IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julie Turek, :
:
Petitioner :
:
v. : No. 411 C.D. 2017
: Submitted: December 29, 2017
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: February 6, 2018
Julie Turek (Claimant) petitions pro se for review of the March 16,
2017 order of the Unemployment Compensation Board of Review (Board). The
Board affirmed the decision of a Referee, denying Claimant unemployment
compensation benefits pursuant to Section 402(e) of the Unemployment
Compensation Law1 (Law) due to willful misconduct. For the reasons set forth
below, we now affirm.
Following her dismissal by Omnicare (Employer), where Claimant had
been employed, full-time, as a Picking Technician, she filed an initial claim for
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
unemployment compensation with the Department of Labor and Industry
(Department) on November 15, 2016. (Record Item (R. Item) 2, Internet Initial
Claims.) On November 29, 2016, the Department issued a Notice of Determination
finding Claimant ineligible for unemployment compensation benefits. (R. Item 5,
Notice of Determination.)
Claimant appealed the Notice of Determination and a hearing was held
before a Referee on January 9, 2017. (R. Item 9, Transcript of Testimony (H.T.).)
On appeal, both Claimant and Employer’s Backend Manager (Manager) appeared,
and the Manager presented evidence regarding Employer’s attendance policy. (Id.)
The Referee issued a decision and order on January 23, 2017, finding that Claimant
failed to establish good cause for her violation of Employer’s attendance policy, and
concluding that Claimant was ineligible for unemployment compensation. (R. Item
10, Referee Decision and Order.) The Referee made the following findings of fact:
1. The Claimant was last employed as a full-time Picking
Technician earning $12.75 per hour with a $.50 shift
differential with [Employer]. The Claimant began her
employment on December 14, 2015, and last worked
on November 15, 2016.
2. The Employer maintains an attendance policy which
they review with all new employees during the initial
hire process.
3. In accordance with the above policy, an employee who
exceeds eight (8) occurrences within a calendar year
will be terminated.
4. The above policy provides that employees will receive
one third (1/3) of an occurrence whenever they report
to work more than five minutes past their scheduled
start time, leave work more than five minutes before
their scheduled end time or when the employee misses
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less than one half (1/2) of their scheduled work shift,
not including job abandonment.
5. The policy continues that missing one half (1/2) or
more of a scheduled work shift will result in one (1)
occurrence, not including job abandonment or no
call/no-show and that missing up to three consecutive
days of expected work will constitute one (1)
occurrence. Beginning on the fourth day of
consecutive absence, occurrences will be assessed on a
daily basis.
6. The above policy further provides that a notice will be
provided via email to employees who accumulate four
(4) or more occurrences in a calendar year and that a
subsequent notice will be issued similarly to employees
who accumulate seven (7) or more occurrences.
7. The above policy was a no-fault policy.
8. The Claimant admitted to being aware of the above
policy.
9. On April 26, 2016, the Employer issued the Claimant
an attendance notification via email advising her that
she had reached 4.33 occurrences under the attendance
policy and reminding the Claimant that she was
allowed up to eight occurrences in a calendar year.
10. On September 3, 2016, the Employer issued the
Claimant a second attendance notification email
notifying the Claimant she had reached 7.00
occurrences under the attendance policy and reminding
her that she was allowed 8 attendance occurrences in a
calendar year.
11. After issuing the Claimant the above email, the
Claimant was late more than five minutes on
September 9, 2016, and again on September 26, 2016,
and had an early departure of more than five minutes
on September 22, 2016, resulting in the Claimant’s
attendance occurrences reaching the level of 8.0.
3
12. On November 11, 2016, the Claimant was scheduled
for work at 3:30 P.M. but clocked in for work at 3:59
P.M., leading to the Claimant accruing a one third (1/3)
attendance occurrence thereby increasing her
attendance occurrences to 8.33 for the calendar year.
13.The Claimant provides care and support for her elderly
mother during daytime hours.
14. On the above date, after providing care and support for
her mother, the Claimant returned home at
approximately 2 P.M. and fell asleep, resulting in the
Claimant reporting to work tardy.
15. On November 15, 2016, the Employer discharged the
Claimant for exceeding eight (8) attendance occurrence
points within a calendar year in violation of their
attendance policy.
(R. Item 10, Findings of Fact (F.F.) ¶¶ 1-15.) Claimant appealed the Referee’s
decision to the Board. (R. Item 11, Petition for Appeal.)
On March 16, 2017, the Board issued a decision and order affirming
the Referee, and adopting and incorporating the Referee’s findings of fact. (R. Item
12, Board’s Order.) Claimant then petitioned this Court for review of the Board’s
order.2
The question of whether a claimant’s actions constitute “willful
misconduct” is a question of law subject to this Court’s plenary review. Rossi v.
Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. 1996).
2
Our review of the Board’s decision is limited to determining whether necessary findings of fact
are supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704; Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 n.3 (Pa.
Cmwlth. 2007). Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. On Line Inc. v. Unemployment Compensation Board of
Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
4
Willful misconduct is defined as: (i) wanton or willful disregard for an employer’s
interests; (ii) deliberate violation of an employer’s rules; (iii) disregard for standards
of behavior which an employer can rightfully expect of an employee; or (iv)
negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations. Caterpillar, Inc. v. Unemployment Compensation
Board of Review, 703 A.2d 452, 456 (Pa. 1997). The employer has the burden to
demonstrate that the claimant has engaged in willful misconduct; if an employer
meets this burden, the burden then shifts to the claimant to demonstrate that the
claimant had good cause for the violation of employer’s policy by showing that the
actions resulting in non-compliance were reasonable under the circumstances.
Rossi, 676 A.2d at 197; Chapman v. Unemployment Compensation Board of Review,
20 A.3d 603, 607 (Pa. Cmwlth. 2011). Where an employer alleges that a claimant
has committed willful misconduct by violating a work policy, to meet its burden the
employer must demonstrate by substantial evidence the existence of the policy, the
reasonableness of the policy, and the claimant’s deliberate violation of the policy.
Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa.
2003); Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518,
522 (Pa. Cmwlth. 1999).
Here, Claimant’s sole argument is that she was denied the proper
warning prior to her dismissal, and that by failing to provide her with written notice
that she had reached 8 occurrences within the calendar year, Employer violated its
attendance policy. Employer’s attendance policy states that it is a “no-fault” policy,
which is managed by the utilization of an occurrence structure. (R. Item 9, Exhibit
E1.) The policy states that “[n]o-fault simply means that any time missed other than
previously approved time off, counts as an occurrence….” (Id.) Employer’s policy
5
clearly states that upon accumulating 4 or more occurrences in a calendar year, an
employee will be provided a notification via email indicating their attendance status,
and upon accumulating 7 or more occurrences in a calendar year, an employee will
receive another notification reminding them that upon exceeding 8 occurrences, their
employment will be terminated. (Id.) Claimant does not dispute that she received
both these notices. Employer’s policy, of which Claimant was aware, does not
provide for any additional notices prior to dismissal.
An employer has a right to expect that employees will attend work
when scheduled and that they will be on time. Fritz v. Unemployment Compensation
Board 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 Compensation Board of Review, 407
A.2d 144, 146 (Pa. Cmwlth. 1979). The exception to this rule is where a claimant
can show that there was good cause for the claimant’s habitual lateness such as a
demonstrable illness. See, e.g. Runkle v. Unemployment Compensation Board of
Review, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). Here, however, Claimant does not
argue that she had good cause for her violation of the policy nor does she assert that
she did not accumulate in excess of 8 occurrences.3 Employer established that its
attendance policy was reasonable, that Claimant was aware of the policy, and that
she accrued the requisite number of occurrences for termination. Claimant failed to
establish that there was good cause for any tardiness or unscheduled absence that
resulted in the accrual of an “occurrence.”
3
Claimant does not challenge any of the findings of fact adopted by the Board. The findings,
therefore, are conclusive and binding on this Court upon review. Salamak v. Unemployment
Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
6
Accordingly, the order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julie Turek, :
:
Petitioner :
:
v. : No. 411 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW this 6th day of February, 2018, the order of the
Unemployment Compensation Review Board in the above-captioned matter is
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge