W.C. No. 4-594-125.Industrial Claim Appeals Office.
September 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant was responsible for the termination of employment within the meaning of § 8-42-105(4), C.R.S. 2004, and therefore, denied temporary disability benefits. We affirm.
The claimant suffered an admitted injury on March 23, 2003. As a result of the injury, the claimant was restricted to modified employment. On June 21, 2003, the employer terminated the claimant’s employment for excessive attendance problems.
The ALJ found the claimant had a chronic problem with tardiness and absences and as a result, was disciplined in accordance with the employer’s disciplinary policy. Specifically, the ALJ found the claimant received a verbal warning on August 2000 for failure to appear for work, a written warning for tardiness on February 16, 2001, and in May 2001, was counseled on the need to improve his attendance. Thereafter, the claimant’s attendance did not improve so he received another written warning on September 26, 2002. On October 7, 2002, the claimant was suspended for 2 days for similar infractions. In 2003, the claimant was tardy or absent several days, and was late for work June 16 through June 20.
The claimant admitted he had problems with being tardy to work. (Tr. p. 32). However, the claimant argued he was not responsible for the termination because he thought the progressive disciplinary policy “started over” each calendar year and he received no disciplinary warnings between January and June 2003. Consequently, he contended he did not reasonably expect his June attendance problems to result in the termination of his employment.
The ALJ determined the claimant’s expectation was unreasonable and that the claimant exercised some control over the circumstances which led to his discharge. Therefore, the ALJ denied the request for temporary disability benefits commencing June 21, 2003.
On review, the claimant does not dispute the ALJ’s findings of fact concerning his history of tardiness and absenteeism. Instead, the claimant argues the employer “acquiesced” in the attendance problems by failing to provide another written warning as required by the progressive disciplinary policy before deciding to terminate the employment. We perceive no error in the ALJ’s determination.
Sections 8-42-105(4), and 8-42-103(1)(g), contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” A claimant is “responsible” for an employment termination if the claimant engages in a volitional act or, in light of the totality of the circumstances, exercises some degree of control over the circumstances leading to the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 1993), aff’d. Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication).
The question of whether the claimant was terminated for fault is ordinarily one of fact for the ALJ. Padilla v. Digital Equipment Corp. supra; Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004 City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ’s resolution of conflicts in the evidence as well as plausible inferences he drew from the evidence Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Initially, we note that an employer’s failure to follow its own disciplinary procedure is not dispositive of whether the claimant was responsible for the termination, if the totality of the circumstances demonstrates the claimant knew his conduct placed him at risk of losing his job. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235
(Colo.App. 1993); Hospital Shared Services v. Industrial Commission, 677 P.2d 447 (Colo.App. 1984). In any case, there is substantial evidence in the record to support the ALJ’s implicit determination that the employer’s disciplinary policy did not require the issuance of a written warning before an employee is terminated for excessive attendance infractions.
The employer’s disciplinary policy states “habitual or excessiveness [sic] tardiness” may be cause for disciplinary action. The policy also states that at the employer’s “discretion” attendance infractions may be disciplined by verbal warning, written warning or suspension. However, the policy contains two passages which state that the employer “reserves the right to terminate employment in all cases of rule infraction or to skip any of the progressive disciplinary steps in cases that may demand immediate intervention or require investigation.” (Respondents’ Hearing Exhibit C). Consequently, the record amply supports the ALJ’s finding that the claimant unreasonably believed his job was not at risk unless he received another written warning.
Moreover, given the two-day suspension imposed on the claimant in 2002, we are not persuaded the record compels a finding that the employer acquiesced in the pattern of tardiness. To the contrary, the ALJ reasonably inferred that the employer did not act on the claimant’s 2003 attendance problems because they had not reviewed the claimant’s attendance history until after the successive days of tardiness on June 16 through June 20. (Knopp depo. p. 13).
The claimant’s reliance on Zelingers v. Industrial Commission, 679 P.2d 608 (Colo.App. 1984), as authority to the contrary, is misplaced. In Zelingers, the employer terminated the claimant’s employment after she missed work to travel out of state. The Zelingers
court concluded that the employer gave the claimant “tacit permission” to miss work by stating “if you have to go, go,” without advising the claimant of any negative consequences of her absence. Supra at 610. Under these circumstances, the court held that the claimant was deprived of an opportunity to act volitionally in choosing whether to make the trip or protect her employment by remaining on the job.
Here, there is no finding that the employer gave the claimant any form of permission to be absent or late for work. Neither are we persuaded that the record compels a finding that the employer gave the claimant tacit permission to be absence or late. To the contrary, the record contains evidence that the claimant was repeatedly advised his attendance needed improvement. (Tr. p. 39; Sorbera Depo. p. 15; Knopp depo. p. 22). Consequently, Zelingers is factually distinguishable from this claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 5, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Kenneth Wilson, Colorado Springs, CO, Tony Knopp, IP Automation, Inc., Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Patrick C.H. Spencer, II, Esq., Colorado Springs, CO, (For Claimant).
Charlotte A. Veaux, Colorado Springs, CO, (For Respondents).