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Amia A. Ellis v. Unemployment Compensation Board of Review

January 22, 2013


The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: October 12, 2012




Amia A. Ellis (Claimant) petitions for review of the December 23, 2011 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

The facts of this case can be summarized as follows. Claimant was employed as a full-time Sales Supervisor with Harbor Silver and Gold (Employer) from July 30, 2007, to July 29, 2011. Employer has a policy through written agreement with its employees, including Claimant, that the employees will "start their shift on time, ready to work." Under Employer's policy, if an employee cannot arrive at work on time, the employee must call a manager and explain why he or she will be late. Employer's Handbook also provides that "excessive" tardiness is a ground for dismissal. (N.T., 9/26/2011, at 10-11; Exhibit SC-16.)

During the course of Claimant's employment with Employer, Donna Cignarella, Store Manager for Employer, had at least four face-to-face conversations with Claimant to discuss her tardiness. From June 7 to June 23, 2011, Claimant was late for work six times; in five of these instances, Claimant was approximately thirty minutes late. On June 24, 2011, Cignarella provided Claimant with a written warning, called a Performance Discussion Record (PDR), which states that "Performance Improvement [is] Needed" and that Claimant has to show up for work on time. According to Employer's disciplinary process, a PDR is a serious reprimand that generally follows several face-to-face warnings and typically serves as a final warning before termination. (N.T., 9/26/2011, at 10-11; Exhibits SC-12 and SC-15.)

After receiving the PDR, Claimant had a three-week vacation and was scheduled to return on July 29, 2011, and work from 3 p.m. to 10:30 p.m. On July 29, 2011, Claimant contacted Employer and said that she would be "a little" late but did not provide a reason why. Claimant arrived to work approximately forty-five minutes late. At that point, Employer discharged Claimant for her habitual tardiness and for violating its time and attendance rules. (N.T., 9/26/2011, at 8, 10; Exhibit SC-12.)

Claimant thereafter filed a claim for benefits. On August 19, 2011, the local service center determined that Claimant was ineligible for benefits because Employer warned her to arrive at work on time and Claimant did not have good cause for showing up late on July 29, 2011.

Claimant appealed and a hearing was conducted before a referee on September 26, 2011. At the hearing, Cignarella and Lauren Rago, Employer's District Manager, testified to the facts set forth above. Among other documents, Employer introduced into evidence the PDR as Exhibit SC-15 and its Handbook as Exhibit SC-16.

In rebuttal, Claimant testified that she had good cause for being late on July 29, 2011. In sum, Claimant testified that she had to drop off medical documents at the county assistance office in order to maintain her medical benefits and had trouble with the public transportation system.

By decision and order dated September 27, 2011, the referee found that Employer's Handbook and policies demonstrate that employees are to arrive for their scheduled shift on time; that Claimant was aware of this rule; that Claimant received prior discipline from Employer, including face-to-face discussions and the PDR; that Claimant arrived for work approximately forty-five minutes late on July 29, 2011; and that Claimant contacted Employer and indicated that she would be late but did not provide a reason why. (Findings of Fact Nos. 2-9.) Based upon these facts, the referee concluded that Claimant's tardiness violated Employer's policies and constituted willful misconduct. In addition, the referee discredited Claimant's testimony that she had good cause for being late, finding that "Claimaint was not able to adequately explain why it took her more than three hours to get from the county assistance office to her work location." (Referee's decision at order at 2.) Claimant appealed to the Board, which affirmed the referee's denial of benefits, adopting the referee's findings and conclusions of law.

On appeal to this Court,*fn2 Claimant first argues that Employer's policies are vague and arbitrary because they do not mention how many instances of tardiness will be permitted before an employee is discharged and vest the Employer with unfettered discretion to determine when tardiness becomes "excessive." Claimant also contends that she was not specifically warned that she would be discharged the next time she was late. For these reasons, Claimant asserts that Employer failed to prove that she engaged in willful misconduct. We disagree.

Under section 402(e) of the Law, an employee is ineligible for unemployment compensation benefits when she has been discharged from work for willful misconduct connected with her work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The burden of proving willful misconduct rests with the employer. Id. Although willful misconduct is not defined by statute, it has been described as: (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 from his employee; or (4) negligence which ...

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