Opinion
No. 1639 C.D. 2010
07-26-2011
John Corkery, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
John Corkery (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board), which affirmed the Unemployment Compensation Referee's (Referee) decision finding Claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). The Board concluded that Claimant was ineligible for benefits because he did not show good cause for his excessive tardiness, which Allied Barton Security Services (Employer) warned him about prior to his termination.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant applied for unemployment compensation benefits after becoming separated from his employment with Employer. The Unemployment Compensation Service Center (Service Center) issued a determination finding Claimant ineligible for benefits under Section 402(e). Claimant appealed the Service Center's determination, and an evidentiary hearing was held before the Referee. During the hearing, Claimant testified on his own behalf. Additionally, Employer's Director of Production Support (Director) testified on behalf of Employer. Following the hearing, the Referee affirmed the Service Center's determination and made the following findings of fact:
1. Claimant last worked for Allied Barton Security Services as of January 11, 2010 as a full-time employee. He worked for the employer for approximately five years.
2. Prior to claimant's termination, claimant had been spoken to on more than one occasion by [Director], the employer's representative about claimant's continuing tardiness.
3. Claimant had also been issued a first written warning dated March 31, 2009 and then a final written warning dated August 26, 2009 for continuing tardiness.
4. After the final written warning of August 26, 2009, claimant was tardy for work on approximately 33 occasions. In December 2009, claimant was tardy for work on 12 occasions.
5. In the New Year the employer reviewed claimant's tardiness record since the final written warning and a decision was made to terminate claimant and claimant in a timely fashion was terminated from the job by the employer effective January 11, 2010.
6. Claimant did present the Referee with a note from the doctor which indic[a]ted that claimant is a patient of the practice who has chronic insomnia.(Referee Findings of Fact (FOF) ¶¶ 1-8.) In determining that Claimant was ineligible for benefits, the Referee resolved any conflicts in testimony in Employer's favor. The Referee noted that Claimant received several verbal and written warnings regarding his tardiness and, following his final written warning, Claimant was late for work on approximately thirty-three occasions. The Referee did not credit Claimant's explanation that there was something beyond his control that prevented him from arriving at work on time. Specifically, the Referee found that Claimant did not have good cause for his excessive tardiness because Claimant did not demonstrate "that he ha[d] some sort of medical condition which really and truly prevented him from getting [to work] on time." (Referee Decision at 2.) Claimant appealed the Referee's determination and also requested oral argument and a new hearing. The Board affirmed the Referee's determination, adopted the Referee's findings and conclusions, and denied Claimant's request for oral argument and a new hearing. The Board stated:
7. Claimant's work hours were changed from 9 AM to 9:30 [A]M so that claimant could have more time to get to work on time.
8. Claimant received $1,386 in unemployment compensation benefits for claim weeks ending January 23, 2010 through February 6, 2010.
The Board sympathizes with claimant's alleged physical condition; however, employer was willing to work with him and in fact changed his hours. In addition claimant was married and just had trouble getting up in the morning while helping his children get out to school. The Board does not believe claimant took all reasonable steps to get to work on time.(Board Order.) Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant makes no less than thirteen arguments. Essentially, Claimant contends that the Board erred in making its credibility determination in favor of Employer and finding that Claimant did not have good cause for his excessive tardiness.
Claimant's "Questions Involved" are as follows:
1. Based on the facts; did the [B]oard err when it determined the actions of [Claimant] constituted willful misconduct.
. . .
2. Did the [B]oard err because the [B]oard failed to take into . . . account the following?(Claimant's Br. at 7.)
a. Did the Employer fail to request, receive or except [sic] any Doctors['] notification that would of [sic] excused my tardiness?
b. Did the [E]mployer tolerate excessive lateness's [sic] and tardiness and did the employer fail to reprimand me for my lateness's accordingly thus misleading me to believe my job was not at risk?
c. Did [Director] lie under oath in regards to my termination?
d. Was the Tardiness rule fairly applied?
e. Did the [E]mployer fail to accommodate my illness?
f. Was there inconsistent discipline between at least one similarly-situated employee?
g. Did the [E]mployer fail to give a final and or verbal warning prior to discharge?
h. Was discharge based upon a personality dispute?
i. Did the [E]mployer ignore, disregard and discriminate against [Claimant's] illness?
j. Did the [E]mployer fail to follow their company point system and/or Company handbook prior to discharge?
k. Was my conduct willful misconduct?
l. Did the [E]mployer/Manager cover up a medical excuse? Was HR notified of my illness?
Initially, we note that Claimant's brief does not conform to the Pennsylvania Rules of Appellate Procedure because it fails to cite to the original record or pertinent legal authority to support Claimant's position. Pa. R.A.P. 2119(a), (c). Additionally, Claimant's Petition for Review does not encompass all thirteen arguments and sub-arguments he presents on appeal. These deficiencies can result in issues being waived on appeal. See Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1167 (Pa. Cmwlth. 1991) (noting that when a Claimant appeals an issue, but fails to address the issue in his brief, the issue is waived); Hubert v. Greenwald, 743 A.2d 977, 981 (Pa. Super. 1999) (noting that arguments lacking citation to pertinent legal authority are deemed waived on appeal). However, because this Court can adequately discern most of Claimant's arguments on appeal, we will conduct appellate review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Section 402(e) of the Law provides that a claimant will not be eligible for unemployment compensation when "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e). Although Section 402(e) does not define the term "willful misconduct," the Supreme Court has defined it as:
an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employee, or
negligence indicating an intentional disregard of the employer's interest or of the employe's duties and obligations to the employer.Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 83-84, 351 A.2d 631, 632 (1976) (quoting Moyer v. Unemployment Compensation Board of Review, 110 A.2d 753, 754 (Pa. Super. 1955)). The employer has the burden of proving that an employee was discharged for willful misconduct. Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1056 (Pa. Cmwlth. 2004). Once the employer has established a showing of willful misconduct, "the burden then shifts to the claimant to establish good cause for [his] actions." Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). "A claimant has good cause if his . . . actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). "Whether a claimant's conduct constitutes willful misconduct is a question of law reviewable by this Court." Orend v. Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth. 2003).
Claimant does not dispute that he was excessively tardy for work, but argues that he had good cause for his tardiness because his alleged medical condition, insomnia, prevented him from waking up and getting to work in a timely fashion. Claimant argues that Employer knew about his medical condition and assured him that his job was not at risk because of his tardiness. Claimant contends that Employer never required a doctor's note to excuse his tardiness and Employer tolerated his excessive tardiness because it never gave him a verbal warning or a final written warning. Additionally, Claimant contends that Employer failed to adequately accommodate Claimant's medical condition by changing his hours to a later start time. Finally, Claimant contends that other co-workers exceeded their number of permitted late days, but that he was treated differently because he was terminated.
All of Claimant's arguments are primarily a recitation of his preferred version of the facts. Although Claimant provided testimony that would support his contentions, the Board discredited that testimony and found that the facts were contrary to those advanced by Claimant. In doing so, the Board resolved all conflicts in the evidence in Employer's favor. The law is clear that the Board is the ultimate finder of fact and arbiter of witness credibility. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 269-70, 276-77, 501 A.2d 1383, 1385, 1388 (1985). Thus, as long as the Board's factual findings are supported by substantial evidence, those findings are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978). That Claimant may have given "a different version of the events, or . . . 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 Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
Here, there is substantial evidence to support the Board's factual findings. The Board credited Employer's witness where the evidence was conflicting. Director testified that Employer kept track of all its employees' time records and that, in the spring of 2009, Employer "started using an automated system where you dial a toll free number and you identify yourself with your employee number." (Hr'g Tr. at 6.) Director stated that, prior to issuing any written warnings to Claimant regarding his tardiness associated with his original 9:00 a.m. start time, Employer had discussions with Claimant about his tardiness. (Hr'g Tr. at 6-7.) According to Director, despite the discussions, Claimant's tardiness continued, which led to Employer issuing its first written warning to Claimant in March 2009. (Hr'g Tr. at 6-7.) The first written warning, which Claimant signed on March 31, 2009, describes the "Incident" as follows:
[Claimant] has been late for work on several occasions in the months of January and February. [Director] and I spoke to [Claimant] on February 6th 2009 about what the policy is for lateness and attendance. Since the Support Desk has gone to Team Time as a means of recording shift start and end times, [Claimant] has been late several more times [from his original start time of 9:00 a.m.]. 3-16 (9:08), 3-19 (9:16), 3-20 (9:10), 3-23 (9:09), 3-24 (9:14), 3-26 (9:21), 3-27 (9:09), 3-30 (9:13).(First Written Warning, March 31, 2009, Hr'g Tr. Ex. 13.) This first written warning further explained that Employer finds it "acceptable to be prepared to work plus or minus 7 minutes from the time their shift starts. [Claimant]'s shift begins at 9 A.M. so the acceptable window is 8:53 A.M.-9:07 A.M." (First Written Warning, March 31, 2009, Hr'g Tr. Ex. 13.) Director testified that "they tried to identify what the source of problem might be and, you know, [Claimant] said he'd get it under control." (Hr'g Tr. at 7.) Director stated that he was unaware of any medical condition, such as a sleep disorder, that prevented Claimant from arriving at work on time, (Hr'g Tr. at 14), but did recall that Claimant's reasons for being late for work included "getting the kids out for school and helping his wife." (Hr'g Tr. at 13.) Director indicated that Employer revisited the tardiness issue after a period of time had passed because Claimant was still showing up late to work, and Employer changed Claimant's shift from 9:00 a.m. to 9:30 a.m. on May 1, 2009. (Hr'g Tr. at 6-7; see also Termination, Hr'g Tr. Ex. 15.) Director indicated that if Claimant did not change anything in his morning routine, this change in his start time would cause Claimant to be early for work since he had never shown up to work past 9:30 a.m., as indicated in the first written warning. (See Hr'g Tr. at 7.) Director further testified that, even after Claimant's work hours were changed, "the tardiness continued" and the second written warning was issued. (Hr'g Tr. at 7.) Director explained that he "asked [Employer's] Vice President to issue it because [he] felt like [he] was ineffective perhaps in expressing the severity of what was going on so [he] figured maybe if the Vice President delivered it[,] it might have more of an impact." (Hr'g Tr. at 7.) On August 26, 2009, Employer issued the second and final written warning to Claimant, which was not signed by Claimant because "employee declined to sign but understands severity. He is determined to improve." (Final Written Warning, August 26, 2009, Hr'g Tr. Ex. 11.) The final written warning describes the "Incident" as follows:
[Director] and . . . Support Desk Supervisor, spoke to [Claimant] on February 6th 2009 about what the policy is for lateness and attendance. [Claimant] was issued a first written warning on March 31st 2009 because of continued lateness. Since that time [Claimant] has been late several more times.(Final Written Warning, Hr'g Tr. Ex. 11.) Director explained that, after the final written warning, "[w]e did another audit the quarter afterwards, continued to see an attendance problem" and decided to terminate Claimant. (Hr'g Tr. at 7-8.) Director testified that he followed progressive discipline and company policy in terminating Claimant. (Hr'g Tr. at 8.)
. . .
[Claimant]'s shift has been changed to 9:30 A.M. to accommodate [Claimant]'s scheduling issue so the acceptable window is 9:23 A.M.-9:37 A.M.
Although Claimant's testimony was contrary to that of Director, i.e, he indicated that he told Employer about his alleged sleep disorder that prevented him from arriving to work on time and that he only ever received one written warning about his tardiness, (Hr'g Tr. at 8-12), the Board did not credit this testimony. As such, Claimant did not meet his burden of proving that he had good cause for his excessive tardiness.
Claimant contends that Employer did not apply its rule requiring that all employees arrive to work on time equally among his co-workers because some co-workers have exceeded their limit of late absences, but have not been terminated. (Claimant's Br. at 22.) However, there was no credited evidence of record to support this assertion and, thus, Claimant's argument fails.
Accordingly, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 26, 2011, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge