           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Greenwood Table Game Services,  :
                Petitioner      :
                                :
           v.                   : No. 1676 C.D. 2018
                                : ARGUED: November 14, 2019
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                             FILED: December 5, 2019

       Greenwood Table Game Services (Employer) petitions for review of the
November 27, 2018 Order of the Unemployment Compensation Board of Review
(Board) affirming the decision of a Referee to grant Claimant unemployment
compensation (UC) benefits. The Board concluded that Claimant was eligible for
UC benefits under Section 402(e) of the Unemployment Compensation Law (Law)1
because Employer failed to prove that Claimant was discharged for willful
misconduct. We affirm the Board’s Order.



       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 states that an employee shall be ineligible for UC benefits for
any week “[i]n which his unemployment is due to his discharge or temporary suspension from
work for willful misconduct connected with his work.” 43 P.S. § 802(e).
                                          Background
      Phi V. Le (Claimant) worked as a full-time table games dealer for Employer2
from June 6, 2011 through July 4, 2018. Bd.’s Finding of Fact (F.F.) No. 1.
Employer had an attendance points policy, which provided that an employee who
accumulated five or more points during a rolling 12-month period would be
discharged from employment. Id. No. 2.3 Claimant was aware of Employer’s
attendance points policy. Id. No. 3.



      2
         Employer operates Parx Casino in Bensalem, Pennsylvania. See Record (R.) Item Nos.
5, 8; Notes of Testimony (N.T.), 8/28/18, at 5.

      3
          Employer’s attendance points policy stated in relevant part:

      [Employer’s] attendance policy uses a point system as set forth below. In its sole
      discretion, [Employer] reserves the right to deviate from this system based upon the
      circumstances of each and any occurrence that gives rise to disciplinary action up
      to and including termination. Team Members will never be subject to disciplinary
      action or point accrual for legally protected absences or tardies [sic]. . . .

                                               ....

           Tardiness – Arriving to work late without prior authorization is considered a
            lateness and each incident is equal to 1/2 attendance point (1 point on Holiday
            or “high-volume” days). Each lateness is counted separately. If you are late
            reporting to work by more than 30 minutes and have not notified your
            supervisor, you may lose your right to work the balance of the day and your pay
            will be amended accordingly.

                                               ....

      Our attendance system uses a progressive disciplinary system to discourage
      unscheduled absences and lateness. . . .

                                               ....




                                                 2
       On June 28, 2018, Employer issued a written warning to Claimant, advising
him that he had accumulated 4.5 points as of June 17, 2018. Id. No. 4. Claimant
typically allowed one hour for his commute to work, which frequently resulted in
his arrival approximately 20 minutes before his scheduled start time. Id. No. 5.
       On July 1, 2018, Claimant was delayed on his usual route to work due to a
water main break. Id. No. 6. Employer charged Claimant with 0.5 points under its
attendance points policy due to his late arrival. Id.
       On July 2, 2018, Claimant allowed one hour and 20 minutes for his commute
to work in light of the events of the previous day. Id. No. 7. Claimant also took a
different route to avoid the issue he had experienced the previous day. Id. No. 8.
Claimant encountered yet another water main break on his alternate route, which
delayed his arrival at work. Id. No. 9. Employer charged Claimant with 0.5 points
for his late arrival that day. Id. No. 10.
       On July 4, 2018, Employer discharged Claimant because he had accumulated
5.5 points as of July 2, 2018 in violation of Employer’s attendance points policy. Id.
No. 11.
       Claimant filed a claim for UC benefits, which the local UC Service Center
denied.    The Service Center found that:           Employer had a points system for
absenteeism and tardiness; Claimant had been warned about his attendance; and
Claimant did not have good cause for any of his absences. R. Item No. 4. Thus, the
Service Center determined that Claimant was ineligible for UC benefits under
Section 402(e) of the Law. Id.

       Once a Team Member reaches four attendance points, [he or she is] at the
       crossroads of [his or her] employment with [Employer]. Any additional points will
       result in termination.

N.T., 8/28/18, Ex. E-2.


                                              3
       Claimant timely appealed to the Referee, who held a hearing on August 28,
2018. Claimant appeared pro se and testified on his own behalf. Employer
presented the testimony of Johanna Belanger, Employer’s Director of Table Games
Administration.    Based on Ms. Belanger’s credible testimony, the Referee
determined:

       [E]mployer’s attendance points policy allows for termination of
       employment if an employee receives five or more points for attendance
       violations during a rolling period of 12 months and . . . [C]laimant was
       aware of the policy. [E]mployer also offered documentary evidence
       proving [that E]mployer issued a final warning to [C]laimant on June
       18, 2018 when he reached 4.5 points. [Ms. Belanger] confirmed that
       [C]laimant was discharged on July 4, 2018 after receiving a total of 5.5
       points, which included points for two incidents of lateness on July 1,
       2018 and July 2, 2018.

Ref.’s Order, 8/30/18, at 2.     The Referee also credited Claimant’s testimony
regarding the reasons for his final two incidents of tardiness, as follows:

       [C]laimant testified that he typically allowed one hour for his commute
       to work, which often resulted in his arrival at work with 20 minutes to
       spare before his scheduled start time. [C]laimant explained that on July
       1, 2018 he was delayed by a water main break and that on the following
       day he allowed an extra 20 minutes for his commute[] and took an
       alternate route. [C]laimant further explained that despite his best
       efforts, he was delayed by yet another water main break, resulting in
       the final incident of lateness.

Id. at 3.
       Following the hearing, the Referee concluded that although Employer proved
that Claimant had accumulated sufficient points to qualify for a discharge under its
attendance policy, Claimant established good cause for his final two incidents of
tardiness. The Referee explained:



                                          4
       A review of the competent evidence in the record reveals that
       [C]laimant violated [E]mployer’s attendance policy by exceeding the
       allowed number of attendance points in a rolling period of 12 months.
       However, [C]laimant’s credible testimony that the final incidents of
       lateness were due to circumstances beyond his control constitutes good
       cause for the policy violation. [W]hile the Referee recognizes an
       employer’s right to discharge an employee, [C]laimant is eligible for
       [UC] benefits under Section 402(e) of the . . . Law.

Id. Therefore, the Referee reversed the Service Center’s decision.
       Employer timely appealed to the Board, which adopted the Referee’s Findings
of Fact and Conclusions of Law and further concluded:

              On appeal, [E]mployer cites Grand Sport Auto Body v.
       [Unemployment Compensation Board of Review], 55 A.3d 186 (Pa.
       Cmwlth. 2012) [(en banc),] and Dotson v. [Unemployment
       Compensation Board of Review], 425 A.2d 1219 (Pa. Cmwlth. 1981)[,]
       to argue that [C]laimant’s habitual tardiness is willful misconduct even
       if he had good cause for his final incidents of tardiness. This argument
       is not persuasive because [E]mployer did not discharge [C]laimant for
       habitual tardiness. [E]mployer has a points system that may trigger a
       discharge after a certain number of absences. By his final incidents of
       tardiness, [C]laimant accumulated 5.5 points, which were enough for
       [E]mployer to discharge him. The Board in no way questions
       [E]mployer’s right to discharge [C]laimant. However, because
       [C]laimant had good cause for the final incidents of tardiness, the
       Referee properly concluded that [C]laimant is not ineligible for [UC]
       benefits. See Gillespie v. [Unemployment Comp. Bd. of Review], 523
       A.2d 1205 (Pa. Cmwlth. 1987).

Bd.’s Order, 11/27/18, at 1 (emphasis added).                Thus, the Board affirmed the
Referee’s decision. Employer now petitions this Court for review.4



       4
          Our scope of review is limited to determining whether the necessary factual findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.


                                                5
                                         Issue
      Did the Board err when it considered only Claimant’s final two instances of
tardiness, rather than his history of habitual tardiness, in concluding that Claimant
was eligible for UC benefits under Section 402(e) of the Law?
                                       Analysis
      Our Court has defined “willful misconduct” as a wanton or willful disregard
of the employer’s interests, a deliberate violation of the employer’s rules, a disregard
of the standards of behavior that the employer has a right to expect of its employees,
or negligence indicating an intentional disregard of the employer’s interests or of the
employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Review,
83 A.3d 484, 486-87 (Pa. Cmwlth. 2014). An employer seeking to prove that a
claimant committed willful misconduct by violating a work policy “must
demonstrate the existence of the policy, its reasonableness, and its violation.”
Klampfer v. Unemployment Comp. Bd. of Review, 182 A.3d 495, 500 (Pa. Cmwlth.
2018). If the employer satisfies its burden of proof, then “the burden shifts to the
claimant to demonstrate good cause for violating the [policy].” Chester Cmty.
Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth.
2016).
      Employer’s witness, Ms. Belanger, credibly testified that Employer had a
written attendance points policy and that Claimant was aware of Employer’s policy.
Bd.’s F.F. Nos. 2, 3. Ms. Belanger also credibly testified that Claimant was
discharged because he had accumulated 5.5 points under Employer’s policy in the
12-month period preceding his discharge, with his final infraction occurring on July
2, 2018. Id. No. 11. Therefore, we conclude that Employer satisfied its burden of
proving Claimant’s violation of its attendance points policy.



                                           6
       We also conclude that Claimant established good cause for his final two
attendance policy violations. The Board credited Claimant’s testimony that he was
late to work on July 1 and July 2, 2018 because his commute was disrupted by two
separate water main breaks. Bd.’s F.F. Nos. 6, 9; see Guthrie v. Unemployment
Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (stating that the Board
is the ultimate factfinder in UC cases and is empowered to resolve conflicts in
evidence, determine the weight to be accorded the evidence, and determine the
credibility of witnesses).5 Thus, the Board concluded that Claimant established good
cause because the final two incidents of tardiness were due to circumstances beyond
his control. Consequently, without those final two incidents of tardiness – totaling
one point under Employer’s attendance points system – Claimant fell below the
threshold for termination of his employment.
       On appeal, Employer does not dispute the Board’s finding that Claimant had
good cause for his final two tardiness infractions. Rather, Employer contends that,
notwithstanding its attendance points policy, Claimant should be denied UC benefits
because his history of habitual tardiness constituted willful misconduct under
Section 402(e) of the Law.
       Our Court has recognized that “chronic tardiness, particularly after a warning,
exhibits a sufficient disregard of the employer’s interests to constitute willful
misconduct.” Conibear v. Unemployment Comp. Bd. of Review, 463 A.2d 1231,
1232 (Pa. Cmwlth. 1983). Moreover, “Pennsylvania law does not require a detailed
termination policy regarding tardiness or specific notice that the next infraction will

       5
           At the hearing, Claimant attempted to introduce into evidence printouts from a local news
website, purporting to show that water main breaks occurred on Claimant’s routes on July 1 and
July 2, 2018. Employer’s counsel, however, objected to the admission of those documents. The
Referee sustained the objection but permitted Claimant to offer first-hand testimony about the
traffic issues he experienced on those dates. See N.T., 8/28/18, at 12-13.


                                                 7
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
Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013). In light of this
precedent, Employer asserts that the Board should have found that Claimant
committed willful misconduct due to his habitual tardiness, particularly because he
had been warned about his attendance several times before his final infraction. See
N.T., 8/28/18, Ex. E-4.
      Employer relies extensively on this Court’s decision in Grand Sport, wherein
we rejected the claimant’s assertion that chronic absenteeism did not amount to
willful misconduct simply because his final absence from work was justified. 55
A.3d at 187. Before his final absence, the claimant was tardy or absent without a
valid excuse 19 times in seven months. Id. at 188. Only three of the claimant’s 19
absences related to illness or a medical appointment, and the claimant offered no
justification for his other 16 absences. Id. at 193.
      On appeal, this Court concluded that the claimant’s absenteeism was
excessive, inimical to the employer’s interests, and beneath the standard of behavior
the employer had the right to expect of its employees. Id. at 193-94. Upon reviewing
the claimant’s testimony, we also noted that the “[c]laimant demonstrated a
decidedly cavalier attitude toward [the e]mployer’s reasonable expectation that he
appear at work on time.” Id. at 194. We held that the fact that the claimant’s final
absence – due to a cancelled flight – was justified did not outweigh his history of
excessive absenteeism. Id. at 193-94. Therefore, we concluded that “[b]ased on [the
c]laimant’s testimony regarding his history of absences, tardiness, and his failure to
offer good cause to justify those absences,” the claimant was not entitled to UC
benefits under Section 402(e) of the Law. Id. at 194 (emphasis in original).



                                           8
       We find that Employer’s reliance on Grand Sport is misplaced, as it is
factually distinguishable from this case. In reaching our decision in Grand Sport,
we explained:

       [H]ere, the Board did not find that [the e]mployer discharged [the
       c]laimant for his March 22, 2011 absence, which was excused. Rather,
       it found that [the c]laimant was discharged based on his history of
       absenteeism and tardiness. Thus, although the Board credited [the
       c]laimant’s testimony regarding his last absence, the Board also found
       [the e]mployer’s witnesses credible about [the c]laimant’s earlier
       unexcused tardiness and absences, which [the c]laimant did not dispute
       or attempt to explain at the hearing. The Board further credited [the
       e]mployer’s testimony that this was the reason [the e]mployer
       discharged [the c]laimant.

Id. at 193 (emphasis added).
       Here, unlike Grand Sport, the Board specifically found that Employer
discharged Claimant because his final infraction brought him over the maximum
points allowed under Employer’s attendance points policy, not because of habitual
tardiness. Bd.’s F.F. No. 11; Bd.’s Order, 11/27/18, at 1. This finding is supported
by the testimony of Employer’s witness, Ms. Belanger, which the Board credited.
Ms. Belanger testified that Claimant was terminated because “he had reached [5.5]
attendance points as of July 2[,] 2018.” N.T., 8/28/18, at 6.6 While Ms. Belanger
testified to Claimant’s other tardiness infractions in the preceding 12-month period,


       6
           In fact, Employer avers in its appellate brief:

       [C]laimant’s employment with [E]mployer was terminated on July 2, 2018 due to
       violations of [E]mployer’s attendance policy. During the one[-]year period
       preceding the termination of [C]laimant’s employ[ment], [C]laimant accumulated
       5.5 attendance points. These points represented the eleven (11) occasions on which
       [C]laimant was tardy without authorization during the past year.

Employer’s Br. at 8 (citations and footnotes omitted) (emphasis added).


                                                    9
id. at 7 & Ex. E-3, such testimony was offered to explain how Claimant had acquired
5.5 points under Employer’s attendance points policy. Furthermore, Employer never
asserted chronic tardiness as the reason for Claimant’s discharge until its appeal to
the Board. See R. Item No. 11; see also Scott v. Unemployment Comp. Bd. of Review,
105 A.3d 839, 849 (Pa. Cmwlth. 2014) (stating that an employer is bound by its
stated reasons for dismissal and cannot later offer additional reasons if the stated
reasons do not amount to willful misconduct).7
       As the Board correctly determined, Employer’s evidence demonstrated that
with his final infraction on July 2, 2018, Claimant had accumulated sufficient points
under Employer’s attendance policy to justify his termination from employment.
Bd.’s F.F. No. 11; Bd.’s Order, 11/27/18, at 1. Contrary to Grand Sport, the Board
here made no factual findings regarding any other infractions before the July 2018
incidents, nor did the Board make a finding of habitual tardiness based on the
evidence presented at the hearing.8
       We find this Court’s decision in Gillespie instructive here. In Gillespie, this
Court considered a claimant’s eligibility for UC benefits under Section 402(e) of the
Law where she was discharged for exceeding the number of points permitted under
the employer’s written attendance policy. We ultimately remanded the matter to the


       7
          Notably, a document titled “Confirmation of Claimant and Employer Information”
indicates that in July 2018, Employer “[r]efuse[d] to [p]rovide” the reason for Claimant’s
separation from employment to the Department of Labor and Industry (Department). R. Item No.
3. The document also states that by failing to provide such information, “[E]mployer[] understands
and agrees that the [Department] should proceed with making a determination without this
additional information and that [E]mployer[] may not be allowed to present the omitted
information at a later time.” Id.

       8
         But cf. Dotson, 425 A.2d at 1220 (upholding the denial of UC benefits based on the
claimant’s history of absenteeism where it was clear from the record “that the claimant’s history
and pattern of absences precipitated his discharge, not any one incident”) (emphasis added).


                                               10
Board to determine whether the claimant’s “failures to comply with the policy
resulted in sufficient points, excluding points assessed for justified absences, to
exceed the discharge limit and constitute willful misconduct.” 523 A.2d at 1207. In
doing so, we stated:

      [T]he referee found, on substantial record evidence, that the [claimant],
      at times, failed to give notice of her absences according to the
      [employer’s] policy. . . . [W]hile such conduct would ordinarily
      constitute willful misconduct, we have held that, where, as here, an
      employer erects a specific disciplinary system which tolerates certain
      conduct, which ordinarily would constitute willful misconduct, that
      conduct cannot be held to rise to the level of willful misconduct until
      the specified number of repetitions has been met.

Id. (emphasis added); see also PMA Reinsurance Corp. v. Unemployment Comp. Bd.
of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989) (“The promulgation of specific
rules puts employees on notice that the employer will not consider such conduct to
be adverse to its interest until the requisite number of violations have been
committed.”) (emphasis added). Hence, because Employer had an attendance points
policy in place, if Claimant’s infractions did not exceed the maximum points
permitted under Employer’s policy, his conduct cannot rise to the level of willful
misconduct.
      We reiterate that to establish willful misconduct, the employer must show that
the claimant engaged in “conduct[] of an intentional and deliberate nature.” Myers
v. Unemployment Comp. Bd. of Review, 625 A.2d 622, 625 (Pa. 1993). While
attendance issues may justify a claimant’s dismissal, absenteeism or tardiness will
not render the claimant ineligible for UC benefits unless his or her conduct was
willful. “Even excessive absenteeism, where justified or where properly reported
according to company policy, although a legitimate basis for discharge, does not



                                         11
constitute willful misconduct or disqualify a claimant from receiving [UC] benefits.”
Adept Corp. v. Unemployment Comp. Bd. of Review, 437 A.2d 109, 110 (Pa.
Cmwlth. 1981) (emphasis added).
      Claimant’s testimony established that he did not deliberately violate
Employer’s attendance policy on July 1 and July 2, 2018. Bd.’s F.F. No. 5. Claimant
testified that he typically allotted one hour for his commute from Philadelphia to
Bensalem to account for unexpected delays and that he usually arrived at work early.
N.T., 8/28/18, at 15. Claimant further testified that after encountering a water main
break on his normal route on July 1, 2018, he allowed extra time for his commute
on July 2, 2018 and took a different route. Id. at 15-16. He also stated that he
“always gave [Employer] a heads up” when he was running late for work. Id. at 13-
14.   We conclude that Claimant’s testimony, which the Board credited, was
sufficient to establish good cause for his final two incidents of tardiness. See Adept,
437 A.2d at 110 (recognizing that “transportation problems beyond [a claimant’s]
control” may not constitute willful misconduct under Section 402(e) of the Law).
Without those final two infractions, Claimant’s points fell below the threshold for
termination of his employment under Employer’s policy.
                                     Conclusion
      In sum, we conclude that Employer discharged Claimant pursuant to its
attendance points policy because Claimant exceeded the maximum number of points
allowed with his final infraction on July 2, 2018. We also conclude, based on the
credible evidence of record, that Claimant established good cause for his final two
incidents of tardiness on July 1 and July 2, 2018, thereby bringing his attendance
points below the threshold for termination of his employment. Because Claimant
established good cause for his final two policy violations, we agree with the Board



                                          12
that he is eligible for UC benefits under Section 402(e) of the Law. Accordingly,
we affirm the Board’s Order.


                                     __________________________________
                                     ELLEN CEISLER, Judge




                                       13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Greenwood Table Game Services,  :
                Petitioner      :
                                :
      v.                        : No. 1676 C.D. 2018
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                                 ORDER


     AND NOW, this 5th day of December, 2019, the Order of the Unemployment
Compensation Board of Review, dated November 27, 2018, is hereby AFFIRMED.


                                  __________________________________
                                  ELLEN CEISLER, Judge
