IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choi Ng, :
Petitioner :
:
v. : No. 2010 C.D. 2015
: SUBMITTED: March 18, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 13, 2016
Claimant, Choi Ng, petitions for review of an order of the
Unemployment Compensation Board of Review (Board) that affirmed a referee’s
decision finding her ineligible for unemployment compensation benefits because
her actions constituted willful misconduct under Section 402(e) of the
Unemployment Compensation Law (Law).1 We affirm.2
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
2
Noting that Employer, Sands Bethworks Gaming, LLC, could have intervened as of right
had it acted promptly, the Court entered an order permitting Employer to proceed as an
intervenor aligned with the Board as respondent. Subsequently, noting the adequacy of
Employer’s brief, the Board indicated that it would not be filing a brief.
From June 2012 to June 2015, Claimant worked as a full-time table
games dealer for Employer, Sands Bethworks Gaming, LLC, at a final rate of pay
of $5.68 per hour, plus tips. Referee’s August 12, 2015, Decision, Finding of Fact
(F.F.) No. 1. Employer has a progressive attendance policy whereby it assesses
points for various violations and terminates an employee’s employment when he or
she accrues a total of ten points. When an employee reaches three, four and six
points, it administers progressive discipline short of discharge. At eight points,
Employer issues a “Career Decision Day” to the employee, who is suspended
without pay for one day and must submit a commitment letter indicating his or her
willingness to change the performance issue. Id., No. 2. Claimant was aware of
Employer’s attendance policy, which Employer reviewed at the time of her hire.
Id., No. 3.
When Claimant accrued three points in June 2014, Employer provided
her with what it termed “Coaching and Counseling” for unsatisfactory attendance.
Id., No. 4. Subsequently, Claimant accrued four points in August 2014 and seven
points in October 2014, both for unsatisfactory attendance and both warranting
Employer’s issuance of performance improvement plans. Id., Nos. 5 and 6. After
Claimant accrued 7.5 points for unsatisfactory attendance in April 2015, Employer
provided her with a third performance improvement plan. Id., No. 7. When she
accrued 8.5 points in June 2015, Employer issued her a Career Decision Day due
to unsatisfactory performance, and it warned her that her job was in jeopardy. Id.,
Nos. 8 and 9. The three-point accrual leading to the termination of her
employment occurred approximately two weeks later when Claimant “report[ed] to
work more than 30 minutes after shift without notifying a supervisor in advance of
tardiness, bringing her total to 11.5 points.” Id., No. 14. Having misread her
2
schedule on Employer’s virtual scheduling system and, therefore, operating under
the mistaken belief that her start time was 9 p.m., Claimant arrived to work forty-
five minutes late at 8:45 p.m. Id., Nos. 11-13. Accordingly, with the accrual of
11.5 points for unexcused absences and tardiness, “Employer discharged the
Claimant for violating its attendance policy due to excessive attendance related
issues.” Id., No. 15. Claimant subsequently applied for unemployment
compensation benefits, and the UC Service Center found her to be eligible.
On appeal, both Employer and Claimant appeared and presented
evidence. Employer presented one witness and was represented by counsel.
Claimant, who appeared pro se, nonetheless requested and received assistance
from a certified interpreter who spoke Cantonese. After the hearing, the referee
reversed the UC Service Center’s determination, concluding that Employer
established that it discharged Claimant from employment for actions that
constituted willful misconduct. The referee also rejected Claimant’s attempt to
show good cause for her conduct, noting that she “gave vague and conflicting
testimony regarding her absences from work, indicating that some of [them] were
due to high blood pressure and high cholesterol.” Referee’s August 12, 2015,
Decision at 2. Regarding those pre-termination absences, the referee found as
follows: “As the Claimant progressed through the various steps of progressive
discipline, she did not offer the Employer any explanations for her absences.” F.F.
No. 16. Further, regarding the tardiness that led to her discharge from
employment, the referee observed that, even knowing that her job was in jeopardy
for attendance-related issues, Claimant admitted to misreading her work schedule.
The Board affirmed, adopting and incorporating all but one of the referee’s
3
findings and conclusions.3 In addition, it rejected the following: 1) Claimant’s
assertions that she had experienced problems communicating with her interpreter,
noting that she did not make any such complaint at the hearing; and 2) Claimant’s
attempt to provide medical documentation that was not included in the record.
Claimant’s timely petition for review followed.4
Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n 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). The term “willful misconduct”
has been defined to include (1) the wanton and willful disregard of the employer’s
interests; (2) the deliberate violation of rules; (3) the disregard of standards of
behavior that an employer can rightfully expect of its employee; or (4) negligence
that manifests culpability, wrongful intent, evil design, or intentional and
substantial disregard for the employer’s interests or the employee’s duties and
obligations. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957
A.2d 786, 792 (Pa. Cmwlth. 2008). The employer bears the initial burden of
proving that a claimant engaged in willful misconduct and, if the willful
misconduct charge is based upon a violation of a work rule, the employer must
prove the existence of the rule, its reasonableness, and that the employee was
aware of the rule. Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933,
3
Contrary to the referee’s finding that Claimant received her work schedule two weeks
before the tardiness that triggered her dismissal, the Board accepted Claimant’s testimony that
she received it only one week in advance. The length of this time period, however, is not at
issue.
4
Whether a claimant’s actions constitute willful misconduct is a question of law over which
we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162
(Pa. Cmwlth. 2012).
4
937 (Pa. Cmwlth. 2012). Once an employer satisfies its prima facie case, the
burden shifts to the claimant to demonstrate that the rule was unreasonable or that
she had good cause for her conduct. Id. The claimant has good cause if her action
“is justifiable or reasonable under the circumstances[.]” Frumento v.
Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. 1976).
Claimant contends that the Board erred in concluding that her actions
constituted willful misconduct, alleging that the approximately thirteen call-offs
leading to her dismissal were not excessive, that she followed the proper protocol
when reporting off from work and that she established good cause for her
absences. See Wade v. Unemployment Comp. Bd. of Review, 555 A.2d 299, 301
(Pa. Cmwlth. 1989) (holding that, notwithstanding employer warnings, excessive
absenteeism, in and of itself, when justified and properly reported, does not
disqualify a claimant from receiving compensation). Further, although she
acknowledges that she did not contemporaneously inform Employer of the reasons
for her absences,5 she alleges that she provided a valid explanation for them at the
hearing via her consistent testimony that she occasionally needed to be off work
due to health-related issues. Accordingly, she maintains that Employer failed to
establish willful misconduct and that, even if it met its burden, she established a
good cause defense via her testimony. See Sprague v. Unemployment Comp. Bd.
of Review, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (holding that illness is a good
cause defense to alleged willful misconduct due to excessive absenteeism).
Claimant’s position is without merit.
5
Claimant admitted that she failed to provide Employer with an explanation for her previous
absences at the requisite intervals during the progressive disciplinary process. Notes of
Testimony (N.T.), Hearing of August 12, 2015, at 11; Reproduced Record (R.R.) at 19a.
5
In Miller v. Unemployment Compensation Board of Review, 131 A.3d
110, 113 (Pa. Cmwlth. 2015), we held that the relevant factors to consider in
determining whether absenteeism rises to the level of willful misconduct include
failure to notify the employer in advance of the absence, the excessive nature of the
absences, lack of good or adequate cause for the absences and disregard of
warnings regarding absenteeism. To clarify, Employer did not terminate
Claimant’s employment for failure to comply with its call-off procedure. It
dismissed her pursuant to its attendance policy once she accrued 11.5 points for
unexcused absences and tardiness. In that regard, contrary to Claimant’s
representation, the Board found her testimony regarding the reasons for her
absences to be vague and conflicting. It also rejected her attempt to justify her
absences for health-related reasons with a post-hearing proffer of medical
documentation that was not of record.6 As the Board determined: (1) Employer
warned Claimant that her job was in jeopardy and that additional attendance-
related violations could lead to her dismissal; and (2) she had multiple,
unexplained attendance violations in the past as well. Board’s September 18,
2015, Decision at 1.
Moreover, regarding the June 2015 tardiness that triggered her
dismissal, Claimant admitted that she had been using Employer’s virtual roster
scheduling system since November 2012. In weighing her testimony, the Board
determined that one week’s notice was sufficient for Claimant to realize when her
shift began, especially in light of the fact that she was aware that her job was in
6
Item 11 of the certified record includes a post-hearing e-mail purportedly from Claimant’s
daughter. There is no indication that the proffered health-related evidence that the daughter
references in the e-mail would have been unavailable at the time of the hearing.
6
jeopardy and that additional points could lead to her discharge from employment.
Credibility and evidentiary weight are determined by the Board, and its findings of
fact are conclusive on appeal when the record, in its entirety, contains substantial
evidence supporting those findings. Oliver v. Unemployment Comp. Bd. of
Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010).
In conclusion, Employer established that its attendance policy was
reasonable, that Claimant was aware of the policy and that she accrued the
requisite number of points for termination. As this Court has held: “A conclusion
that the employee has engaged in disqualifying willful misconduct is especially
warranted in . . . cases where . . . the employee has been warned and/or
reprimanded for prior similar conduct.” Ellis v. Unemployment Comp. Bd. of
Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) (citation omitted). In addition,
solely on the tardiness issue, we have not required a specific attendance rule to be
in place where an employee fails to report for work on time. In that regard, we
have stated: “It is well settled that an employer has the right to expect that its
employees will attend work when they are scheduled and that they will be on
time[.]” Id. (citation omitted). Finally, the Board rejected Claimant’s attempt to
establish that there was good cause for any of her unexcused absences.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choi Ng, :
Petitioner :
:
v. : No. 2010 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 13th day of May, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge