Roethlein v. Unemployment Comp. Bd. of Review

Martin O. Roethlein, Petitioner v. Unemployment Compensation Board of Review, Respondent

No. 1102 C.D. 2020

Commonwealth Court of Pennsylvania

February 24, 2023

OPINION NOT REPORTED

Submitted: October 21, 2022.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE STACY WALLACE, Judge.

MEMORANDUM OPINION

STACY WALLACE, Judge.

Martin O. Roethlein (Claimant), pro se, petitions for review of the October 2, 2020 order of the Unemployment Compensation Board of Review (Board), which reversed the referee's decision and concluded he was ineligible for unemployment compensation (UC) benefits due to willful misconduct under Section 402(e) of the Unemployment Compensation Law.^[1] After careful review, we affirm.

I. Background and Procedural History

On February 27, 2020, the Duquesne UC Service Center issued a notice of determination, concluding that Claimant was ineligible for UC benefits due to willful misconduct. Certified Record (C.R.), Item No. 4, Notice of Determination, 2/27/20, at 1. The notice indicated Henne, Inc. (Employer) discharged Claimant for violating its attendance policy. Id. The notice indicated Claimant was aware of the policy, Employer had previously warned Claimant about the policy, and Claimant admitted to violating the policy. Id. In addition, Claimant did not show good cause for violating the policy. Id.

Claimant appealed to a UC referee, who held a telephone hearing on April 20, 2020. At the time scheduled for the hearing, the referee successfully placed phone calls to Claimant and his representative, but the call to Employer went to voicemail. C.R., Item No. 9, Notes of Testimony (N.T.), 4/20/20, at 1-2. As a result, Claimant was the only witness to testify during the hearing. Claimant testified he worked for Employer as a jeweler beginning on October 7, 2019.^[2] Id. at 5. Claimant testified he had to stop working after December 23, 2019, however, due to sciatica. Id. at 6-7. He described his medical treatment for this condition, including treatment at a pain management clinic and trips to the hospital. Id. at 7. Claimant insisted he was a reliable employee who was never late or missed work until he began suffering from sciatica.^[3] Id. at 6-7. On April 21, 2020, the referee issued a decision reversing the UC Service Center's notice of determination. C.R., Item No. 10, Referee's Decision, 4/21/20, at 3 (unpaginated). The referee reasoned that Employer did not participate in the hearing, despite receiving notice, and that there was no competent evidence in the record to demonstrate willful misconduct. Id. at 2.

Employer filed a petition for appeal to the Board, in which it requested a new hearing. Employer averred that its representative was waiting for the referee's phone call on April 20, 2020, but that she did not receive a call for unknown reasons. C.R., Item No. 11, Employer's Petition for Appeal with Attachments, 4/30/20, at 84, 110.^[4]The Board issued an order on June 18, 2020, remanding for another hearing. C.R., Item No. 14, Board Hearing Order, 6/18/20, at 1 (unpaginated). The order explained that the purpose of the remand was to allow Employer to present evidence addressing its lack of participation on April 20, 2020. Id. Moreover, the order explained that the parties could present additional evidence on the merits of the case, but that the Board would not consider the evidence unless it found Employer had proper cause for its non-participation. Id.

The referee held a second telephone hearing on July 9, 2020. This time, the referee successfully placed phone calls to Claimant and his representative, as well as Employer's controller, Suzanne Bindseil (Bindseil). The referee heard testimony from Bindseil regarding Employer's failure to participate in the hearing on April 20, 2020, after which Bindseil and Claimant presented testimony addressing the merits of Claimant's request for UC benefits.

Regarding Employer's failure to participate in the hearing on April 20, 2020, Bindseil testified the referee's phone call "did not come through." C.R., Item No. 16, N.T., 7/9/20, at 4. Bindseil explained that she made efforts to contact the referee after she did not receive a phone call, which included sending email and making two calls herself, which proved unsuccessful. Id. Regarding her second attempt to call the referee, she testified: "I called the office again. I spoke with a woman who said that you, [referee], were in the office, that she would pass the message along to you.

I heard nothing back after that." Id. Bindseil testified April 20, 2020, was the first day she was able to return to Employer's store after it closed temporarily due to the COVID-19 pandemic. Id. She explained that Employer was "moving" its phone system because it was "forwarding to another phone," and she "was assured by the person who was doing it that it was all ready to go." Id. Bindseil nonetheless agreed on cross-examination that Employer's phones may not have been set up correctly, saying: "That was probably the case. I do not know. I did not set the phones up."^[5]Id. at 6.

Regarding the merits of the case, the parties presented only brief testimony. Bindseil testified that Employer discharged Claimant because he failed to return to work and did not inform Employer when he would be able to return to work or when his doctors cleared him to return to work. Id. at 7. In addition, Claimant failed to inform Employer what accommodations he might need. Id. Claimant countered that he was unable to provide Employer with a date when he could return to work because his doctor's office "didn't have a date." Id. at 9. When Bindseil pressed Claimant on cross-examination why he could not obtain a return date at a doctor's appointment on January 27, 2020, Claimant insisted that he told Bindseil he "would be back on the 28th, whether [he was] in extreme pain or not." Id. at 10.

Because the parties' testimony was so brief, the most important evidence on the merits was Employer's petition for appeal from the April 21, 2020 decision, which the referee entered into the record without objection. See C.R., Item No. 16, N.T., 7/9/20, at 4; C.R., Item No. 11, Employer's Petition for Appeal with Attachments, 4/30/20. Employer attached documentation to its petition detailing Claimant's unexcused absences, including a letter terminating Claimant's employment, emails between Employer and Claimant, medical documents related to Claimant's absences, Employer's company policy warning that excessive absences or absences without notice could result in termination, and a spreadsheet compiling Employer's communications with Claimant from December 23, 2019, to January 29, 2020.

In summary, Employer's attachments indicate that Claimant's last day at work was on December 23, 2019. C.R., Item No. 11, Employer's Petition for Appeal with Attachments, 4/30/20, at 100, 109, 126, 135. Claimant informed Employer he would "[p]robably" be out sick on December 27 and 28, 2019, and Claimant did not report for work on those days. Id. at 98, 109, 124, 135. Employer then sent Claimant an email on December 28, 2019, asking if he would be "unable to come in" due to his illness and a voicemail asking him to return the call. Id. Claimant did not reply and was absent without notice on December 30, 2019, his next scheduled workday. Id. at 109, 135. On January 2, 2020, Claimant emailed and called Employer to explain he had a doctor's appointment and would not be in for work on January 3, 2020. Id. Claimant missed eight scheduled workdays without notice after January 3, 2020, which occurred between January 4, 2020, and January 20, 2020. Id. During that time, Employer sent Claimant two emails and left a voicemail, inquiring about his availability and again asking for a return call. Id. at 99-100, 109, 125-26, 135.

On January 21, 2020, Employer sent Claimant an email warning that he must respond by the afternoon of January 22, 2020, or that Employer would "consider it job abandonment." Id. at 100, 109, 126, 135. Claimant timely replied, explaining he was in the hospital and was "[n]ot sure yet" when he could return to work. Id. at 101, 109, 127, 135. He also apologized that he had not "been in touch for a[]while." Id. Employer requested that Claimant provide, by January 24, 2020, "documentation outlining that you have been seen and when you will be able to return to work (and if there were an [sic] limitations while working) with contact information for the office included." Id. Claimant sent Employer two emails on January 24, 2020, in which he forwarded medical documentation^[6] and indicated he had an appointment on January 27, 2020, at which he would receive any work limitations. Id. at 103-04, 109, 129-30, 135. On January 27, 2020, Claimant sent an email saying he "[g]ot a shot today so I will be there Friday with or without pain." Id. at 105, 109, 131, 135. This was the last communication between the parties before Employer sent a letter to Claimant terminating his employment, dated January 29, 2020. Id. at 95, 121.

On October 2, 2020, the Board issued the order on appeal, in which it reversed the referee and deemed Claimant ineligible for UC benefits. Regarding Employer's failure to participate in the April 20, 2020 hearing, the Board found that the hearing "occurred on the first day that . . . [E]mployer reopened following closure related to COVID-19 and its phone system malfunctioned." C.R., Item No. 17, Board's Order, 10/2/20, at 2. Thus, the Board concluded that Employer had proper cause for failing to participate in the hearing and explained that it would base its decision on evidence presented at both the April 20, 2020 and July 9, 2020 hearings.

Regarding the merits of Claimant's request for UC...