the form of unexcused absences, was caused by a psychological
problem. Additionally, the Referee decided that Claimant had made no reasonable
effort to notify Employer when he was compelled to be absent from work and,
therefore, "must be considered to have brought about his own unemployment."
(R.R. at Item No. 10, p. 2). Claimant appealed to the Board which remanded the
matter for additional testimony regarding the following issues: 1) "Was the
claimant warned about his attendance prior to being discharged, and if so, when
and how was he warned?" and 2) "If the claimant was not warned, why wasn't he
warned prior to being discharged?" (R.R. at Item No. 12, Item No. 13).
An additional hearing was held before the Referee at which Mr.
Krause testified that Claimant was warned about the consequences of failing to
report to his supervisor before the start of his shift at a crew meeting on February
8, 2001. Specifically, Mr. Krause testified that Claimant was told at the crew
meeting that the first violation of Employer's attendance policy would result in a
written warning; the second violation would result in a six-month probationary
period; and the third violation would result in a review for discharge. (R.R. at Item
No. 15, pp. 5, 11). Mr. Krause further testified that on February 17, 2001,
Claimant received a written warning as the result of his AWOL on that day. Mr.
Krause also testified that Claimant was not placed on probation for six months
because Employer was not aware of the AWOL's that occurred on February 20,
2001, or February 22, 2001, until Employer ran an absenteeism report at the end of
that week. Moreover, Mr. Krause indicated that the report became available on
February 23, 2001, but that Employer did not discharge Claimant on that day
because Claimant began a leave of absence. (R.R. at Item No. 15, p. 11).
Employer was unable to discharge Claimant until he was physically present before
Employer, which did not happen until Claimant returned to work in March.
Finally, Mr. Krause testified that Claimant returned to work on Sunday, March 18,
2001, Employer reviewed Claimant's attendance record on Monday, March, 19,
2001, and then Employer terminated Claimant on Tuesday, March 20, 2001, "at
the end of his shift rather than lose that pay." (R.R. at Item No. 15, p. 6).
Claimant testified that he violated Employer's attendance policy
because he was suffering from depression. Claimant further testified that
Employer was aware that Claimant was being treated by a doctor for his condition.
(R.R. at Item No. 15, pp. 13-14). Additionally, Claimant explained that the
medication he was taking for his depression incapacitated him so that he was
unable to call Employer in a timely manner or make any time commitments.
Moreover, Claimant testified that while on leave, he was unaware that his return to
work would result in his discharge. (R.R. at Item No. 15, p. 12). During
Claimant's leave, he attempted to reach his supervisor numerous times concerning
his responsibilities while on leave and upon his return to work. However,
Claimant was able to contact his direct supervisor only once. Claimant testified
that his supervisor told him to bring in a doctor's note and made no mention of
Claimant's impending discharge. (R.R. at Item No. 15, p. 16). Finally, Claimant
testified that he did not ask any questions at the crew meeting on February 8, 2001,
regarding the consequences of AWOL's.
The Board then reversed the Referee's determination and granted
Claimant benefits. The Board concluded that Claimant's conduct did not rise to
the level of willful misconduct because Employer did not place Claimant on
probation following Claimant's absences from work on February 17, 2001,
February 20, 2001, or February 22, 2001, in accordance with its progressive
discipline plan outlined in the attendance policy. (R.R. at Item No. 16, p. 3).
Employer appealed.
On appeal to this Court, Employer argues that the Board's decision
concluding that Claimant's conduct did not constitute willful misconduct is not
supported by substantial evidence. We agree.
Initially, we note that an employer bears the burden of proving that a
claimant's behavior constitutes willful misconduct, thereby disqualifying him from
receiving unemployment compensation benefits. Broadus v. Unemployment
Compensation Board of Review, 721 A.2d 70 (Pa. Cmwlth. 1998). Willful
misconduct is defined as behavior evidencing wanton and willful disregard of an
employer's interest, the deliberate violation of rules, the disregard of standards of
behavior which an employer can rightfully expect from an employee, negligence
which manifests culpability, wrongful intent, evil design or intentional disregard of
the employer's interest or the employee's duties or obligations. Id.
Having reviewed the evidence in its entirety, we conclude that
Employer met its burden of proving that Claimant's conduct constituted willful
misconduct. The evidence that Claimant violated Employer's attendance policy on
February 17, 2001, February 20, 2001, and February 22, 2001, is undisputed.
Although Employer admittedly failed to place Claimant on probation for his
second violation of the attendance policy on February 20, 2001, we nevertheless
believe that Claimant should not be awarded benefits. To allow Claimant to
collect merely because, by serendipity, his second and third AWOL's occurred in
the same week would be tantamount to allowing Claimant to profit based on a
technicality of his own creation. This would be an unacceptable result when the
evidence of record overwhelmingly shows that Claimant was aware of the
consequences of his multiple failures to report to his supervisor before the start of
his shift. The law remains clear, excessive absences may constitute willful
misconduct. See e.g., McKeesport Hospital v. Unemployment Compensation
Board of Review, 625 A.2d 112 (Pa. Cmwlth. 1993).
Once the employer establishes its burden of proving a claimant's
willful misconduct, the burden of proof shifts to the claimant to prove that, under
the facts of the particular case, his conduct does not constitute willful misconduct
or that he had good cause for his actions. Guthrie v. Unemployment Compensation
Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). Good cause is established
where an employee's actions are justified or reasonable under the circumstances.
Id. Here, the record is devoid of any evidence to support the notion that
Claimant's actions of deliberately failing to comply with Employer's attendance
policy numerous times were reasonable or that he had good cause for doing so.
Since Claimant failed to present medical evidence as to the effects of the
medication he was prescribed to treat his depression, we are unable to conclude
that Claimant's testimony alone constitutes good cause for his violations of
Employer's attendance policy.
Indeed, Employer's attendance policy should, perhaps, be revisited in order to avoid
similar situations.
Accordingly, the order of the Board is hereby reversed.
JOSEPH F. McCLOSKEY, Senior Judge