IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laura Bramblett,
Petitioner
v.
Unemployment Compensation Board of Review
No. 655 C.D. 2004
Submitted: September 10, 2004
Respondent :
BEFORE:
HONORABLE DAN PELLEGRINI, Judge
HONORABLE MARY HAN NAH LEAVITT, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
FILED: November 16, 2004
Laura Bramblett (Claimant) petitions for review of an adjudication of the Unemployment
Compensation Board of Review (Board) holding that Claimant was ineligible for unemployment
compensation benefits. The Board affirmed the decision of the Referee that Claimant's
failure to notify her employer that she would not be reporting to work as scheduled was
willful misconduct, rendering Claimant ineligible for benefits. We affirm.
The relevant facts, which are not in dispute, are as follows. Claimant was employed
as a bartender at Smokey Bones (Employer) from August 31, 2002, through September 4,
2003. Each Friday, Employer posts the work schedule for the following Monday through
Saturday. Once the work schedule is posted, the employee "owns" her scheduled shift
and is responsible for being present at her assigned station at the assigned time.
If, for any reason, an employee cannot work an assigned shift, she must find a
replacement. Both the employee and her replacement must sign the shift change book
and have the change approved by a manager. These rules were set forth in the employee
handbook that was given to Claimant when she was hired by Employer.
On two occasions, Claimant failed to follow these procedures. On April 16, 2003,
Claimant failed to appear on time at her assigned station. Thereafter, on June 16, 2003,
Claimant failed to appear at all for her scheduled shift. She claimed that she did not
know she was working that day, a Monday, even though Claimant usually worked Mondays.
After each infraction, Claimant's manager held a meeting with her to discuss performance.
Claimant was warned that another occurrence of this sort would result in discipline, up
to and including discharge.
On Friday, September 5, 2003, Claimant learned that her daughter, a student at Westminster
College, was sick. Claimant telephoned Employer to report that she could not report for
her shift at 4:00 p.m. on September 6, 2003. Claimant asked another bartender to cover
her Saturday shift, and he agreed to do so, according to Claimant. On Saturday morning,
at 11:30 a.m ., Claimant spoke to Employer's "opening manager" and then left to pick up
her daughter; she returned to Erie at about 7:30 p.m.
The next day, Claimant met with the manager, and she was discharged. The manager concluded
that she had inappropriately called off her Saturday shift. This conduct, together with
her other infractions, caused Employer to terminate her employment.
The Referee found that Claimant was discharged for willful misconduct, rendering her
ineligible for unemployment compensation benefits. The Referee found that Claimant had
a reasonable explanation for her absence on September 6, 2003, but that she had failed
to foll ow Employer's procedures for changing her shift, in spite of repeated warnings
of the need to do so. Accordingly, the Referee reversed the determination of the UC
Service Center to grant benefits. Claimant appealed, and the Board affirmed. Claimant
then petitioned, pro se, for this Court's review.
On appeal, Claimant identifies two questions raised by her appeal. They are:
1) What is the proper procedure when calling off for a sick child?
2) How does the proper procedure(s) differ for an emergency call for a sick daughter
and for a day off.
Claimant's Brief at 5.
The Board offers a counterstatement of the question: whether Claimant's failure to
follow Claimant's policy constituted willful misconduct. Although it is inartfully
expressed, Claimant's issue appears to be that she had good cause not for following
Employer's policy with respect to attendance.
Section 402(e) of t he Pennsylvania Unemployment Compensation Law (Law), Act of
December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. $802(e)
provides, in pertinent part, that
[a]n employe shall be ineligible for compensation for any week--
...
(e) In which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work...."
"Willful misconduct" is not defined in the Law, but this Court has defined it as an act
of wanton or willful disregard of the employer's interests, a deliberate violation of
the employer's rules, a disregard of the standards of behavior which the employer has
a right to expect of an employee, or negligence th at demonstrates an intentional
disregard of the employer's interests. Boyle v. Unemployment Compensation Board of
Review , 510 A.2d 890, 892 (Pa. Cmwlth. 1986). Where willful misconduct involves a
violation of an employer's rule, the employer bears the burden of establishing the
existence of the rule and its violation. Thereafter, the burden shifts to the
claimant to demonstrate good cause for his actions. Williams v. Unemployment
Compensation Board of Review , 596 A.2d 1191, 1193 (Pa. Cmwlth. 1991).
Claimant was scheduled to work on Saturday, September 6, 2003, at 4:00 p.m.
Approximately 24 hours before that shift was to start, Claimant learned that her
daughter, a college student who did not live at home, was sick. Claimant contacted
the on-duty bar manager at 5:30 p.m . on September 5, 2003, and informed him that
she would not be at work the next day; she named a co-worker who had agreed to cover
her shift. The on-duty bar manager informed Claimant that her replacement was not
in the bar at the time and directed Claimant to contact the opening manager in the
morning. At 11:30 a.m. the next morning, Claimant spoke to the opening manager
who informed her that he had not heard from the individual that was supposed to be
filling in for Claimant. At 4:00 p.m ., on Saturday, Claimant called her bar
manager and was informed no one had reported to cover her shift.
Claimant asserts that she had good cause for this conduct because she went to pick
up her sick daughter at college. Claimant's reason for calling off from work is not
the issue in this proceeding. The issue is Claimant's noncompliance with Employer's
rule with regard to calling off from work and finding a replacement, which required,
inter alia, having both Claimant and her replacement sign the Em ployer's shift
change book and obtain Employer's approval.
This Court has held that it may not be willful misconduct if an absence is reported
in a reasonable manner, even if the manner is not in accord with the employer's rule.
Buscemi v. Unemployment Compensation Board of Review, 485 A.2d 1238 (Pa. Cmwlth. 1985).
The Board found that Claimant's notice to her Employer was not reasonable, and we agree.
Claimant knew it was her responsibility to find a replacement for her shift, and she had
24 hours to do so. Although Claimant believed she had a replacement, it was never
confirmed or approved in accordance with Employer's procedures. Four-and-a-half hours
before her shift was to begin, Claimant knew that Employer had not heard from her
replacement, but she did not use that time to secure her replacement. When Claimant
made these decisions, she was on notice that further attendance problems could imperil
her continued employment.
Employer acknowledged at the hearing that it makes allowances for employees faced with
an emergency, and Claimant tries to justify her actions by alleging that she made an
emergency call off. The existence of an emergency is not supported by the record.
Although Claimant learned that her daughter was sick on Friday, September 5, 2003,
at approximately 5:30 p.m., she chose not to pick up her daughter that evening or
even early the next morning. Had she done so, Claimant would have been able to bring
her daughter home and report to her shift on time. Further, Claimant's daughter had
been seen by a doctor before leaving school, and she did not seek or require any
further medical treatment after she returned to Erie. The Board's findings demonstrate
that Claimant was not faced with an emergency.
Claimant failed to follow Employer's rule with respect to reporting for her shift as
scheduled or effecting a change in her scheduled shift in accordance with Employer's
procedures. Her failure to comply with Employer's work rule was not reasonable.
Accordingly, we affirm the Board' s holding that Claimant's willful
misconduct rendered her ineligible for benefits.
______________________________ MARY HANNAH LEAVITT, Judge