Opinion
No. 1513 C.D. 2011
02-22-2012
Jasmyne Chandler, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Jasmyne Chandler (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). The Board also affirmed the referee's determination that Claimant was able and available for work.
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The Claimant was last employed with Telerx as a full-time Customer Service Representative at a pay rate of $11.66 per hour. The Claimant was employed from September 2008 and her last day of work was April 19, 2011.
2. The Employer maintains an attendance policy which provides for points for being late, leaving early, or being absent from work.Referee's Decision, June 10, 2011, (Decision), Findings of Fact Nos. 1-12 at 1-2.
3. The Employer's policy provides for a verbal warning, a written warning, a final warning, and then separation from employment.
4. An accumulation of 6 points will result in termination from employment.
5. In December 2010, the Employer gave the Claimant a final warning because of her attendance.
6. Between December 2010 and March 23, 2011, the Claimant was late 20 times and absent 6 times.
7. The Employer gave the Claimant a second warning because of her attendance.
8. During the week before her last day of work, the Claimant was late several times to work.
9. The Claimant was late to work April 15, 2011.
10. The Claimant was late to work on April 19, 2011.
11. The Employer discharged the Claimant because she was not reliable.
12. The Claimant is able and available for work.
The referee determined:
It is well established that repeated tardiness and absences without notice are clearly inimical to the best interests of the employer. An employer has a reasonable right to expect attendance and punctuality from an employee, and the failure of the claimant to fulfill this obligation constituted a breach of duty owed the employer.Decision at 2.
The Board affirmed and did not "find credible the claimant's good cause justifications for her numerous instances of tardiness." Board Opinion, July 29, 2011, at 1.
Claimant contends that the Board erred when it found she was ineligible for benefits because her conduct was not willful misconduct.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer may rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). Habitual tardiness, especially after an employee has been warned can constitute willful misconduct. University of Pittsburgh v. Unemployment Compensation Board of Review, 424 A.2d 559 (Pa. Cmwlth. 1980). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Claimant does not challenge that Telerx had an attendance policy with a progressive disciplinary policy which she violated. Claimant argues that she had good cause for violating the policy: her health issues and the health of her son. Claimant asserted she was late the last week she worked because her four year old son was sick:
That week it was all my son being sick that week. So to let him up or to get him somewhere, even if it would be my mom or at the school, but it would be hard to get him to school because then I would have to leave to pick him up. And that would be counted against me as well.Notes of Testimony, June 3, 2011, (N.T.) at 13. Claimant also testified that she was pregnant, though she did not specifically advance her pregnancy as a reason for her attendance problems. N.T. at 15.
The Board did not find Claimant's explanations credible. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Claimant did not satisfy her burden of proving that the violation was for good cause.
Claimant also contends that the Board erred when it determined she quit her job without a necessitous and compelling reason. Claimant does not address whether she voluntarily quit her employment in the argument section of her brief. Consequently, this issue is waived. See Pa.R.A.P. 2116(a); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived). Even if she did, it would be of no consequence because the Board found that she was ineligible for benefits due to willful misconduct, not because she voluntarily quit her employment. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 22nd day of February, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge