               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zaneta M. King,                            :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 2386 C.D. 2014
                    Respondent             :   Submitted: June 19, 2015



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: September 25, 2015

             Zaneta M. King (Claimant), pro se, petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) November 21, 2014
order affirming the Referee’s decision finding Claimant ineligible for UC benefits
under Section 402(e) of the UC Law (Law).1 Claimant presents two issues for this
Court’s review: (1) whether the UCBR’s finding that Claimant arrived late for work
on July 17, 2014 was based on substantial evidence, and (2) whether the UCBR
properly concluded that Claimant had engaged in willful misconduct and thus was
ineligible for UC benefits under Section 402(e) of the Law. After review, we affirm.
             Claimant was employed as a full-time receptionist by Abington
Memorial Hospital (Employer) from February 4, 2013 until July 21, 2014, when her


      1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
employment was terminated after a final incident of tardiness following several
warnings.
             Employer had in place “Rules of Personal Conduct,” as set forth in its
Employee Handbook, which provides for disciplinary action of an employee to be
determined based upon factors including “the nature of the infractions, previous
disciplinary history, employee status and length of service.” Original Record (O.R.)
Item No. 2: Employee Handbook at 24. “[L]ateness or absenteeism that is patterned,
excessive or repetitive,” is included in Employer’s list of serious infractions. Id.
Claimant received the Employee Handbook on February 4, 2013.
             Employer’s timekeeping policy No. 415 (Policy No. 415) provides in
relevant part that employees “must ‘punch’ in at the beginning and out at the end of
their shift within 7 minutes of the start/finish of their shift[,]” and clarifies that “[t]he
seven (7) minute period described above is . . . not a grace period. [The grace
period] does not change the fact that each employee is expected to be at his or her
work assignment at the start and end time of their scheduled shift to be
considered ‘on time.’” O.R., Item No. 2: Policy No. 415(B)(1)(a), (c) (emphasis
added). Policy No. 415 defines “on time” as “being in your work area, ready to work
at the start and end times of your shift.” O.R. Item No. 2: Policy No. 415.
             On May 14, 2013, while assigned to Employer’s Physician’s Network,
Claimant received a written warning about her “consistent[] late[ness,]” which
described that she was at least five minutes late each day (and more than fifteen
minutes late, eight of those days) in a single two-week pay period. O.R. Item No. 9,
Ex. E1. According to Claimant, while working for Employer’s Physician’s Network,
Claimant was afforded a seven-minute grace period at the start of her day.
             In May 2014, Claimant transferred from Employer’s Physician’s
Network to Employer’s Ambulatory Services Unit. On May 11, 2014, Claimant was
suspended for violating Employer’s “performance standards; lateness[.]” On July 1,
                                             2
2014, after Claimant again arrived late to work, Employer met with Claimant and
notified her, in a written Record of Employee Conference (Notice) that referenced
nineteen additional tardiness incidents between May 22, 2014 and July 1, 2014 for
which she was suspended for two days, effective July 9, 2014. The Notice advised
her that she had violated, inter alia, Policy No. 415, and reminded her that she “is
expected [to] arrive on time for work as scheduled.” O.R. Item No. 2: Notice at 2.
The Notice also warned Claimant that “[a]ny further incident of lateness or
unscheduled absenteeism will result in termination.” Id. According to Claimant, the
July 1, 2014 meeting was when she learned that a seven-minute grace period was not
permitted in the Ambulatory Services Unit.
            On July 7, 2014, Claimant’s supervisor Danielle McKenna (McKenna)
emailed Claimant and several other employees, directing them to review Policy No.
415, and clarified that “there is no ‘seven[-]minute grace period’ – ‘on time’ means
you are in your assigned work area and ready to begin[] work[.] [] In your assigned
work area means at your assignment (not in cafeteria, gift shop or parking your car).”
O.R. Item No. 2, July 7, 2014 email (McKenna email).
            On July 17, 2014, Claimant arrived at work. However, fearful that she
would be late if she parked in Employer’s parking lot, she double-parked in
Employer’s valet area, entered the building and clocked in at 8:00 a.m.         After
clocking in, Claimant left the work area to move her car to the parking lot. She did
not return until 8:06 a.m.    On July 21, 2014, Employer terminated Claimant’s
employment for violating Employer’s work rules.
            Claimant applied for UC benefits. On August 8, 2014, the Altoona UC
Service Center determined that Claimant was ineligible for UC benefits under Section
402(e) of the Law. Claimant appealed and a Referee hearing was held on September
9, 2014. On September 11, 2014, the Referee affirmed the UC Service Center’s
determination. Employer appealed to the UCBR which adopted and incorporated the
                                          3
Referee’s factual findings and legal conclusions, and affirmed the Referee’s decision.
Claimant appealed to this Court.2 Employer intervened.3
              Claimant first argues that substantial evidence does not support the
UCBR’s finding that she violated Employer’s tardiness policies on July 17, 2014.
We disagree. Our Court has explained:

              ‘Willful misconduct’ is defined as: (1) a wanton and willful
              disregard of the employer’s interests; (2) a deliberate
              violation of the employer's rules; (3) a disregard of the
              standards of behavior that an employer rightfully can expect
              from its employees; or (4) negligence that manifests
              culpability, wrongful intent, or evil design, or an intentional
              and substantial disregard of the employer’s interests or the
              employee’s duties and obligations. When an employee is
              discharged for violating a work rule, the employer must
              prove the existence of the rule and the fact of its
              violation. The burden then shifts to the employee to
              prove that he or she had good cause for violating the
              rule.

Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012)
(citations omitted; emphasis added).
              The record evidence is clear that Employer’s rules required that
employees arrive at their work areas on time, “ready to work at the start . . . of [their]
shift[s].” O.R., Item No. 2: Policy No. 415. Claimant admits receiving Employer’s
Employee Handbook, and did not dispute the existence of McKenna’s email.
Accordingly, Employer met its burden of proving the existence of its work rule.
Thus, the pertinent question becomes whether the UCBR properly found that
Employer established Claimant’s violation of its work rule.


       2
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
       3
         The UCBR did not file a brief.
                                                 4
             Claimant contends that on July 17, 2014, she arrived and clocked in on
time at 8:00 a.m. Claimant then checked in with her department and, after
determining that no patients needed her assistance, left to move her car. Further,
Claimant contends that she believed she had a seven-minute grace period and,
accordingly, was not late. Claimant testified:

             I ran in to punch in because I couldn’t be late again as of
             my meeting with Ms. Harris, Ms. Hartman and [] McKenna.
             . . . [A]t that time on July 17th I did come in, punched [in].
             I ran into [] McKenna coming out of another department
             where the [time clock] is. I went into our department, I
             went to a co-worker that was at the greeter’s desk and I
             whispered in her ear are you okay. Is any patients [sic] that
             needs to be registered, checked in or anything like that. She
             said no. I told her I’ll be right back. That’s when I
             proceeded to go out to move my car.

O.R. Item No. 9, Notes of Testimony (N.T.) at 13. Claimant’s testimony does not
demonstrate that she was at her “work area, ready to work at the start . . . of [her]
shift[.]” O.R., Item No. 2: Policy No. 415. Rather, Claimant’s testimony that she
checked in with her co-worker before moving her vehicle establishes that she was not
“ready to work,” while her car sat double-parked in Employer’s valet area. Id. Thus,
we hold that substantial evidence supports the UCBR’s finding that Claimant violated
Employer’s work rule.
             Having determined that Claimant violated Employer’s work rule, we
consider whether Claimant had good cause for the violation. Lewis. Specifically,
Claimant “must prove that . . . her actions were justifiable or reasonable.       To
determine whether the claimant has satisfied this burden of proof, this Court must
examine the reasons for the claimant’s non-compliance and determine whether he or
she acted reasonably under the circumstances.” Arbster v. Unemployment Comp. Bd.
of Review, 690 A.2d 805, 809 (Pa. Cmwlth. 1997) (citation omitted). Claimant
argues that she had good cause to leave the workplace on July 17, 2014 to move her

                                           5
car after “punching in,” because she was concerned that her car would be ticketed and
towed. After receiving repeated warnings about her tardiness, Claimant failed to
allow sufficient time to arrive at work, legally park and be at her area ready to work
by 8:00 a.m. Therefore, Claimant’s behavior created the dilemma in which she found
herself. While it is reasonable that Claimant did not want her car ticketed or towed,
Claimant’s actions in creating the circumstances were unreasonable and, thus, do not
support a finding of good cause for disregarding Employer’s rules.
              Claimant also argues, for the first time in her brief, that McKenna
approved Claimant’s actions in leaving to move her vehicle.          “Our case law is
unwavering that when a party fails to raise an issue, . . . the issue is waived and
cannot be considered for the first time in a judicial appeal.” K.J. v. Pennsylvania
Dep't of Pub. Welfare, 767 A.2d 609, 612 (Pa. Cmwlth. 2001). Because claimant
failed to raise this issue below, it is waived. Notwithstanding, Claimant’s assertion is
directly contradicted by the record evidence. When Claimant was asked, “why didn’t
you ask [] McKenna if it was okay for you to go outside and park your car and come
back late to your workstation,” Claimant responded, “I don’t – I asked the other, my
co-worker.”    N.T. at 15.    When asked whether the co-worker was Claimant’s
supervisor, Claimant responded: “No, she’s not. No, of course she’s not.” Id.
Finally, when asked, “[a]nd if your supervisor is sitting right there why didn’t you ask
her,” Claimant responded, “[p]robably because she wasn’t who I was actually
working with up front.” Id.      Accordingly, Claimant’s argument contradicts her
testimony. Because Claimant failed to meet her burden of proving good cause for
violating Employer’s work rule, we hold that the UCBR properly determined that
Claimant engaged in willful misconduct and was ineligible for UC benefits under
Section 402(e) of the Law.




                                           6
For all of the above reasons, the UCBR’s order is affirmed.

                         ___________________________
                         ANNE E. COVEY, Judge




                             7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zaneta M. King,                       :
                       Petitioner     :
                                      :
                  v.                  :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 2386 C.D. 2014
                    Respondent        :


                                    ORDER

           AND NOW, this 25th day of September, 2015, the Unemployment
Compensation Board of Review’s November 21, 2014 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
