IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Choi Ng, :

Petitioner :

 :

v. : No. 2010 C.D. 2015

 : SUBMITTED: March 18, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: May 13, 2016

Claimant, Choi Ng, petitions for review of an order of the 

Unemployment Compensation Board of Review (Board) that affirmed a referee’s 

decision finding her ineligible for unemployment compensation benefits because 

her actions constituted willful misconduct under Section 402(e) of the 

Unemployment Compensation Law (Law).1 We affirm.2

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 

802(e).

2 Noting that Employer, Sands Bethworks Gaming, LLC, could have intervened as of right 

had it acted promptly, the Court entered an order permitting Employer to proceed as an 

intervenor aligned with the Board as respondent. Subsequently, noting the adequacy of

Employer’s brief, the Board indicated that it would not be filing a brief.
2

From June 2012 to June 2015, Claimant worked as a full-time table 

games dealer for Employer, Sands Bethworks Gaming, LLC, at a final rate of pay 

of $5.68 per hour, plus tips. Referee’s August 12, 2015, Decision, Finding of Fact 

(F.F.) No. 1. Employer has a progressive attendance policy whereby it assesses 

points for various violations and terminates an employee’s employment when he or 

she accrues a total of ten points. When an employee reaches three, four and six 

points, it administers progressive discipline short of discharge. At eight points, 

Employer issues a “Career Decision Day” to the employee, who is suspended 

without pay for one day and must submit a commitment letter indicating his or her 

willingness to change the performance issue. Id., No. 2. Claimant was aware of 

Employer’s attendance policy, which Employer reviewed at the time of her hire. 

Id., No. 3.

When Claimant accrued three points in June 2014, Employer provided 

her with what it termed “Coaching and Counseling” for unsatisfactory attendance. 

Id., No. 4. Subsequently, Claimant accrued four points in August 2014 and seven 

points in October 2014, both for unsatisfactory attendance and both warranting 

Employer’s issuance of performance improvement plans. Id., Nos. 5 and 6. After 

Claimant accrued 7.5 points for unsatisfactory attendance in April 2015, Employer 

provided her with a third performance improvement plan. Id., No. 7. When she

accrued 8.5 points in June 2015, Employer issued her a Career Decision Day due 

to unsatisfactory performance, and it warned her that her job was in jeopardy. Id., 

Nos. 8 and 9. The three-point accrual leading to the termination of her

employment occurred approximately two weeks later when Claimant “report[ed] to 

work more than 30 minutes after shift without notifying a supervisor in advance of 

tardiness, bringing her total to 11.5 points.” Id., No. 14. Having misread her 
3

schedule on Employer’s virtual scheduling system and, therefore, operating under 

the mistaken belief that her start time was 9 p.m., Claimant arrived to work fortyfive minutes late at 8:45 p.m. Id., Nos. 11-13. Accordingly, with the accrual of

11.5 points for unexcused absences and tardiness, “Employer discharged the 

Claimant for violating its attendance policy due to excessive attendance related 

issues.” Id., No. 15. Claimant subsequently applied for unemployment 

compensation benefits, and the UC Service Center found her to be eligible.

On appeal, both Employer and Claimant appeared and presented 

evidence. Employer presented one witness and was represented by counsel. 

Claimant, who appeared pro se, nonetheless requested and received assistance 

from a certified interpreter who spoke Cantonese. After the hearing, the referee 

reversed the UC Service Center’s determination, concluding that Employer 

established that it discharged Claimant from employment for actions that 

constituted willful misconduct. The referee also rejected Claimant’s attempt to 

show good cause for her conduct, noting that she “gave vague and conflicting 

testimony regarding her absences from work, indicating that some of [them] were 

due to high blood pressure and high cholesterol.” Referee’s August 12, 2015, 

Decision at 2. Regarding those pre-termination absences, the referee found as 

follows: “As the Claimant progressed through the various steps of progressive 

discipline, she did not offer the Employer any explanations for her absences.” F.F. 

No. 16. Further, regarding the tardiness that led to her discharge from 

employment, the referee observed that, even knowing that her job was in jeopardy 

for attendance-related issues, Claimant admitted to misreading her work schedule. 

The Board affirmed, adopting and incorporating all but one of the referee’s 
4

findings and conclusions.3In addition, it rejected the following: 1) Claimant’s 

assertions that she had experienced problems communicating with her interpreter, 

noting that she did not make any such complaint at the hearing; and 2) Claimant’s 

attempt to provide medical documentation that was not included in the record. 

Claimant’s timely petition for review followed.4

Section 402(e) provides, in pertinent part, that an employee shall be 

ineligible for compensation for any week “[i]n which [her] unemployment is due to 

[her] discharge or temporary suspension from work for willful misconduct 

connected with [her] work . . . .” 43 P.S. § 802(e). The term “willful misconduct” 

has been defined to include (1) the wanton and willful disregard of the employer’s 

interests; (2) the deliberate violation of rules; (3) the disregard of standards of 

behavior that an employer can rightfully expect of its employee; or (4) negligence 

that manifests culpability, wrongful intent, evil design, or intentional and 

substantial disregard for the employer’s interests or the employee’s duties and 

obligations. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957 

A.2d 786, 792 (Pa. Cmwlth. 2008). The employer bears the initial burden of 

proving that a claimant engaged in willful misconduct and, if the willful 

misconduct charge is based upon a violation of a work rule, the employer must 

prove the existence of the rule, its reasonableness, and that the employee was 

aware of the rule. Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933, 

 

3 Contrary to the referee’s finding that Claimant received her work schedule two weeks 

before the tardiness that triggered her dismissal, the Board accepted Claimant’s testimony that 

she received it only one week in advance. The length of this time period, however, is not at

issue.

4 Whether a claimant’s actions constitute willful misconduct is a question of law over which 

we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 

(Pa. Cmwlth. 2012).
5

937 (Pa. Cmwlth. 2012). Once an employer satisfies its prima facie case, the 

burden shifts to the claimant to demonstrate that the rule was unreasonable or that 

she had good cause for her conduct. Id. The claimant has good cause if her action 

“is justifiable or reasonable under the circumstances[.]” Frumento v. 

Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. 1976).

Claimant contends that the Board erred in concluding that her actions 

constituted willful misconduct, alleging that the approximately thirteen call-offs 

leading to her dismissal were not excessive, that she followed the proper protocol 

when reporting off from work and that she established good cause for her

absences. See Wade v. Unemployment Comp. Bd. of Review, 555 A.2d 299, 301 

(Pa. Cmwlth. 1989) (holding that, notwithstanding employer warnings, excessive 

absenteeism, in and of itself, when justified and properly reported, does not 

disqualify a claimant from receiving compensation). Further, although she 

acknowledges that she did not contemporaneously inform Employer of the reasons 

for her absences,5she alleges that she provided a valid explanation for them at the 

hearing via her consistent testimony that she occasionally needed to be off work 

due to health-related issues. Accordingly, she maintains that Employer failed to 

establish willful misconduct and that, even if it met its burden, she established a 

good cause defense via her testimony. See Sprague v. Unemployment Comp. Bd.

of Review, 647 A.2d 675, 680 (Pa. Cmwlth. 1994) (holding that illness is a good 

cause defense to alleged willful misconduct due to excessive absenteeism). 

Claimant’s position is without merit.

 

5 Claimant admitted that she failed to provide Employer with an explanation for her previous 

absences at the requisite intervals during the progressive disciplinary process. Notes of 

Testimony (N.T.), Hearing of August 12, 2015, at 11; Reproduced Record (R.R.) at 19a.
6

In Miller v. Unemployment Compensation Board of Review, 131 A.3d 

110, 113 (Pa. Cmwlth. 2015), we held that the relevant factors to consider in 

determining whether absenteeism rises to the level of willful misconduct include 

failure to notify the employer in advance of the absence, the excessive nature of the 

absences, lack of good or adequate cause for the absences and disregard of 

warnings regarding absenteeism. To clarify, Employer did not terminate 

Claimant’s employment for failure to comply with its call-off procedure. It 

dismissed her pursuant to its attendance policy once she accrued 11.5 points for 

unexcused absences and tardiness. In that regard, contrary to Claimant’s 

representation, the Board found her testimony regarding the reasons for her 

absences to be vague and conflicting. It also rejected her attempt to justify her 

absences for health-related reasons with a post-hearing proffer of medical 

documentation that was not of record.6 As the Board determined: (1) Employer 

warned Claimant that her job was in jeopardy and that additional attendancerelated violations could lead to her dismissal; and (2) she had multiple, 

unexplained attendance violations in the past as well. Board’s September 18, 

2015, Decision at 1.

Moreover, regarding the June 2015 tardiness that triggered her 

dismissal, Claimant admitted that she had been using Employer’s virtual roster 

scheduling system since November 2012. In weighing her testimony, the Board 

determined that one week’s notice was sufficient for Claimant to realize when her 

shift began, especially in light of the fact that she was aware that her job was in 

 

6

Item 11 of the certified record includes a post-hearing e-mail purportedly from Claimant’s

daughter. There is no indication that the proffered health-related evidence that the daughter 

references in the e-mail would have been unavailable at the time of the hearing.
7

jeopardy and that additional points could lead to her discharge from employment. 

Credibility and evidentiary weight are determined by the Board, and its findings of 

fact are conclusive on appeal when the record, in its entirety, contains substantial 

evidence supporting those findings. Oliver v. Unemployment Comp. Bd. of 

Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010).

In conclusion, Employer established that its attendance policy was 

reasonable, that Claimant was aware of the policy and that she accrued the 

requisite number of points for termination. As this Court has held: “A conclusion 

that the employee has engaged in disqualifying willful misconduct is especially 

warranted in . . . cases where . . . the employee has been warned and/or 

reprimanded for prior similar conduct.” Ellis v. Unemployment Comp. Bd. of 

Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) (citation omitted). In addition, 

solely on the tardiness issue, we have not required a specific attendance rule to be 

in place where an employee fails to report for work on time. In that regard, we 

have stated: “It is well settled that an employer has the right to expect that its 

employees will attend work when they are scheduled and that they will be on 

time[.]” Id. (citation omitted). Finally, the Board rejected Claimant’s attempt to 

establish that there was good cause for any of her unexcused absences.

Accordingly, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Choi Ng, :

Petitioner :

 :

v. : No. 2010 C.D. 2015

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 13th day of May, 2016, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge