Opinion
No. 2254 C.D. 2011
10-11-2012
Elizabeth Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Elizabeth Davis (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed an order of an Unemployment Compensation Referee (Referee), denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant applied for unemployment compensation benefits after she resigned from her position as a Customer Service Representative for PRC (Employer). The Duquesne UC Service Center (Service Center) issued a determination, finding Claimant ineligible for benefits under Section 402(b) of the Law. Claimant appealed the Service Center's decision to a Referee.
The Referee conducted a hearing, during which Claimant and Employer presented testimony regarding the circumstances of Claimant's resignation from employment. Following the hearing, the Referee issued a decision in which she made the following findings of fact:
1. The claimant was employed by PRC as a part-time Customer Service Representative, working 24 hours per week at the claimant's request, at a rate of $10.98 per hour, from May 19, 2008, with a last day of work of May 5, 2011.(Certified Record (C.R.), Item No. 10.)
2. Beginning in December 2010, the claimant began noticing errors in her pay regarding bonuses, taxes, medical insurance deductions, and paid personal days.
3. The errors continued and involved 10 pay periods.
4. The claimant brought the errors to the attention of Human Resources and her manager and all necessary corrections were made to the claimant's pay.
5. On May 5, 2011, the employer held a meeting where [it] advised the employees that the bonuses that they had been receiving were a thing of the past and if any employee was unhappy, they should speak with Human Resources.
6. Following the meeting, the claimant clocked out of work and informed her supervisor she was leaving.
7. The claimant quit her job.
Based on the foregoing, the Referee concluded that Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature. In so doing, the Referee reasoned:
On May 5, 2011, the employer held a meeting and informed the employees that the bonuses that they had been accustomed to receiving were a thing of the past. Following the meeting, the claimant clocked out of work and informed her supervisor she was leaving. The claimant did not report for scheduled shifts following May 5, 2011. Although the claimant was frustrated with the errors that had occurred in her pay, she did not voluntarily terminate her employment until after the meeting advising employees of the reduction or elimination of bonuses.(Id.) Accordingly, the Referee found Claimant ineligible for benefits. (Id.)
Claimant appealed to the Board, which affirmed the Referee's decision. The Board adopted and incorporated the Referee's findings and conclusions, and the Board made one additional finding and conclusion. (C.R., Item No. 12.) The Board found that based on the timing of events, Claimant quit due to the elimination of bonuses; however, because Claimant did not quantify the reduction in her pay resulting from the bonus elimination, she failed to establish necessitous and compelling cause to quit. (Id.)
On appeal, Claimant appears to take the position that the Board's finding that she quit due to the elimination of her bonuses is not supported by substantial evidence. Additionally, Claimant appears to argue that the Board erred as a matter of law in concluding that she did not have a necessitous and compelling reason to quit.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Additionally, in the "Statement of Questions Involved" portion of her brief, Claimant raises issues on appeal that were not raised in front of the Referee or Board, specifically:
2. Whether Respondent erred to recognize the time line when claimant initially filed claim [sic].(Claimant's Br. at 5). Section 703 of the Administrative Agency Law, 2 Pa. C.S. § 703, provides that "a party who proceeded before a Commonwealth agency under terms of a particular statute . . . may not raise upon appeal any other question not raised before the agency . . . unless allowed by the court upon due cause shown." See, e.g., Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (finding waiver of issues not raised before Referee or Board). Thus, Claimant has waived these issues.
3. Whether Respondent erred in responding to Claimant's initial claim.
We first address Claimant's argument that the Board's factual finding that Claimant quit due to the elimination of bonuses is not supported by substantial evidence. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Claimant contends that she quit because of continuous errors in her paychecks and the stress of moving to part-time work, not because of the elimination of bonuses. (Claimant's Br. at 10, 11.) At the hearing before the Referee, Claimant testified that, at a May 5th meeting with her supervisor, she was told that "we could forget about the bonuses that we use [sic] to get, [they were] a thing of the past. It is what it is; if we didn't like it we could go to HR." (C.R., Item No. 9, at 6.) Immediately following the meeting, Claimant quit her employment. (Id.) Additionally, in her petition for appeal from the Service Center's determination, Claimant stated that the job was "not the same as what was anti[c]ipated." (C.R., Item No. 6, at 2, 5.) Finally, in her petition for appeal to the Board, Claimant wrote that she was appealing "due to [the] fact the company promised a certain line of pay and decided that the employees were making too much so therefore, [Employer] changed the structure." (C.R., Item No. 11, at 2 (emphasis in original).)
Examining Claimant's testimony in a light most favorable to Employer, and giving Employer the benefit of all inferences that can logically and reasonably be drawn from the testimony, Taylor, 474 Pa. at 355, 378 A.2d at 831, substantial evidence exists to support the Board's finding that Claimant quit due to the elimination of bonuses. Although Claimant testified extensively about her dissatisfaction with payroll errors, a review of the entire record supports the finding that Claimant quit because of the elimination of bonuses. Claimant testified that she quit immediately following the meeting where she was told that bonuses would no longer be available. Thus, one could logically and reasonably infer that, based on the timing, Claimant quit due to the elimination of her bonuses. Substantial evidence, therefore, exists to support the Board's additional finding of fact.
Even if substantial evidence exists to support Claimant's argument, it does not follow that the Board's findings are not supported by substantial evidence. Johnson, 504 A.2d at 990. See also Baird v. Unemployment Comp. Bd. of Review, 372 A.2d 1254, 1257 (Pa. Cmwlth. 1977) (recognizing that Board's finding of one reason for claimant's decision to quit "necessarily excludes a finding that he quit for [other] reasons.").
We next address Claimant's argument that the Board erred when it concluded that Claimant did not have a necessitous and compelling reason to quit her employment. Section 402(b) of the Law provides, in pertinent part, that a claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court's review. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits her employment bears the burden of proving that necessitous and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 650, 794 A.2d 364 (1999). In order to establish cause of a necessitous and compelling nature, a claimant must establish: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
It has long been recognized that "a reduction in compensation, if substantial enough, will constitute the requisite cause to quit employment contemplated by Section 402(b)." Steinberg Vision Assocs. v. Unemployment Comp. Bd. of Review, 624 A.2d 237, 239 (Pa. Cmwlth. 1993). "[T]here is no talismanic percentage that separates a substantial, from a non-substantial wage reduction." Id. Rather, the determination must be measured on the circumstances of each case, focusing on the impact upon the employee. Id. at 239-40.
Here, the Board concluded that Claimant failed to establish a necessitous and compelling reason to quit, because she did not quantify the reduction in her pay resulting from the bonus elimination. If Claimant had provided sufficient evidence of a substantial change in compensation due to the bonus elimination, she would have established a necessitous and compelling reason to quit. See, e.g., A-Positive Elec. v. Unemployment Comp. Bd. of Review, 654 A.2d 299, 302-03 (Pa. Cmwlth. 1995) (concluding that claimant fulfilled her burden of establishing substantial reduction in wages when she testified that employer's failure to pay promised wages would result in 33.8% decrease in compensation); Steinberg Vision Assocs., 624 A.2d at 240 (holding that evidence of 14.2% reduction in compensation and additional intrinsic value in claimant's lost benefits fulfilled requirement of "substantial" change in compensation). Where there is insufficient evidence of record regarding the substantiality of the bonus elimination, the claimant has not met her burden to prove a necessitous and compelling reason to quit. See Elliott Co., Inc. v. Unemployment Comp. Bd. of Review, 29 A.3d 881, 887-89 (Pa. Cmwlth. 2011) (finding that due to lack of evidence regarding both amount of claimant's income and impact that employer's change in benefits would have on claimant's income, claimant failed to establish a "substantial" change required to constitute necessitous and compelling reason to quit).
Upon review of the record, there is no evidence regarding whether the elimination of Claimant's bonuses substantially impacted Claimant's income. This case is analogous to Elliott. Similar to the claimant in Elliott, Claimant has failed to provide any evidence of the impact that elimination of bonuses would have on her income. Although there is "no talismanic percentage that separates a substantial, from a non-substantial wage reduction," Steinberg Vision Assocs., 624 A.2d at 239, Claimant has shown neither the amounts of any of her bonuses, nor any quantitative effect that elimination of bonuses would have on her income. The only relevant evidence of record shows that Claimant's hourly rate was $10.98 during a part-time status of 24 hours a week. Claimant, therefore, failed to provide the requisite evidence to demonstrate a substantial impact on her income, which is necessary to establish a necessitous and compelling reason to quit.
In her brief, Claimant attempts to introduce new facts that are not in the record regarding amounts of her bonuses. Specifically, Claimant notes two bonuses amounting to $69.75 and $153.00. (Claimant's Br. at 8.) Claimant cannot now introduce additional evidence on appeal, as this Court is bound by the evidence in the record. Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010). --------
For the foregoing reasons, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 11th day of October, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge