Opinion
No. 635 C.D. 2014
01-12-2015
Kimberly A. Carson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Kimberly Carson (Claimant) petitions for review, pro se, from the March 11, 2014 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that she is ineligible for benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Pursuant to section 402(b) of the Law, an employee who voluntarily terminates his employment without a necessitous and compelling reason is ineligible for benefits.
Claimant was employed part-time as a crew member for Burger King (Employer) and worked for approximately eleven months until September 9, 2013. (Finding of Fact No. 1.) Claimant applied for benefits, and a local service center determined that she voluntarily quit her job without a necessitous and compelling reason, and, therefore, was ineligible for benefits under section 402(b) of the Law. Claimant appealed, and the referee convened a hearing at which Claimant and two witnesses for Employer (the general manager and district supervisor) testified.
At the conclusion of the hearing, the referee made the following relevant findings of fact:
2. [Claimant] had regular weekday work hours which began at 8:00 a.m.
3. On September 10, 2013, [Claimant] was absent from work due to health reasons and [Claimant] reported her absence to [Employer] . . . .
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7. [Claimant] was scheduled to work at 8:00 a.m. on September 11, 2013.
8. [Claimant] was absent from work on September 11, 2013, due to health reasons.
9. [Claimant] reported the September 11, 2013 absence on September 10, 2013, after receiving medical treatment and a work excuse from her doctor covering both September 10 and 11, 2013.
10. [Employer's] general manager was upset with [Claimant's] absence because it affected her ability to schedule sufficient staff for busy morning hours.
11. [Employer's] general manager previously reduced [Claimant's] work hours for [Claimant's] absences.
12. [Claimant] was available to work on weekdays until 4:00 p.m.
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15. After [Claimant's] September 10 and September 11, 2013 absences, the general manager informed [Claimant] that she was reducing [Claimant's] work hours again. The general manager planned to start [Claimant's] work shift later due to business reasons.(Findings of Fact Nos. 2-3, 7-12, 15-22.)
16. [Claimant] was upset with the reduction to her work hours.
17. [Claimant] felt she was treated unfairly by [Employer] due to [Claimant] not receiving the same break periods as co-workers.
18. On September 12 and 13, 2013, [Claimant] was scheduled to work and [she] did not report to work or notify [Employer] of her absence; [Claimant] quit her employment because she was upset with the working conditions and [Claimant] did not notify [Employer] of her voluntary leaving.
19. On or about September 11, 2013, [Claimant] called [Employer's] district supervisor and left a message for a return call.
20. The district supervisor did not return [Claimant's] call.
21. [Claimant] was scheduled to work her regular hours during the period from September 15 thru September 21, 2013. [Employer] planned to implement the change to [Claimant's] work hours after September 21, 2013.
22. [Claimant] did not advise [Employer] that she was not receiving her breaks and did not request a break during her work shifts.
Based upon these factual findings, the referee determined that Claimant voluntarily left her employment because she was upset by the change to her work hours and issues regarding breaks. However, the referee found that Claimant did not request breaks during her work shift and did not inform Employer that she was not receiving her breaks prior to leaving her employment. The referee further found that, although Claimant called the district supervisor regarding her working conditions on September 11, 2013, she quit work the next day and failed to pursue further communication with Employer to remedy the alleged problems with her working conditions. The referee noted that Claimant had ample opportunity to do so because her hours would not be reduced until after September 21, 2013. On this basis, the referee concluded that Claimant failed to demonstrate that she made a good faith attempt to resolve her work-related problems and that she did not have a necessitous and compelling reason to quit employment. (Referee's decision at 2-3.)
Claimant appealed to the Board, which affirmed the referee's decision, adopting and incorporating the referee's findings and conclusions as its own. (Board's decision at 1.)
On appeal to this Court, Claimant argues that circumstances existed that would compel a reasonable person to voluntarily quit employment in that she had a doctor's excuse to miss work; she told the manager that she was not receiving breaks; she requested more hours but was denied; and her hours were reduced to the point that she could not support her family.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with law or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Pursuant to section 402(b) of the Law, an employee is ineligible for benefits if she voluntarily terminates her employment without cause of a necessitous and compelling nature. 43 P.S. §802(b). Thus, a claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate real and substantial pressure to terminate employment that would compel a reasonable person under similar circumstances to act in the same manner. Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009). The claimant must further demonstrate that she acted with ordinary common sense and made a reasonable effort to preserve her employment. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008). Acting with "common sense" includes notifying an employer of the problem prior to quitting, so that the employer is given an opportunity to resolve the issue. Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996).
Whether or not a claimant has a compelling and necessitous cause for voluntarily terminating employment is a question of law subject to this Court's review. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282, 1284 (Pa. Cmwlth. 1981). --------
Here, although Claimant had a doctor's excuse to miss work on September 10 and 11, 2013, she did not testify or offer any other evidence that her medical condition was the cause for her voluntary quit. Such evidence is necessary for a claimant's medical condition to serve as a necessitous and compelling reason to discontinue employment. See Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002) (concluding that where a claimant quits for medical reasons, the claimant must establish, among other things, that "adequate health reasons existed to justify the voluntary termination"). Indeed, Claimant admitted that she did not report to work on September 12 and 13, 2013, because she was dissatisfied with Employer's proposed reduction to her work hours. (Notes of Testimony (N.T.) at 7.)
Moreover, while Claimant testified that she spoke with a different shift manager about her break time "a while ago," (N.T. 9), the fact that a claimant cites evidence which contradicts the Board's finding does not compel the conclusion that the Board's finding should be overruled. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 (Pa. Cmwlth. 2011). Rather, the pertinent inquiry is whether substantial evidence supports the finding that the Board actually made. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
Here, the Board found that Claimant did not advise Employer that she was not receiving her breaks. (Finding of Fact No. 22.) This finding is supported by Claimant's own testimony that she never asked the general manager, with whom she worked "most of the time," for a break because she assumed that the general manager would ask her if she (Claimant) needed a break. (N.T. 8-9.) See Leonard S. Fiore, Inc. v. Department of Labor and Industry, Prevailing Wage Appeals Board, 566 A.2d 632, 635 (Pa. Cmwlth. 1989), reversed on other grounds, 585 A.2d 994 (Pa. 1991) ("It is well established that the evaluation of a witness' credibility is for the fact finder who may believe all, part, or none of the witness' testimony."). Ultimately, the Board's finding that Claimant failed to notify Employer of her issues with work breaks demonstrates that Claimant did not make a reasonable effort to preserve her employment. Unclaimed Freight Company, 677 A.2d at 379.
Similarly, with respect to Employer's planned reduction to Claimant's work hours, Employer's general manager testified that Claimant never notified her or other supervisory staff that she needed to maintain her hours. (N.T. at 13.) See Unclaimed Freight Company, 677 A.2d at 379. Claimant did testify that she called the district supervisor, who did not return the call, to request a transfer to another store. (N.T. at 7-8, 16.) However, Claimant did not testify that she informed the district supervisor as to why she wanted to be transferred. Indeed, there is no evidence in the record to demonstrate, as Claimant argues in her brief, that she officially requested more hours and was denied. Regardless, Claimant quit the day after calling the district supervisor, and her single, unsuccessful attempt to contact Employer, without following up with another attempt, does not constitute a reasonable effort to preserve employment. See Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281, 1282-83 (Pa. Cmwlth. 1987) ("We do not view Claimant's single attempt to contact Employer as constituting a reasonable effort to preserve her employment relationship"). This conclusion is particularly apt considering that Employer was not going to implement the reduction in hours until September 22, 2013, and Claimant had ample time to attempt to resolve her issues. (Finding of Fact No. 21; Referee's decision at 2-3.)
Because the Board's findings are supported by substantial evidence, we conclude that the Board did not err in concluding that Claimant did not have a necessitous and compelling reason to quit employment.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of January, 2015, the March 11, 2014 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge