Opinion
No. 1134 C.D. 2012
04-22-2013
Charlene M. Bianconi, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Charlene M. Bianconi (Claimant) petitions this Court, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. In doing so, the Board reversed the Referee's decision to grant benefits. The Board held that Claimant's excessive tardiness was willful misconduct that rendered her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends that her conduct was not disqualifying willful misconduct and that she was denied her right to a fair hearing. We affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant was employed as an adult training services aide for Skills of Central PA, Inc. (Employer) from 1999 until she was discharged for tardiness on December 21, 2011. The UC Service Center denied Claimant's application for unemployment benefits, finding that her tardiness constituted willful misconduct. Claimant appealed, and a hearing was conducted by the Referee. In addition to testimonial evidence, Employer submitted Claimant's employee separation form and disciplinary history, which included 13 disciplinary notices for tardiness. Certified Record Item No. 2 (C.R. ___); Notes of Testimony at 3 (N.T. ___).
Jackie Kunko, Employer's manager, testified that on December 20, 2011, Claimant called to notify Employer that she was going to be late. During the call, Claimant acknowledged that she had previously been warned that she would be fired if she were tardy again. When Claimant arrived to work later that day, she told Kunko that she had overslept because of medication she was taking for her back pain. Until this conversation, Kunko was unaware that Claimant suffered back pain.
Kunko also testified that Claimant had previously been warned about her tardiness and had served a one-day and a three-day suspension. After the three-day suspension, which began on November 16, 2011, Claimant was told that she would be terminated the next time she was tardy. On December 19, 2011, Claimant was warned that she was "cutting it close" on her need to arrive at work on time. N.T. 6. Kunko stated that on days that Claimant was late, she would claim that she had overslept but never stated that the cause was medication or late nights spent taking care of her parents.
Barbara Roberts, Employer's Program Specialist, testified for Employer. She recalled attending counseling sessions where Claimant discussed her medication. Roberts advised Claimant to get a note from her doctor explaining that her medication caused drowsiness, but Claimant never did so.
Claimant testified on her own behalf. She explained that on December 20, 2011, she called Kunko to inform her that she was going to be late. According to Claimant, she overslept that day due to medication she was taking for back pain related to a work-related injury that occurred on December 15, 2011. Claimant testified that, at the time, she was unaware the medication would make it difficult for her to wake up. Claimant did not recall Roberts or anyone else ever asking her for a doctor's note regarding her medication. Claimant attributed some of the other times she overslept to staying up late to care for her parents.
The Referee found that Claimant's tardiness did not constitute willful misconduct. The Referee credited Claimant's testimony that on the day of her last incident of tardiness, December 20, 2011, she had overslept as a result of medication she was taking for back pain. The Referee found that, given that circumstance, Claimant's tardiness did not rise to the level of willful misconduct. Employer appealed.
Following its review, the Board found that Employer, through disciplinary notes and credible testimony, established that Claimant had a history of tardiness. Employer's evidence established that Claimant had received multiple warnings and a three-day suspension for tardiness. After her second suspension, Claimant was on notice that any more tardiness would result in termination. The Board rejected as not credible Claimant's claim that she overslept on December 20, 2011, due to her medication because Claimant did not identify the medication or establish that it could cause drowsiness. The Board resolved all other conflicts in testimony in favor of Employer. The Board held that Claimant's tardiness constituted willful misconduct and, accordingly, denied benefits. Claimant then petitioned this Court for review.
Employer attempted to submit new evidence that it did not offer at the Referee's hearing. The Board refused to consider this evidence because Employer could not explain why it was unable to present the evidence to the Referee.
On appeal, Claimant argues that her tardiness did not constitute willful misconduct. Claimant also argues that she was denied her right to a fair hearing because the Board based its decision on evidence that was not presented at the hearing before the Referee.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1161 n.2 (Pa. Cmwlth. 2012). We review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
Claimant also asserts that she was denied her right to a fair hearing because she was not given the opportunity to be represented by an attorney. However, Claimant does not articulate this argument in her brief beyond stating it in her "Statement of Questions Involved" and "Summary of the Argument." Additionally, the Referee advised Claimant of her right to have an attorney and she agreed to proceed with the hearing. C.R. 6; N.T. 2.
We first turn to Claimant's argument that employer failed to prove willful misconduct. Claimant argues that although tardiness may justify discharging an employee, it did not constitute willful misconduct in her case because her tardiness was not intentional. Further, she provided good cause for being tardy on December 20, 2011.
Section 402(e) of the Law provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work. 43 P.S. §802(e). Although not defined in the Law, the courts have established that willful misconduct is
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008). Once an employer meets its burden, the burden then shifts to the claimant to prove that she had good cause for her actions. Id.
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
A single act of tardiness, in itself, does not constitute willful misconduct. Welded Tube Company of America v. Unemployment Compensation Board of Review, 401 A.2d 1383, 1385 (Pa. Cmwlth. 1979). However, tardiness can rise to the level of willful misconduct where other factors are present. Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974). These factors include: (1) excessive absenteeism or tardiness, (2) failure to notify the employer in advance, (3) lack of good or adequate cause, (4) disobedience of a formal policy of employer or (5) disregard of specific warnings. Id. If a claimant has a history of tardiness and is informed that future tardiness is unacceptable, subsequent incidents of tardiness constitute willful misconduct. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013).
Here, Employer presented substantial evidence of Claimant's extensive history of tardiness by offering into evidence 13 disciplinary notices issued to Claimant for that infraction. Further, Kunko testified that when Claimant was suspended on November 16, 2011, she was warned that the next time she was tardy her employment would be terminated. Claimant did not dispute her history of tardiness or that she had received the warning. Based on this evidence, i.e., an extensive history of tardiness and disregarding Employer's warnings, Claimant's tardiness constituted willful misconduct.
Claimant argues that she offered good cause for being tardy because she was taking medication for her back pain that "knocked her out." C.R. 6; N.T. 8. However, the Board did not find this testimony credible. Claimant attributed her tardiness to oversleeping on several occasions but did not explain the reason for this. Claimant attributed her oversleeping on December 20, 2011, to medicine she was taking, but she did not identify the drug or show that one of its side effects was to affect sleep patterns. Accordingly, the Board did not find Claimant's explanation credible and held that Claimant did not establish good cause for being tardy on December 20, 2011.
We next turn to Claimant's argument that she was denied a fair hearing because the Board based its decision on evidence that was not presented to the Referee. Specifically, Claimant argues that the Board's findings of fact 2, 3, 5, 13, and 14 are not supported by evidence presented at the hearing before the Referee. Claimant is incorrect. We have reviewed the record and find that all of the challenged findings of fact are supported by Employer's documentary or testimonial evidence.
The findings of fact challenged by Claimant state:
2. Part of the claimant's job duties included transporting disabled clients.
3. The employer requires employees who transported clients to report the use of any medications that might cause drowsiness.
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5. On the fifth warning statement issued on April 28, 2011, the claimant indicated that she called into work on that date at 8:15 a.m., fifteen minutes after her scheduled shift began, and reported that she had overslept.
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13. The manager instructed the claimant to report to the workplace and, when the claimant did so, she stated her belief that she had overslept due to new medication that she had taken for back pain before she slept on the previous night.
14. The manager testified that she instructed the claimant to call her doctor if she believed that the medication was causing her become drowsy, but the claimant did not do so.
To the extent Claimant is challenging the Board's findings because they are contrary to those made by the Referee, her argument lacks merit. In unemployment compensation cases, the Board, not the Referee, is the ultimate fact finder. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276-77, 501 A.2d 1383, 1388 (1985). Determinations of credibility and resolutions of conflicting evidence are within the Board's discretion. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Such determinations are not subject to judicial review. Id. So long as the Board's findings of fact are supported by substantial evidence, they are conclusive on appeal. Id. Here, the record contains conflicting testimony concerning Employer's knowledge of Claimant's injuries and whether Employer asked Claimant to provide information regarding her medication. The Board found that the testimony of Kunko and Roberts was more credible than the testimony of Claimant on these issues. Because the Board acted within its discretion in making these credibility determinations, we will not disturb them.
While the Board is the ultimate fact finder, its discretion is not unfettered. In Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 461, 453 A.2d 960, 962 (1982), the Pennsylvania Supreme Court explained that the Board cannot ignore the findings made by the Referee where they are based on consistent and uncontradicted testimony without providing an explanation for doing so. Here, however, Claimant's evidence was not uncontradicted. --------
For the above stated reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 22nd day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated May 14, 2012, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
Board Decision at 1-2.