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Owens v. Unemployment Compensation Board of Review3/21/2000
Submitted: December 3, 1999
Joyce L. Owens (Claimant) petitions this Court for review of a decision and order of the Unemployment Compensation Board of Review (Board) which denied her unemployment compensation benefits pursuant to Section 402(e) of the Pennsylvania Unemployment Compensation Law (Law) concluding that she engaged in disqualifying willful misconduct. We affirm the Board.
Claimant was last employed by Aristokraft (Employer) with her last day of work being September 22, 1998. Employer has an attendance policy which calls for a verbal warning and three written warnings for attendance violations, followed by a suspension pending dismissal. Employer's policy allows for twenty hours of absence in a three month period and it also allows employees to request that absences be excused based upon leave under the Family Medical Leave Act (FMLA). Claimant was or should have been aware of Employer's policies.
On March 24, 1997, Claimant was given a verbal warning regarding attendance violations. Claimant was given a first written warning on July 25, 1997, a second written warning on November 13, 1997 and a third written warning regarding her attendance on June 15, 1998. At the time of the third written warning she was informed that any additional absences would be grounds for suspension pending dismissal.
During the month of August 1998, Claimant broke her toe. Following her injury Claimant reported to work on August 16, 1998 wearing a special shoe to accommodate her broken toe. Claimant was permitted to work that shift, but was then informed that she could not work unless she was wearing steel-toed shoes. Claimant was then absent from work on August 17, 18, and 19, 1998.
On August 16, 1998, Claimant met with Employer's benefits administrator and requested leave under the FMLA for her broken toe. Claimant was informed that she had 30 days to submit a medical certificate and that if she did not submit the medical certificate the absences due to the broken toe would not be excused. Claimant was required to submit the medical certificate by September 17, 1998.
Claimant did not submit the required medical certificate by September 17, 1998. She did contact the benefits administrator and requested the she be permitted to submit the required certificate by September 21, 1998. Employer agreed, but Claimant failed to submit the required certificate by September 21, 1998. Claimant was then discharged on September 22, 1998 for violating Employer's attendance policy regarding excessive unexcused absences since she had not submitted a timely FMLA request and her absences were not excused.
Claimant applied for unemployment compensation benefits and the job center denied her benefits pursuant to Section 402(e) of the Law for absenteeism and failure to submit the required medical certificate in a timely manner. Claimant filed a late appeal. The referee dismissed Claimant's appeal as untimely. Claimant appeal to the Board. After further consideration the Board remanded the matter to the referee for testimony on the merits. The Board then accepted Claimant's late appeal nunc pro tunc, finding Claimant's testimony that she had not received the job center's determination to be credible. The Board then found that Claimant was discharged for willful misconduct and denied benefits pursuant to Section 402(e) of the Law. Claimant's petition for review to this Court followed.
Claimant raises the following issues for our review: (1) whether Claimant committed willful misconduct when she exceeded the number of absences allowed by Employer's no-fault absenteeism policy; (2) whether Claimant's doctor's return of a medical form, one day l
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