IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kayla Humphries, :

Petitioner :

:

v. : No. 1729 C .D. 201 6 : Submitted: Febr uary 17 , 201 7 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, J udge

HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: March 17, 2017

Kayla Humphries (Claimant) petitions pro se for review of an order of

the U nemployment Compensation (UC) Board of Review (Board) affirming an

Une mployment Compensation Referee (Referee) decision finding that s he was

ineligible for unemployment compensation benefits under Section 402(e) of the

Unemployment Compensation Law (Law) 1 because h er termination was due to

willful misconduct. We affirm.

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...)2

From January 18, 2011

, through July 7, 2016, Claimant worked full

- time

as a residential assistant for Passavant Memorial Home (Employer)

. She was

discharged by Employer for violating its written attendance and tardiness policy

(Policy), 2 which calls for progressive disciplinary action in the event an employee is

late to work at least six times in a nine

- month period. If formal discipline is required,

Employer proceeds in the following ste ps: written warning, a one

- day suspension, a

three

- day suspension, and then termination of employment.

Pursuant to this Policy, between March 30, 2015

, an d February 16, 2016,

Employer issued Claimant a written warning for her tardiness because she was l ate to

work more than six times in a nine

- month period; then suspended Claimant because,

notwithstanding the written warning, she was late to work an additional three times;

and then suspended Claimant again for three days after she was late for work two

(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 “emp loyment” as defined in this act....

43 P.S. § 802(e).

2 Excessive absenteeism or tardiness may constitute willful misconduct. Employers hav e

“ the right to expect that . . . employees will attend w ork 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. 1982). “ We have repeatedly held
that habitual tardines s is adequate ground[s] for a finding of willful misconduct. . . . [S]uch behavior is inimical to an employer ’ s interest.” Id. See also Bowers v. Unemployment Compensation Board of Review

, 392 A.2d 890, 892 ( Pa. Cmwlth. 1978) (be nefits denied where
clai mant violated no

- fault tardiness clause in collective bargaining agreement by being late 12 times during four

- month period).3

c onsecutive days. When Employer imposed each of these progressive disciplinary

actions, Claimant received and signed an Employee Performance Review detailing

her infractions, the dates they occurred, and the past and current disciplinary action

issued by E mployer.

On July 6, 2016, Claimant was late for work for the fourth time since
being suspended for three days. “[D]ue to a ‘fourth offense’ of reporting to work
after [the] designated start time[,]” Employer discharged her the next day. (Record

(R.) It em No. 4, Emp loyer Separation Information.)

Claimant then filed a claim with the Lancaster UC S ervice Center

(Service Center). In the UC Questionnaire, Claimant admitted that she was late to

work on July 6, 2016

, and that she previously received both ve rbal and written

warnings from Employer about her tardiness. When asked to list the reason why she

was late for work on the day in question, Claimant answered “I don’t know.” (R.

Item No. 2, Claimant Questionnaire, dated 07/08/2016.)

The Service Cen ter determined that Claimant was in eligible for benefits

under Section 402(e) of the Law because Employer warned Claimant about her

attendance and Claimant failed to show good cause for her lateness. Claimant

appealed.

Before the Referee, Denise Reithmille r (Reithmiller), Employer’s

Human Resource Coordinator, testified that pursuant to the Policy, an employee who

is late for work six times within a nine

- month period receives a written warning

followed by a one

- day suspension, then a three

- day suspension, a nd then termination4

of employment. Reithmiller explained that because Claimant was chronically late for

work, Employer followed it s progressive discipline policy first by issuing her a

written warning

, followed by a one

- day and then a three

- day suspension . After
receiving these progressive disciplinary measures, Claimant was terminated “For her
last offense of being late to go to work.” (N.T. 08/22/16 3 at 7.) While one additional
infraction beyond the Policy’s initial threshold is sufficient for issuing progressive

discipline, Reithmiller clarified that Claimant did not receive immediate discipline for

her infractions due to the periodic manner that Employer monitors and reports

employee tardiness and attendance.

Claimant then testified, and for the fi rst time, explained that she was late

for a fourth time subsequent to her three

- day suspension “Because I got stuck in
traffic.” (N.T. 08/22/16 at 14.) 4

Finding that Employer issued Claimant a written warning because she

was late for work on ten occasio ns, suspended her because she was late on another

three occasions, suspended her again because she was late for work on another two

occasions, and finally discharged her because she was late for work on another four

occasions , t he Referee affirmed the Serv ice Center’ s determination that Claimant’s

3 “N.T. 08/22/16 ” refers to the transcript of the August 22, 2016 hearing before the Referee.

4 In addition to providing an expla nation as to why she was late, Claimant testified that she was unaware her tardiness could have resulted in discharge. However, when questioned by the Referee, Claimant admitted that she received Employer’s Policy and copies of the written incident
report s she signed. During her testimony, Claimant also alleged harassment by fellow employees

, which she did not contend caused her tardiness.5

actions rose to the level of willful misconduct 5 and denied Claimant benefits under

Section 402(e ) of the Law

. As the Referee reasoned, Claimant was

, or should have

been

, aware that her job was in jeopardy when s he reported for work 15 minutes late

on July 6, 2016

. 6 Claimant appealed to the Board, and the Board affirmed. This

appeal by Claimant followed. 7

On appeal, 8 Claimant contends the Board erroneously found that she was

late for work ten days as opposed t o eight days between May 30, 2015

, and

5 While 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 empl oyer’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 the claimant was aware the work rule existed and 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.

6 W hile the Referee found Claimant was late for work on July 6, 2016

, due to a traffic jam, the Referee nonetheless concluded that this “self

- serving a nd previously unreported explanation . . . does not justify her tardiness. The claimant’s excessive tardiness was in violation of the employer’s policy and she was discharged in accordance with their progressive disciplinary procedure.” (R. Item No. 12, Referee’s Decision/Order, d ated 08/31/2016 (Ineligible).)

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

8 As best as we can discern, Claimant challenges this court’s jurisdiction to review the Board’s order. However, pursuant to 42 Pa.C.S. § 763 (a) &(a)(1) , “the Commonwealth Court shall (Footnote continued on next page...)6

November 11, 2015. Moreover, f or the first time on appeal, Claimant contends that

she did not “serve” a one

- day suspension, although she does not contest that she

served a three

- day suspension and also received a wri tten warning prior to discharge. 9

Regarding the number of days Claimant was absent prior to receiving a

written warning, t he Board concedes that she was actually late for work on eight

days , but then correctly contends that th is error is harmless because Claimant was still

late more than six days, the Policy’s threshold for imposing a written warning

. See,

e.g. , Sturpe v. Unemployment Compensation Board of Review , 823 A.2d 239, 242
(Pa. Cmwlth. 2003) (deeming errors contained in the Board’s order as bein g “harmless” where they were found to “have no effect on this outcome

. ”)

(continued...)

have exclusive jurisdiction of appeals from final orders of . . . the Unemployment Compensation
Board of Review . .

. ”

9 Claimant’s Statement of Questions Presented provides, in full:

How come I hav e been denied benefits under Section 401(f)?

Ineligible under section 401 (f) Affirmed with/by [Employer]

Violation/Attendance Policy

How come the referee did not question the harassment that had been used against me where I mentioned it at the referee hearing?

(Brief of Petitioner at 4.) Claimant does contend that the Board erred when determining she did not have good cause to be late. Claimant also does not explain why her allegations of harassment are relevant to these proceedings or supply a causa l nexus between these allegations and her admitted
infractions.7

Claimant also contend s that the progressive discipline policy was not

followed because she did not “serve” a one

- day suspension. G iven Reithmiller’s
testimony and Claimant’s admiss ion that she received and signed the Employee

Performance Review imposing a one

- day suspension, substantial evidence clearly
supports the Board’ s finding that Claimant was suspended for one day pursuant to the

Policy.

Accordingly, because substantial evi dence supports the Board’s

determination that Claimant committed willful misconduct, we affirm the Board’s

order.

____________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kayla Humphries, :

Petitioner :

:

v. : No. 1729 C .D. 201 6

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 17 th day of March

, 201 7 , the order of the

Unemployment Compensation Board of Review dated October 3, 201 6, at No. B

592781, is affirmed

. Petitioner’s challenge to this Court’s jurisdiction is denied.

____________________________________ DAN PELLEGRINI, Senior Judge