Hulshizer v. Unemployment Compensation Board of Review, 021820 PACCA, 348 C.D. 2019

Docket Nº:348 C.D. 2019, 349 C.D. 2019
Opinion Judge:MARY HANNAH LEAVITT, PRESIDENT JUDGE
Party Name:Robert R. Hulshizer, Petitioner v. Unemployment Compensation Board of Review, Respondent
Judge Panel:BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE MICHAEL H. WOJCIK, JUDGE HONORABLE J. ANDREW CROMPTON, JUDGE
Case Date:February 18, 2020
Court:Commonwealth Court of Pennsylvania
 
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Robert R. Hulshizer, Petitioner

v.

Unemployment Compensation Board of Review, Respondent

Nos. 348 C.D. 2019, 349 C.D. 2019

Commonwealth Court of Pennsylvania

February 18, 2020

OPINION NOT REPORTED

Submitted: January 10, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE MICHAEL H. WOJCIK, JUDGE HONORABLE J. ANDREW CROMPTON, JUDGE

MEMORANDUM OPINION

MARY HANNAH LEAVITT, PRESIDENT JUDGE

Before this Court are consolidated petitions for review filed, pro se, by Robert R. Hulshizer (Claimant). Claimant seeks review of an adjudication of the Unemployment Compensation Board of Review (Board) that denied his claim for benefits for the stated reason that Claimant did not appear for work for three consecutive shifts and did so without notifying his employer. The Board affirmed the Referee's decision that Claimant's actions constituted willful misconduct, which rendered him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).1 Claimant also seeks review of the Board's denial of his request for reconsideration, by which Claimant sought to present evidence that was unavailable at the time of the Referee hearing. We affirm both adjudications.

Claimant worked part-time as a produce clerk for Karns Prime and Fancy Food, LTD (Employer) from October 18, 2017, through September 29, 2018. On October 15, 2018, Employer sent Claimant a letter terminating his employment for failing to report to work for three consecutive shifts. The letter noted that Employer had made numerous telephone calls to Claimant before and after the three scheduled shifts, but the calls were not answered.

Claimant applied for unemployment compensation (UC) benefits on October 21, 2018. His application stated that Employer suspended him while he was awaiting a decision from human resources on a medical concern. Employer did not respond to the UC Service Center's request for information. The UC Service Center granted Claimant benefits, and Employer appealed. At the hearing before a Referee, both Claimant and Employer presented evidence.2

Joshua Karns, Employer's vice president of human resources, testified that Claimant was scheduled to work from 5:00 p.m. to 10:00 p.m. on Friday, October 5, Saturday, October 6, and Sunday, October 7, 2018. According to Karns, the employee handbook states that if an employee is unable to work, he must telephone Employer at least one hour before the start of his shift. Claimant did not telephone to report his absences on any of the three days he was scheduled to work.

Karns stated that Claimant sent a letter to Employer, dated September 27, 2018, stating that he was no longer available to work Thursdays through Sundays due to a "medical condition." Certified Record (C.R.), Item 10, Exhibit E2. However, Claimant stated that he would "honor the schedule posted for 10-5, 10-6, 10-7, unless [his] medical condition abruptly changes." Id. On October 1 and 2, 2018, Karns telephoned Claimant to discuss the letter. On both occasions, Claimant did not answer, and Karns left a voicemail. On October 3 and 5, 2018, Karns again called Claimant and received an automated message stating that the number was not accepting calls.

Karns attempted to meet with Claimant in person at the start of the 5:00 p.m. shift on Friday, October 5, 2018, but Claimant did not report to work. On Monday, October 8, 2018, Karns learned that Claimant had missed all three shifts and had not given Employer advance notice of these absences. Karns again telephoned Claimant and again received the message that the number was not accepting calls.

Hayat Wending, the store director, testified that in late September 2018 Claimant asked to be transferred from the store's produce department to its grocery department. Wending declined his request, explaining that Claimant was trained to work in the produce department. Shortly thereafter, she received Claimant's September 27, 2018, letter stating he could not work Thursdays through Sundays, but would honor the schedule for October 5, 6 and 7, 2018. Wending forwarded Claimant's letter to human resources.

Claimant testified that he has an immune system problem and that two months after he began working for Employer he began to develop skin lesions and other symptoms. Claimant had "to gargle with salt water and put saline up [his] nose before and after [he ate]" to alleviate the symptoms. Notes of Testimony, 12/14/2018, at 12 (N.T.___). On September 23, 2018, his doctor gave him "a Metronidazole five-pack … because [he] was on the verge of whooping cough." Id. He was also "on the verge of bronchial pneumonia and bronchitis…." Id. Claimant's doctor recommended that he wear a paper mask to work.

Claimant testified that...

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