R. W-M. v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R. W-M.,1 :

Petitioner :

: No. 1817 C.D. 2017

v. : Submitted: September 18, 2018

:

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge (P)

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: January 9, 2019

R. W-M. (Claimant) petitions for review of an order of the

Unemployment Compensation Board of Review (Board) that denied her claim for

benefits under Section 402(e) of the Unemployment Compensation Law2 (Law). In

so doing, the Board adopted a referee’s findings and conclusions that Claimant’s

excessive tardiness violated an attendance policy of her employer, a retailer located

in the Philadelphia suburbs (Employer), which required that an employee appear for

work on time and not leave early. Claimant contends the Board erred in determining

she engaged in willful misconduct because: Employer failed to establish an

attendance policy existed; Claimant established good cause for violating the alleged

1

On our own motion, we amend the caption to use only the initials of the Petitioner.

2

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§802(e). Section 402(e) provides, in pertinent part, that “[a]n employe 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 ….”

work rule; and Employer did not strictly enforce its policy in the past and tolerated

Claimant’s previous deviations from the alleged attendance policy. Upon review,

we affirm.

I. Background

The following description tracks the findings adopted by the Board

(with emphasis added). Claimant worked for Employer as a full-time sales associate

from November 1999 until Employer discharged her on May 25, 2017. Employer

has an attendance policy that requires its employees to report to work on time.

Employer’s policy further requires that if an employee is going to be late, she must

call in and speak to a manager or to Human Resources, state the reason for being

late, and provide an estimated arrival time. Claimant was aware of Employer’s

policies and expectations.

Claimant had medical restrictions limiting her to working no more than

eight hours a day or 40 hours per week. Employer accommodated these restrictions.

Employer scheduled Claimant to begin working at 9:15 a.m. when working during

the day.

During the month of January 2017, Claimant reported late for work on

15 occasions. On January 24, 2017, Employer placed Claimant on final warning

status regarding her tardiness. Between January 1, 2017 and May 25, 2017,

Claimant reported late on 76 occasions. Claimant never provided a medical note

indicating she needed a later starting time for work. On May 25, 2017, Employer

discharged Claimant for habitual tardiness after being warned to be on time for work.

2

Thereafter, Claimant filed a claim for unemployment compensation

benefits. The Department of Labor and Industry (Department) denied her claim

under Section 402(e) on the basis that Employer established it discharged Claimant

for tardiness after being warned that future tardiness could result in termination of

her employment. See Notice of Determination; Reproduced Record (R.R.) at 18a.

The Department also determined Claimant failed to show good cause for her last

tardiness. Id.

Claimant appealed, and a referee’s hearing ensued. Among other items

identified and received as exhibits at the beginning of the hearing was Exhibit 2A, a

“Fax Petition for Appeal” specifically authenticated by Claimant. See Referee’s

Hr’g, Notes of Testimony (N.T.), 8/1/17, at 3; R.R. at 39a; Pet. for Appeal, 24a-25a.

In an attached document, Claimant described her diagnoses as “Hyperthyroidism,

Bronchitis, Anxiety and Major Depression.” R.R. at 25a. She also explained that

“[t]wo of the medications caused extreme fatigue, nausea, severe stomach and

digestive problems, fainting, light headedness and anxiety attacks which at times

occurred at various times especially in the morning hours.” Id.

Following the hearing, the referee issued a decision and order affirming

the Department’s notice of determination. In particular, the referee determined

Claimant’s conduct fell below the standard of behavior Employer had a right to

expect. In explaining her decision, the referee stated (with emphasis added):

The Pennsylvania Courts have consistently held that

habitual tardiness, without good cause, particularly after

warnings to be on time, is disqualifying misconduct.

3

In this case [Employer] has an expectation that employees

report to work on time. [Claimant] was aware of

[Employer’s] expectation. [Claimant] had received

warnings to be on time and on January 24, 2017 was

placed on final warning regarding her tardiness.

[Claimant] continued to be late for work. In the totality of

circumstances, although [Claimant] might have had good

cause for the last tardiness, [Claimant] was late for work

on approximately sixty other occasions after receiving a

final warning on January 24, 2017. [Claimant] argued that

her tardiness had to do with a medical reasons [sic].

[Claimant] did provide restrictions regarding her work

schedule to [Employer] related to her medical reasons and

the start time was not one of those reasons provided.

Therefore, the [r]eferee finds [Claimant’s] assertion not

credible.

Based on the record, [Claimant’s] conduct was contrary to

the standard of behavior [Employer] has the right to expect

and benefits are denied.

Referee’s Op., 8/8/17; R.R. at 92a-93a.

On appeal, the Board adopted the referee’s findings and conclusions

and affirmed. In its order, the Board noted it did not find any credible evidence that

Claimant’s medical conditions caused her tardiness. Board’s Order, 10/5/17; R.R.

at 88a. Claimant petitions for review.3

II. Issues

Claimant advances three arguments in support of her contention that

the Board erred in determining Employer met its burden of proving it discharged her

3

Our review is limited to determining whether the Board’s necessary findings of fact were

supported by substantial evidence and whether the Board erred as a matter of law or violated

constitutional rights. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth.

2014).

4

for willful misconduct. Claimant asserts her actions did not rise to the level of willful

misconduct because: Employer failed to establish that an attendance policy existed;

she can show good cause for violating Employer’s attendance policy; and Employer

did not strictly enforce its attendance policy in the past and tolerated her previous

deviations from the alleged policy.

III. Discussion

A. Willful Misconduct; Violation of a Work Rule (Generally)

Pursuant to Section 402(e) of the Law, 43 P.S. §802(e), a claimant is

ineligible for unemployment compensation benefits when an employer discharges her

for willful misconduct connected with her work. Ellis v. Unemployment Comp. Bd.

of Review, 59 A.3d 1159 (Pa. Cmwlth. 2013). Although the Law does not specifically

define “willful misconduct,” our appellate courts describe it as: (a) a wanton or willful

disregard of an employer’s interests; (b) a deliberate violation of an employer’s

rules; (c) a disregard of the standards of behavior 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 and obligations. Id.

The issue of whether a claimant’s conduct constituted willful misconduct

is a question of law fully reviewable by this Court. Grand Sport Auto Body v.

Unemployment Comp. Bd. of Review, 55 A.3d 186 (Pa. Cmwlth. 2012) (en banc).

However, a determination of willful misconduct must be based on a consideration of

all of the circumstances in the case. Id. An employer bears the initial burden of

showing a claimant’s conduct rose to the level of willful misconduct. Id. Once the

employer proves willful misconduct, the burden then shifts to the claimant to show

5

good cause for her actions. Id. A claimant can establish good cause if her actions are

justifiable and reasonable under the circumstances. Id.

An employer seeking to prove willful misconduct by violation of a

work rule or policy must demonstrate the existence of the policy, its reasonableness,

and its violation. Ellis. However, the existence of a specific work rule or policy is

not required in circumstances where an employer has a right to expect a certain

standard of behavior, that standard is obvious to an employee, and an employee’s

conduct is so inimical to the employer’s interest that discharge is a plainly

foreseeable result. Id. One such situation where a specific policy is not necessary

is when an employee fails to show up for work on time. Id. We have recognized on

multiple occasions that an employer has a right to expect that its employees will

attend work as scheduled and be on time. Id.

B. Existence of Employer’s Attendance Policy

1. Argument

Claimant first contends Employer failed to meet its burden of proving

the existence of an attendance policy requiring employees to report to work on time.

To that end, Claimant asserts the record is devoid of any written policy or procedure

she violated. Rather, the only evidence Employer presented regarding the alleged

attendance policy and disciplinary procedure consisted of unconfirmed testimony

from Employer’s Human Resources Manager (HR Manager).

Claimant acknowledges HR Manager testified that Employer’s

attendance policy requires that its employees are expected to report to work on time.

6

See N.T. at 7; R.R. at 43a. If they are not going to be on time, the employees must

call either their manager or Human Resources. Id. HR Manager also testified that

although Employer has a progressive disciplinary policy, it is within Employer’s

discretion to decide which steps to follow. Id. Viewing HR Manager’s testimony as

true, Claimant asserts an employee could be disciplined, suspended or terminated

whenever HR Manager wished because Employer decides which step of the

disciplinary policy to follow.

Claimant further acknowledges that HR Manager testified that

Employer’s attendance policy is written. N.T. at 7; R.R. at 43a. The referee also

found Claimant was aware of the policy and Employer’s expectations. However,

given the absence of a written policy in the record, Claimant argues the Board could

not reasonably conclude that the referee’s findings regarding the existence and content

of Employer’s attendance policy, and Claimant’s awareness of it, were supported by

substantial evidence. Therefore, Claimant maintains the Board erred in affirming the

referee’s decision.

In response,4 the Board argues an employer need not produce a written

copy of its attendance policy in order to establish that such a policy existed. The

4

The Board contends Claimant waived any substantial evidence challenge to its adopted

findings by failing to raise this issue in her statement of questions involved. Pennsylvania Rule of

Appellate Procedure 2116(a) provides in pertinent part (with emphasis added):

(a) General Rule. The statement of questions involved must state

concisely the issues to be resolved, expressed in the terms and

circumstances of the case but without unnecessary detail. The

statement will be deemed to include any question fairly comprised

7

Board asserts it is not necessary that an employer’s reasonable rule or policy be written

in order for this Court to determine an employee’s violation of that rule or policy

constituted willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840

A.2d 1054 (Pa. Cmwlth. 2004); Fera v. Unemployment Comp. Bd. of Review, 407

A.2d 942 (Pa. Cmwlth. 1979); Williams v. Unemployment Comp. Bd. of Review (Pa.

Cmwlth., No. 2733 C.D. 2010, filed June 14, 2018) (unreported).5 Therefore, the

Board argues HR Manager’s testimony sufficiently established the existence of

Employer’s attendance policy requiring that its employees report to work on time.

2. Analysis

We reject Claimant’s contention that, Employer, by not submitting a

written copy of its attendance policy, failed to establish the existence of that policy.

As we recognized in Ellis and Grand Sport Auto, regardless of the existence of a

specific policy, an employer has a reasonable right to expect its employees will attend

work when scheduled and report to work on time. We further recognized that habitual

tardiness is fundamentally contrary to an employer’s interests and thus supports a

therein. No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.

Pa. R.A.P. 2116(a). Our review of Claimant’s petition for review and brief indicates she adequately

preserved a substantial evidence challenge to the Board’s Findings of Fact Nos. 2-4, which stated

that Employer had an attendance policy that required its employees to report to work on time, that

the employees call a manager or Human Resources if they are going to be late, and that Claimant

knew these policies existed. See Pet. For Review ¶6. Further, Claimant’s brief clearly raises and

discusses this issue. See Pet’r’s Br. at 17-19.

5

Pursuant to Section 414 of this Court’s Internal Operating Procedures, this Court’s

unreported memorandum opinions, issued after January 15, 2008, may be cited for their persuasive

value, but not as binding precedent. 210 Pa. Code §69.414.

8

determination of willful misconduct. Ellis; Grand Sport Auto (citing Fritz v.

Unemployment Comp. Bd. of Review, 446 A.2d 330 (Pa. Cmwlth. 1982)).

Here, HR Manager credibly testified Employer has a written policy on

tardiness that requires its employees to report to work on time. N.T. at 7; R.R. at 43a.

If an employee is not going to be on time, the policy requires that the employee notify

either a manager or Human Resources and explain why she is going to be late. Id. To

that end, HR Manager testified that a first offense would not result in termination and,

if an employee provides a legitimate reason for being late, Employer would review it.

N.T. at 8; R.R. at 44a. HR Manager further testified Employer has a progressive

disciplinary policy that can lead to a written or final warning, suspension or

termination of employment. Id. Employer also determines which steps to follow. Id.

As discussed above, it is not necessary that an Employer’s attendance policy be

submitted into evidence in order for a determination that Claimant’s habitual violation

of the policy constituted willful misconduct. Ellis; Graham.

Furthermore, as this Court recognized on prior occasions, the “best

evidence rule” in Rule 1002 of the Pennsylvania Rules of Evidence, which requires

that to prove the content of a writing, the original must be produced, is a technical rule

of evidence not generally applicable to administrative proceedings. DiLucente Corp.

v. Prevailing Wage Appeals Bd., 692 A.2d 295 (Pa. Cmwlth. 1997); Wilshire v.

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1765 C.D. 2013, filed April

30, 2014) (unreported). In particular, the best evidence rule does not apply in

unemployment compensation cases. Fera; Wilshire. Therefore, we reject Claimant’s

9

contention that Employer’s failure to submit a written version of its attendance policy

into evidence rendered a finding that such a policy existed unsupported by the record.

In addition to HR Manager’s own testimony regarding Employer’s

attendance policy, Claimant admitted HR Manager advised her that if she was running

late, she must call either Human Resources or a manager. N.T. at 22; R.R. at 58a.

Claimant also recalled that either HR Manager or her immediate manager advised her

that she needed to be on time for work. N.T. at 23; R.R. at 59a.

Summarizing, the Board’s findings of fact are conclusive on appeal if

the record contains substantial evidence to support the findings. Taylor v.

Unemployment Comp. Bd. of Review, 378 A.2d 829 (Pa. 1977). Here, the Board’s

findings that Employer had an attendance policy that required its employees to report

to work on time, that employees call a manager or Human Resources if they are going

to be late, and that Claimant knew these policies existed, are supported by substantial

evidence. Consequently, Claimant’s contention that Employer failed to meet its

burden of proving the existence of an attendance policy that required its employees to

report to work on time lacks merit. Graham; Fera.

C. Employer’s Toleration of Claimant’s Previous Deviations

1. Argument

We next address Claimant’s contention that her tardiness did not rise to

the level of willful misconduct because Employer did not strictly enforce its

attendance policy in the past and tolerated her previous deviations from any alleged

attendance or tardiness rules. In support of her position, Claimant cites Penn

10

Photomounts, Inc. v. Unemployment Compensation Board of Review, 417 A.2d 1311

(Pa. Cmwlth. 1980) and Great Valley Publishing v. Unemployment Compensation

Board of Review (Pa. Cmwlth., No. 49 C.D. 2015, filed March 8, 2016)(unreported).

In Penn Photomounts, the employer had a formal, written policy

concerning the procedure for its employees to follow when notifying the employer of

an absence. Pursuant to the policy, an absent employee was required to notify the

employer’s main office on the first day out by 9:00 a.m. The employee was also

required to advise the employer as to the estimated date of return. Copies of the policy

were displayed on bulletin boards throughout the employer’s place of business.

However, the claimant in Penn Photomounts did not follow this policy. Rather, she

called her coworkers in a building separate from the main office and asked them to

relay the message to someone in a supervisory position. The claimant testified the

informal manner in which she reported her absences was an accepted practice and that

other employees reported their absences the same way. The claimant further testified

the employer never reprimanded her or informed her she could be discharged for not

reporting her absence directly to the main office.

The employer’s plant supervisor testified that the employer did not

accept, but tolerated the employees’ practice of reporting their absences by calling

other employees rather than the main office for short term absences. However, if an

employee abused the process, the employer firmly enforced its regulations.

Ultimately, the Board resolved any conflicts in the evidence in the

claimant’s favor and found she always reported her absences by calling other

11

employees who relayed the message to the main office. Based on this past practice,

the Board determined that the claimant reported the absence at issue in her usual

manner and that any violation of the employer’s formal policy did not amount to

willful misconduct. On appeal, we affirmed.

Similarly, in Great Valley Publishing, the employer had a policy

prohibiting its employees’ personal use of its computers and internet service without

advance permission. The claimant signed the employer’s manual, which included this

policy. The employer, however, tolerated its employees’ personal use of its computers

if it was not excessive. Although the employer did not specify an accepted level of

personal use, it took disciplinary action on a case-by-case basis. In the claimant’s

case, the employer terminated her for egregious, unpermitted internet usage. The

Board, however, credited the claimant’s testimony that her internet usage was minimal

rather than excessive. Accordingly, the Board ruled her eligible for benefits. Citing

Penn Photomounts, we affirmed, noting the employer tolerated its employees’

personal use of the internet if such use was not excessive.

Here, Claimant asserts Employer did not follow its own policies and

practices under the attendance policy and tolerated her deviation from the policy for

months. At the referee’s hearing, Employer alleged Claimant was tardy 15 times

during the month of January 2017. However, HR Manager testified this resulted in

only one written warning issued on January 25, 2017. See N.T. at 9; R.R. at 45a.

Employer further alleged Claimant was tardy on 76 total days from January 1 through

May 25, 2017. Nevertheless, during this period, Employer issued Claimant only one

12

more warning and a five-day suspension on April 27, 2017. See N.T., Ex. 5(d); R.R.

at 10a. Notably, Claimant does not contest the accuracy of her tardiness figures.

Claimant argues Employer’s random pattern of written warnings

constituted an inconsistent and arbitrary application of its attendance and progressive

discipline policies. More importantly, Claimant maintains Employer’s actions show

it regularly permitted her to be tardy without any consequence. Therefore, Claimant

contends she did not act contrary to the standards of behavior Employer expected of

her.

In addition, Claimant avers Employer did not discipline anyone other

than her for tardiness on her last day of work, despite the fact that many of her

coworkers were late because of traffic problems. Claimant asserts HR Manager

corroborated this fact.

In sum, Claimant argues Employer tolerated her alleged tardiness and

applied its attendance and progressive discipline policies arbitrarily. Therefore,

Claimant argues the record does not support the referee’s determination that her

conduct fell below the standards of behavior Employer expected of her. As such,

Claimant maintains the Board erred and abused its discretion by affirming the

referee’s decision that her tardiness rose to the level of willful misconduct.

2. Analysis

As discussed above, excessive absenteeism or habitual tardiness may rise

to the level of willful misconduct. Ellis; Grand Sport Auto; Fritz. In particular,

13

employers have a right to expect that their employees will attend work as scheduled,

arrive on time, and not leave work early without permission. Ellis. Chronic or

habitual lateness is contrary to an employer’s legitimate expectations and is an

adequate basis for a determination of willful misconduct. Id.

In Grand Sport Auto, an en banc case, the claimant had a history of

excessive absences and late starts. In the seven months prior to his employer-

approved wedding trip to Mexico, the claimant was tardy or absent 19 times without

a valid excuse. Unfortunately, the airline overbooked the claimant’s return flight from

Mexico, and he did not return to work as scheduled. When he returned the next day,

the employer suspended him pending review of his situation. Three days later, the

employer discharged the claimant because of his history of absences and tardy

arrivals. In granting benefits, the Board found the claimant’s last absence was justified

because the airline rebooked him on a later flight. The Board also agreed with the

referee that excessive absenteeism or tardiness, where justified or properly reported,

may constitute a legitimate basis for discharge, but does not rise to the level of willful

misconduct. In so doing, the Board relied on Runkle v. Unemployment Compensation

Board of Review, 521 A.2d 530 (Pa. Cmwlth. 1987), where the claimant’s

documented medical issues justified her weeklong absence from work.

In reversing the Board, we observed that only three of the claimant’s 19

absences appeared to be justified by medical reasons. Consequently, unlike Runkle,

the majority of the claimant’s absences in Grand Sport Auto were not justified.

14

We also rejected the argument that the claimant should be granted

benefits because his last absence was justified. The Court, speaking through Judge

Cohn Jubelirer, recognized the claimant’s history of absences and tardiness, rather

than just one incident, precipitated his discharge. Thus, we concluded the employer

established that the claimant’s habitual and unexcused absences and tardiness fell

below the standard of behavior it had a right to expect of an employee. See Dotson v.

Unemployment Comp. Bd. of Review, 425 A.2d 1219 (Pa. Cmwlth. 1981) (regardless

of whether the claimant’s last absence was justified by illness, the claimant’s history

of repeated, inexcusable tardiness or absences constituted willful misconduct). We

conclude that Grand Sport Auto and Dotson control here.

Turning to the facts in the present case, the Board found Claimant was

late for work 15 times during the month of January 2017. Finding of Fact (F.F.) No.

8. This finding is supported by HR Manager’s testimony and Employer’s timekeeping

records, admitted into evidence without objection. See N.T. at 9; R.R. at 45a; Ex. E-

1, R.R. at 65a-66a. The Board also found that on January 24, 2017, Employer issued

Claimant a written final warning. F.F. No. 9. At the referee’s hearing, Employer

introduced the final warning into evidence as Exhibit 5(d). Employer’s warning

provides (with emphasis added):

[Claimant] is being placed on Final Warning for failure to

adhere to [Employer’s] Policies and Procedures.

We have thoroughly reviewed the situation with

[Claimant]. She acknowledges the seriousness of these

types of offenses and is fully aware that this type of

behavior will not be accepted.

[Claimant] understands that it is her responsibility to

follow all [Employer] policies and guidelines. Any future

15

violations of [Employer] Standards of Conduct or

[Employer] Policies and Procedures will be further

addressed with disciplinary action, up to and including

termination of employment.

Ex. 5(b); R.R. at 13a.

Nonetheless, the Board found Claimant reported late for work on 76

occasions between January 1 and May 25, 2017, her last day of work. F.F. No. 10.

This finding is also supported by HR Manager’s testimony and Employer’s

timekeeping records. See N.T. at 9, 12; R.R. at 45a, 48a; Ex. E-1, R.R. at 65a-71a.

In addition, Claimant acknowledged receiving another final warning and a five-day

suspension on April 27, 2017, approximately a month before Employer discharged

her. See Pet’r’s Br. at 24. “A party’s statement in its brief is treated as a judicial

admission, which although not evidence, has the effect of withdrawing a particular

fact from issue.” Ciamaichelo v. Independence Blue Cross, 928 A.2d 407, 413 (Pa.

Cmwlth. 2007). Employer’s second final warning provides:

[Claimant] is being placed on Final Warning plus a 5[-]

day suspension for failure to adhere to [Employer’s]

Policies and Procedures.

We have thoroughly reviewed the situation with

[Claimant]. She acknowledges the seriousness of these

types of offenses and is fully aware that this type of

behavior will not be accepted.

[Claimant] understands it is her responsibility to follow all

[Employer] policies and guidelines. Any future violations

of [Employer] Standards of Conduct or [Employer]

Policies and Procedures will be further addressed with

disciplinary action, up to and including termination of

employment.

16

Ex. 5(d); R.R. at 10a.

Although Claimant attributes her tardiness to medical problems caused

by her depression medication, the Board specifically found Claimant’s evidence not

credible. Bd. Op. at 1. Consequently, as noted above, Claimant’s proffered medical

justification for her tardiness fails.

Nevertheless, Claimant argues Employer’s tolerance of her repeated

tardiness and its random enforcement of its attendance and tardiness policies reflects

that Claimant’s conduct did not fall below the standards of behavior Employer

expected from its employees. Therefore, citing Penn Photomounts, Claimant asserts

her tardiness did not rise to the level of willful misconduct.

We disagree, for three reasons. First, unlike the situation in Penn

Photomounts, Employer twice issued Claimant written warnings. The second written

warning included a five-day suspension, consistent with the progressive discipline

policy described by HR Manager. N.T. at 8; R.R. at 44a. As indicated by these

warnings, Employer advised Claimant that it considered hers to be a serious situation

that would not be accepted. Employer’s warnings further advised Claimant that any

future violations would result in disciplinary action, up to and including termination

of employment. Habitual or chronic tardiness, particularly after a warning, exhibits a

substantial disregard of the employer’s interests and therefore rises to the level of

disqualifying willful misconduct under Section 402(e) of the Law. Ellis; Conibear v.

Unemployment Comp. Bd. of Review, 463 A.2d 1231 (Pa. Cmwlth. 1983); Kolcun v.

17

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2079 C.D. 2016, filed

November 29, 2017) (unreported).

Second, unlike the situation in Penn Photomounts and Great Valley

Publishing, the fact-finders here did not accept Claimant’s evidence about the excuse

for her tardiness. Indeed, in the absence of a physician’s morning medical restrictions,

both the referee and the Board specifically rejected Claimant’s evidence regarding the

cause of her extensive tardiness. Consequently, we reject Claimant’s contention that

her habitual tardiness, after receiving two written warnings, did not constitute willful

misconduct.

Third, taking Claimant’s argument to its logical conclusion, Employer

could never prove willful misconduct because of its past leniency. The absurdity of

such a result renders Claimant’s argument unpersuasive.

D. Good Cause for Rule Violations

1. Argument

Claimant further contends she had good cause for violating Employer’s

tardiness rule because she needed to start work later due to the effects of her

medication. A claimant may show good cause for a violation of her employer’s work

rule if she can establish her actions or conduct were reasonable in light of all the

circumstances. Caterpillar v. Unemployment Comp. Bd. of Review, 703 A.2d 452

(Pa. 1997); Grand Sport Auto. Absence due to illness constitutes good cause and

does not constitute willful misconduct. Runkle.

18

Here, Claimant asserts that in October 2016, Employer initially granted

her request to begin work at 10:00 a.m. However, Claimant’s new manager, who took

over in 2017, denied her request to continue reporting to work at 10:00 a.m. because

it would not be fair to the other employees. N.T. at 27; R.R. at 63a.

Claimant also asserts Employer provided no written evidence of a policy

requiring medical documentation for a schedule change. Rather, HR Manager’s

testimony is the sole evidence that Employer required medical evidence for

Claimant’s requested accommodation. Thus, Claimant argues Employer did not have

a sufficient basis to deny her reasonable request to start work at 10:00 a.m.

Claimant further argues the referee disregarded her reasons for tardiness

and did not fully consider the extent that Employer’s denial of a medical-related

accommodation affected her ability to report to work on time. In particular, the referee

did not consider the fact that Claimant’s medical issues were always present and

continuing since October 2016 and that they affected her each morning. Claimant

asserts that if Employer would have granted her request and allowed her to report to

work at 10:00 a.m., she more than likely would not have been tardy at all.

Claimant also contends she had good cause for her tardiness on her last

day of work as a result of public transportation running behind schedule. To that end,

Claimant asserts the referee stated in her decision that Claimant “might have had good

cause for the last tardiness ….” Referee’s Op. at 2; R.R. at 92a.

19

2. Analysis

We again note that the Board specifically rejected as not credible

Claimant’s testimony that her medical conditions caused her tardiness. Bd. Op. at 1.

In unemployment compensation cases, the Board is the ultimate fact-finder and is

empowered to resolve all matters of witness credibility, evidentiary weight and

conflicts in the evidence. Ductmate Industries, Inc. v. Unemployment Comp. Bd. of

Review, 949 A.2d 338 (Pa. Cmwlth. 2008). In light of the Board’s adverse credibility

finding, Claimant’s assertions of good cause based on medical reasons fail.

We also note that an employer has a right to run its business according

to its own beliefs, and its internal policies and judgment may not be restricted absent

compelling reasons. Metro. Edison Co. v. Unemployment Comp. Bd. of Review, 606

A.2d 955 (Pa. Cmwlth. 1992). This Court will not substitute its judgment or allow

the Board to supersede an employer’s reasonable managerial prerogatives. Id. At the

referee’s hearing, HR Manager testified that if an employee’s doctor provides a

written request for an accommodation based on a medical condition, Employer will

follow the doctor’s request to the letter. N.T. at 13-14; R.R. at 49a-50a. However,

Claimant never presented a doctor’s note justifying her request to begin work at 10:00

a.m. because of a medical condition. F.F. No. 11; N.T. at 13-14; R.R. at 49a-50a.

Further, as discussed above, it is not necessary that Employer’s medical

accommodation policy be written. Graham; Fera. A witness’s testimony may be

sufficient to establish the existence of a rule. See Chapman v. Unemployment Comp.

Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (testimony of an employer’s Human

Resource Administrator and Director of Nursing adequate to support a Board finding

20

regarding the existence of a work policy prohibiting use of cell phones while on duty).

Here, HR Manager’s testimony sufficiently established that Claimant failed to meet

Employer’s requirement for a medical accommodation by failing to provide a doctor’s

note stating she needed a later start time for work. N.T. at 14-15; R.R. at 49a-50a. In

light of Claimant’s failure to credibly establish that her medical problems caused her

repeated violations of Employer’s attendance policy, we must hold Claimant failed to

establish good cause for her violation of Employer’s attendance policy. Grand Sport

Auto.

Finally, Claimant contends she had good cause for her tardiness on her

last day of work as a result of a delay in public transportation. See F.F. No. 11. To

that end, the referee stated in her decision that Claimant “might have had good cause

for the last tardiness ….” Referee’s Op. at 2; R.R. at 92a. We encountered a similar

set of circumstances in Grand Sport Auto. There, we recognized that although the

claimant had good cause for his final absence, his history of unexcused tardiness and

absences, not just his final absence, precipitated his discharge.

Similarly here, Claimant’s tardiness continued, even after receiving two

warnings. Although Claimant might have had good cause for her last tardiness, this

incident, by itself, did not precipitate her discharge. Rather, Claimant’s repeated

incidents of tardiness, after receiving two warnings, established a pattern of conduct

that fell below the standard of behavior Employer had a right to expect. Grand Sport

Auto; Dotson.

21

Relatedly, we distinguish certain cases in which this Court held that

despite a claimant’s troublesome attendance history, he may qualify for benefits if his

last absence was justified. E.g., Tritex Sportswear, Inc. v. Unemployment Comp. Bd.

of Review, 315 A.2d 322 (Pa. Cmwlth. 1974) (only substantial evidence question

raised; claimant’s assertion of illness supported by medical certificate); Howard

Hanna Holdings, Inc. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No.

1430 C.D. 2013, filed April 3, 2014) (unreported) (claimant submitted documentation

to support excuse of emergency care for dog). In neither Tritex Sportswear nor

Howard Hanna was there a description of attendance issues nearly as numerous as

presented here. Also, the panel for the 1974 decision in Tritex Sportswear did not

have the benefit of our recent reported en banc decision in Grand Sport Auto.

Consistent with Grand Sport Auto, where there is an extensive history of attendance

problems, an employer need not focus solely on the last event.

Therefore, the Board did not err in determining that Employer met its

burden of proving it discharged Claimant for willful misconduct.

ROBERT SIMPSON, Judge

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R. W-M., :

Petitioner :

: No. 1817 C.D. 2017

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 9th day of January, 2019, for the reasons stated in the

foregoing opinion, the order of the Unemployment Compensation Board of Review

is AFFIRMED.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R. W-M., :

Petitioner :

:

v. : No. 1817 C.D. 2017

: Argued: September 18, 2018

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge (P)

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY PRESIDENT JUDGE LEAVITT FILED: January 9, 2019

Respectfully, I dissent. The Referee erred in two respects. First, the

Referee allowed Employer Retail Store to establish the terms of its written policy on

tardiness and progressive discipline with testimony alone. Second, the Referee

improperly stopped Claimant’s testimony about how her medical condition affected

her ability to get to work on time. The Referee was free not to believe Claimant’s

testimony, but she erred in denying Claimant the opportunity to speak because that

testimony was relevant to whether her repeated tardiness was intentional.

Claimant, a 17-year employee of Retail Store, has a history of

depression and anxiety that caused her to go on sick leave for the first nine months

of 2016. In October, Claimant returned to work with an accommodated work

schedule of 10:00 a.m. to 5:00 p.m. In January of 2017, a new manager ended this

accommodation, and set her schedule for 9:15 a.m. to 6:15 p.m. Thereafter,

Claimant began to be late for work. Claimant was discharged in May for what

Employer characterized as a violation of its written policy prohibiting tardiness by

employees. Contrary to the majority, I would hold Employer failed to make its case.

Different employers may have different attitudes towards tardiness.

Some may not care at all, especially where the employee can make up the time by

working later. Thus, the employer needs to establish its definitive policy on this

matter. When an employee is discharged for a work rule violation, the employer

bears the burden of proving the rule’s existence and the fact of its violation. Walsh

v. Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth.

2008). An employer is not always required to produce written evidence of its

policies, but the document may be required where the employer’s testimony is not

sufficient.

In Lewis v. Unemployment Compensation Board of Review, 42 A.3d

375 (Pa. Cmwlth. 2012), the claimant engaged in a loud confrontation with a co-

worker during his shift. Both employees boasted about their familiarity with

firearms and their toughness. The claimant was later discharged for deliberately

violating the employer’s policy prohibiting threatening confrontations between

employees in the work place. At the hearing, the employer’s witness testified that

every employee received the employer’s “rules and regulations” and “harassment

policy” at the start of employment. Lewis, 42 A.3d at 376. However, the witness

did not bring copies of the workplace rules and policies to the hearing. Nevertheless,

the Referee determined that the claimant violated the employer’s policy prohibiting

threatening conduct, and the Board affirmed.

On appeal, this Court reversed. It held that the Board’s finding of a

policy violation was not supported by substantial evidence. The employer’s witness

stated that the employer had rules and policies and that the claimant should have

MHL-2

known that they prohibited a heated argument in the workplace. However, the

witness did not identify the specific rule or policy that the claimant violated, and the

employer did not present any documentary evidence of its written policy. This Court

concluded that the witness’s testimony was insufficient to establish the rule that the

Board found the claimant violated.

Likewise, here, the Board gave Employer a pass by allowing it to

establish the terms of its “[Retail Store] Policies and Procedures” with testimony

alone. As in Lewis, Employer’s witness testified that the employee handbook

requires employees to be on time and to contact their manager if they are going to

be late. He further explained that each employee is given a copy of the handbook to

review and sign when they are hired; a signed copy is kept in the employee’s file.

When an employee violates a rule in the handbook, she will receive an oral warning;

subsequent violations will be followed by a written warning. An employee who

receives a written final warning may be suspended or discharged. Employer decides

which of the progressive discipline steps to follow.

Employer’s witness asserted that Employer followed the handbook

with respect to its progressive discipline of Claimant. He testified that he gave

Claimant an oral warning about tardiness and reminded her that the policy required

her to notify Employer if she was running late. He stated that on January 24, 2017,

Employer issued a written warning to Claimant for “failure to adhere to [Retail

Store] Policies and Procedures.” Notes of Testimony, 8/1/2017, at 8 (N.T. ___);

Reproduced Record at 44a (R.R. ___). On April 27, 2017, Employer issued a second

written final warning for “failure to adhere to [Retail Store] Policies and

Procedures.” R.R. 10a. However, neither written warning stated that the “failure”

MHL-3

was tardiness, let alone identified the specific policy or procedure that Claimant

failed to honor.

Employer’s entire willful misconduct case was built upon Employer’s

handbook, from its anti-tardiness rule to its progressive discipline procedures.

Employer did not produce the “Policies and Procedures” manual at the hearing

because Employer “thought it was part of the record.” N.T. 7; R.R. 43a. I agree

with Claimant that Employer’s mistake is fatal to its willful misconduct case.

Neither the anti-tardiness work rule nor Employer’s progressive discipline steps can

be established without the handbook in the record. Employer’s testimony was

insufficient under Lewis, 42 A.3d 375.

At the Referee hearing, Claimant attempted to explain how her chronic

depression affected her ability to get to work by 9:00 a.m. She stated, “I take

medication and with depression in the mornings[;] it’s toughest in the morning.”

N.T. 19; R.R. 55a. When Claimant’s counsel asked Claimant how the medications

affected her, the Referee, on her own initiative, cut off Claimant’s testimony as

irrelevant. The Referee stated: “I’m going to interrupt this line of questioning. For

unemployment purposes, I’m concerned with restrictions.” Id. A factfinder has no

business making a relevancy objection on behalf of one of the parties. Even so, the

Referee erred in her relevancy determination. Claimant’s proffered testimony

directly related to whether her tardiness was deliberate and whether she had good

cause for her tardiness.

An employer cannot demonstrate willful misconduct by negligence.

Rather, its evidence must show “conduct [ ] of an intentional and deliberate nature.”

Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa.

1993) (quotation omitted). This Court’s jurisprudence has long recognized that

MHL-4

attendance issues may warrant an employee’s dismissal, but it will not render the

employee ineligible for compensation unless the conduct is willful as opposed to

negligent. Further, “excessive absenteeism” does not constitute willful misconduct

where the absences are caused by a medical reason. Sprague v. Unemployment

Compensation Board of Review, 647 A.2d 675, 680 (Pa. Cmwlth. 1994). Consistent

with these precepts, this Court held in Tritex Sportswear, Inc. v. Unemployment

Compensation Board of Review, 315 A.2d 322 (Pa. Cmwlth. 1974), that a claimant’s

history of absenteeism was not disqualifying because her last absence was the result

of illness.

The Referee rejected Claimant’s attempt to provide a medical reason

for her tardiness because it was not supported by a doctor’s note directing a 10:00

a.m. starting time. First, Employer was fully aware of Claimant’s medical condition.

Second, Employer’s witness conceded that when he denied Claimant’s request for a

10:00 a.m. start time, he did not tell her that her doctor’s note was insufficiently

detailed. This was particularly problematic because that same doctor’s note was

used by Employer to accommodate Claimant’s schedule from October to January.

The Referee’s mistake comes back to her quick, and erroneous, decision that this

was an accommodation case as opposed to whether Claimant had a “medical reason”

for her tardiness.

Finally, assuming, arguendo, that Employer established a work rule by

testimony, its willful misconduct case still fails because Claimant’s final incident of

tardiness was not her fault. Even the Referee acknowledged this fact.

In Runkle v. Unemployment Compensation Board of Review, 521 A.2d

530 (Pa. Cmwlth. 1987), the claimant, who had a history of absenteeism, was

discharged after she was absent from work for a week. This Court held that because

MHL-5

the claimant’s most recent absence had been caused by medical issues, it did not

constitute willful misconduct. The claimant’s long history of absenteeism

constituted grounds for discharge, but not for the denial of benefits.1

In Grand Sport Auto Body v. Unemployment Compensation Board of

Review, 55 A.3d 186 (Pa. Cmwlth. 2012), a case on which the majority relies, only

three out of the claimant’s 19 absences related to illness or a doctor’s appointment;

the claimant had no justification for the other 16 absences. The fact that he had good

cause for his final absence, i.e., a cancelled airplane flight, was held irrelevant and

did not outweigh his history of excessive absenteeism. Grand Sport Auto Body did

not overrule Tritex or Runkle, and it is limited to its facts, i.e., a claimant who could

not establish good cause for 16 days of absences.

This is a Runkle case, not a Grand Sport Auto Body case,2 as Claimant

tried to establish. However, her testimony was improperly cut short by the Referee.

1

The majority states that Claimant was tardy 76 times. There was no such finding by the Board.

Although Employer’s witness stated that Claimant was tardy 76 times, he acknowledged that he

based that number on a timekeeping document, not his personal knowledge. The timekeeping

document itself does not support the claim of 76 incidents of tardiness. It shows the hours Claimant

worked but not her shifts. Even assuming a start time of 9:00 a.m., for all days, including Sundays,

it does not show anything close to 76 instances of tardiness.

2

Since Grand Sport Auto Body, this Court has continued to apply Tritex and Runkle. In Howard

Hanna Holdings, Inc. v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1430

C.D. 2013, filed April 3, 2014) (unreported), the claimant was put on probation due to absenteeism

and leaving work early without her employer’s approval. When notified that her dog needed

immediate veterinary assistance, the claimant left and did not return to work, in spite of the

employer’s request. The employer fired the claimant.

The referee found that the claimant was eligible for benefits, despite her history of

absenteeism, because she had good cause for the last absence. This Court held that even where an

employee has a history of absenteeism, the employee is entitled to receive compensation benefits

where the final absence precipitating the discharge is based on good cause. Pursuant to

Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code §69.414(a), this

Court’s unreported opinion in Howard Hanna Holdings may be cited for its persuasive value and

not as binding precedent.

MHL-6

The factfinder can find Claimant’s explanation not credible, but the factfinder first

has to listen to it.

Employer discharged Claimant for being late on May 25, 2017.

Claimant’s bus was delayed, and she was one of many employees delayed by traffic.

Employer’s Human Resources Manager acknowledged that “other people [were not]

reprimanded for their lateness on that day.” N.T. 26; R.R. 62a. Contrary to the

Referee’s holding, Claimant’s good cause for being late on May 25, 2017, was

relevant under Runkle.

Claimant’s complete testimony, if allowed, may have convinced the

factfinder that her repeated tardiness was neither deliberate nor intentional.

Assuming Employer demonstrated a work rule on tardiness and that it followed its

progressive discipline procedures without producing its written policy, then

Claimant’s testimony, if not stopped at the proffer stage, could have established good

cause for violating Employer’s policy.3

For all of these reasons, I would reverse the Board and remand for a

new hearing to allow Claimant to testify more completely.

_____________________________________

MARY HANNAH LEAVITT, President Judge

3

It goes without saying that a credibility determination cannot be made on the basis of a proffer.

MHL-7