Opinion
No. 172 C.D. 2013
10-17-2013
Mamadou Maiga, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Mamadou Maiga (Claimant) petitions for review of the December 20, 2012 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination and held that Claimant is ineligible for unemployment compensation benefits under 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). Section 402(b) of the Law provides that an employee who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation.
Sofitel Hotel (Employer) employed Claimant as a full-time line cook from March 2004 until July 9, 2012. On July 9, 2012, James Coleman (Coleman), the executive chef, had a meeting with Claimant to discuss a disciplinary issue and told Claimant to take the next day off, a "career-decision day," and return to work with a written statement indicating how he intended to improve his performance. However, because of a miscommunication, Claimant did not contact Coleman, and on July 11, 2012, Melissa Gabillon (Gabillon), Employer's human resources director, called Claimant to attend a meeting that day with Coleman, another chef, and herself to discuss Claimant's poor performance. (Referee's Findings of Fact Nos. 1-4.)
At the meeting, Claimant told Gabillon and Coleman that he would not acknowledge any responsibility for preparing poor meals. Gabillon directed Claimant to take the next day off to prepare a written commitment indicating how he would improve his performance and how he would adjust his cooking so that there would be no further complaints. Gabillon, who repeated herself three times and received affirmation from Claimant that he understood, directed Claimant to call her before noon on Friday, July 13, 2012, to inform her what time he would come into work with his written commitment. Claimant never prepared a written statement, contacted Employer, or returned to work. (Id. at 5-9.)
Claimant filed a claim for benefits and the local service center determined that he was eligible under section 402(e) of the Law. The local service center stated that Employer failed to carry its burden of proof because it did not provide any information to show that Claimant was involved in the incident that caused the separation.
43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
Employer appealed, and a referee held a hearing on September 14, 2012. Gabillon testified to the facts described above. Gabillon further explained that the disciplinary action was a result of having to give free meals to customers on two separate occasions within a two-week timeframe. She also stated that she became aware that there was a miscommunication between Coleman and Claimant after their initial meeting, because her assistant received a phone call from Claimant on July 11, 2012, inquiring as to why Coleman never called him back. Gabillon explained that she called Claimant in to the hotel for a meeting on that same day. Because of the miscommunication, she made Claimant's "career-decision day" a "written warning," and asked Claimant to take the rest of that day and July 12, 2012, to prepare a written commitment of his performance improvement plan. Gabillon testified that Claimant would still be working at the hotel had he contacted Employer on July 13, 2012. Coleman confirmed Gabillon's testimony. (Id. at 5-7, 11.)
Gabillon testified that a "career-decision day" is the final step before termination of employment in Employer's progressive discipline policy that affords an employee one paid day away from work to prepare a written commitment explaining how that employee plans to improve performance. (Notes of Testimony (N.T.) at 5-6.)
Claimant testified that at the July 11, 2012 meeting, Gabillon asked him to submit a written apology for the preparation of poor meals, but he refused to accept responsibility. Claimant stated that Gabillon suggested that he take a day to think about it and said that if he did not submit the statement, then he would have to resign. He further testified that he never called or went back to work after the meeting. Claimant confirmed that he made the choice not to write the letter of apology, explaining that he would not sign a statement that would be placed in his file accepting responsibility for a complaint that was not his fault. (Id. at 9-11.)
On September 19, 2012, the referee issued a decision reversing the local service center and finding Claimant ineligible for benefits under section 402(b) of the Law. The referee determined that Claimant voluntarily left his employment and that his dissatisfaction with Employer's instruction to prepare the written commitment was not a necessitous and compelling reason for voluntarily leaving his job. The referee rejected Claimant's testimony that Employer directed him to prepare an apology letter and that he needed to sign the letter for it to go into his file. (C.R. Item No. at 11.) Claimant appealed to the Board, which adopted the referee's findings and conclusions and affirmed the referee's decision, stating that Claimant's mere dissatisfaction that he was reprimanded for unsatisfactory work performance did not provide him with good cause for leaving his employment. Claimant requested reconsideration, which was deemed denied.
The referee determined that, while the local service center found Claimant eligible for benefits under section 402(e) of the Law, section 402(b) of the Law was the proper section in this case and observed that the notice of the hearing informed the parties that section 402(b) may be at issue. (Certified Record (C.R.) Item No. 11.)
On appeal to this Court, Claimant argues that there is not substantial evidence to support the Board's findings that Employer properly followed its progressive disciplinary process. Claimant further argues that the Board erred in concluding that he voluntarily resigned rather than being discharged from his job.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
We note that Claimant cites Employer's employee handbook in his petition for review but this evidence is extra-record and will not be considered. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) ("This Court may not consider auxiliary information appended to a brief that is not part of the certified record on appeal . . . ."). --------
It is well-settled that, in unemployment compensation proceedings, the Board is the ultimate fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The Board's findings are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings. Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The appellate court has the duty to examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of all logical and reasonable inferences, to see if substantial evidence supporting the Board's decision exists. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). Substantial evidence consists of evidence that a reasonable mind would accept as adequate to support a conclusion. Beverly Enterprises, Inc. v. Unemployment Compensation Board of Review, 702 A.2d 1148, 1150 n.1 (Pa. Cmwlth. 1997).
Claimant first argues that Employer requested that he sign a written apology accepting responsibility for poor performance rather than a written commitment to improve performance, and thus Employer did not follow the requirement of its policy to notify Claimant that it considered July 12, 2012, a career-decision day. However, in making this argument, Claimant relies on his version of the facts, which was not credited by the Board. The Board accepted the testimony of Employer's witnesses, and that testimony constitutes substantial evidence to support the Board's findings. Beverly Enterprises. "We would exceed our scope of review if we were to reweigh the facts found by the administrative agency rather than terminate our review once we determined that there was substantial evidence to support the agency's findings of fact." Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1090 (Pa. Cmwlth. 1997).
Claimant also argues in his brief that at the July 11, 2012 meeting, Employer directed him to sign an apology statement rather than prepare a written commitment as is required with a career-decision day. However, Claimant failed to raise this issue in his petition for review and thus it is waived. See Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264 (Pa. Cmwlth. 2009) (holding that failure to raise an issue in the petition for review constitutes waiver of that argument).
Claimant further argues that the Board erred in concluding that Employer did not discharge him from his employment. Where the employee alleges that he did not quit, but was fired, the employee bears the burden to prove that he was discharged by the employer. Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). In order for an employer's actions to constitute a discharge, the claimant bears the burden to demonstrate that the employer's actions had the immediacy and finality of a firing. Id. However, the employer does not have to specifically use words such as "fired" or "discharged." Id. Additionally, when determining whether there has been a voluntary resignation, the totality of circumstances must be considered. Philadelphia Parent Child Center, Inc. v. Unemployment Compensation Board of Review, 403 A.2d 1362, 1363 (Pa. Cmwlth. 1979). Whether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings of fact made by the Board. Goffi v. Unemployment Compensation Board of Review, 427 A.2d 1273, 1274 (Pa. Cmwlth. 1981).
In Bell, the claimant had an argument with his employer, parked the employer's truck outside the employer's service shop, and never returned to work. The claimant testified that his supervisor told him to "park his truck" at the employer's service shop, which the claimant understood to mean he was fired. However, the employer's witness testified that he did not intend to discharge the claimant but told the claimant that if he did not like working for the employer he should put his truck out front and go home. The Board resolved the conflicting testimony in favor of the employer and found that the employer provided the claimant the option to remain employed; the employer's language did not possess the immediacy and finality of a firing; the employer did not intend to discharge the claimant; the claimant never attempted to return to work; and continued work was available had the claimant returned. Accordingly, the Board concluded that the claimant had voluntarily quit and was ineligible for benefits under section 402(b).
On appeal to this Court, the claimant argued that his uncontradicted testimony established that the employer discharged him from his employment. We affirmed the Board's order, agreeing with the Board's conclusion that, under the totality of the circumstances, the employer's statement did not demonstrate the immediacy and finality of a discharge. Bell, 921 A.2d at 27.
Here, Gabillon testified that in the July 11, 2012 meeting with Claimant, "I made it very clear, I said, I just want to reiterate, I'm asking you on Friday to call me before noon and tell me what time you'll be in in the afternoon to come meet with us with your commitment." (N.T. at 6) (emphasis added). Claimant then testified that "[Gabillon] said if you don't sign [the written apology] then you have to resign. . . . Yes, I didn't sign [the written apology], yes." (N.T. at 10.) Based on the credited testimony, Employer gave Claimant the option to either follow Employer's disciplinary process or to resign, Employer intended to retain Claimant, and Employer had continuing work available for Claimant had he returned. Instead, Claimant chose not to submit a written commitment and not to contact Employer by noon on July 13, 2012. Thus, the Board properly determined that Employer did not terminate Claimant's employment but that he voluntarily left his job and is ineligible for benefits under section 402(b). Bell.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of October, 2013, the December 20, 2012 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge