Opinion
No. 1095 C.D. 2013
01-03-2014
Crystal Newsome, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Crystal Newsome (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of a Referee, thereby denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after being discharged from employment as a full-time direct support professional with The Association for Independent Growth (Employer) on January 10, 2013. The Erie UC Service Center (Service Center) issued a notice of determination finding Claimant ineligible for unemployment compensation benefits. (Certified Record (C.R.), Item No. 5.) Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing, at which Claimant, Claimant's witness, and two witnesses for Employer testified.
Following the hearing, the Referee issued a decision in which she affirmed the Service Center's determination. (C.R., Item No. 11.) The Referee reasoned that Employer provided credible evidence that Claimant was repeatedly warned about her failure to comply with Employer's attendance policy, that Claimant had accrued more than eight occurrences of tardiness in the twelve months preceding her termination, and that Claimant was terminated as a result of a final incident in which Claimant was more than one hour late for the commencement of her shift. (Id.) The Referee also noted that Claimant presented evidence that a number of her absences or incidents of tardiness were due to attendance at funerals for close family members. (Id.) The Referee indicated that not all of the materials submitted by Claimant at the hearing corresponded to lateness as recorded by Employer. (Id.) Moreover, the Referee stated that a review of Employer's records demonstrated that Claimant accrued more than eight unauthorized occurrences of tardiness during the twelve months preceding her separation from work. (Id.) The Referee further noted that the record indicated that Employer followed its progressive discipline policy in this matter. (Id.) As a result, the Referee concluded that Claimant's actions rose to the level of willful misconduct and, thus, denied Claimant benefits under Section 402(e) of the Law. (Id.)
Claimant appealed to the Board, which affirmed the decision of the Referee. In so doing, the Board issued its own findings of fact and conclusions of law. The Board made the following findings of fact:
1. The Association for Independent Growth employed the claimant from July 25, 2005, through January 8, 2013, finally as a full-time direct support professional earning $11.41 per hour.(C.R., Item No. 13.)
2. The claimant knew that the employer issued discipline under its attendance policy based on points accumulated in a rolling 12-month period: an oral reprimand at 4.0 points; a written reprimand at 5.0 points; a one-day suspension at 7.0 points; and a discharge at 8.0 points.
3. The claimant knew that the employer's attendance policy assigned 1.0 point for an absence or tardy arrival greater than 30 minutes and 0.5 points for a tardy arrival less than 30 minutes.
4. The employer warned the claimant for frequent attendance infractions.
5. On December 18, 2012, the employer issued to the claimant a one-day suspension for continued attendance violations.
6. On January 6, 2013, the claimant overslept, arriving at work at 9:06 a.m. for her 8:00 a.m. shift.
7. On January 10, 2013, the employer discharged the claimant for violating its attendance policy by accumulating more than 8.0 points in a 12-month period.
8. Excluding absences and tardy arrivals due to jury duty and bereavement, the claimant accumulated approximately 15.0 points in a 12-month period.
The Board observed that Employer discharged Claimant for violating its attendance policy by accumulating more than eight points in a twelve-month period. The Board reasoned that Employer established, through credible testimony and documentary evidence, that Claimant knew the policy, Claimant violated the policy, and Claimant continued to violate the policy after being warned and suspended. (Id.) The Board further reasoned that Claimant's final tardy arrival on January 6, 2013, occurred because Claimant overslept, which is not good cause for being tardy. (Id.) The Board noted that although Claimant argued that some of her absences and tardy arrivals were due to jury duty or attending funerals, the dates on Claimant's evidence of funerals did not usually correlate with her absences. (Id.) The Board indicated that excluding those few instances when Claimant had good cause for her absence or tardy arrival, Claimant still accumulated approximately fifteen points under Employer's policy. (Id.) The Board concluded that Claimant repeatedly violated Employer's policy without good cause. (Id.) Thus, the Board denied benefits under Section 402(e) of the Law. Claimant then petitioned this Court for review.
Claimant also filed a request for reconsideration with the Board, which request the Board denied by order dated July 5, 2013. (C.R., Item No. 15.)
On appeal, Claimant argues, in essence, that the Board erred in concluding that Claimant failed to demonstrate good cause for violating Employer's attendance policy. Specifically, Claimant argues that she had good cause for the violations of Employer's attendance policy as a result of deaths in her family, injuries, illnesses, jury duty, issues with clocking in, and not being adequately aware of her schedule. Claimant also argues that she acted reasonably under the circumstances because her family needed her and because missing work is better than attending work under pain, stress, and suffering, which is not in the best interests of Employer, the staff, or the patients.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Claimant does not challenge any of the Board's findings of fact. The findings, therefore, are conclusive and binding on this Court upon review. Salamak v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
Further, Claimant argues that as a result of a merger between Employer and another company, Employer targeted the direct support professional position for termination because of the companies' differing salaries for that position. Claimant also contends that Employer's policies and procedures continually changed as a result of the merger. Claimant, however, fails to properly develop these issues in her brief, and, thus, the issues are waived. See Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998). Moreover, even if we were to accept Claimant's arguments in this regard, Claimant fails to articulate why such circumstances render her eligible for benefits. Thus, Claimant's arguments are without merit. --------
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules;
(c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer, however, has met its burden, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
An employer has a right to expect that employees will attend work when scheduled and that they will be on time. Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). A claimant's "habitual tardiness, particularly after warnings, is sufficient evidence to sustain a finding of willful misconduct." Markley v. Unemployment Comp. Bd. of Review, 407 A.2d 144, 146 (Pa. Cmwlth. 1979). Moreover, "[s]everal elements can support a finding of absenteeism as willful misconduct, including excessive absences and lack of good or adequate cause for the absence." Weems v. Unemployment Comp. Bd. of Review, 952 A.2d 697, 699 (Pa. Cmwlth. 2008). Nevertheless, where properly reported, absence does not constitute willful misconduct. Welded Tube Co. of Am. v. Unemployment Comp. Bd. of Review, 401 A.2d 1383, 1385 (Pa. Cmwlth. 1979).
Here, Employer met its burden to prove willful misconduct by establishing that it had an attendance policy and that Claimant, despite being aware of that policy and the consequences for violating it, continued to violate the policy. Thus, we must determine whether Claimant met her burden to demonstrate good cause for the violations. See McKeesport Hosp., 625 A.2d at 114.
We conclude that Claimant failed to establish good cause for her violations of Employer's attendance policy. To prove "good cause," a claimant must demonstrate that her actions were justifiable and reasonable under the circumstances. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). At the outset, we note that Claimant failed to raise the issue of whether she had good cause for violating Employer's attendance policy in her petition for review. Issues that are not raised in a petition for review, or that are not fairly comprised therein, are waived and, therefore, will not be addressed by the court. Pa. R.A.P. 1513(d); Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006). Nevertheless, even if this issue were not waived, we reject Claimant's arguments in this regard. It is undisputed that even excluding Claimant's absences and tardy arrivals due to jury duty and bereavement, Claimant accumulated approximately fifteen points in a twelve-month period under Employer's attendance policy. (F.F. no. 8.) Moreover, the record lacks evidence to support Claimant's assertions of injuries, illness, issues with clocking in, and her failure to be adequately aware of her schedule.
Further, Claimant's final incident of tardiness occurred as a result of Claimant oversleeping, (F.F. no. 6), which we have held does not constitute good cause for violating an employer's attendance policy in similar circumstances. See Corbin v. Unemployment Comp. Bd. of Review, 486 A.2d 1068, 1069-70 (Pa. Cmwlth. 1985) (holding that claimant's actions constituted willful misconduct when, after being warned under employer's attendance control program, claimant failed to report to work because he overslept and did not report off until two hours after start of his shift). The Board, therefore, did not err in failing to conclude that Claimant had good cause for violating Employer's attendance policy. Consequently, the Board did not err in concluding that Claimant was ineligible for benefits under Section 402(e) of the Law, based on willful misconduct.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 3rd day of January, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge