IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amber Butler,                                  :
                              Petitioner       :
                                               :
                 v.                            :   No. 90 C.D. 2016
                                               :   Submitted: June 17, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: August 10, 2016



                 Petitioner Amber Butler (Claimant), acting pro se, petitions for review
of an order of the Unemployment Compensation Board of Review (Board). The
Board affirmed a Referee’s determination that Claimant was ineligible for
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law),1 based on willful misconduct. For the reasons set forth
below, we affirm the Board’s order.
                 Claimant was employed as a direct care worker for Open Systems
Healthcare, Inc. (Employer). (Certified Record (C.R.), Item No. 2.) Claimant filed
for   unemployment          compensation      benefits   after   being    discharged     on

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
August 3, 2015. (C.R., Item No. 10.) The Allentown UC Service Center (Service
Center) issued a determination finding Claimant eligible for unemployment
compensation benefits.    (C.R., Item No. 5.)      Employer appealed the Service
Center’s determination, and a Referee conducted a hearing on October 6, 2015.
(C.R., Item No. 9.) Claimant did not attend this hearing, nor did she request a
continuance or give advance notice of any inability to attend. (Id.) Following the
hearing, the Referee reversed the Service Center’s determination, concluding that
Claimant was ineligible for unemployment compensation benefits under
Section 402(e) of the Law. (C.R., Item No. 10.)
             Claimant appealed the Referee’s decision to the Board, which
remanded the case to a Referee to act as Hearing Officer for the Board. (C.R.,
Item No. 14.) The Board ordered the remand hearing for the purpose of receiving
testimony and evidence regarding Claimant’s reason for her non-appearance at the
initial hearing. (Id.) The Board permitted the parties to offer new or additional
testimony and evidence, which the Board would consider if it found that Claimant
had proper cause for her non-appearance at the initial hearing. (Id.)
             Following the remand hearing, the Board affirmed the Referee’s
decision and denied Claimant unemployment compensation benefits. (C.R., Item
No. 18.) In doing so, the Board issued its own findings of fact:
      1.     The claimant was last employed as a direct care worker
             by the employer from September 14, 2014 at a final rate
             of $10.00 and her last day of work was July 21, 2015.

      2.     The employer had a policy requiring 24 hour notice of a
             call off for any accepted shift which it has due to the
             medical/personal needs of the clients for whom the
             services are scheduled.

      3.     Claimant knew or should have known about the policy.

                                         2
        4.   Violation of the policy results in corrective action or
             termination.

        5.   On August 2, 2015, claimant called off from her shift and
             did not give 24 hour notice.

        6.   The employer discharged claimant for her failure to
             timely call off her absence.

        7.   Claimant received the hearing notice but delayed opening
             it until October 6, 2015.

(Id.)
             The Board determined that Claimant failed to establish good cause for
her non-appearance at the initial hearing, as the Board found that Claimant “simply
did not arrange to pick up her mail until after the hearing date.” (Id.) The Board,
therefore, did not consider either party’s testimony at the second hearing to the
extent it related to the merits. (Id.) Using only the testimony and evidence of
record from the Referee’s initial hearing, the Board concluded that Claimant was
ineligible for unemployment compensation benefits. (Id.) The Board reasoned, in
part:
             Based on the record before the Board, the Board
             concludes that the employer established that it discharged
             claimant for violation of a known reasonable policy
             rising to the level of willful misconduct. The employer
             produced credible evidence that the claimant called off
             and did not do so within the 24 hours (sic) call off policy.
             The employer has established the necessary burden of
             proof. The burden shifts to the claimant. Claimant did
             not appear at the hearing and has provided no first hand
             competent testimony to support her violation of the
             policy. The claimant is ineligible for benefits under
             Section 402(e) of the Law.

(Id.)



                                          3
              On appeal,2 Claimant essentially argues that the Board erred in
concluding that Claimant’s actions constituted willful misconduct because
Claimant had good cause for violating the policy.3 Section 402(e) of the Law
provides, in part, that an employee shall be ineligible for compensation for any
week “[i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work.” Whether
an employee’s conduct rises to the level of willful misconduct is a question of law
subject to this Court’s review.             Walsh v. Unemployment Comp. Bd. of
Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The burden of establishing willful
misconduct is on the employer. Id. at 368-69.
              The term “willful misconduct” is not defined by statute. The courts,
however, have defined “willful misconduct” 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).
Where an employer seeks to prove willful misconduct by showing that the


       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       3
          In her brief, Claimant also invites this Court to decide whether Employer was
unprofessional in regards to the manner in which it terminated Claimant’s employment. This
issue, however, is not relevant to Claimant’s eligibility for unemployment compensation. As
such, the issue will not be discussed.


                                               4
claimant violated the employer’s rules or policies, the employer must
demonstrate (1) the existence of the rule or policy and (2) that the claimant
violated it. Walsh, 943 A.2d at 369. Moreover, the employer must establish that
the claimant’s actions were intentional or deliberate. Tongel v. Unemployment
Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). Notwithstanding,
there should be no finding of willful misconduct where the claimant can show
good cause for the violation—i.e., “that the actions which resulted in the discharge
were justifiable and reasonable under the circumstances.” Walsh, 943 A.2d at 369.
             First, we must determine whether Employer sustained its burden and
established a prima facie case of willful misconduct.        The Board found that
Claimant was aware of Employer’s call off policy, presumably because Claimant
had previously received three warnings for violating the policy. (C.R., Item No. 9
at 7.) Further, the Board found that Claimant violated this policy, as Employer
produced credible evidence that the Claimant called off and did not do so within
the twenty-four hour period. (Id.) As such, the Board concluded that Employer
sustained its burden of establishing a prima facie case of willful misconduct. (Id.)
             Because Employer established its prima facie case of willful
misconduct, the burden shifts to Claimant to prove she had good cause for
deviating from the policy. As previously mentioned, in order to prove “good
cause,” a claimant must demonstrate that his actions were justifiable and
reasonable under the circumstances. Walsh, 943 A.2d at 369. Claimant, however,
failed to make an attempt to show good cause, as she did not attend the initial
hearing in order to provide testimony and evidence to support her theory.
Claimant was then given the opportunity to explain her absence at a remand
hearing. If a claimant can show proper cause for missing a hearing, then a new one


                                          5
will be conducted; however, one’s own negligence is insufficient to amount to the
necessary “proper cause.”          Savage v. Unemployment Comp. Bd. of Review,
491 A.2d 947, 949 (Pa. Cmwlth. 1985). At the remand hearing, Claimant testified
that she did not attend the original hearing because she had not checked her mail.
(C.R., Item No. 18.) The Referee conducted the original hearing without Claimant
being present.4 The Board found that Claimant’s reason for her absence at the
initial hearing was not sufficient to establish proper cause for failure to attend.
(Id.) Accordingly, the Board did not consider the testimony from either party at
the remand hearing. (Id.) With no competent testimony to support her defense of
good cause for the violation of a workplace policy, the Board concluded that
Claimant did not sustain her burden to show good cause for her willful misconduct
and, therefore, is ineligible for unemployment compensation benefits under Section
402(e) of the Law. We agree.
              Accordingly, we affirm the order of the Board.




                                     P. KEVIN BROBSON, Judge




       4
         “If a party notified of the date, hour and place of a hearing [before the Board or
Referee] fails to attend a hearing without proper cause, the hearing may be held in his absence.”
34 Pa. Code § 101.51.


                                               6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amber Butler,                       :
                     Petitioner     :
                                    :
           v.                       :   No. 90 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :




                                  ORDER


           AND NOW, this 10th day of August, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge