Klampfer v. Unemployment Comp. Bd. of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna M. Klampfer, :

Petitioner :

:

v. : No. 540 C.D. 2017

: Submitted: December 8, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: February 1, 2018

Donna M. Klampfer (Claimant), representing herself, petitions for

review from an order of the Unemployment Compensation Board of Review (Board)

denying her unemployment compensation (UC) benefits under Section 402(e) of the

UC Law (Law).1 Claimant argues she did not commit willful misconduct when she

called off work for medical reasons because her absences related to her cardiac

condition, for which she had approved medical leave under the Family and Medical

Leave Act (FMLA), 29 U.S.C. §§2601-2654.2 She asserts her illness was good cause

to call off work. She also emphasizes her inability to obtain a doctor’s note before her

discharge. Under these circumstances, Claimant’s four call offs in the two weeks

1

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§802(e) (relating to willful misconduct).

2

The FMLA allows an employee to take 12 weeks of unpaid leave in 12 months for her

own serious health condition when it interferes with her ability to work. 29 U.S.C. §2612(a)(1)(D).

following her medical leave do not rise to the level of willful misconduct.

Accordingly, we reverse.

I. Background

Claimant worked for Allied Barton Security Service (Employer) as a

command center operator on the night shift beginning in 2010. One year later, she

was diagnosed with a heart condition that ultimately required corrective surgery. In

May 2016, she requested FMLA leave for her cardiac surgery and post-operative

recovery. Employer approved her medical leave starting the week of June 23, 2016.

Prior to her approved medical leave, Claimant reduced her schedule to part-time.

Employer scheduled Claimant to work 12 consecutive hours on the third

shift on September 23, 2016, for her first day back at work after FMLA leave.

However, she called off work that day because she was not feeling well. Referee’s

Dec., 12/7/16, Finding of Fact (F.F.) No. 4; see Certified Record (C.R.), Item No. 3,

Employer Disciplinary Action Counseling Form (Attendance Form), 9/26/16 (reason

for absence was “illness”). She spoke with her manager, Michael Cain (Manager),

about her condition. Claimant worked her next scheduled shift the following day.

That same week, on September 30, Claimant called off work again

because she was not feeling well enough to work. See id., Attendance Form, 10/3/16.

She called off work the next day for the same reason. Id. Shortly thereafter, on either

“October 1 or 2,” Manager warned her that she needed a doctor’s note to support her

continued absences or he could not excuse them. Ref. Hr’g, Notes of Testimony

(N.T.), 12/6/16, at 6; see F.F. No. 6. She advised Manager she attempted to obtain a

note from her physician, but that “she may not get it for another week ….” N.T. at 8.

2

After receiving Manager’s warning, Claimant called off work the fourth

time on October 7, 2016. F.F. No. 5. By the time her doctor provided a note,

Employer advised her via text message that termination papers were in the mail.

Employer terminated Claimant’s employment for these four absences for violation of

its attendance policy (Policy). F.F. No. 9.

Claimant applied for UC benefits with the local service center, which

denied benefits. Claimant appealed.

A referee held a hearing. Claimant, unrepresented by counsel, testified

on her own behalf. Employer, also unrepresented, presented the testimony of

Manager, who explained the Policy and his communications with Claimant.

Relevant here, the Policy provides that four “chargeable actions within a

90-day period will result in termination.” C.R., Item No. 3 (Policy at 3). The Policy

also provides that “consecutive multiple days off for an illness, with documentation,

generally count as one chargeable action.” Id. at 2. Additionally, it states, “approved

… Leaves of Absence, including FMLA leave, will not be ‘chargeable.’” Id. at 3.

Manager testified he verbally warned Claimant after her second call off

that without a doctor’s note, Employer would discipline her for violating the Policy.

After three call offs, Manager texted Claimant that he would excuse her absences with

a doctor’s note. N.T. at 11. When he informed Human Resources that Claimant

advised “she couldn’t get the doctor’s note right away,” he was directed to discharge

her. Id. He added, “[s]he was a valuable employee to me, but policy’s policy.” Id.

3

Claimant confirmed she was aware of the Policy. N.T. at 7. She called

off work because she did not feel well. Specifically, she described, “my heart rate was

going up. I was feeling faint, lightheaded. I was told because of my existing condition

that if anything like that occurs to just like, you know, lay down for a while, get some

rest, which I did.” N.T. at 9. She acknowledged that after her second call off, Manager

informed her that Employer “would have to probably terminate [her]” if she could not

present a doctor’s note. Id. at 8. Claimant attempted to obtain a note from her doctor

by calling his office and leaving messages. Claimant obtained a note the day after

receiving notice of her discharge via text message. Without objection, the referee

admitted the doctor’s note at the hearing.

The referee determined Claimant was ineligible for UC benefits under

Section 402(e) of the Law. The referee made the following pertinent findings:

2. [E]mployer’s time and attendance policy provides that where

employees call out from 4 or more assigned shifts in a 90-day

period, the consequence will be termination of employment.

3. [C]laimant was or should have been aware of [E]mployer’s

policy in this regard.

4. On September 23, 2016, [C]laimant was scheduled to return

from [an] approved leave of absence, but reported off because

she was not feeling well enough.

5. On September 30, 2016, October 1, 2016, and October 7, 2016

respectively, [C]laimant again reported off for scheduled shifts.

6. After [C]laimant’s 2nd call out on September 30, 2016,

[E]mployer reminded [C]laimant of its policy.

7. [E]mployer asked [C]laimant to get a doctor’s note for her

previous absences so the absences would not lead to discipline.

4

8. [C]laimant failed to provide [a] doctor’s note to [E]mployer.

9. On October 7, 2016, [E]mployer discharged [C]laimant for

violation of its attendance policy.

Referee’s Dec., Findings of Fact (F.F.) Nos. 2-9. Claimant appealed to the Board.

On appeal, Claimant argued the referee disregarded that Claimant’s

absences constituted only one chargeable offense because they all related to the same

illness. C.R., Item No. 10. She also requested a remand hearing to submit additional

evidence, including doctor’s notes discussing possible flare-ups during her recovery.

Ultimately, the Board adopted the referee’s findings and conclusions,

and it determined Claimant was ineligible for UC benefits. The Board reasoned:

“[C]laimant did not receive a note from her doctor until October 14, 2016, two weeks

after she knew she needed it and one week after she was discharged. Even then,

[C]laimant did not notify [E]mployer to see if she could be rehired.” Bd. Op., 3/3/17,

at 1. The Board also did not consider the additional evidence Claimant submitted,3

noting: “[C]laimant had an opportunity to present this evidence at the hearing, but

failed to do so.” Id. Therefore, the Board denied Claimant’s request for a remand

hearing.

Claimant filed a motion for reconsideration, which the Board denied.

Claimant now petitions for review from the Board’s decision on the merits.

3

The certified record does not contain the additional evidence Claimant submitted to the

Board.

5

II. Discussion

On appeal,4 in her uncounseled brief, Claimant argues the Board erred in

determining her four medical absences constituted willful misconduct. She asserts

she attempted to obtain the requested doctor’s note to excuse her absences. However,

based on circumstances beyond her control, she was unable to do so before her

discharge. She also contends she had good cause for calling off work based on her

documented illness.

Claimant does not dispute the material facts, that she called off for four

shifts when she was ill without providing a doctor’s note. She also does not contest

that this conduct was cause for discharge under the Policy. Nevertheless, she

maintains her inability to return to work when scheduled because she needed more

recovery time than anticipated did not constitute willful misconduct under the Law.

Pursuant to Section 402(e) of the Law, 43 P.S. §802(e), a claimant is

ineligible for UC benefits when an employer discharges her for willful misconduct.

The Law does not define “willful misconduct.” Appellate courts define “willful

misconduct” in the UC context 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.” Grieb v. Unemployment Comp. Bd. of

Review, 827 A.2d 422, 425 (Pa. 2003).

4

“Our review is limited to determining whether the 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,

1013 n.2 (Pa. Cmwlth. 2014).

6

An employer bears the initial burden of showing a claimant’s conduct

rose to the level of willful misconduct. Johns v. Unemployment Comp. Bd. of Review,

87 A.3d 1006 (Pa. Cmwlth. 2014). Once the employer proves willful misconduct, the

burden then shifts to the claimant to show good cause for her actions. Id.

The issue of whether a claimant’s conduct constituted willful misconduct

is a question of law fully reviewable by this Court. Ductmate Indus., Inc. v.

Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).

A. Willful Misconduct

At the outset, we emphasize we are not presented with the propriety of

Claimant’s discharge under the Policy. We are tasked with determining whether

Claimant’s four call offs from work within the two weeks following her medical leave

constitute willful misconduct so as to render her ineligible for UC benefits.

An employer seeking to prove willful misconduct by a policy violation

must demonstrate the existence of the policy, its reasonableness, and its violation.

Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).

“The employer must also show that the employee intentionally or deliberately violated

the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Review,

138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine

if the work rule is reasonable in light of all the circumstances and whether [a claimant]

had good cause to violate the work rule.” Caterpillar, Inc. v. Unemployment Comp.

Bd. of Review, 703 A.2d 452, 459 (Pa. 1997).

7

Claimant concedes the Policy exists, and that she violated its terms.

Therefore, we consider the circumstances of her policy violation, including whether

it was deliberate.

Employer discharged Claimant for violating the Policy by calling off

work four times in 90 days. That she called off because of illness was immaterial.

The Policy provides: “Termination will result if … you have 4 chargeable actions

relating to attendance within a rolling 90[-]day period.” C.R., Item No. 3. Chargeable

actions include chargeable absences, defined as “call offs for anything other than a

death in the family.” Id. The Policy does not exempt absences for illness; however,

it states “consecutive multiple days off for an illness, with documentation, generally

count as one chargeable action.” Id. (emphasis added).

The alleged misconduct here is comprised of Claimant’s four absences

in a 90-day period. Although the Board focused on Claimant’s failure to provide a

doctor’s note prior to her discharge, that conduct did not violate the Policy, and it was

not the reported grounds for her discharge. The Policy did not require a doctor’s note;

a note merely reduced consecutive chargeable absences to one chargeable action.

Additionally, the Policy did not specify a timeframe for submitting documentation of

an illness.

Significantly, it is undisputed that Claimant’s four absences were due to

illness. Claimant called off for her first shift of 12 consecutive hours following her

medical leave for open-heart surgery and post-operative recovery. The referee found

that Claimant called off work the first time because she “was not feeling well.” F.F.

8

No. 4. Employer likewise did not contest that Claimant’s illness was the reason for

her other three absences. Employer’s separation documentation lists the reason for all

four absences as “illness.” C.R., Item No. 3 (Attendance Forms).

“[T]he law is clear that absence due to illness is not willful misconduct.”

Green v. Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth.

1981) (emphasis added) (reversing Board determination that claimant’s seven

absences constituted willful misconduct when some absences related to sickness); see

Tritex Sportwear, Inc. v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa.

Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for

termination, and the policy makes no distinction between absences for illness and

absences for other reasons, we do not discern willful misconduct based on the policy

violation alone. Green.

This case is similar to Green in that the reason for discharge was reaching

a ceiling of unauthorized absences within a certain timeframe. There, the claimant

was discharged because he reached the terminable threshold of 8 absences in a 12-

month period. The employer’s policy permitted termination for any unauthorized

absences, without differentiating for absences caused by illness. The claimant argued

that while his absences, five of which related to illness, may have been grounds for

discharge, they did not constitute willful misconduct under the Law. We agreed.

This Court reasoned that the Board erred in counting the claimant’s

illness-related absences as a deliberate disregard for the employer’s interests. Despite

the claimant receiving warnings about being close to the terminable threshold of

9

absences, we emphasized the “distinction between cause for dismissal under an

employer’s policy and disqualifying conduct under the [Law].” Green, 433 A.2d at

589. Because there was no willfulness in the claimant’s policy violation when he was

absent as a result of his illness, we held he did not commit willful misconduct.

Here, as in Green, we discern no willfulness in Claimant’s violation of

the Policy when she was absent four times within 90 days as a result of her illness.

When a claimant violates a policy because of her illness, we do not ascribe deliberate

disregard to her violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of

Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule

does not constitute willful misconduct). While such absences may be a reason for

discharge, they are not a reason for a denial of UC benefits. Runkle v. Unemployment

Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. That Manager

warned Claimant about potential discipline as a result of her absences without

documentation does not alter our conclusion.

The evidence reflects Claimant attempted to obtain a doctor’s note and

discussed her difficulty in obtaining one with Manager. N.T. at 6, 8-10. Indeed,

Claimant eventually obtained a doctor’s note as requested, but was unable to do so

within the week between her third call off and her discharge. Her attempts to obtain

the doctor’s note within a week’s time, while unsuccessful, did not evince a willful

disregard of Manager’s request for documentation. See Bogan v. Unemployment

Comp. Bd. of Review, 447 A.2d 708 (Pa. Cmwlth. 1982) (claimant’s inability to

obtain excuse for illness prior to discharge did not constitute willful misconduct).

10

Further, we consider an application of the Policy here, so as to render

Claimant ineligible for UC benefits, unreasonable. As we recently explained in an

unpublished decision authored by the Honorable James G. Colins, violation of an

employer’s sick leave policy may be valid cause for discharge, but not for a denial

of UC benefits. Phila. Parking Auth. v. Unemployment Comp. Bd. of Review (Pa.

Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313

(unreported) (holding employer unreasonably applied policy to claimant who had

serious health condition). In Philadelphia Parking Authority, the claimant reached

her maximum sick leave under the policy, such that additional sick days led to

discipline. As a result, she requested and received approved FMLA leave.

Nonetheless, the employer discharged her for noncompliance with its sick leave

policy. In concluding the claimant did not commit willful misconduct, we explained,

“apply[ing] its regular policy for employees who have called in sick, to an employee

who has requested, certified, and received leave under the FMLA is not reasonable.”

Id., slip op. at 9, 2015 WL 7356313, *5.

The Policy here permits the discharge of an employee who is ill four times

within a 90-day period regardless of the circumstances. Claimant is recovering from

open-heart surgery. Claimant was absent because of illness four times in the two weeks

following her medical leave. In light of these circumstances, Employer did not prove

Claimant’s absences rose to the level of willful misconduct. Runkle; Green.

Because Claimant’s absences due to illness do not show a deliberate

disregard for Employer’s interests, the Board erred as a matter of law in determining

that Claimant’s four call offs within 90 days constituted willful misconduct.

11

B. Good Cause

“Good cause” is established when a claimant’s actions are justified or

reasonable under the circumstances. Bruce v. Unemployment Comp. Bd. of Review,

2 A.3d 667 (Pa. Cmwlth. 2010). Because Employer did not establish that Claimant

committed willful misconduct, we need not reach whether Claimant had good cause.

Nevertheless, we recognize that a claimant with a documented illness has good cause

for her absences. See, e.g., Phila. Parking Auth., 1 A.3d at 968 (“Physical illness can

constitute good cause for a claimant’s noncompliance with an employer’s

directive.”).

Here, Claimant underwent open-heart surgery, for which Employer

approved FMLA leave to allow her recovery. There is no dispute that the reason for

Claimant’s four chargeable absences was illness. The referee credited Claimant’s

testimony that she called off her first shift because she did not feel well. F.F. No. 4.

Regardless, Claimant’s uncontradicted testimony is sufficient evidence

to establish good cause. Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d

12 (Pa. Cmwlth. 2009) (reversing Board; holding claimant had good cause for rule

violation under the circumstances based on claimant’s uncontradicted testimony). A

claimant is not required to produce medical testimony to substantiate her illness; her

own uncontradicted testimony is competent evidence of her illness. Phila. Parking

Auth., 1 A.3d 965.

Here, Claimant’s testimony is corroborated by the fact of her FMLA

leave, and her submission of a doctor’s note from her cardiologist. Employer did

12

not dispute Claimant’s illness. Accordingly, Claimant established good cause for

her absences based on her illness. McKeesport Hosp. v. Unemployment Comp. Bd.

of Review, 625 A.2d 112 (Pa. Cmwlth. 1993).

III. Conclusion

For the foregoing reasons, we reverse the Board’s order.

ROBERT SIMPSON, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna M. Klampfer, :

Petitioner :

:

v. : No. 540 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 1st day of February, 2018, the order of the Unemployment

Compensation Board of Review is hereby REVERSED.

ROBERT SIMPSON, Judge