PHILADELPHIA COCA-COLA BOTTLING COMPANY v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW

The Philadelphia Coca-Cola Bottling Company, Petitioner,
v.
Unemployment Compensation Board of Review, Respondent.

No. 2321 C.D. 2009.

Commonwealth Court of Pennsylvania.

Submitted: April 30, 2010.

Filed: July 19, 2010.

Before: McGINLEY, Judge, LEAVITT, Judge and BUTLER, Judge.

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT.

The Philadelphia Coca-Cola Bottling Company (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that granted Christopher Collick's (Claimant) claim for unemployment benefits. In doing so, the Board reversed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law)^{[ 1 ]} by reason of his excessive leave. In this appeal, we consider whether the Board erred in concluding that Claimant's absences from work did not constitute willful misconduct.

Claimant worked for Employer as a warehouse operator from June 5, 2006 through June 2, 2009. He was terminated for abuse of medical leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§2601-2654^{[ 2 ]} and for violating Employer's attendance policy. He sought unemployment compensation benefits, and the Office of UC Benefits denied his claim. Claimant appealed, and a hearing was held before the Referee.

At the hearing, Luis Fonseca, Senior Director of Labor Relations for Employer, testified about Employer's attendance policy. This policy assigns an employee a one-half point for tardiness or leaving work early and one point for a full-day absence. Reproduced Record at 71 (R.R. __).^{[ 3 ]} An employee who receives nine points in a 365-day period is subject to discharge. However, points will not be assessed if the absence is FMLA-approved.

Employer assigned Claimant points for his absences on July 7, 2008, July 21, 2008, August 26, 2008, September 10, 2008, September 19, 2008, and September 26, 2008. After receiving a warning about his six absences and six points, Claimant requested a type of FMLA leave, i.e., "intermittent leave," because he suffered from cluster migraine headaches. On October 3, 2008, Employer approved Claimant's request for intermittent leave through November 1, 2008. On November 7, 2008, Employer approved Claimant's second FMLA request through December 31, 2008. Claimant did not seek further approval to extend his FMLA leave until March 9, 2009. Claimant's leave was then extended for a third time, through September 9, 2009. All three letters were admitted into evidence. Fonseca explained that after each approval, Employer sent Claimant a letter noting the expiration date of the leave and that any leave past the expiration date would require an updated certification.

Claimant did not have intermittent leave approved for the period January 1, 2009, through March 9, 2009. Fonseca testified that in February 2009, Claimant told his direct supervisor that his absences were all authorized FMLA leave, and the supervisor did not check on the veracity of this statement. The supervisor complained to Fonseca on May 26, 2009, because of Claimant's repeated absences. In response, Fonseca investigated and learned that Claimant had not been approved for FMLA leave for the period January 1, 2009, through March 8, 2009, during which period he had three unexcused absences. Those absences brought Claimant up to nine points, which required a dismissal under Employer's attendance policy.

On June 2, 2009, Employer dismissed Claimant. At his termination meeting, Claimant admitted that he was not taking his prescribed migraine medication and had not complied with his doctor's recommendation to see a specialist.

Kevin Looney, the Senior Director of Distribution for Employer, testified about his study of Claimant's absences. He compiled a list that showed, he believed, that Claimant was abusing FMLA leave to extend weekends, leave work early and avoid mandatory overtime. The list showed that Claimant was absent or left work early on 51 occasions from October 6, 2008, through May 31, 2009. R.R. 80-81.

Claimant then testified. He stated that he began experiencing cluster migraines in 2004 or 2005. He claimed that he received only one of Employer's letters regarding his FMLA leave. Because the first approval was only for thirty days, he went to see his doctor on November 6, 2008, for an extension. In response to his doctor's inquiry, Claimant explained that he would have to be evaluated every thirty days, unless the doctor provided a different timeframe.^{[ 4 ]} The doctor wrote on the FMLA certification form that Claimant would be evaluated every three months. After the second leave was approved, Claimant assumed it was for three months, until the date of his doctor's next scheduled evaluation. In accordance with that belief, Claimant returned to the doctor in March 2009, to have his certification extended. Employer approved the extension through September 4, 2009.

Claimant testified that his doctor prescribed Imitrex for his migraines, which he was to take at the onset of a migraine. Claimant had trouble doing so because the headaches came on too suddenly. Also, he was not to take more than two pills a day or more than four pills a week. He stated that his migraines tended to span more than two days a week, so the pills were not effective.

Claimant testified about the specialist he consulted in 2007, who prescribed Lamictel. He found the side effects of the Lamictel to be almost as bad as the migraines, so he stopped taking that medication. He did not return to the specialist because he "looked at it as just more medication" and he was "all pilled out." R.R. 50. In his 2008 certification, Claimant's physician recommended that Claimant see a specialist again. Claimant stated that he did make an appointment but did not attend because of a family emergency; he never rescheduled the appointment.

Claimant stated that he followed Employer's rules to the best of his ability. He testified that he never used the migraines as an excuse not to work and that he never left work early or missed work for any reason other than a migraine headache.

The Referee found that Employer waited too long to investigate Claimant's leave in February 2009 and, thus, its claim that Claimant was dismissed for willful misconduct was barred by the remoteness doctrine. However, the Referee also determined that Claimant had abused his FMLA leave. The Referee believed that Employer established a pattern of abuse by showing that Claimant was absent from work on a number of occasions to avoid overtime or to extend a weekend. The Referee found that while Claimant suffered from migraines, he did not deal with his condition properly because he did not see a specialist or take his prescribed medication. The Referee also concluded that Claimant's migraines were not as frequent or intense as he alleged. Based upon the foregoing findings, the Referee held that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e), by reason of his willful misconduct.

Claimant appealed to the Board, and the Board reversed. The Board agreed with the Referee that because Employer waited until May 2009 to assign points for Claimant's absences in February, its ability to challenge Claimant's eligibility for benefits was barred by the remoteness doctrine.^{[ 5 ]} Alternatively, the Board found that even if Employer had a good reason for delaying Claimant's discharge, Claimant offered credible evidence that he was only absent from work due to his migraines. Employer now petitions for this Court's review.^{[ 6 ]}

Employer raises two issues for our consideration. Employer claims that neither of the Board's reasons for awarding benefits is valid. Employer contends that the evidence does not support the Board's finding that Claimant's absences were due to his migraines. Likewise, it contends that the Board erred in applying the remoteness doctrine because Employer did not discover Claimant's unexcused absences earlier because of Claimant's misrepresentation, not because of Employer's negligence.

Employer asserts that Claimant committed willful misconduct by abusing FMLA leave and by violating Employer's attendance policy. Generally, willful misconduct is defined 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 indicating an intentional disregard of the employer's interests or of the employee's duties and obligations to the employer.

Woods Services v. Unemployment Compensation Board of Review, 885 A.2d 630, 632-633 (Pa. Cmwlth. 2005). Specifically, in a case involving the alleged violation of a work rule, the employer has the burden of proving the existence of the rule, the employee's knowledge of the rule, and its violation. ATM Corporation of America v. Unemployment Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 2006). Once an employer meets its burden, the burden shifts to the employee to show he had good cause for violating the work rule. Id.

In support of its claim that substantial evidence does not support the Board's findings, Employer recounts, repeatedly, the findings-of-fact as found by the Referee. In any unemployment compensation case, the Board is the ultimate finder-of-fact. Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). "The fact that a witness has presented a different version of the facts as found by the Board is not a basis for reversal if substantial evidence supports the Board's findings." Ruiz v. Unemployment Compensation Board of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005). Thus, we will consider only the Board's findings.

Employer claims that the record evidence established that Claimant's absences followed a pattern of leaving work early to avoid working mandatory overtime or using leave to extend his weekends. Claimant counters that because of gaps in Employer's evidence, it was inadequate to establish a pattern of abuse.

Employer's documentary evidence revealed that Claimant had 51 absences over the course of approximately eight months. Twenty of the absences were for a full day and 31 were for leaving work early. Claimant left work early on 18 days, when mandatory overtime was called, and left work during his lunch break on nine days. Twenty of the 51 absences extended a weekend or vacation day.

We reject Employer's contention that the Board erred by not finding, as fact, that Claimant abused his FMLA leave. If Claimant left work early on 18 days when mandatory overtime was called, he also must have left early on 13 other days when it was not called. Further, because Employer did not provide information on how often it required mandatory overtime, it cannot be discerned how many days Claimant remained at work when mandatory overtime was called. Likewise, if 20 of the absences extended a day off, then 31 of them did not. In sum, Employer's evidence was ambiguous. It established that Claimant was absent or left early on numerous occasions. The Board declined to infer that Employer's evidence showed that Claimant fraudulently abused his leave, and there was no error by the Board in this regard. In any case, this Court cannot order a factfinder to make a different inference from the record evidence.

Employer also asserts that Claimant failed to take his medication or follow up with a specialist, leading the Referee to conclude that Claimant's migraines did not warrant his absences from work. Employer complains that the Board disregarded the Referee's determination that Claimant was not credible, despite not hearing Claimant's testimony. The Board, not the Referee, is the ultimate fact finder, which makes it the ultimate arbiter of credibility, regardless of the fact that it did not hear the testimony. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276-77, 501 A.2d 1383, 1388 (1985).^{[ 7 ]}

Here, Claimant testified as to why he did not take his medication or see a specialist. Claimant also testified that he was only absent from work due to the pain of his migraines. The fact that Claimant suffers from cluster migraines is further documented by the certification of his doctor. The Board accepted Claimant's testimony as credible. Thus, the evidence supports the Board's findings that Claimant missed work because of his medical condition.

We note that, regardless of whether Claimant followed proper procedure in requesting FMLA leave, the Board determined that Claimant was absent due to his medical condition. Employer may have a work rule sanctioning employees for all absences from work, including those caused by illness. However, illness is a good reason for violating a work rule. See Brown v. Unemployment Compensation Board of Review, 854 A.2d 626, 629 (Pa. Cmwlth. 2004). ("[I]llness, properly reported to the employer does not constitute willful misconduct.") Therefore, substantial evidence of record supports the Board's findings that Claimant did not commit willful misconduct.^{[ 8 ]}

For the above-stated reasons, the order of the Board is affirmed.

ORDER

AND NOW, this 19^th day of July, 2010, the order of the Unemployment Compensation Board of Review dated October 27, 2009, in the above-captioned matter is hereby AFFIRMED.

This copy provided by Leagle, Inc.