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Dike v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

June 18, 2013

Chidozie C. Dike, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted: May 3, 2013

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION

PATRICIA A. McCULLOUGH, Judge.

Chidozie C. Dike (Claimant) petitions for review of the September 26, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for unemployment benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law).[1] We affirm.

Claimant worked at the Devereux Foundation (Employer) as a direct care professional from December 2010, until December 9, 2011, at a final rate of pay of $12 an hour. (Finding of Fact (F.F.) No. 1.) Employer had a "return home" policy that allowed employees to return home for certain reasons, including attending a funeral for a family member. The policy provided that, in order for an employee to request "return home" leave to attend a funeral, the employee must submit to Employer a completed application, a copy of his plane ticket or travel itinerary, and written documentation of the death or funeral, including a doctor's note, document from a funeral home, death certificate, or other written record. (F.F. Nos. 4-6.)

On December 6, 2011, Claimant met with Carol Dawson (Dawson), Employer's Human Resources Specialist, and requested leave from December 20, 2011, until January 31, 2012, to attend his grandfather's funeral in Nigeria. (F.F. Nos. 2-3.) Dawson provided Claimant with the application for "return home" leave and requested that he complete the form and submit his travel itinerary/plane ticket and a written record of his grandfather's death or funeral. (F.F. Nos. 4-6.) Claimant replied that he did not know how to obtain written documentation of the funeral from Nigeria. Claimant asked what would happen if he did not report for his next scheduled shift, and Dawson explained Employer's job abandonment policy to Claimant. (F.F. Nos. 9-10.)

Claimant did not provide Employer with the completed application, documentation of the funeral, or his travel itinerary, and left for Nigeria on December 22, 2011. (F.F. Nos. 7-8, 14.) Claimant was scheduled to work on December 24, 2011, but did not report to work on that date or thereafter. (F.F. Nos. 11-12.) By letter dated January 9, 2012, Employer notified Claimant that it deemed his actions job abandonment and that his employment was terminated. (Reproduced Record (R.R.) at 21a, Employer's Exhibit 5.)

Claimant filed for unemployment benefits with the local service center on April 29, 2012. On May 23, 2012, the service center issued a determination advising Claimant that he was ineligible for benefits under section 402(b) of the Law. Claimant appealed the determination, and a referee held a hearing on July 9, 2012.

Claimant testified that he worked every other weekend for Employer. (R.R. at 4a-5a.) Claimant testified that when he met with Dawson and requested a leave of absence, she did not give him an application form to complete and return. (R.R. at 16a.) He also testified that he was unaware of Employer's "return home" policy and thought he could request time off two weeks in advance. (R.R. at 9a.) Claimant testified that after the meeting, he attempted to get a death certificate from Nigerian authorities, but he was not understood and was unable to get documentation before he departed for the funeral, which took place on December 26, 2011. (R.R. at 5a-8a.) Claimant further testified that when he was in Nigeria and requested documentation, he was given a flyer as proof of the death and he mailed this flyer to Employer. (R.R. at 6a-7a, 15a.) Claimant also stated that he gave Employer a copy of his plane ticket before departing for Nigeria. (R.R. at 6a.) Claimant admitted that Employer never approved his leave of absence. (R.R. at 8a.)

Employer's Human Resources Director, Richard Latella (Latella) testified that Claimant's request for "return home" leave was not granted because he did not return a completed application. (R.R. at 10a.) Latella testified that Employer terminated Claimant after he did not appear for his scheduled shift on December 24, 2011, or several shifts thereafter. (Id.) Latella explained that Employer's job abandonment policy provides that an employee who does not show up and fails to call off for three successive days of scheduled work is considered to have abandoned his job and is terminated. (Id.)

Dawson testified that at her meeting with Claimant, she gave him the application for leave forms and informed him that merely submitting a request for leave was inadequate and that he must provide documentation of his grandfather's death or funeral to complete his request for leave. (R.R. at 12a.) She also testified that Claimant did not show her his plane ticket or provide her with a copy of it. (Id.) Dawson stated that she did not hear from Claimant following their December 6, 2011 meeting. (Id.) Dawson also stated that Claimant was terminated after failing to show up for four shifts. (R.R. at 13a.)

By order dated July 10, 2012, the referee affirmed the service center's determination that Claimant was ineligible for benefits under section 402(b) of the Law. The referee held that Claimant voluntarily left his job for personal reasons and that he did not attempt to preserve his employment by completing Employer's application for "return home" leave. The referee further noted that a claimant's voluntary termination of his employment for personal reasons is not a necessitous and compelling reason for leaving.

Claimant appealed to the Board, arguing that he did not voluntarily terminate his employment and that he attempted to preserve his employment. The Board adopted and incorporated the referee's findings of fact and specifically noted that it found Employer's witnesses credible and resolved the conflicts in the testimony in Employer's favor. By order dated September 26, 2012, the Board affirmed the referee's denial of benefits under section 402(b) of the Law.

Claimant appeals to this Court, [2] arguing that he did not voluntarily leave his job when he missed several days of work to attend his grandfather's funeral. Relying on Firmstone v. Unemployment Compensation Board of Review, 370 A.2d 749 (Pa. Cmwlth. 1977), Claimant asserts that an employee does not voluntarily leave ...


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