The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph R. Reviello, Jr., :
Petitioner :
:
v. : No. 2315 C.D. 2014
: Submitted: June 12, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: July 31, 2015
In this appeal, Joseph R. Reviello, Jr. (Claimant), representing
himself, asks whether the Unemployment Compensation Board of Review (Board)
erred in determining he was ineligible for unemployment compensation (UC)
benefits under Section 402(e) of the Unemployment Compensation Law (Law)1
(relating to willful misconduct). Claimant contends the Board’s findings are not
supported by substantial evidence, his conduct did not amount to disqualifying
willful misconduct, and he was wrongfully discharged for discriminatory reasons.
Upon review, we affirm.
Claimant worked for Tobyhanna Army Depot (Employer), apparently
affiliated with the Department of the Army, as a full-time electronics worker from
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
May 2007 until August 2014. After his separation from employment, Claimant
applied for UC benefits, which were granted. Employer appealed, and a referee
held a hearing.
At the hearing, the referee heard testimony from Claimant and
Employer’s three witnesses: Eric Longenbach, Employer’s Human Resource
Specialist; Aileen Roth, Administrative Support Assistant with the U.S. Army
Health Clinic (Assistant); and, Eva Granville, Employer’s Employee Assistance
Program Manager and Army Substance Abuse Program Manager (Manager).2
Based on the evidence presented, the referee issued a decision in
which he found the following facts. In October 2013, Employer and Claimant
entered into a last chance agreement, which provided that for the next two years,
any misconduct, violation of law, or violation of any Employer regulation or policy
by Claimant would cause his termination from employment. As part of the last
chance agreement, Employer required Claimant to complete an anger management
program. This included taking one anger management course and attending six
individual in-person counseling sessions. Referee’s Op., 9/30/2014, Findings of
Fact (F.F.) Nos. 1, 2, 8-10.
In December 2013, Claimant applied for leave from employment
under the Family and Medical Leave Act of 1993 (FMLA).3 Employer approved
FMLA leave for a period of 12 weeks, and then extended his leave by 30 days. In
2
Although Claimant’s wife appeared and occasionally interjected, she did not testify.
3
29 U.S.C. §§2601–2654.
2
January 2014, while on leave, Claimant requested accommodation for his
disability. In February, March and May 2014, Employer sent Claimant three
letters requesting medical documentation regarding his disability accommodation
request. In May 2014, Claimant provided Employer a note from his physician
(discussed below), but it did not address Employer’s concerns. F.F. Nos. 3-5, 12,
13.
Before returning to work, Employer’s physician saw Claimant for a
fitness-for-duty examination based on Claimant’s extended leave for medical
reasons. Employer’s physician was not able to ascertain whether Claimant was
able to return to work, and he requested further medical documentation from
Claimant’s physician. Of significance to our disposition, in June 2014, Employer
directed Claimant to appear for a medical examination at its health clinic on July 8,
2014, for an evaluation regarding Claimant’s request for a disability
accommodation. Claimant cancelled the appointment the day before the
appointment. Although Claimant indicated he would reschedule, he never did.
F.F. Nos. 6, 7, 14, 15.
With regard to the last chance agreement conditions, Claimant
completed the anger management coursework. However, he did not complete the
six in-person counseling sessions. At the end of July 2014, Manager notified
Employer that Claimant did not complete the anger management program. F.F.
Nos. 9, 11, 16.
3
In August 2014, Employer discharged Claimant for failing to provide
medical documentation regarding his request for a disability accommodation and
for violating the last chance agreement because he did not attend the required in-
person counseling sessions. F.F. No. 17.
The referee credited the testimony of Employer’s witnesses, but he
found Claimant’s testimony “incredible.” Referee’s Op., at 2. The referee
concluded Claimant’s actions of not attending counseling sessions or providing
required medical documentation were contrary to the standards of behavior an
employer can expect of its employee. Thus, the referee denied Claimant benefits
under Section 402(e) of the Law. Claimant appealed.
The Board affirmed, adopting and incorporating the referee’s findings
and conclusions in their entirety. The Board added:
[T]he credible testimony of [Employer’s] witnesses was
sufficient to establish that [Claimant] violated the last
chance agreement. [Claimant] did not offer credible
testimony establishing good cause for failing to provide
the required documentation to support his request to
accommodate his disability or failing to attend all six in-
person anger management counseling sessions.
[Claimant] never informed [Employer] that he was
medically unable to participate in the counseling sessions
in person. Further, [Manager] credibly testified that
when [Claimant] requested to participate in the
counseling sessions by telephone, she explained that the
sessions must be completed in person and, if [Claimant]
felt uncomfortable participating in [Employer’s] sessions,
[Employer] would refer him to an outside program that
was closer to his home. [Claimant] never requested an
alternate counseling program.
4
Bd. Op., 11/14/2014, at 1.
In addition, the Board expressly discredited Claimant’s testimony that
Employer discharged him for filing a complaint with the Equal Employment
Opportunity Commission. Claimant’s appeal to this Court followed.
On appeal,4 Claimant argues the Board’s determination of willful
misconduct is erroneous and is not supported by substantial evidence. Contrary to
the Board’s decision, Employer did not discharge Claimant for failing to provide
medical documentation regarding his request for a disability accommodation.
Rather, Employer terminated his employment for violating the last chance
agreement because he did not attend a fitness-for-duty examination or complete
anger management counseling. According to Claimant, his failure to attend a
medical appointment or complete anger management counseling did not constitute
willful misconduct because his actions were justified. Instead, Claimant maintains
Employer discriminated and retaliated against him because of his disability in
violation of the FMLA and Americans with Disabilities Act of 1990 (ADA).5
Section 402(e) of the Law provides, “[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 ….”
4
Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed or whether constitutional rights
were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth.),
appeal denied, 97 A.3d 746 (Pa. 2014).
5
42 U.S.C. §§12101–12213.
5
43 P.S. §802(e). “[W]illful misconduct is defined by the courts as: (1) wanton and
willful disregard of an employer's interests; (2) deliberate violation of rules; (3)
disregard of the standards of behavior which an employer can rightfully expect
from an employee; or, (4) negligence showing an intentional disregard of the
employer's interests or the employee's duties and obligations.” Johns v.
Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal
denied, 97 A.3d 746 (Pa. 2014) (citing Grieb v. Unemployment Comp. Bd. of
Review, 827 A.2d 422 (Pa. 2002)).
The employer bears the initial burden of proving a claimant engaged
in willful misconduct. Id. When asserting a discharge based on a violation of a
work rule, an employer must establish the existence of the rule, the reasonableness
of the rule, the claimant’s knowledge of the rule, and its violation. Id. (citing
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa.
Cmwlth. 2008)).
Once an employer meets its burden, the burden shifts to the employee
to prove good cause for his actions or the unreasonableness of the work rule.
Johns. An employee establishes good cause where his actions are justified or
reasonable under the circumstances. Docherty v. Unemployment Comp. Bd. of
Review, 898 A.2d 1205 (Pa. Cmwlth. 2006).
Further, in UC cases, the Board is the ultimate fact-finder and is
empowered to resolve all issues of witness credibility, conflicting evidence and
evidentiary weight. Ductmate. It is irrelevant whether the record contains
6
evidence that would support findings other than those made by the Board; the
proper inquiry is whether the evidence supports the findings actually made. Id.
Additionally, the party prevailing below is entitled to the benefit of all reasonable
inferences drawn from the evidence. Id.
Here, Employer discharged Claimant for violating the last chance
agreement. Certified Record (C.R.), Item No. 4, Ex. SC-22 (Notice of Removal);
see C.R., Item No. 2, at ¶20 (Internet Initial Claims form); see C.R., Item No. 6,
SC-4 (Notice of Appeal). Specifically, it dismissed Claimant for not attending a
medical examination and for not completing the anger management program.
C.R., Item No. 4, Ex. SC-22; Referee’s Hr’g, 9/29/14, Notes of Testimony (N.T.)
at 7, 12. However, Employer did not discharge Claimant for failing to provide
medical documentation as found by the Board.6 C.R., Item No. 4, Ex. SC-22.
Nevertheless, an employer only needs to establish one reason amounting to willful
misconduct in order to satisfy its burden. Glenn v. Unemployment Comp. Bd. of
Review, 928 A.2d 1169 (Pa. Cmwlth. 2007). Therefore, we examine whether
Claimant’s discharge for violating the last chance agreement constituted willful
misconduct rendering him ineligible for UC benefits.
1. Fitness-for-Duty Examination
Pertaining to Claimant’s failure to attend a fitness-for duty
examination in July 2014, as part of the last chance agreement Claimant agreed
that “[e]ngaging in ANY misconduct” will result in his “immediate removal
without further written notice,” and “any misconduct, violation of law,
6
In fact, the Board concedes this point of error. Resp’t’s Br. at 8 n.4.
7
regulations/policy, on his part, occurring within the next two (2) years, is likewise
just cause for his removal without any additional notification or proposal.” C.R.,
Item No. 4, Ex. SC-23 at ¶¶5, 6. In the event of a violation, Claimant waived any
rights to UC appeals. Id. at ¶7(b).
On June 27, 2014, Employer ordered Claimant to attend a fitness-for-
duty exam at the U.S. Army Health Clinic on July 8, 2014. C.R., Item No. 4, Ex.
SC-22; Pet’r’s Br. at 12. The notice advised: “failure to report for the [fitness-for-
duty] examination may be considered an act of misconduct, which may result in
follow up corrective action.” C.R., Item No. 4, Ex. SC-22.
Assistant testified Employer the notice was “an order to attend” the
exam. N.T. at 37. However, the day before the appointment, Claimant cancelled
for non-emergency reasons. N.T. at 36. When Assistant asked if Claimant wished
to reschedule, he responded he wanted to check with some people first, but he
never called her back to reschedule. Id.
At the hearing, Claimant admitted he did not attend the examination.
Id. at 38. He explained he did not want to go because Employer’s doctor already
examined him in May 2014. Id. He also testified he had a routine dental
appointment that same day. Id. at 39. However, these excuses do not constitute
just cause for violating Employer’s mandate to attend the medical exam in
violation of the last chance agreement. Moreover, Claimant was well aware that
his refusal to attend could be grounds for discharge. See id. at 38.
8
Relying on the ADA, Claimant now attempts to justify his
nonattendance by asserting Employer was prohibited from requiring a medical
examination or making any disability-related inquiries. However, medical
examinations and disability-related inquiries are permitted when the inquiry is
“job-related and consistent with business necessity.” 42 U.S.C. §12112(d)(4)(A);
accord 29 C.F.R. §1630.14(c).
Here, Claimant was on an extended leave of absence for medical
reasons. Before returning to work, Claimant sought accommodations to his work
schedule and assigned duties based on his disability. C.R., Item No. 4, Ex. SC-17.
Specifically, he requested:
a modified schedule to include the flexibility or
adjustment of my arrival and departure times as the need
arises, periodic additional short term breaks, the ability to
take leave with or without pay as the need arises and
without the fear of reprisal. I request a reserved parking
location within 25 feet of the entrance to my assigned
duty location.
Id. However, Claimant’s disability and the need for accommodations he requested
were not obvious. See id.
In response to Claimant’s request for a disability accommodation,
Employer sent Claimant three letters soliciting medical documentation. C.R., Item
No. 9, Ex. E-2. Specifically, Employer requested:
[S]upporting medical documentation in order to make an
administrative determination as to the nature, severity,
and the duration of your medical condition and the
impact of such on your ability to successfully perform the
9
duties of your position, currently and/or in the future and
to maintain a full-time work schedule. The medical
information you provide should elaborate on the job
related duties that may be impacted by your medical
situation ...; provide rational as to why you may or may
not require reasonable accommodation; your ability to
maintain a regular, full-time work schedule; and your
current ability to perform the regular and recurring duties
of your position and other positions at [Employer],
Tobyhanna, PA.
***
3. This request is also deemed necessary due to your 30
January 2014 request for reasonable accommodation.
C.R., Item No. 9, Ex. E-2 (Employer’s First Request for Medical Documentation,
2/10/14) at ¶1, 3. Although the submission of medical documentation was
“voluntary,” Employer advised that if Claimant did not provide “complete
documentation,” it may require him to undergo a fitness-for-duty examination. Id.
at ¶4.
Eventually, in May 2014, Claimant provided a note from his doctor,
which advised:
[Claimant’s] condition is chronic and will not go away
and symptoms ... wax and wane, resulting in periods of
incapacitation from work. [The type of condition7] is a
debilitating and complex disorder characterized by
profound fatigue that is not improved by bed rest and that
may be worsened by physical or mental activity.
Symptoms affect several body systems and may include
weakness muscle pain, la[ck] of energy, impaired mental
7
The note identified Claimant’s condition, which we will not disclose in this opinion out
of respect for Claimant’s privacy.
10
concentration, and insomnia, which can result in reduced
participation in daily activities.
C.R., Item No. 4, Ex. SC-14A. The note identified Claimant’s condition,
prognosis and symptoms. Id. However, it did not address Claimant’s ability to
return to work or recommend appropriate accommodations for his disability. See
id. Contrary to Claimant’s assertions, the physician’s description that Claimant
may be “incapacitated from work” is far too vague to establish functionality. See
id.
When Claimant did not furnish additional documentation, Employer
initially directed Claimant to attend a fitness-for-duty examination in May 2014.
Employer’s physician recommended that Claimant remain at home “until
[management] determines if [he] can be accommodated.” C.R., Item No. 4, Ex.
SC-16. Employer again requested medical documentation substantiating his
request for accommodations. C.R., Item No. 9, Ex. E-2 (Employer’s Third
Request for Medical Documentation, 5/29/14) at ¶1. When Claimant did not
respond, Employer scheduled a second fitness-for-duty exam for July 2014.
Based on Claimant’s accommodation request, Employer had a valid
business interest in determining whether Claimant could perform essential
functions of the job, and what accommodations were reasonable to perform those
functions before Claimant’s return to work. Employer’s fitness-for-duty
examination was clearly “job-related and consistent with business necessity.” By
disobeying Employer’s mandate to attend the exam, without good cause, Claimant
clearly violated the terms of the last chance agreement.
11
2. Anger Management Program
As to the successful completion of the anger management program,
Claimant agreed to “enroll in, participate fully and successfully complete a
structured [a]nger [m]anager [p]rogram ... approved by [Manager].” C.R., Item
No. 4, Ex. SC-23 at ¶3(a). Employer granted Claimant a 30-day leave of absence
to enter into and complete the program. Id. at ¶3(b). Upon returning to work,
Employer required Claimant to provide evidence of his participation and
completion of the program. Id. at ¶3(e). The failure to complete the anger
management program by April 1, 2014, would result in Claimant’s “removal from
federal service without further proposal.” Id. at ¶3(f).
Manager approved a program that required Claimant to attend an
anger management course and six in-person counseling sessions. N.T. at 18, 27-
28, 33. Although Claimant completed the coursework, he did not complete the in-
person counseling sessions. Id. at 18-19, 27-28. Manager testified she notified
Claimant and his supervisor of the six sessions and the dates. Id. at 28. She
scheduled Claimant’s hour-long anger management counseling sessions during
work hours. Id. at 31. However, counseling sessions were available to Claimant
whether he was at work or on leave. Id. at 22; 31. Claimant was not required to be
in active status to complete the sessions. Id. at 31.
Manager testified Claimant attended only one in-person session. Id. at
29. After that, he requested to participate by telephone. Id. at 30. Manager
advised him counseling must be completed in person, not by telephone. Id. at 30,
32. She offered to provide him referrals to different programs closer to his home,
12
but he did not request a referral. Id. at 30. Although Claimant called Manager in
June 2014, the call did not constitute counseling for anger management, and they
did not discuss resuming counseling sessions. Id. In July 2014, Manager drafted a
memo to Employer advising that Claimant did not successfully complete the anger
management program. Id.
Claimant does not dispute he did not attend the counseling sessions.
Instead, he asserts he was precluded from attending any in-person sessions while
out on FMLA leave. Before his FMLA leave, Employer granted Claimant leave so
that Claimant could enter and complete the anger management program. C.R.,
Item No. 4, Ex. SC-23 at ¶3(b); see N.T. at 21. Importantly, even if Claimant’s
FMLA leave exempted Claimant from participating in the anger management
program, Claimant made no attempt to resume counseling when his FMLA leave
expired in April 2014. N.T. at 30.
Insofar as Claimant asserts he was medically unable to attend in-
person counseling sessions because of his disability, he did not inform Employer of
this. Id. at 52. In March 2014, Claimant asked Manager if he could participate in
the counseling sessions by telephone. C.R., Item No. 4, Ex. SC-15. However, he
did not relate his telephone accommodation request to his disability or identify
physical or mental limitations that prevented him from attending the one-hour, in-
person counseling sessions. See id.
As discussed above, in response to Claimant’s January 2014
accommodation request, Employer sent Claimant three letters soliciting medical
13
documentation. C.R., Item No. 9, Ex. E-2. Employer requested Claimant to
provide medical documentation as to the nature, severity and duration of
Claimant’s medical condition and the impact of such on his ability to perform his
job. C.R., Item No. 9, Ex. E-2 (Employer’s Request for Medical Documentation,
2/10/14). Employer also asked Claimant to provide medical information including
“[a] recommendation as to what type of positions you may potentially perform in
and for which you may qualify, and any type of accommodation that would allow
you to perform in any these positions.” Id. at ¶4(f).
Although Claimant provided Employer a note from his physician in
May 2014, it did not address Employer’s concerns regarding Claimant’s ability to
return to work or establish the need for the accommodations requested, including
Claimant’s request to participate in the counseling sessions by telephone. See
C.R., Item No. 4, Ex. SC-14A; C.R., Item No. 9, Ex. E-2 (Employer’s Third
Request for Medical Documentation, 5/29/2014). The lack of more useful,
functional guidelines from Claimant’s physician was part of the reason Employer
ordered the fitness-for-duty examination in July 2014.
Claimant appears to operate under the misapprehension that an
employer must oblige any accommodation request, regardless of its connection to
the disability. Rather, an employer must “mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with
a disability who is an applicant or employee, unless [the employer] can
demonstrate that the accommodation would impose an undue hardship on the
operation of [its] business.” 42 U.S.C. §12112(b)(5)(A) (emphasis added). An
14
employer must “identify the precise limitations resulting from the [employee’s]
disability and potential reasonable accommodations that could overcome those
limitations.” 29 C.F.R. §1630.2(o)(3). The search for the appropriate reasonable
accommodation is:
best determined through a flexible, interactive process
that involves both the employer and the [individual] with
a disability. As such, both parties have a duty to assist in
the search for appropriate reasonable accommodation and
to act in good faith. It logically follows, therefore, that a
party who fails to communicate or engage in a dialogue
with the other party is not acting in good faith.
Stultz v. Reese Bros., Inc., 835 A.2d 754, 761 (Pa. Super. 2003) (internal
quotations and citations omitted).
Although Employer attempted to “identify the precise limitations
resulting from the [Claimant’s] disability and potential reasonable
accommodations that could overcome those limitations,” 29 C.F.R. §1630.2(o)(3),
Claimant did not engage in this interactive process. Claimant did not prove he was
medically unable to participate in in-person counseling sessions because of his
disability or that the requirement to participate in-person was unreasonable to
justify his non-completion of the anger management program.
3. Discrimination & Retaliation
As for Claimant’s contentions that Employer discriminated and
retaliated against him because of his disability, such claims are not supported by
credible evidence. The Board, as fact-finder, rejected Claimant's testimony in
favor of Employer’s evidence. Claimant's assertions in this regard essentially
15
challenge the Board's credibility and evidentiary weight determinations, which are
beyond our review. See Ductmate. As substantial evidence supports the Board’s
necessary findings, Claimant’s argument to contrary is unavailing.
In conclusion, the record contains substantial evidence to support a
termination for willful misconduct. Claimant’s refusal to attend a fitness-for-duty
examination and complete the anger management program amounted to violations
of the last chance agreement. Claimant did not establish good cause for his
actions. Therefore, the Board did not err in determining Claimant was ineligible
for UC benefits under Section 402(e) of the Law.
Accordingly, we affirm.
ROBERT SIMPSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph R. Reviello, Jr., :
Petitioner :
:
v. : No. 2315 C.D. 2014
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 31st day of July, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge