Opinion
No. 2186 C.D. 2010
08-12-2011
Salimah Hawthorne, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE KELLEY
Salimah Hawthorne (Claimant), proceeding pro se, petitions for review from an order of the Unemployment Compensation Board of Review (Board), which affirmed the order of the referee and denied benefits. We affirm.
Claimant was employed by Rite Aid (Employer) as a full-time Pharmacy Technician from August 3, 2003 until her last day of work on January 29, 2010. Claimant filed an application for unemployment compensation benefits. The Allentown UC Service Center (Service Center) issued a Notice of Determination denying Claimant's application on the basis that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) for willful misconduct.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). This section provides:
An employe shall be ineligible for compensation for any week
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act; ... .
Claimant timely appealed the Service Center's notice to the referee. A hearing was held on April 20, 2010, at which Claimant and a witness for Employer testified. Based upon the testimony and evidence presented, the referee determined that Claimant was discharged for excessive lateness and was ineligible for benefits pursuant to Section 402(e) of the Law for willful misconduct. By decision dated May 26, 2010, the referee affirmed the decision of the Service Center and denied benefits.
At the hearing, Claimant was represented by counsel.
From this decision, Claimant filed an appeal with the Board. The Board found as follows. As of September 10, 2009, Claimant had received a final warning that she would be subject to termination of employment because she had been late seven times within thirty days. Claimant was scheduled to begin work at 9:30 a.m. on January 28, 2010. Shortly before 6:15 a.m. on January 28, 2010, Claimant called Employer and said that she would be late for work. Claimant did not arrive at work until approximately 1:15 p.m. Claimant asserted that she was late on January 28, 2010 due to transportation problems. Claimant never informed Employer that she was having transportation problems due to an injury she sustained in October of 2009. On January 28, 2010, Claimant was not having transportation problems. The Board adopted the rationale of the Referee in toto. The Board determined that Claimant continued to be tardy for work after warnings without good cause. The Board ultimately concluded that Claimant is ineligible for benefits pursuant to Section 402(e) of the Law for willful misconduct. By decision dated August 24, 2010, the Board affirmed the referee's decision and denied benefits. From this decision, Claimant has filed the instant appeal.
Claimant contends that the Board's findings that she asserted she was late on January 28, 2010 due to transportation problems and that she never informed Employer that she was having transportation problems due to an injury she sustained in October of 2009 are not supported by substantial evidence. We disagree.
The Board requests this Court to quash Claimant's brief as it fails to comply with various provisions of the Pennsylvania Rules of Appellate Procedure. While Claimant's brief is by no means a model of appellate advocacy, effective appellate review is not precluded by the deficiencies of Claimant's brief. We, therefore, decline the Board's request to quash.
Initially, we note that this Court's review of the Board's decision is set forth in Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704, which provides that the Court shall affirm unless it determines that the adjudication is in violation of the claimant's constitutional rights, that it is not in accordance with law, that provisions relating to practice and procedure of the Board have been violated, or that any necessary findings of fact are not supported by substantial evidence. See Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Compensation Board of Review, 604 A.2d 1159 (Pa. Cmwlth. 1992). The Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa. Cmwlth. 1984).
Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee's duties and obligations. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). In order to prove willful misconduct by showing a violation of employer rules or policies, the employer must prove the existence of the rule or policy and that it was violated. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 199 (Pa. Cmwlth. 1995); Duquesne Light Company v. Unemployment Compensation Board of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994). Excessive lateness where warnings were given can be the basis for a determination of willful misconduct, disqualifying a claimant from unemployment compensation. Herbert v. Unemployment Compensation Board of Review, 554 A.2d 616 (Pa. Cmwlth. 1989); Serban v. Unemployment Compensation Board of Review, 370 A.2d 755 (Pa. Cmwlth. 1977).
Willful misconduct is not found where a claimant can show good cause for his actions, i.e., that the actions which resulted in the discharge were justifiable and reasonable under the circumstances. Perez v. Unemployment Compensation Board of Review, 736 A.2d 737 (Pa. Cmwlth. 1999). While the employer bears the burden of proving that a claimant's behavior constituted willful misconduct, it is the claimant who bears of the burden of proving good cause for his actions. Id.
Here, Claimant does not dispute the Board's finding that she received a final warning that she would be subject to termination of employment if she was late again. Claimant does not dispute the Board's finding that, despite the final warning, she was late on January 28, 2010. Claimant does not challenge the Board's finding that she did not actually have transportation problems on January 28, 2010. Therefore, these findings are conclusive on appeal. Salamak v. Unemployment Compensation Board of Review, 497 A.2d 951 (Pa. Cmwlth. 1985).
Rather, Claimant appears to argue that she had good cause for her tardiness because she had an emergency doctor's appointment that morning as a result of a prior work injury and informed Employer of this. While Claimant asserts she never advised Employer she was late because of transportation problems, Claimant's own statements belie this assertion. The Board did not credit Claimant's testimony in this regard. The Board instead credited the testimony offered by Employer's witness that Claimant attributed her lateness to transportation issues and never once indicated she was late because of a doctor's appointment. N.T. at 15, 22. Such questions of conflicts in evidence, witness credibility and evidentiary weight are within the sole discretion of the Board and will not be disturbed on appeal. Horton v. Unemployment Compensation Board of Review, 953 A.2d 851 (Pa. Cmwlth. 2008). Based upon our review, the Board's findings are supported by substantial evidence. Having failed to establish just cause for her tardiness, we conclude the Board properly denied benefits pursuant to Section 402(e) of the Law.
Claimant testified she was late on her last day "because of the doctor's appointment and the transportation... ." Notes of Testimony (N.T.) at 39 (emphasis added). Claimant further testified, "I informed them I was going to be late because of the train because I had to go to an emergency appointment." N.T. at 44. In her brief to this Court, Claimant writes, "The bus took longer than usual to come." Claimant's Brief at 8.
Accordingly, the order of the Board is affirmed.
/s/_________
JAMES R. KELLEY, Senior Judge ORDER
AND NOW, this 12th day of August, 2011, the order of the Unemployment Compensation Board of Review, at Decision No. B-505044, dated August 24, 2010, is AFFIRMED.
/s/_________
JAMES R. KELLEY, Senior Judge