           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maribel Lazzu,                           :
                    Petitioner           :
                                         :
             v.                          : No. 340 C.D. 2016
                                         : Submitted: October 14, 2016
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                 FILED: November 10, 2016


             Maribel Lazzu (Claimant) petitions pro se for review of an order of the
Unemployment Compensation Board of Review (Board) affirming an Unemployment
Compensation Referee (Referee) decision that she was ineligible for unemployment
compensation benefits under Section 402(e) of the Unemployment Compensation
Law (Law)1 because her termination was due to willful misconduct. We affirm.2


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides, in pertinent part:

             An employe shall be ineligible for compensation for any week—

                                           ***

(Footnote continued on next page…)
                 Claimant was employed full-time by Aria Health Inc. (Employer) as an
Emergency Department Technician from November 2010 through September 12,
2015. Employer has an attendance policy which provides for performance coaching
and disciplinary action for tardiness, unauthorized leaving early and call outs. In
February 2015, Claimant received coaching because she had been late and absent
without excuse on several occasions and acknowledged that she had a problem. In
March 2015, she was given an initial warning followed in July 2015 by a final
warning for continuing lateness and/or absenteeism.               Employer recorded five
occurrences of call outs and 25 occurrences of tardiness in 2015. In August 2015,
Claimant was absent but wrote a letter to Human Resources to explain the absence
and was excused. On September 3, 2015, Claimant called out without an excuse and
was subsequently dismissed.


                 Claimant filed a claim with the Erie UC Service Center which granted
Claimant benefits, finding that although Employer had established its burden of
showing that Claimant had been warned about her attendance, Claimant had shown
good cause for the absence on September 3, 2015. Employer appealed.




(continued…)

                       (e) In which his unemployment is due to his discharge or
                 temporary suspension from work for willful misconduct connected
                 with his work, irrespective of whether or not such work is
                 “employment” as defined in this act….

43 P.S. § 802(e).

       2
           The Board chose not to file a brief.


                                                  2
              Before the Referee,3 Lori Jones-Flak, Employer’s Nurse Manager,
testified that she had issued Claimant warnings with regard to her attendance prior to
her discharge. She stated that Claimant signed a coaching form that “acknowledges
that there is a trend in attendance issues, and it’s a conversation that happens between
the manager and the employee to just say, we’ve acknowledged the problem.”
(Transcript of Referee’s Hearing on October 29, 2015 (N.T. 10/29/15) at 13.) Ms.
Jones-Flak testified that the next step of the disciplinary process is called an “initial
warning” and is a written document that she completed and Claimant signed. She
explained that the initial warning’s purpose is to show “that there was a
progressive—or continuation of lateness or absenteeism that warranted the next step
in the disciplin[ary] process.” (N.T. 10/29/15 at 14.)


              She further stated that the next step of the disciplinary process is the
final warning, which she again completed and Claimant signed. She explained that
the purpose of the final warning “was to state that, after a plan had been put in place,
an attempt to improve performance with regard to attendance, it continued, and to a
level of final warning.” (N.T. 10/29/15 at 14.) Ms. Jones-Flak testified that Claimant
mainly attributed her lateness to her long commute and traffic issues and informed
her that she intended on finding employment in New York, where she resided. After
Claimant was absent on September 3, 2015, Ms. Jones-Flak stated that she was
“obligated to notify Human Resources that we have continued lateness or
       3
          Barry Miltner, Employer’s Senior Employee Relations Specialist, also testified that
Claimant was aware of Employer’s attendance and disciplinary policies because when employees
are hired, they are informed of Employer’s online system which contains all of the policies and are
encouraged to review the policies on a regular basis, and employees are given a handbook which
gives a general overview of the policies. Mr. Miltner explained that employees record their time by
swiping their IDs through Employer’s system and then scanning their fingerprints.


                                                3
absenteeism, which falls under that same policy, and that it’s been reviewed by
Human Resources…. The decision was made that [Claimant’s] employment would
be terminated, based on this performance review.” (N.T. 10/29/15 at 16.)


            Claimant testified that she finished work at 7:00 a.m. on September 12,
2015, and that when she reported back to work at 11:00 p.m. on September 14, 2015,
as scheduled, Ms. Jones-Flak told her she was being discharged because of her
absence on September 3, 2015. When Ms. Jones-Flak asked if she had an excuse, she
said she had a doctor’s note because she was sick, but that she never gave it to her.
She explained:

            C      Like, I just – I saw that on August 4, when I couldn’t
            make it because of – the reason was – what happened on the
            Turnpike, I had to write a letter to explain to human
            research [sic] the reason why I wasn’t coming to – I didn’t
            even get to work on August 4. And after that, on September
            3, when I woke up and didn’t feel well, and I went to the
            doctor, and the doctor ordered me to stay off for a couple
            days [sic], I let the doctor know that I was supposed to
            report just to work that day, because I was off for the next
            seven days, and I wasn’t supposed to report back to work
            until September 10.

            R      Okay.

            C       So the doctor just gave me the note for that day, and I
            – when I went back to work it was on the 10 th, on 7 – at
            7:00 p.m. – at 11, I’m sorry, 11:00 p.m., and I was doing
            11:00 to 7:00 shift. And then I just knew – I knew that I
            was, you know, I knew that this was going to come, because
            Ms. Jones tried to call me and let me know that they was
            [sic] checking my [inaudible], and I was in the process, and
            they was [sic] checking my [inaudible] and that – if I had an
            excuse. And I said I did have an excuse for the doctor, and
            I just felt I – my job was being threatened all the time. And
            I already had enough coming three or four hours far, you
                                          4
            know, worrying about getting there on time, because every
            time that – something happened that – beyond my
            circumstance, I’m – meanwhile, I’m going to be fired.

            R     Well, I have a question…. Didn’t you give the note
            to Ms. Jones-Flak?

            C      No. I didn’t – I [inaudible]. I hadn’t – did not – I
            didn’t have it with me. I had left it in New York, and I
            already had come here – I mean to [inaudible]. So I didn’t
            have it [inaudible], you know? And I could [inaudible] I
            just wanted to go because I was already planning to leave
            anyway. It was just all of a sudden [inaudible] me getting
            my license. They was [sic] avoiding me getting my license,
            until September 14 they gave me my license in New York.
            So that’s the reason why I didn’t – started working over
            here in New York yet.

                                        ***

            R     And what did [Ms. Jones-Flak] say [when you told
            her about the doctor’s note]?

            C      You know, she just, you know, she – but also – I did
            also tell her that I was – that I didn’t want to, you know,
            that [inaudible] because I just feel that, you know, it
            [inaudible], you know, to get fired. You know, like, if I
            [inaudible] they would’ve just [inaudible]. Well, that’s
            what happened on August 4. They made me write a letter,
            and then September 3 I was sick, which I really – rarely
            called out at all, and that day I couldn’t make it to work.
            And, you know, it’s like, okay, they [inaudible] I could call
            out. So [inaudible] I thought that I just, you know, they
            just, you know, I [inaudible] just want me out of there. So
            why prolong more, you know, to stay and fight for
            something that – I just felt like I, you know, that I was
            going to lose my job anytime. Any day I could’ve – they
            could’ve told me I was fired.


(N.T. 10/29/15 at 17-18.)


                                         5
                The Referee reversed the Service Center’s determination and denied
benefits under Section 402(e) of the Law, finding that pursuant to its attendance
policy, Employer had given Claimant warnings up to a final warning and Claimant
was or should have been aware that her job was in jeopardy.                        Reasoning that
Claimant had not established good cause for her final absence because she did not
provide her doctor’s note to Employer, the Referee concluded that Claimant’s actions
rose to the level of willful misconduct.4 Claimant appealed to the Board, and the
Board affirmed. This appeal by Claimant followed.5


                On appeal, Claimant essentially argues that the Board erred in
determining that Employer met its burden of proving that she committed willful
misconduct. She contends that she had a doctor’s note to excuse her absence but that


       4
           Although the Law does not define the term “willful misconduct,” the courts have defined it
as:

                (1) wanton or willful disregard for an employer’s interests; (2)
                deliberate violation of an employer’s rules; (3) a disregard for the
                standards of behavior which an employer can rightfully expect of an
                employee; or (4) negligence indicating an intentional disregard of the
                employer’s interest or an employee’s duties or obligations.

Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968
(Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the
burden to show that the claimant was aware that the work rule existed and that the claimant violated
the rule. Id. The employer must also establish that the claimant’s actions were intentional and
deliberate, and the employee’s actions must be considered in light of all the circumstances,
including the reasons for his or her non-compliance with the employer’s directives. Id.

       5
         Our review of the Board’s decision is limited to determining whether an error of law was
committed, constitutional rights were violated, or necessary findings of fact were supported by
substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181,
1183 n.4 (Pa. Cmwlth. 2003).


                                                  6
Employer had already decided to terminate her employment so submitting her
documentation would be fruitless.


               An employer has the right to expect that its employees will attend work
when they are scheduled, that they will be on time, and that they will not leave work
early without permission. Fritz v. Unemployment Compensation Board of Review,
446 A.2d 330, 333 (Pa. Cmwlth. 1980). As a result, excessive absenteeism and
tardiness may constitute willful misconduct as a disregard of the standards that an
employer has a right to expect of its employees. Id.; American Process Lettering,
Inc. v. Unemployment Compensation Board of Review, 412 A.2d 1123, 1125 (Pa.
Cmwlth. 1980); Crilly v. Unemployment Compensation Board of Review, 397 A.2d
40, 41 (Pa. Cmwlth. 1979).6


               Although an advance warning is not a precondition or prerequisite to
support a discharge for willful misconduct, a prior warning is relevant in that it
reflects the employee’s attitude toward his or her employment and adds to the
willfulness of the misconduct. American Process Lettering, Inc., 412 A.2d at 1125–
26. However, even where a history of absenteeism is present, a claimant is entitled to
receive compensation benefits where the final absence which precipitated his or her
discharge was based on good cause. See Tritex Sportswear, Inc. v. Unemployment
Compensation Board of Review, 315 A.2d 322, 324 (Pa. Cmwlth. 1980).                               A
       6
          While absenteeism standing alone is grounds for discharge, it is not willful misconduct.
Lyons v. Unemployment Compensation Board of Review, 533 A.2d 1144, 1145 (Pa. Cmwlth. 1987).
Absenteeism can constitute willful misconduct if any of the following additional 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 Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

                                                 7
claimant’s absence from work without providing the employer with proper medical
documentation, where employer requires such documentation, constitutes willful
misconduct precluding an award of unemployment compensation benefits. See, e.g.,
Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 799 (Pa.
Cmwlth. 2000); Lausch v. Unemployment Compensation Board of Review, 679 A.2d
1385, 1392–93 (Pa. Cmwlth. 1996); Braxton v. Unemployment Compensation Board
of Review, 400 A.2d 694, 696 (Pa. Cmwlth. 1979).


             Here, Ms. Jones-Flak testified to giving Claimant multiple warnings
regarding her absenteeism and tardiness over the course of the months leading up to
her termination. Claimant also admitted that Ms. Jones-Flak asked her for an excuse
for her September 3, 2015 absence, but that she did not submit the doctor’s note
because she was already planning on leaving her position with Employer, which Ms.
Jones-Flak corroborated. Claimant further stated that she did not see any point in
providing Employer with her doctor’s note and fighting to stay because she felt that
she could lose her job at any time.


             Accordingly, because the combined testimony of Claimant and Ms.
Jones-Flak constitutes substantial evidence upon which to find willful misconduct on
the part of Claimant, we affirm the Board's order.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge




                                          8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maribel Lazzu,                    :
                   Petitioner     :
                                  :
            v.                    : No. 340 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :




                                ORDER


            AND NOW, this 10th day of November, 2016, the order of the
Unemployment Compensation Board of Review, dated January 11, 2016, at No. B-
585582, is affirmed.



                                  ___________________________________
                                  DAN PELLEGRINI, Senior Judge
