IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Horvath

, :

Petitioner :

:

v. :

: Unemployment Compensation Board : of Review

, : No. 837 C.D. 2019

Respondent : Submitt ed: November 22 , 2019

BEFORE: HONORABLE MARY HANNAH LEAVIT T

, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: January 30, 2020

Keith Horvath (Claimant)

, pro se , petitions this Court for review of the

Unemployment Compensation (UC) Board of Review’s (UCBR) May 8, 2019 order

affirming the Referee’s decision denying UC benefits under Section 402(e) of the UC

Law (Law). 1 Claimant essentially presents one issue for this Court’s review: whether

the UCBR er

red by concluding that Claimant committed willful misconduct

. 2 After

review, we affirm.

Claimant was employed by World Energy LLC (Employer) as a full

time laboratory technician from February 28, 2018 until January 29, 2019 , when

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(e) (referring to willful misconduct).

2 Claimant state s three issues in his Statement of the Questions Involved: (1) whether the income Claimant helped World Energy LLC (Employer) accrue outweigh s any detriment caused by Claimant’s tardiness; (2) whether Claimant’s financial need and distance from work outweigh Employer’s detriment arising from Claimant’s tardiness; and (3) whether Employer’s tardiness policy was uniformly applied to all employees. See Claimant Br. at 5

. Because th e se issues are

subsumed in whether the UCBR erred by concluding that Claimant committed willful misconduct

, they will be addressed therein.2

Employer discharged him for excessive tardiness . Employer had an Attendance and

Punctuality Policy (Policy) that specified: “An employee is deemed to be tardy when

he/she: [f]ails to report for work at the assigned/scheduled work time[,] . . . [and/or]

[a]rrives to work past his /her scheduled start time.” Certified Record (C.R.) Item 8,

Notes of Testimony, March 29, 2019 (N.T.) at 6, Ex. 1 . Employees were subject to

progressive discipline for violating the Policy, up to and including discharge. On

March 5, 2018, Claimant signe d an acknowledgement that he understood the Policy.

See N.T. Ex. 1 at 1

. Employer terminated Claimant ’s employment on January 29,

2019, after he was late for work 14 times between June 2018 and January 2019.

Claimant applied for UC benefits. On March 4 , 2019, the Harrisburg

Overflow Center (UC Service Center) determined that Claimant was not eligible for

UC benefits due to his willful misconduct, pursuant to Section 402(e) of the Law.

Claimant appealed and a Referee hearing was held on March 29, 2019

. On April 2,

2019, the Referee affirmed the UC Service Center’s determination. Claimant

appealed to the UCBR which, on May 8, 2019, adopted the Referee’s findings and

conclusions and affirmed the Referee’s decision. Claimant appealed to this Court. 3

Ini tially,

Section 402(e) of the Law provides that an employee is ineligible for [UC] benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in a [] [UC] case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer’s interest; (2) a deliberate violation of the employer’s rules; (3) a disregard of standards of behavior

3 “Our scope of review is limited to determining whether constitutional rights were violated,

whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v. Unemployment Comp. Bd. of Review , 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013)

.3 which the employer has a right to expec t of an employee; or (4) negligence indicating an intentional disregard of the employer’s interest or a disregard of the employee’s duties and obligations to the employer.

Sipps v. Unemployment Comp. Bd. of Review , 181 A.3d 479, 481 (Pa. Cmwlth. 2018 )

(quo ting Dep’t of Transp. v. Unemployment Comp. Bd. of Review , 755 A.2d 744, 747

n.4 (Pa. Cmwlth. 2000) ( citation and emphasis omitted ) )

.

Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the

ru le, its reasonableness, and [] the employee was aware of the rule. Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule.

Sipps , 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Review , 26

A.3d 571, 574

- 75 (Pa. Cmwlth. 2011) (citation omitted)). “[T] he law is clear that

habitual tardiness, particularly after warnings, is sufficient evidence to sustain a

finding of willful misconduct.” Markl ey v. Unemployment Comp. Bd. of Review , 407

A.2d 144, 146 (Pa. Cmwlth. 1979).

Claimant argues that the UCBR erred by concluding that Claimant

committed willful misconduct. Claimant admits in his brief to this Court that he

“violate[d] [Employer’s] tardin ess [P]olicy which he knew would lead to his

[employment] termination.” Claimant Br. at 6 ; see also Claimant Br. at 8

. Claimant

nevertheless argues that the UCBR erred by concluding that he committed willful

misconduct

, when his efforts on Employer’s beh alf and his need for steady financial

income outweighed any detriment Employer may have experienced due to his

tardiness, and because Employer did not uniformly apply its Policy.

At the Referee hearing, Employer’s Assistant Plant Manager Joshua

Fleet ( Fleet) testified that the Policy describes progressive discipline for tardiness,4

with five occurrences in a 12

- month period leading to suspension or termination. 4

Fleet explained that the consequence after two occurrences was a verbal warning,

three occur rences resulted in a written warning, the fourth occurrence brought a

suspension, and a fifth occurrence was either another suspension or discharge. See

N.T. at 6

- 7.

Fleet r ecalled that Claimant was late for work on June 3, August 8, 11,

17, 18, 19, 20 and 21

, October 27, December 9, 22 and 27, 2018

, and January 5, 20

and 29, 2019

. See N.T. at 7

- 1 2 . Fleet declared that Employer suspended Claimant

after the October 27, 2018 incident

. See N.T. at 11. Fleet further re count ed that

Employer issued Claima nt a written warning on December 22, 2018 , stating t hat his

next tardy incident within 90 days would result in his discharge

. See i d. Claimant

thereafter violated the warning on December 27, 2018

, January 5 and 20 , 2019

. 5 See

id

. Claimant was also late on January 29, 2019, the day Fleet had already planned to

terminate Claimant ’s employment for tardiness. See N.T. at 8, 12. Fleet related that

Claimant’s tardiness does not affect Employer’s productivity but

, rather

, requir e d the

employee who worked the previous shift to continue to work until Claimant reported

to work and for Employer to pay overtime. See N.T. at 15

- 16.

Claimant testified that he worked 12

- hour shifts for Employer, from 6:00

a.m. to 6:00 p.m., rotating two or three days on and two day s off. 6 Cla i mant admitted

that he was tardy on the specified days and, except for January 20, 2019, when he

was delayed due to a flat tire, he was late for work because of traffic or because he

overslept

. See N.T. at 13

- 14. When the Referee asked why he did not get up earlier

4 Each tardy incident was considered half an occurrence. See N.T. at 7.

5 Fleet explained that the former plant manager and assistant plant manager left Employer

and he assumed responsibilit i es in December 2018, however it took him time to assimila te all the

information and process the paperwork. See N.T. at 11

- 12.

6 Claimant explained that Employer had night and day shifts available, but he preferred the day shift.5

to make sure he was not late for work because of traffic, Claimant responded: “I don’t

know. I just

-- I couldn’t do it.” N.T. at 14.

Claimant expressed his regret for being tardy for work

, but argued that

his productivity outwei ghed the few minutes he was late each time. See N.T. at 15

-

16. Claimant expounded :

I usually was about, on average, maybe five minutes late. And with the amount, I assume,

. . . I don ’ t have the figures on this, but with the amount of money the client m ade

-- because the [chief executive officer] was seemingly doing pretty well. We had a newsletter and there was, like, a

-- they showed him in Argentina. I don ’ t think five minutes of overtime pay is significant, and five minutes out of the 12 hours of a shift isn ’ t going to make someone, you know, really, really want to get out of there at all.

N.T. at 16. Claimant presented no evidence relative to Employer’s purported failure

to uniformly apply its Policy.

This Court has explained: “ [T]he [U CBR] is the ultimate fact

- finder in

[UC] matters [.]

. . . Where substantial evidence supports the [UCBR’s] findings, they

are conclusive on appeal. ” Sipps , 181 A.3d at 484 (quoting Ductmate Indus., Inc. v.

Unemployment Comp. Bd. of Review , 949 A.2d 338, 342 (Pa. Cmwlth. 2008)

(citations omitted) ). “S ubstantial evidence is relevant evidence upon which a

reasonable mind could base a conclusion. ” Sipps , 181 A.3d at 484 (quoting Sanders

v. Unemployment Comp. Bd. of Review , 739 A.2d 616, 618 (Pa. Cmwlth. 199 9)).

Here, the UCBR adopted the Referee’s conclusion based on the

evidence:

[Claimant ] deliberately violated [Employer’s ] [P] olicy and

disregarded the standards of behavior which [Employer ] has a right to expect of an employee. . . .

[Claimant ] testifie d that his tardiness was due to either oversleeping or traffic. [Claimant ] was aware that his job was in jeopardy due to his tardiness but did not believe his6 tardiness affected the overall production of [Employer]

. [Claimant ] testified that [E mployer ’ s ] production numbers were up and did not see where his tardiness by one minute had affected [Employer]

. The Referee finds that [Claimant ] has not established good cause for his conduct. The Referee finds that [Claimant ’s] conduct did in fact amount to wil lful misconduct because he violated [E mployer ’s] [P] olicy, regardless of whether his tardiness affected the overall production of the company. [Claimant ’s] tardiness affected other employees [] whom [Claimant ] was to replace at the end of their shift, and who were unable [to] leave until [Claimant ] arrived at work.

Referee Dec. at 2

- 3. The UCBR added:

On appeal, [Claimant ] comments that he believes he should be entitled to benefits despite his violation of [E mployer ’ s ] tardiness policy, because he assiste d in making the [E mployer ] profitable. [Claimant ] also asserts that the schedul ing rules were not applied uniformly. However, [E mployer ] sustained its burden to prove willful misconduct by way of violation of its [P] olicy. [Claimant ’s] work efforts have no bearing on his eligibility, and he did not prove on the record that the rules were not enforced or nonuniformly applied.

UCBR Dec. at 1.

Based upon this Court’s thorough review of the record, there is

substantial evidence to support the UCBR’s finding s and conclusion

. Accordingly,

this Court holds that the UCBR properly concluded that Claimant committed willful

misconduct and, thus, Claimant is not eligible for UC benefits under Section 402( e )

of the Law.

For all of the above reasons, the UCBR’s orde r is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Horvath, :

Petitioner :

:

v. :

: Unemployment Compensation Board : of Review, : No. 837 C.D. 2019

Res pondent :

O R D E R

AND NOW, this 30 th day of January , 20 20

, the Unemployment

Compensation Board of Review’s May 8, 2019 order is affirmed.

___________________________ ANNE E. COVEY, Judge