                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heath Evans,                                :
                      Petitioner            :
                                            :   No. 2419 C.D. 2014
               v.                           :
                                            :   Submitted: August 28, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: December 2, 2015


               Heath Evans (Claimant) petitions for review of the November 14, 2014
order of the Unemployment Compensation Board of Review (Board), which affirmed
a referee’s decision and held that Claimant is ineligible for benefits under section
402(e) of the Unemployment Compensation Law (Law).1
               The facts as found by the Board are as follows:

               1. The claimant was last employed as a telemarketer by Full
               Service Network [Employer]. The claimant began
               employment on December 21, 2009, and his last day of
               work was November 30, 2013.

       1
           Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
            2. The claimant had a history of attendance problems
            starting six (6) months prior to his termination.

            3. The employer gave the claimant several written warnings
            regarding his attendance.

            4. The claimant was scheduled to work on December 5 and
            December 6, 2014.

            5. The claimant did not attend work on December 5 or
            December 6, 2014.

            6. The claimant was not scheduled to work from December
            7 to December 12, 2014.

            7. On December 13, 2014, the employer discharged the
            claimant because of attendance issues.

(Findings of Fact 1-7.)
            The local job center denied Claimant’s application for benefits.
Claimant appealed, and a hearing was scheduled for May 23, 2014. Claimant sent the
referee’s office a fax the night before the hearing requesting a continuance so that he
could have additional time to find an attorney. (Findings of Fact Nos. 8-9.) The
hearing was held as scheduled, and Claimant did not attend. Christopher Honeywill,
Employer’s vice-president, testified that Employer discharged Claimant for
attendance issues. Honeywill stated that Claimant’s attendance had been erratic for
approximately six months; Employer gave Claimant written warning; and Employer
terminated Claimant’s employment following his absences on Thursday and Friday,
December 5 and 6, 2014. Relying on Employer’s evidence, the referee determined
that Claimant was discharged for willful misconduct and, therefore, was ineligible for
unemployment compensation under section 402(e) of the Law.




                                          2
             Claimant appealed to the Board, which remanded the case to the referee
to receive testimony concerning Claimant’s reason for failing to appear at the hearing
as well as on the merits of the case. The referee held a second hearing at which both
parties participated pro se. The record reflects that at Claimant’s request, a number
of subpoenas were issued, but Claimant did not pick them up because he was not sure
if they were completed correctly.
             Claimant stated that he had contacted the referee’s office several times to
request a continuance of the hearing but was unable to reach anyone, so he left
messages and sent a fax. Claimant testified that he had hired an attorney, but that
attorney referred him to another lawyer who was not able to attend the remand
hearing.   Regarding the merits, Claimant said that he provided Employer with
legitimate reasons for his absences and that he made up the missed time on
subsequent days. Claimant also denied receiving written warnings from Employer.
Claimant testified that he used to have a more flexible schedule and that Employer
kept changing its rules concerning a grace period for tardiness. Claimant added that
on several occasions he arrived at work six minutes late and was sent home. Finally,
Claimant asserted that he was discharged because his sales numbers were down, not
for attendance issues.
             Honeywill testified that Claimant had worked for Employer for more
than five years, and he acknowledged that there were occasions when Claimant was
late and had what appeared to be a valid excuse. Honeywill explained that Claimant
had only worked 190.2 hours during the six months before his discharge. He noted
that Claimant was scheduled to work only two days a week and that he did not come
to work regularly on those two scheduled days.




                                           3
              The Board found that Claimant established good cause for his non-
appearance, considered the entire record of the prior proceedings, and made a
determination on the merits.           In rendering its decision, the Board accepted
Honeywill’s testimony as credible to establish that Employer discharged Claimant
because of chronic attendance issues. The Board noted that the attendance problems
began six months prior to Claimant’s termination, and that after receiving written
warnings from Employer, Claimant still failed to attend work on both December 5 th
and December 6th. The Board further found that Honeywill’s credible testimony
showed that Claimant was discharged because of his poor attendance and not his
work performance.2
              The Board rejected Claimant’s testimony that he never received written
warnings and that Employer’s attendance policy changed without his knowledge.
The Board also found that Claimant did not establish good cause for his absences; he
did not explain his absences from work, nor did he explain why he could not have
notified Employer prior to those absences.            Based on those findings, the Board
concluded that Claimant disregarded the standards of behavior which an employer
has a right to expect of an employee and that his absences amounted to willful
misconduct.      Accordingly, the Board held that Claimant was ineligible for
unemployment compensation under section 402(e) of the Law.
              On appeal to this Court,3 Claimant first argues that while the term willful
misconduct is not defined by the Law, it was originally intended to refer to criminal

       2
         For that reason, the Board rejected Claimant’s request for subpoenas in order to obtain
information from Employer demonstrating that he was discharged for poor sales performance.

       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.



                                                4
activity. Claimant asserts that the Board erred in defining willful misconduct as
including a wanton or willful disregard of an employer’s interest and encompassing
absenteeism.
               Initially, we note that an employer bears the burden of proving that the
claimant’s actions constitute willful misconduct.         Docherty v. Unemployment
Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). If the
employer satisfies this burden, the burden shifts to the claimant to prove that he had
good cause for his conduct. McKeesport Hospital v. Unemployment Compensation
Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). A claimant has good cause
if his actions are justifiable and reasonable under the circumstances. Docherty, 898
A.2d at 1208-09. Whether a claimant’s actions constitute willful misconduct is a
question of law subject to this Court’s review. Grand Sport Auto Body, 55 A.3d at
190.
               However, contrary to Claimant’s assertions, Pennsylvania courts have
consistently defined willful misconduct as including: (1) a wanton or willful
disregard for an employer's interests; (2) a deliberate violation of an employer's rules;
(3) a disregard for 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.          Navickas v. Unemployment
Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001); Philadelphia Parking
Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa.
Cmwlth. 2010). Therefore, the Board applied the correct legal standard to the facts of
this case.
               Additionally, we have repeatedly held that “[e]xcessive absenteeism or
tardiness may constitute willful misconduct.      Employers have ‘the right to expect



                                            5
that . . . employees will attend work when they are scheduled, that they will be on
time, and that they will not leave work early without permission.’” Grand Sport Auto
Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa.
Cmwlth. 2012) (quoting Fritz v. Unemployment Compensation Board of Review, 446
A.2d 330, 333 (Pa. Cmwlth. 1982)).         Thus, Claimant’s argument that willful
misconduct does not encompass absenteeism is contrary to established case law.
            Claimant also argues that Employer did not meet its burden of proof
because Employer did not have a rule that was broken and Employer failed to present
evidence proving that it issued written warnings to Claimant. “A work rule violation
need not be shown where the behavior standard is obvious, and the employee’s
conduct is so inimical to the employer's best interests that discharge is a natural
result.” Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 717
(Pa. Cmwlth. 1985). Here, the Board found that Claimant had a history of attendance
problems over a six month period, was given written warnings regarding his
attendance, and was subsequently discharged following his absences on December 5
and 6, 2014. Under these circumstances, the fact that Employer did not have a
specific rule concerning absenteeism is of no moment. Id.
            In arguing that Employer failed to prove willful misconduct, Claimant
relies on his preferred version of the facts, rather than those found by the Board.
However, in unemployment compensation proceedings, the Board is the ultimate
factfinder, empowered to determine the credibility of witnesses and the weight to be
accorded evidence. Curran v. Unemployment Compensation Board of Review, 752
A.2d 938, 940 (Pa. Cmwlth. 2000). Where the Board’s findings are supported by
substantial evidence they are conclusive on appeal. Id.




                                          6
            Our review of the record confirms that Honeywill’s credible testimony
provides substantial evidence to support the Board’s findings, which, in turn, support
the Board’s conclusion that Claimant’s persistent absenteeism constitutes willful
misconduct rendering Claimant ineligible for benefits under section 402(e) of the
Law.
            Accordingly, we affirm.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heath Evans,                      :
                 Petitioner       :
                                  :    No. 2419 C.D. 2014
            v.                    :
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                               ORDER


            AND NOW, this 2nd day of December, 2015, the order of the
Unemployment Compensation Board of Review, dated November 14, 2014, is
affirmed.



                                      ________________________________
                                      PATRICIA A. McCULLOUGH, Judge
