           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Fisher,                                  :
                             Petitioner       :
                                              :   No. 1834 C.D. 2016
                v.                            :   Submitted: April 28, 2017
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: July 17, 2017

                Sean Fisher (Claimant), representing himself, petitions for review
from an order of the Unemployment Compensation Board of Review (Board) that
denied him unemployment compensation (UC) benefits under Section 402(e) of
the Law1 (relating to willful misconduct). Essentially, Claimant challenges the
Board’s determination that he committed willful misconduct. Upon review, we
affirm.


                Claimant worked for Fabri-Kal Corporation (Employer) as an operator
from 2010 until his last day of work in June 2016. After his separation from
employment, Claimant applied for UC benefits, which were initially granted.
Employer appealed. A hearing ensued before a referee.

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
            At the hearing, Claimant and Employer’s Human Resources Manager
(Human Resources Manager) testified. After the hearing, the referee issued a
decision in which he made the following relevant findings:

            2. [Claimant] had a long history of attendance
            occurrences, for which he had been warned multiple
            times, including final warnings and a last chance
            agreement.

            3. [Claimant] was even allowed to continue work and
            given additional chances after the final warning and last
            chance agreement but yet continued to be repeatedly
            absent.

            4. [Claimant] was then absent on 5/16 and 5/17/16.

            5. [Claimant] was discharged due to his attendance.

Referee’s Dec. 8/11/16, Findings of Fact (F.F.) Nos. 2-5.


            The referee further explained (with emphasis added):

            In the instant case, the Referee finds the testimony of
            [Employer’s] witness to be credible and does not find the
            testimony of [Claimant] to be credible.

            In the instant case, the Referee cannot conclude that there
            is any credible evidence that [Claimant] had good cause
            for his continued absence or any credible evidence that
            he had good cause for the final incident of absence which
            precipitated his discharge. The Referee must conclude
            that [Claimant] was discharged for willful misconduct in
            connection with his work, so that [Claimant] is ineligible
            under Section 402(e) of the Law.

Referee’s Dec. at 2.




                                         2
              Claimant, then through counsel, appealed to the Board.                 He also
requested a remand to allow him to present additional evidence.


              Ultimately, the Board affirmed the referee. In so doing, it adopted
and incorporated the referee’s findings as its own. It also denied Claimant’s
remand request. Claimant now petitions for review to this Court.


              In the Argument section of his brief,2 Claimant asserts: “[Employer]
had no necessitous, compelling reason to terminate [C]laimant’s employment.
Employer also did not give proper disciplinary actions prior to termination, such as
suspension. The [UC] Referee had no credible evidence or compelling reason to
deny benefits.” Br. of Pet’r at 19. Claimant also attaches a letter brief his former
counsel submitted to the Board. Through that brief, Claimant argued he called off
of work on May 16 and May 17, 2016, the dates preceding his termination from
employment, because of an inability to obtain childcare. He further asserted he
requested a shift change on those dates that would have alleviated his childcare
issue, but Employer denied his request. Thus, Claimant asserted he had good
cause for the final two absences before his discharge. See Mt. Airy # 1, L.L.C. v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 791 C.D. 2009, filed
December 23, 2009), 2009 WL 9103007 (unreported).




       2
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed or whether constitutional rights
were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010)
(en banc).



                                              3
            The Board counters that Claimant had a history of absenteeism for
which Employer issued Claimant multiple warnings. It asserts Employer gave
Claimant several chances over the years to improve his attendance, but Claimant
continued to call off from work. For his final absences, the Board contends,
Claimant asserted he had no one to watch his child. However, the Board did not
credit Claimant’s testimony as to the reason for his absences. Thus, the Board
argues, Claimant did not prove good cause for his absences, and the Board
properly denied Claimant UC benefits.


            In UC cases, the Board is the ultimate fact-finder.         Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
As such, issues of credibility and the evidentiary weight given to conflicting
testimony are within the Board’s exclusive province. Id. The Board may reject the
testimony of the claimant if it concludes his testimony is not worthy of belief.
Adams v. Unemployment Comp. Bd. of Review, 373 A.2d 1383 (Pa. Cmwlth.
1977). Further, this Court must view the record in the light most favorable to the
party prevailing before the Board.      Sanders v. Unemployment Comp. Bd. of
Review, 739 A.2d 616 (Pa. Cmwlth. 1999). We must give that party the benefit of
all reasonable inferences that can be drawn from the evidence. Id.


            In addition, “[t]he fact that [a party] may have produced witnesses
who gave a different version of the events, or that [the party] might view the
testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Thus, it is irrelevant



                                         4
whether the record contains substantial evidence to support findings other than
those made by the Board; the critical inquiry is whether there is substantial
evidence to support the findings actually made. Wise v. Unemployment Comp.
Bd. of Review, 111 A.3d 1256 (Pa. Cmwlth. 2015); Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).


            Section 402(e) of the Law states that an employee shall be ineligible
for compensation for any week in which his unemployment is a result of willful
misconduct connected to his work. 43 P.S. §802(e). Willful misconduct is defined
as: (1) a wanton and willful disregard of an employer’s interests; (2) deliberate
violation of 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.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002). The
employer bears the initial burden of establishing a claimant engaged in willful
misconduct. Navickas v. Unemployment Comp. Bd. of Review, 787 A.2d 284 (Pa.
2001). Whether a claimant’s actions constitute willful misconduct is a question of
law fully reviewable on appeal. Id.


            Employers have the right to expect employees will be at work and on
time. Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55 A.3d
186 (Pa. Cmwlth. 2012) (en banc). Nevertheless, while absenteeism standing
alone is grounds for discharge, it is not willful misconduct.           Lyons v.
Unemployment Comp. Bd. of Review, 533 A.2d 1144 (Pa. Cmwlth. 1987).
Absenteeism can constitute willful misconduct if any of the following additional



                                        5
elements are present: (1) excessive absenteeism; (2) failure to notify the employer
of the absence in advance; (3) lack of good or adequate cause for the absence; (4)
disobedience of existing employer rules, regulations, or policy regarding
absenteeism; and, (5) disregard of warnings regarding absenteeism.       Pettey v.
Unemployment Comp. Bd. of Review, 325 A.2d 642 (Pa. Cmwlth. 1974).


             Although an advance warning is not a prerequisite to support a
discharge for willful misconduct, a prior warning is relevant as it “reflects the
employee’s attitude toward his employment and thus adds to the willfulness of the
misconduct.”     Am. Process Lettering, Inc. v. Unemployment Comp. Bd. of
Review, 412 A.2d 1123, 1125-26 (Pa. Cmwlth. 1980).


             Here, the Board found Claimant had a lengthy history of attendance
issues. F.F. No. 2. Employer warned Claimant about those issues on multiple
occasions, including a final warning and a last chance agreement. Id. Further,
Employer allowed Claimant to continue working and gave him additional chances
after the final warning and last chance agreement. F.F. No. 3. Nevertheless,
Claimant was repeatedly absent. Id. Thereafter, Claimant was absent from work
on May 16 and May 17, 2016. F.F. No. 4. Employer discharged Claimant based
on attendance issues. F.F. No. 5. The credible testimony of Human Resources
Manager supports the Board’s findings.      Referee’s Hr’g, Notes of Testimony
(N.T.), 8/9/16, at 3-6.


             More particularly, Human Resources Manager testified that beginning
in 2011, Employer warned Claimant regarding his absences and attendance issues.



                                        6
N.T. at 3. Thereafter, in June 2012, Employer provided Claimant a two-year last
chance warning.    N.T. at 4.   Employer subsequently suspended Claimant for
missing the start of a safety meeting.       Id.   Employer then conducted a full
employment review regarding Claimant’s attendance issues in January 2013. Id.
Nevertheless, Claimant had a subsequent attendance issue in October 2013. Id.
Further, Employer issued Claimant another warning regarding attendance in
November 2014. Id. Claimant again violated Employer’s attendance policy in
August 2015. Id. Employer opted to give Claimant another chance at that time.
N.T. at 4-5. Employer issued Claimant another warning for an attendance issue in
March 2016. N.T. at 5. Thereafter, Claimant called off work three times in April
and May 2016. Id. Finally, Claimant called off of work on May 16 and 17, 2016,
which led to Employer’s decision to terminate his employment. Id.


            In making its findings, the Board credited the testimony of Human
Resources Manager over that of Claimant. Referee’s Dec. at 2; Bd. Op. at 5. The
Board also determined the record lacked any credible evidence that Claimant had
good cause for his continued absences or the final absences that precipitated his
discharge. Referee’s Dec. at 2; Bd. Op. at 5. As such, the Board determined
Claimant committed willful misconduct. Referee’s Dec. at 2; Bd. Op. at 5. No
error is apparent in the Board’s ultimate determination that Claimant committed
disqualifying willful misconduct. Indeed, the Board expressly rejected Claimant’s
testimony regarding the purported good cause for his final absences.


            Further, Mt. Airy, cited by Claimant, is distinguishable. There, the
Board determined the claimant had good cause for his absences and tardiness



                                         7
based on its acceptance of the claimant’s testimony. Unlike in Mt. Airy, the Board
here expressly rejected Claimant’s testimony concerning the purported good cause
for his absences. Clearly, we cannot disturb the Board’s credibility determination.


             As a final point, Claimant argues Employer did not follow proper
disciplinary procedures before terminating his employment, such as a suspension.
However, at the hearing here, Claimant offered no evidence to support this
assertion. Moreover, in light of the Board’s supported finding as to Employer’s
repeated warnings to Claimant concerning his attendance issues, F.F. No. 2, it
appears clear that Claimant was aware his job was in jeopardy if he continued to be
absent from work.3


             Based on the foregoing, we affirm.




                                         ROBERT SIMPSON, Judge




      3
          In his Summary of Argument, Claimant also asserts the Board should have only
considered his final absences in deciding whether he committed willful misconduct. However,
the Board here found Employer discharged Claimant based on attendance issues generally,
Referee’s Dec. 8/11/16, Finding of Fact No. 5, and Human Resources Manager’s testimony
supports this finding. N.T. at 3-6.



                                            8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Fisher,                           :
                        Petitioner     :
                                       :   No. 1834 C.D. 2016
               v.                      :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :



                                     ORDER

               AND NOW, this 17th day of July, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      ROBERT SIMPSON, Judge
