                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Linda M. English,                             :
                     Petitioner               :
                                              :   No. 155 C.D. 2016
              v.                              :
                                              :   Submitted: August 26, 2016
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: December 7, 2016


              Linda M. English (Claimant) petitions for review of the January 5, 2016
order of the Unemployment Compensation Board of Review (Board), affirming a
referee’s determination that she is ineligible for benefits under Section 402(e) of the
Unemployment Compensation Law (Law).1 Upon review, we affirm.
              Claimant was employed full-time with Aria Health (Employer) as an
Emergency Room Technician, from January 8, 2001, until the date of her discharge,
August 14, 2015.       Claimant was aware of Employer’s policies and procedures.
Employer maintains an Attendance Policy, which attributes “occurrences” to

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation
for any week in which her unemployment is due to her discharge or temporary suspension from
work for willful misconduct connected with his work. 43 P.S. §802(e).
employees for attendance infractions.      Pursuant to the Attendance Policy, an
employee who is one to seven minutes late will receive a one-quarter occurrence;
eight to 120 minutes late will receive a one-half occurrence; and more than two hours
late will receive one occurrence. Furthermore, an employee who is absent for one
day will receive one occurrence; absent for two consecutive days will receive one and
one-half occurrences; and absent for three or more consecutive days will receive two
occurrences. (Findings of Fact (F.F.) at 1-3, 5.) According to the Attendance Policy,
all of an employee’s use of sick and personal time is included as a chargeable
occurrence unless the time is used as part of an approved Leave of Absence.
(Reproduced Record (R.R.) at 139a.)
             Employer uses “thresholds” of occurrences as guidelines to manage
excessive absences or lateness, depending on the number of shifts and hours that an
employee works, and the maximum threshold is five occurrences. (F.F. at 3.) The
Attendance Policy states that when the threshold is exceeded, this “will result in
implementation of the Performance Improvement and Progressive Corrective
Intervention” and that “any previous occurrence(s) that occurred during the twelve-
month period, measured backward from the date of the most recent occurrence, will
be considered in the current attendance management review, unless individual
circumstances dictate otherwise.” (R.R. at 140a.) The Attendance Policy further
provides: “The reliability of staff is an important factor in assuring high quality
patient care. Frequent and/or unscheduled absences, lateness, and early departures
place added workload pressures on co-workers and negatively affects the quality of
patient care.” (R.R. at 138a.)
             Employer also has a Human Resources Policy and Procedural Manual
(Manual), which in the “Policy” section states that “[t]here may be circumstances, in



                                         2
[Employer’s] sole discretion, in which immediate termination of employment is
warranted.” (R.R. at 131a.) Under the “Guidelines” section, the Manual states, in
pertinent part:

             The guidelines below are intended as ‘guidance’ and are not
             all-inclusive.   Steps may be added or passed-over
             depending on the individual circumstance and/or the
             employee’s previous record. In reviewing the employee’s
             record, any previous disciplinary actions occurring during
             the previous twelve months will be considered.
(R.R. at 132a.)
             The Manual then contains a “Performance Improvement” section that
contains different matrixes for different infractions of Employer’s rules. This part of
the Manual specifically states:

             The purpose of the matrix below is to promote fairness and
             consistent application of the discipline policy. The matrix
             is intended to be a guideline only and is neither all-inclusive
             nor binding in all circumstances; all surrounding facts and
             circumstances, including seriousness of the specific
             incident, the employee’s past record, mitigation
             circumstances, and multiple infractions will be considered.

(R.R. at 133a.) The matrix for “excessive lateness and/or absenteeism” has four
stages: coaching; initial warning; final warning; and discharge. Id.
             On September 24, 2014, Employer issued Claimant a coaching discipline
for incurring approximately twelve occurrences from December 18, 2013, to July 17,
2014. (R.R. at 130a; F.F. at 7.)
             Thereafter, from August 26, 2014, to August 3, 2015, Claimant
accumulated approximately ten occurrences for the following incidents:

                          8/26/14 (five minutes late)
                          8/29/14 (nineteen minutes late)


                                           3
                          9/02/14 (one minute late)
                          9/05/14 (absent one day)
                          11/26/14 (one minute late)
                          11/29/14 (one minute late)
                          12/03/14 (two minutes late)
                          1/18/15 (one minute late)
                          1/21/015 (two minutes late)
                          1/27/15 – 1/30/15 (four days absent)
                          2/27/15 (one day absent)
                          3/02/15 – 3/03/15 (two days absent)
                          3/20/15 (1 minute late)
                          3/25/15 (fifteen minutes late)
                          4/05/15 (one minute late)
                          5/20/15 (five minutes late)
                          8/3/15 (two hours and five minutes late)
(F.F. at 6.)
               On February 2, 2015, Employer issued Claimant an initial warning for
excessive lateness and absenteeism. This warning told Claimant that Employer “will
take into account [Claimant’s] efforts to make a change in habits,” but warned that
“[a]dditional occurrences will lead to termination.” (R.R. at 128a.)
               On May 15, 2015, Employer issued Claimant a final warning, which did
not concern Claimant’s attendance. Particularly, this final warning was issued to
Claimant because she took a patient’s pants outside of the examination room while no
staff was present, and the patient later complained that money was missing from his
pant pockets. (F.F. at 8, R.R. at 76a.) The final warning stated that Claimant “will
adhere to all policies and processes” and informed Claimant that “[a]dditional
occurrences will lead to termination.” (R.R. at 129a.)
               On August 13, 2015, Employer reviewed the time records and noticed
that Claimant was two hours and five minutes late for her shift on August 3, 2015.
On September 4, 2015, Employer discharged Claimant for excessive lateness and/or
absenteeism. (F.F. at 9-11.)



                                           4
             Claimant filed a claim for unemployment benefits, which the local
service center denied, determining that she engaged in willful misconduct. Claimant
appealed and the referee convened a hearing.
             At the hearing, Claimant testified and Employer presented the testimony
of its employee relation specialist, leave management coordinator, and emergency
room nurse manager. In essence, these witnesses testified to the facts recited above.
             By decision dated November 5, 2015, the referee concluded that
Claimant engaged in willful misconduct. In so determining, the referee dismissed as
not credible the testimony of Employer’s witness that Employer has discretion to
follow progressive discipline and that the final warning did not have to relate to
Claimant’s time and attendance issues. Consequently, the referee concluded that:
“Employer did not issue a final warning to Claimant for violation of the Attendance
. . . Policy. Therefore, Employer has not followed its Progressive Discipline as it
relates to time and attendance.” (R.R. at 76a.)
             However, the referee also determined that:

             Employer identified [thirteen] dates between August 26,
             2014, through August 3, 2015, whereby Claimant was late
             for her scheduled shift. The [r]eferee credits the testimony
             of Employer that Claimant was warned about her
             attendance and instructed to be on time for work. At the . . .
             hearing, Claimant did not dispute the dates listed regarding
             her lateness and absenteeism.

             The Pennsylvania Courts have held that excessive
             absenteeism or tardiness may constitute willful misconduct.
             One of the fundamental requirements of maintaining an
             employment relationship is the regular attendance at work
             ....

             Based on the testimony of Employer, corroborated by
             Claimant, the [r]eferee finds that the conduct of Claimant
             does exhibits habitual lateness, and violates the standards of

                                           5
              behavior that Employer can reasonably expect from its
              employees. Therefore, Employer has met its burden under
              Section 402(e) of the [Law].

                                       *      *      *

              Claimant testified that she was [two] hours and [five]
              minutes late on August 3, 2015, as she had written down
              her schedule erroneously. The [r]eferee does not find that
              Claimant has presented good cause or justification for her
              lateness on August 3, 2015 . . . .

              The [r]eferee finds that Claimant’s entire testimony does
              not establish good cause or justification for her habitual
              lateness. Therefore, as Employer has met its burden under
              Section 402(e) of the Law, benefits are denied.
(R.R. at 77a.)
              Claimant appealed to the Board, which affirmed. In doing so, the Board
found and determined:

              The Board finds that [Employer’s] progressive disciplinary
              policy permitted bypassing steps in certain circumstances.
              The Board concludes that [Claimant’s] history of
              absenteeism and final warning regarding a different matter
              justified [Employer’s] deviation from its standard
              progressive discipline policy. Otherwise, the Board adopts
              and incorporates the referee’s finding and conclusions[.]
(R.R. at 80a.)
              On appeal to this Court,2 Claimant argues that the Board erred in
concluding that she committed willful misconduct.             More specifically, Claimant
asserts that Employer failed to follow its progressive disciplinary policy because she


       2
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799
n.3 (Pa. Cmwlth. 1997).



                                              6
did not receive a final warning with regard to tardiness or absences prior to being
terminated. Claimant also contends that she has a history of being tardy; accrued
approximately twelve occurrences in one year before receiving a coaching discipline;
and, therefore, Employer tolerated or acquiesced to her behavior.
             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 manifests culpability, wrongful intent, evil design,
or intentional and substantial disregard for the employer’s interests or the employee’s
duties and obligations. Id.
             When a charge of willful misconduct is based on the violation of a work
rule, the employer must prove the existence of the rule, the reasonableness of the rule,
and the fact of its violation.    Owens v. Unemployment Compensation Board of
Review, 748 A.2d 794, 798 (Pa. Cmwlth. 2000). Where an employer promulgates a
specific disciplinary system, it is incumbent upon the employer to follow that system.
PMA Reinsurance Corporation v. Unemployment Compensation Board of Review,
558 A.2d 623, 626 (Pa. Cmwlth. 1989). Generally, the employer’s failure to follow
its policy in discharging an employee results in a failure to establish that the
discharge was for willful misconduct. Id. However, an employer need not follow its
disciplinary process for discharging employees when the process is discretionary in



                                           7
nature and permits the employer to deviate from the system and/or reserves discretion
to the employer for its implementation. Johnson v. Unemployment Compensation
Board of Review, 744 A.2d 817, 821 (Pa. Cmwlth. 2000).
             Moreover, the existence of a specific rule or policy is not necessary
where the employer has a right to expect a certain standard of behavior, that standard
is obvious to the employee, and the employee’s conduct is so inimical to the
employer’s interests that discharge is a natural result.     Orend v. Unemployment
Compensation Board of Review, 821 A.2d 659, 663 (Pa. Cmwlth. 2003). It is well-
settled that an employer has the right to expect that its employees will attend work
when they are scheduled and that they will be on time; habitual tardiness is behavior
that is “inimical to an employer’s interest.” Fritz v. Unemployment Compensation
Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982).
             “A conclusion that the employee has engaged in disqualifying willful
misconduct is especially warranted in . . . cases where . . . the employee has been
warned and/or reprimanded for prior similar conduct.” Department of Transportation
v. Unemployment Compensation Board of Review (Nelson), 479 A.2d 57, 58 (Pa.
Cmwlth. 1984). “We have consistently held that chronic tardiness, particularly after
a warning, exhibits a sufficient disregard of the employer’s interests to constitute
willful misconduct.” Conibear v. Unemployment Compensation Board of Review,
463 A.2d 1231, 1232 (Pa. Cmwlth. 1983). “Pennsylvania law does not require a
detailed termination policy regarding tardiness or specific notice that the next
infraction will result in discharge, so long as the employee’s tardiness is habitual and
the employee is provided with notice that future tardiness is unacceptable.” Ellis v.
Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth.
2013).



                                           8
            Here, the referee discounted as not credible the testimony of Employer’s
witness that its progressive disciplinary policy is discretionary. However, the Board,
as the ultimate fact-finder, accepted this same testimony as credible. See Peak v.
Unemployment Compensation Board of Review, 501 A.2d 1383, 1385-86 (Pa. 1985)
(explaining that the Board, and not the referee, is the final arbiter of credibility
determinations). Further, a reasonable interpretation of the plain language of the
relevant portions of the Manual supports the Board’s finding that Employer retained
the right to terminate Claimant without following the four stages of the matrix. See
R.R. at 131a (stating that “[t]here may be circumstances, in [Employer’s] sole
discretion, in which immediate termination of employment is warranted.”); id. at
132a (“The guidelines below are intended as ‘guidance’ and are not all-inclusive.
Steps may be added or passed-over depending on the individual circumstance and/or
the employee’s previous record.”); id. at 133a (“The matrix is intended to be a
guideline only and is neither all-inclusive nor binding in all circumstances; all
surrounding facts and circumstances, including seriousness of the specific incident,
the employee’s past record, mitigation circumstances, and multiple infractions will be
considered.”).   Therefore, we conclude that Employer did not have to follow a
specific disciplinary procedure in order to discharge Claimant based upon attendance
issues.
            Pursuant to well-settled case law, we further conclude that Claimant’s
history and amount of occurrences, as defined in Employer’s Attendance Policy, was
habitual and excessive enough to constitute willful misconduct on the ground that it
was inimical to the Employer’s interests. This conclusion is bolstered by the fact
that, in the initial written warning, Claimant received express notice that future
tardiness and/or absenteeism would not be acceptable and was informed that



                                          9
“[a]dditional occurrences will lead to termination.”         (R.R. at 128a.)       See
Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890, 892 (Pa.
Cmwlth. 1976) (“Habitual tardiness, particularly after warnings that a termination of
services may result if the practice continues, is sufficient evidence of an employee’s
disregard of the employer’s interest to sustain a finding of willful misconduct.”); see
also Ellis, 59 A.3d at 1163. Notably, Claimant does not challenge the reasonableness
of Employer’s Attendance Policy or how occurrences are calculated thereunder.
              Contrary to Claimant’s contention, we do not view the circumstances of
this case as evidencing that Employer condoned, permitted, or otherwise encouraged
Claimant to violate its Attendance Policy.       Under this policy, occurrences are
calculated on a yearly, look-back basis; Employer can make exceptions based upon
the individual case; and Claimant received a coaching discipline on September 24,
2014, and an initial warning on February 2, 2015. The fact that it is possible that
Employer could have discharged Claimant or disciplined her more harshly for her
infractions at an earlier point in time is inconsequential. On this record, we cannot
conclude that Employer abandoned enforcement of the Attendance Policy, waived the
requirements of the Attendance Policy, or sanctioned Claimant’s behavior as
acceptable.
              For the reason stated above, we agree with the Board that Claimant
engaged in willful misconduct. In her brief, Claimant does not contend that she had
good cause for any of her infractions under the Attendance Policy.
              Accordingly, we affirm.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge


                                          10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Linda M. English,                    :
                    Petitioner       :
                                     :    No. 155 C.D. 2016
            v.                       :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                  ORDER


            AND NOW, this 7th day of December, 2016, the January 5, 2016
order of the Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
