Opinion
No. 565 C.D. 2012
11-09-2012
Justin V. Clarke, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Justin V. Clarke (Claimant), representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision to deny him benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct) for his repetitive tardiness. Specifically, Claimant asserts the Board erred in determining he lacked good cause as his tardiness was the result of his stress and fatigue generated by a family member's illness. Upon review, we are constrained to affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
For approximately three years, Claimant worked full time as a retail consultant for Sprint (Employer). In November 2010, Employer issued Claimant a final warning for multiple attendance policy violations related to tardiness. The final warning remained in effect for one year. Thereafter, Claimant's supervisor (Store Manager) informed Claimant that two additional occasions of tardiness after a final warning could result in termination of employment.
On September 27, 2011, Store Manager issued a tentative work schedule for the work week of October 8-14, 2011. Specifically, Employer scheduled Claimant to work from 11:00 a.m. until 7:30 p.m. on October 13 and 14. At that time, Store Manager informed the employees that the schedule was subject to change.
On Saturday, October 8, Store Manager issued a revised work schedule for the first five days of the work week, Saturday through Wednesday. Store Manager also informed the employees she would soon finalize their Thursday shifts, but all employees would be scheduled 7:00 a.m. to 7:30 p.m. on Friday. Friday, October 14 was of particular importance to Employer because it planned to launch sales of a new phone line that morning.
Three days later, on Tuesday, Store Manager finalized Claimant's schedule for the rest of that week. Specifically Store Manager scheduled Claimant to work from 8:30 a.m. to 5:00 p.m. on October 13, and 7:00 a.m. to 7:30 p.m. on October 14.
On October 13, Claimant did not arrive at work until 9:45 a.m. The following day, Claimant again arrived late at 7:30 a.m. At that time, Employer terminated Claimant's employment as a result of his tardiness. Thereafter, Claimant applied for unemployment benefits, which were initially denied. Claimant appealed, and a hearing ensued before a referee.
Before the referee, Store Manager testified for Employer, and Claimant testified on his own behalf. Specifically, Store Manager testified that during October 2011, Claimant was on probationary status after receiving a final warning for tardiness. Additionally, Store Manager explained that she typically issued a week's work schedule two weeks in advance. However, because of the new product launch Store Manager testified she revised the October 8-14 schedule several times. Nonetheless, she testified she finalized the schedule by Tuesday, October 11, a day Claimant worked, and provided it to Claimant by email.
Store Manager further testified that on October 13, Claimant was one hour and 15 minutes late for work. Moreover, Claimant did not leave for work until after Store Manager called him to see if he was on his way. Apparently, Claimant overslept that morning. Store Manager testified that when Claimant arrived he did not provide an excuse for his tardiness.
Additionally, Store Manager testified that at the end of the day on Thursday, she held a store meeting to discuss Friday's schedule and the launch of the new phone. Claimant attended. At that time, she reminded all employees that they were expected to be at the store by 7:00 a.m.
Store Manager testified that the next day, Claimant arrived at work 30 minutes late. As a result, Store Manager's assistant sent him home, and Employer terminated Claimant's employment.
For his part, Claimant acknowledged he was late on both October 13 and 14, and he knew, or should have known, what his schedule was on both days. Claimant testified he was late as a consequence of stress and fatigue from dealing with his uncle's hospitalization for cancer. Claimant explained that at that time, his uncle was near death, and he was trying to spend as much time as possible at the hospital with him. This caused Claimant to lose sleep and be emotionally drained. As a result, Claimant forgot the schedule changed, mixed up his times, and reported late on two consecutive days.
In rebuttal, Store Manager testified she was aware of Claimant's personal issues and the emotional drain it caused him. She further testified she spoke to Claimant about taking some time off and changing the schedule to accommodate him. However, Claimant did not accept Store Manager's offer. Moreover, Store Manager testified Claimant was tardy on two prior occasions, which she overlooked in light of his situation with his uncle.
Thereafter, the referee denied Claimant benefits. The referee determined Employer issued Claimant a final warning for his tardiness, which he signed. Moreover, Claimant was aware that two instances of tardiness would result in the termination of his employment. As such, the referee concluded Claimant's tardiness on October 13 and 14 constituted willful misconduct. Furthermore, the referee determined Claimant's stress from his uncle's hospitalization and forgetting his work schedule did not constitute good cause. To that end, the referee noted that Store Manager offered to accommodate Claimant as a result of his personal circumstances, but Claimant did not accept the offer. Claimant appealed.
On appeal, the Board adopted and incorporated the referee's findings and conclusions, and it affirmed the denial of benefits. Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Hall v. Unemployment Comp. Bd. of Review, 42 A.3d 1204 (Pa. Cmwlth. 2012). Substantial evidence is defined as evidence that a reasonable mind might accept as sufficient to support the conclusion reached. Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010); Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 2004). --------
Claimant contends the Board erred in determining that he was late for work and that Employer terminated his employment as a result. Furthermore, Claimant asks whether his purported tardiness precludes him from receiving benefits.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). "[C]hronic tardiness, particularly after a warning, exhibits a sufficient disregard of the employer's interests to constitute willful misconduct." Conibear v. Unemployment Comp. Bd. of Review, 463 A.2d 1231, 1232 (Pa. Cmwlth. 1982).
Once an employer establishes the claimant's behavior constituted willful misconduct, the burden shifts to the claimant to show good cause for his actions. Sprague v. Unemployment Comp. Bd. of Review, 647 A.2d 675 (Pa. Cmwlth. 1994). Good cause exists where a claimant's actions are justifiable and reasonable under the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006).
Here, Store Manager testified Claimant was on a one-year probationary period related to being tardy. Notes of Testimony (N.T.), 12/15/11, at 5-6. Both Store Manager and Claimant testified that on October 13 and 14 Claimant reported to work late. Id. at 5, 11-13. Additionally, Store Manager testified Employer terminated Claimant's employment as a result of his tardiness. Id. at 5. Thus, substantial evidence supports the Board's determination that Claimant was tardy for work at least two times after his final warning, and Employer dismissed Claimant as a result. See Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010). Furthermore, Claimant's tardiness, in light of his final warning status, constitutes willful misconduct. See Conibear.
Additionally, Claimant did not establish good cause for his misconduct. Claimant conceded he was aware of the schedule changes but asserts his tardiness was caused by stress and fatigue over his uncle's deteriorating health. In some scenarios, where a claimant's willful misconduct is triggered by the illness of a family member, such personal circumstances may constitute good cause. See Maldonado v. Unemployment Comp. Bd. of Review, 503 A.2d 95 (Pa. Cmwlth. 1986) (good cause for absence and not following employer's call off procedure to attend to a family member's medical emergency). However, Claimant's tardiness, in light of the circumstances, was not reasonable.
Specifically, here, Store Manager, knowing Claimant was coping with his uncle's illness, offered to work with Claimant on scheduling. N.T. at 15. Claimant did not accept Store Manager's offer. Furthermore, Claimant was aware that his schedule for that week was subject to change because Employer was launching sales of a new phone line that Friday. N.T. at 7. Specifically, Claimant attended a company meeting on October 13, where Store Manager reminded him to come to work at 7:00 a.m. the next day. Id. Therefore, Employer had the right to expect Claimant would arrive at work on time, and it was not reasonable for Claimant to be tardy after declining accommodation from Employer. Cf. Baillie v. Unemployment Comp. Bd. of Review, 413 A.2d 1199 (Pa. Cmwlth. 1980) (a claimant's absence is reasonable where an employer issues an unreasonable ultimatum between reporting to work and continued employment, and taking off to provide needed care for a sick family member and dismissal). Therefore, although we sympathize with his experience, Claimant lacks good cause for his repetitive tardiness in light of his refusal to accept Employer's offered accommodation.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of November, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge