IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan C. Deonis,
Petitioner
v.
Unemployment Compensation Board of Review,
Respondent
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE RENE'E COHN JUBELIRER, Judge
HONORABLE JIM FLAH ERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY
FILED: November 8, 2004
Susan Deonis (Claimant), pro se, petitions for review of a decision of the
Unemployment Compensation Board of Review (Board) which affirmed the
decision of a Workers' Compensation Referee (Referee) denying her benefits
pursuant to Section 402(e) of the Pennsylvania Unemployment Compensation
Law (Law).1
We affirm for the reasons set forth below.
Claimant started working for Gor don-Zales, Inc. (Employer) as an
assistant manger in April of 1999. On October 18, 2003, Employer
terminated Claimant's employment because she was continually
late for work. Claimant applied for and was granted benefits by the
UC Service Center. Em ployer appealed to the Referee, who made
the following relevant findings of fact:
2. On Septem ber 4, 2003, a meeting was held to di scuss
claimant's tardiness.
3. On September 11, 2003, the claimant was late.
4. On Septem ber 17, 200 3, the regional manager discussed
tardiness with the claimant and warned her tha t any further
tardiness could result in her dismissal.
5. After Septem ber 17, 2003, the claimant continued to be
late.
6. The employer discharged claimant for tardiness.
7. The ot her two em ployees due to come to work in the
afternoon were repeatedly la te. These em ployees work
primarily as teacher's aids [sic] and had an agreement with
the manager that they c ould be late if they were required to
remain at their primary teacher's aid [sic] jobs if students
were not picked [up] on a timely basis.
At the hearing, Claimant explai ned why she continued to com e to work late after
she was warned about her tardiness on Sept ember 17, 2003. Claimant stated
that on one occasion she was late because of traffic congestion due to a traffic
accident. On another occasi on she was at work on time but could not clock in
because she was having problems with the store computer. In addition, i n her
brief Clai mant explains that she was lat e on another occasion because o f
roadway construction.
By decision mailed on January 16, 200 4, the Referee determined that Claimant's
tardiness constituted willful misconduct. Accordin gly, the Referee reversed the
decision of the UC Service Cen ter and denied her benefits pursuant t o Section
402(e) of the Law. Claim ant app ealed to the Board, which affirmed the decision
of the Referee. In its decision, the Board stated that it "does not find
sufficient credible evidence in support of the claimant's good cause justification
for her two instances of tard iness after September 17, 2003." Claim ant's appeal
to this Court followed.
The employer has the burden of proving that an employee has engaged in willful
misconduct. Whether or not a n em ployee's actions rise to the level of "willful
misconduct" is a question of law that is fully reviewable by this Court.
Burger v. Unemployment Compensation Board of Review , 780 A.2d 731,
732 (Pa. Cmwlth. 2001). "In cases where absence or tardiness constitutes the
alleged misconduct, a showing of either chronic tardiness or tardiness in the
face of an express warning will suffic e to deny a te rminated claimant benefits."
Wideman v. Unemp loyment Co mpensation Board of Review , 505 A.2d 364, 366 (Pa.
Cmwlth. 1986). "[A] n "express warning" m ust be given that a nother tardiness or
absence will result in discharge if repeated." Id. at 367. W hether a claim ant
had good cause for being late is an issue for the Board to resolve. Id. at 368.
In this case, Clai mant was warned th at if she cont inued to be late for work
her em ployment would be term inated. Thus, Claimant was given t he required
express warning regarding her tardiness. However, Claimant continued to arrive
late for work. Claimant did provid e excuses for her tardiness. However, the
Board reject ed the evidence Claimant presented, in th e form of her testim ony,
when it found t hat there was not sufficient credible evidence to support
Claimant's contention that she had good cause for being late for work. As
we stated above, good cause is a question for the Board, as the factfinder,
to resolve. In addition, it is the Bo ard that i s empowered to reso lve
conflicts in the evidence and to determine the credibility of w itnesses.
The Board resolv ed this question regarding good cause against Claimant.
Because there is sufficien t evidence to support the Referee's findings,
which were adopted by th e Board, the Board's conclusion t hat Claimant
did not have good cause to be late for work must be upheld by this Court.
Therefore, Claimant's tardiness rose to the level of willful misconduct
and she was properly denied benefits pursuant to Section 402(e) of the Law.
Accordingly, the order of the Board is affirmed.
JIM FLAHERTY, Senior Judge