Martin-Horn v. UCBR – Cmwlth. Court – April 19, 2022 – not reported**
https://www.pacourts.us/assets/opinions/Commonwealth/out/1206CD20_4-19-22.pdf?cb=1
Held: Claimant guilty of willful misconduct due to numerous instances of tardiness, in violation of an emeployer rule.
Employer policy—ER had a specific attendance and tardiness policy with a point system and progressive discipline for repeated violations. Employees are expected to be ready to start work at the beginning of their scheduled shift. Employees can clock in on their computer or by swiping their identification badge. See F.F. 9. Employees clocking in any time after their scheduled shift commences are considered tardy. A tardy clock-in is considered a violation of the Tardiness Policy, with each individual tardy receiving half a point in the policy’s points scheme. The Tardiness Policy does not provide for a grace period during which employees do not accrue points for clocking in after their shift has begun. Under the Tardiness Policy, amassing 10 total points is grounds for employee termination.
Referee findings -- The referee determined that Claimant continually violated the Tardiness Policy despite Employer changing her start time, reminding her of the requirements of the Tardiness Policy, and offering suggestions to help her present to work on time. The referee also noted that Claimant had not informed Employer of her learning disability until she received a corrective action plan, and that the only accommodation she requested thereafter had been a computer dictation program, which Employer provided. The referee further noted that Employer was lenient with Claimant by considering the challenges of Claimant’s personal life and allowing her to amass 21 tardiness points, despite the fact that only 10 points would have justified Claimant’s termination under the Tardiness Policy.
Burden of proof - For purposes of determining a discharged employee’s eligibility for unemployment compensation, the employer bears the burden of proving that the employee engaged in willful misconduct connected with his work. See Section 402(e) of the Law, 43 P.S. § 802(e); Adams v. UCBR., 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012).
Willful misconduct -- This Court has defined willful misconduct as (1) wanton and willful disregard of an employer’s interests; (2) deliberate violation of [an employer’s] rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer’s interests or the employee’s duties and obligations. Waverly Heights, 173 A.3d at 1228 (quoting Johns v. UCBR., 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014)). Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove good cause for her actions. See Downey v. UCBR., 913 A.2d 351, 353 (Pa. Cmwlth. 2006).
Work rule violation - “Where an employer seeks to deny UC benefits based on a work[]rule violation, the employer must prove the existence of a work rule, the reasonableness of the rule and the employee’s violation of the rule.” Waverly Heights, 173 A.3d at 1228 (internal citation omitted). An inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct. See Chester Cmty. Charter Sch. v.UCBR., 138 A.3d 50, 55 (Pa. Cmwlth. 2016). “Thus, a determination of what amounts to willful misconduct requires a consideration of all of the circumstances, including the reasons for the employee’s noncompliance with the employer’s directives.” Eshbach v.UCBR., 855 A.2d 943, 947-48 (Pa. Cmwlth. 2004) (internal quotation marks and citation omitted). Where the employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. See id. at 948.
Habitual tardiness - “It is well settled that habitual tardiness can constitute willful misconduct, thus justifying the denial of benefits.” Cipriani v.UCBR, 466 A.2d 1102, 1104 (Pa. Cmwlth. 1983); see also Grand Sport Auto Body v. UCBR., 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (“Excessive absenteeism or tardiness may constitute willful misconduct.”). This is so because “[e]mployers have the right to expect that employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.” Grand Sport, 55 A.3d at 190 (internal citation, quotation marks, and ellipses omitted). Thus, habitual tardiness “is inimical to an employer’s interest.” Id. For this reason, this Court has “repeatedly held that habitual tardiness is adequate ground[s] for a finding of willful misconduct.” Id.; see also Ellis v.UCBR., 59 A.3d 1159, 1163-64 (Pa. Cmwlth. 2013) (claimant’s 6 tardies within 21⁄2 weeks without good cause sufficient to find willful misconduct); Dotson v.UCBR., 425 A.2d 1219, 1220 (Pa. Cmwlth. 1981) (benefits denial appropriate where claimant was late 27 times and absent 7 times during two-year period and court rejected claim of good cause based on claimant illness); Bowers v. UCBR., 392 A.2d 890, 892 (Pa. Cmwlth. 1978) (benefits denied where claimant was late 12 times during four-month period); UCBR v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976) (benefits denied where Board rejected claimant’s contention that chronic lateness was due to illness).
Here, Employer terminated Claimant’s employment based on Claimant’s repeated instances of tardiness. The tardiness policy assigns one-half of a point for each instance of tardiness and that the assessment of a total of 10 points for tardiness even with proper notification to Employer constitutes grounds for termination. Claimant amassed 21 points for tardiness from March through December 2019, a total representing 42 instances of tardiness during that period,more than double the number of points that would have justified Claimant’s discharge.
Good cause - “The issue of whether good cause exists is a factual one for the Board to resolve.” Ellis, 59 A.3d at 1164. Here, the Board concluded that Claimant did not meet her burden to prove that she had good cause for her tardiness. Her reasons for her tardiness were found to be vague and repetitive. Moreover, Employer attempted to accommodate claimant’s issues with tardiness, and was lenient with her, but she still accumulated 21 points. The Board maintains the exclusive province to make this finding, which cannot be impugned on appeal. See Waverly Heights, 173 A.3d at 1227-28; Ellis, 59 A.3d at 1164.
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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).
