Opinion
No. 543 C.D. 2013
11-08-2013
Adriana M. Hammer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Adriana M. Hammer (Claimant) asks whether the Unemployment Compensation Board of Review (Board) erred in denying her unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant asserts the Board erred in determining she committed willful misconduct where LGAR Health and Rehabilitation Center (Employer) utilized a "no-fault" attendance policy, and Claimant had good cause for the instances of tardiness that led to her termination from employment. Claimant also argues Employer did not prove she had a history of unjustified, excessive tardiness. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Employer as a certified nursing assistant from October 2007 until her final day of employment in September 2012. After her separation from employment, Claimant applied for unemployment compensation benefits, which were initially denied. Claimant appealed, and a hearing ensued before a referee.
At hearing, Employer presented the testimony of its nursing home administrator and an employee who oversees its human resources department. Claimant, represented by counsel, testified on her own behalf.
Based on the evidence presented, the referee found the following facts. Employer has an established attendance policy for absences, tardiness and leaving work early that includes counseling, a verbal warning, a written warning, a final written warning and three-day suspension, and termination.
Claimant reached the discipline level of suspension for attendance-related issues in December 2010. Claimant also received a one-day suspension on July 22, 2011, for an incident unrelated to her attendance. In August 2012, Claimant received a second, three-day suspension for attendance issues.
Employer's policy provides, in part, that an employee shall be terminated if she receives more than two suspensions in a two-year period for any policy violations.
Although the referee's finding indicates that Employer's policy provides for termination based on three suspensions in a two-year period, the policy actually states that incurring more than two suspensions in a two-year period will result in termination. Referee's Hearing, 11/6/12, Ex. E1 at 4.
Claimant was late for work on September 21, 2012. Claimant's tardiness on that date raised her progressive discipline level to a third, attendance-related suspension. Employer discharged Claimant because she violated Employer's policy by receiving three suspensions in a two-year period.
Ultimately, the referee determined Employer provided credible evidence to establish the existence of its attendance policy. Further, Employer provided sufficient evidence to establish that Claimant reached the level of three disciplinary suspensions in August 2012, based on violations of Employer's policy. Because of an oversight, however, Employer did not terminate Claimant's employment in accordance with its policy at that time. Employer established Claimant was tardy on September 21, 2012, raising the discipline level for her attendance issues once again to a three-day suspension. Employer's witness testified that, because Claimant reached her fourth progressive disciplinary suspension in a two-year period, Employer terminated Claimant's employment.
The referee further determined Claimant had a history of poor attendance based on her receipt of three suspensions for unsatisfactory attendance in a two-year period. Additionally, the referee found Claimant's reason for her final instance of tardiness was insufficient, as Claimant, with knowledge of her prior attendance record, should have taken steps to ensure she was on time for work. Thus, the referee rejected Claimant's testimony regarding the basis for her final instance of tardiness. Based on these determinations, the referee concluded Employer met its burden of proving Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant appealed.
Adopting the referee's findings and conclusions, the Board upheld the referee's denial of benefits under Section 402(e) of the Law. Claimant now petitions for review.
The Board is the ultimate fact-finder in unemployment compensation cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Further, it is irrelevant whether the record contains evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Additionally, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
On appeal, Claimant argues this Court should reverse the Board's decision because the Board erred in failing to consider Claimant's good cause justification for the instances of tardiness leading to her termination, and instead accepted the accumulation of points under Employer's no-fault attendance policy as the only evidence needed to show willful misconduct.
Our review is limited to determining whether necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).
Claimant contends the Board failed to apply the analysis in Gillespie v. Unemployment Compensation Board of Review, 523 A.2d 1205 (Pa. Cmwlth. 1987) and W.R. Grace v. Unemployment Compensation Board of Review, 412 A.2d 1128 (Pa. Cmwlth. 1980), that where an employer uses a no-fault attendance policy, the Board must examine each absence or tardiness and consider whether the claimant had good cause in each instance. Claimant argues the Board misapplied the analysis set forth in Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A. 3d 186 (Pa. Cmwlth. 2012) (en banc) in finding that her history of tardiness alone was sufficient to prove willful misconduct. Claimant maintains her instances of tardiness do not approach the level of the claimant in Grand Sport Auto Body, and she offered good cause for almost all of the most recent instances of tardiness leading to her termination, including the final incident.
The Board counters that Employer discharged Claimant for accumulating four suspensions in a two-year period, three of which were attendance-related. Employer's policy provides for discharge after three suspensions in a two-year period. Claimant was well aware her employment was in jeopardy.
The Board further argues Employer did not discharge Claimant under a no-fault attendance point system as in Gillespie and W.R. Grace. Rather, Employer discharged Claimant for a pattern of infractions that led to a fourth suspension. Also, the Board rejected Claimant's reason for her final instance of tardiness that resulted in the fourth suspension. Thus, the Board asserts, it properly denied benefits.
Willful misconduct, though not defined in the Law, is defined by Pennsylvania courts as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or, (4) negligence that manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or employee's duties and obligations. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Habitual tardiness is behavior that is inimical to an employer's interests, and, therefore, may constitute willful misconduct. Grand Sport Auto Body. "We have consistently held that chronic tardiness, particularly after a warning, exhibits a sufficient disregard of the employer's interests to constitute willful misconduct." Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) (quoting Conibear v. Unemployment Comp. Bd. of Review, 463 A.2d 1231, 1232 (Pa. Cmwlth. 1982)). A conclusion that a claimant engaged in disqualifying willful misconduct is particularly warranted in cases where the claimant was warned and/or reprimanded for prior similar conduct. Ellis.
In addition, a deliberate violation of an employer's rules or policies may constitute willful misconduct. Williams v. Unemployment Comp. Bd. of Review, 531 A.2d 88 (Pa. Cmwlth. 1987). However, the employer must first prove the existence of a reasonable work rule and its violation. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158 (Pa. Cmwlth. 2012). If the employer does so, the burden shifts to the claimant to show good cause for the rule violation. Id.
The employer bears the burden of proving the claimant's actions rose to the level of willful misconduct; if it does so, the burden shifts to the claimant to show she had good cause for her conduct. Grand Sport Auto Body. A claimant has good cause if her actions are justifiable and reasonable under the circumstances. Id. Whether a claimant's actions constitute willful misconduct is a question of law and must be determined based on a consideration of all the circumstances. Id.
Here, Employer's policy states: "Violations of organizational policies or protocols which lead to the enactment of suspension in the progressive discipline process are serious. Incurring more than two suspensions in a two year period (beginning in January 2009) will result in termination." Referee's Hearing, 11/6/12, Ex. E1 at 4 (emphasis added); see also Referee's Hearing, Notes of Testimony (N.T.) at 9. Further, Employer's representative who oversees its human resources department confirmed that Employer terminated Claimant's employment based on Claimant's accumulation of four suspensions in a two-year period. N.T. at 23; see also Referee's Op., 11/8/12, Findings of Fact (F.F.) Nos. 6, 7. The referee's opinion, which the Board adopted, states (with emphasis added):
As stated in the findings above, [E]mployer provided credible testimony and evidence to establish the existence of an [E]mployer policy regarding attendance issues. [E]mployer's attendance policy calls for counseling, a verbal warning, a written warning, a final written warning and 3 day suspension and, finally, termination. [E]mployer also had an established
policy which required termination for any employee who obtained [more than two] suspensions in a 2 year period for any rule violation. [E]mployer provided sufficient evidence to establish that [C]laimant had reached the level of 3 disciplinary suspensions in August 2012, due to violations of [E]mployer's policies. [E]mployer admitted that there had been an oversight and [C]laimant's employment had not been terminated in accordance with [E]mployer's rules. [E]mployer also established that [C]laimant had been late on September 21, 2012, raising [C]laimant's disciplinary action for her attendance issues once again to a 3 day suspension. [E]mployer testified that as [C]laimant had reached her 4th progressive disciplinary suspension within a 2 year period, [C]laimant's employment had been terminated. ...Referee's Op. at 2. Our review of the record supports the Board's determinations. N.T. at 9-14, 23; Exs. E5, E6, E8, E9.
To that end, the record reveals that, after receiving an attendance-related suspension in December 2010, Ex. E5, a suspension for a non-attendance-related matter in July 2011, Ex. E6, another attendance-related suspension in August 2012, Ex. E8, and four additional instances of tardiness, Ex. E9, Employer terminated Claimant's employment. N.T. at 14. Claimant's four suspensions in a two-year period violated Employer's policy. Ex. E1 at 4. Further, with the exception of three instances of tardiness addressed below, Claimant makes no attempt to challenge her lengthy history of policy violations and suspensions for attendance-related issues. Also, Employer's policy provides for a suspension based on six late arrivals by an employee, Ex. E1 at 4; here, Claimant reached the level of suspension for late arrivals twice in the less than three-month period preceding her termination. Based on the Board's supported findings, we discern no error in the Board's determination that Employer proved Claimant "demonstrated a history of poor attendance," Referee's Op. at 2, and violated Employer's policy by accumulating more than two suspensions in a two-year period, which, in turn, constitutes willful misconduct.
Because Employer proved Claimant committed willful misconduct, the burden shifted to Claimant to prove good cause for her actions. Grand Sport Auto Body. Here, Claimant asserts she had good cause on two recent instances of her tardiness based on car trouble. However, even if we agreed with Claimant that she established good cause for her tardiness on these two occasions, Claimant's other instances of tardiness in the period preceding her termination were sufficient to warrant a fourth suspension, and ultimately termination, under Employer's policy. See Ex. E1 at 4 (Employer's policy providing for a written warning and a three-day suspension for six "late arrivals"), E9 (Claimant's "Employee Action Form for Attendance" showing Claimant accumulated eight late arrivals or early leaves).
See, e.g., Adept Corp. v. Unemployment Comp. Bd. of Review, 437 A.2d 109 (Pa. Cmwlth. 1981) (if a claimant is absent because of transportation problems beyond his control and properly reports his absence, he may not be found to have engaged in willful misconduct and unemployment benefits may not be denied on that basis). --------
Claimant also argues that on her final instance of tardiness she was only a single minute late because she followed her supervisor's directive that she remain in her car until other employees were present in the parking lot, and she then experienced a delay in gaining admittance to the secure facility. In rejecting Claimant's assertion, the Board found, "[C]laimant's reason for her final tardy [was] insufficient, as [C]laimant, with knowledge of her prior attendance record, should have taken steps to ensure that she was on time for work." Referee's Op. at 2. The Board further stated, "[C]laimant was aware that she been suspended three times within the previous two years, twice in regard to attendance, and that her job was in jeopardy. She also knew that there might be delays of several minutes in gaining entrance into the building and could have planned accordingly." Bd. Op. at 1. Because the record supports the Board's determinations, see N.T. at 27-28, 34, we discern no error in the Board's rejection of Claimant's argument.
More importantly, because Employer discharged Claimant based on Claimant's violation of Employer's policy regarding the accumulation of more than two suspensions in a two-year period, the Board properly declined to base its decision on Claimant's final instance of tardiness. To that end, about a year ago in Grand Sport Auto Body, an en banc panel of this Court reversed a Board decision where the Board focused solely on a claimant's excuse for his final absence following the claimant's lengthy history of tardiness and absenteeism. There, the Board did not find the employer discharged the claimant for his final, excused absence, but rather the discharge resulted from the claimant's history of absenteeism and tardiness. Despite the fact the claimant's last absence was justified, we held the claimant's pattern of habitual unexcused tardiness and absences fell below the standard of behavior the employer had the right to expect and was inimical to the employer's interests. Thus, we reversed the Board, and denied the claimant benefits under Section 402(e) of the Law.
Here, as in Grand Sport Auto Body, the Board did not find Employer discharged Claimant based solely on her final incident of tardiness. Rather, the Board found Employer discharged Claimant based on her history of policy violations and suspensions. F.F. No. 7. The Board further found Claimant demonstrated a history of poor attendance. Referee's Op. at 2. Under these circumstances, no error is apparent in the Board's decision to focus primarily on Claimant's lengthy history of attendance issues and corresponding discipline rather than on Claimant's final instance of tardiness. Grand Sport Auto Body.
Moreover, we reject Claimant's reliance on Gillespie and W.R. Grace. In those cases, we held that where a claimant's absences are caused by illness or caring for an ill family member, the claimant does not commit willful misconduct simply by violating an employer's "no-fault" attendance policy based on accumulation of points for absences or tardiness. Such is not the case here.
First, Employer did not discharge Claimant based on her accumulation of points under a no-fault attendance policy; rather, Employer discharged Claimant based on her four suspensions, three of which were attendance-related, in a two-year period, which violated Employer's policy. In addition, unlike in Gillespie and W.R. Grace, Claimant does not assert her attendance issues were the result of medical issues or caring for an ill family member, and the Board rejected Claimant's asserted good cause for her tardiness.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge President Judge Pellegrini concurs in the result only. ORDER
AND NOW, this 8th day of November, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge