Opinion
No. 450 C.D. 2013
01-14-2014
Thomas L. Fetsick Sr., Petitioner v. Unemployment Compensation Board of Review, Respondent
OPINION NOT REPORTED
MEMORANDUM OPINION
Petitioner Thomas L. Fetsick Sr. (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of a Referee, thereby denying Claimant benefits under 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). Section 402(b) of the Law provides that an employee is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.
Claimant filed for unemployment compensation benefits after voluntarily quitting his position as a part-time night stock clerk with Kuhn's Quality Foods (Employer). The Duquesne UC Service Center (Service Center) issued a notice of determination, finding Claimant to be ineligible for benefits under Section 402(b) of the Law. (Certified Record (C.R.), Item No. 7.) Claimant appealed the Service Center's determination, and a Referee held an evidentiary hearing, at which Claimant and three witnesses for Employer testified.
Following the hearing, the Referee issued a decision, in which she affirmed the determination of the Service Center. (C.R., Item No. 13.) The Referee issued the following findings of fact:
1. The claimant was employed by Kuhn's Quality Foods as a part-time Night Stock Clerk, working 40 hours per week, at the rate of $7.95 per hour, from August 22, 2008, with a last day of work of July 2, 2012.
2. On July 3, 2012, the claimant's night crew manager presented the claimant with 2 documented warnings for a previous tardy which had occurred 1 week prior and for informing a coworker that he would not work Saturdays.
3. The claimant had been late almost every day during his 4 years of employment and, therefore, did not believe the warning was justified. The claimant had informed the employer that he could not work on Saturday as Saturday was his day to do laundry.
4. The claimant was advised at the time the warnings were issued that any further incidents would result in progressive disciplinary action including a suspension from work.
5. The claimant had always performed his job to the best of his ability and felt the employer's warnings were a "slap to his face."
6. The claimant became upset, refusing to sign the write-ups, told the employer to "shove the job up his a**," threw down his box cutter and walked out the door.
7. Continuing work was available to the claimant.
8. The claimant was scheduled to work on July 4, 2012, but did not report for any of his future shifts.
9. The claimant quit his job.(Id.)
The Referee observed that Claimant provided testimony that the warnings issued by Employer on July 3, 2012, were the "final straw" that resulted in his walking off of the job. (Id.) The Referee further observed that Claimant testified that he felt insulted by the issuance of the warnings, as Claimant believed he had been a good employee. (Id.) The Referee noted that although Claimant argued that his decision to walk out was as a result of a culmination of other issues that had occurred throughout his employment, Claimant admitted he had not quit at the time the other issues had occurred. (Id.) The Referee also noted that Employer credibly testified that at the time it held the meeting in which it warned Claimant, it had not terminated Claimant's employment and continuing work was available had Claimant returned to work on July 4, 2012. (Id.)
The Referee concluded that because Claimant did not walk off the job until feeling insulted by Employer's reprimand, it was ultimately the reprimand that caused Claimant to quit his job. (Id.) Noting that the courts have held that a supervisor's reprimand does not normally constitute cause of a necessitous and compelling nature for an employee to voluntarily terminate his employment with an employer under Section 402(b) of the Law, the Referee concluded that Claimant had failed to meet his burden of establishing a necessitous and compelling reason to quit. (Id.) The Referee, therefore, found Claimant to be ineligible for benefits. (Id.)
Claimant appealed to the Board, which affirmed the Referee's decision. (C.R., Item No. 17.) In so doing, the Board adopted and incorporated the Referee's findings of fact and conclusions of law. (Id.) The Board also noted that on appeal, Claimant alleged that there were a number of reasons that caused him to voluntarily quit his employment. (Id.) The Board noted that some of the reasons included Employer's unsafe conditions and the volume of inexperienced individuals working at Employer's facility. (Id.) The Board indicated that Claimant further alleged that as a result of the stressful environment at work, he became medically depressed. (Id.) The Board observed, however, that at the hearing, Claimant testified that the discipline he received from Employer for his habitual tardiness was the final incident leading to his voluntary quit. (Id.) The Board, therefore, considered Claimant's dissatisfaction with Employer's write-ups as the reason for Claimant's quit. (Id.) Like the Referee, the Board noted that the courts have held that an employer's reprimand does not normally constitute a necessitous and compelling cause to voluntarily terminate one's employment. (Id.) Furthermore, the Board reasoned that, even if it found Claimant's testimony about his depression credible, there was insufficient credible medical evidence that a medical condition existed that gave Claimant no reasonable alternative but to voluntarily quit his employment. (Id.)
Further, the Board observed that Employer admitted to allowing Claimant to appear late for his shifts prior to July 3, 2012. (Id.) Nevertheless, the Board credited Employer's testimony that it did not want to continue to allow Claimant to appear late for work, as other employees began to model Claimant's behavior of appearing late. (Id.) The Board, therefore, found Claimant to be ineligible for benefits. Claimant then petitioned this Court for review.
Claimant also filed a request for reconsideration with the Board. (C.R., Item No. 18.) The request was deemed denied by operation of law when the Board failed to act on the request within the permissible time period. (C.R., Item No. 19.)
On appeal, Claimant argues that the Board erred in failing to conclude that Claimant had a necessitous and compelling reason to quit his employment voluntarily. In support of his argument, Claimant contends that a culmination of various circumstances, and not just the reprimands Employer issued to him on July 3, 2012, resulted in his voluntary quit. Specifically, Claimant argues that he quit his job as a result of injuries he sustained and the way in which Employer handled those injuries, scheduling conflicts, unsafe working conditions, discrimination he experienced, a personality conflict he had with Employer's manager, and the reprimands Employer issued to him. Claimant also argues that Employer's treatment of him affected his health and welfare, which also contributed to the reasons for his voluntary quit. Finally, Claimant argues that the reprimands Employer issued to him were unjustified because Employer permitted him to be late and knew that he could not work Saturdays.
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.
Notably, Claimant does not challenge any of the findings of fact on appeal, and, thus, the findings are conclusive and binding on this Court upon review. See Salamak v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
Section 402(b) of the Law provides, in 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. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits his 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, 1129 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 650, 794 A.2d 364 (1999). To establish cause of a necessitous and compelling nature, a claimant must establish that (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 his employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008). "[W]hen an employee is terminated or quits, the 'factual matrix at the time of separation governs' as to whether a claimant is entitled to benefits, and the relevant inquiry in determining the cause of a claimant's unemployment is confined to the surrounding circumstances existing at the time of the claimant's departure. . . . [U]nless the precipitating event gave [the c]laimant a necessitous and compelling reason to quit, then benefits should be denied." Hussey Copper Ltd. v. Unemployment Comp. Bd. of Review, 718 A.2d 894, 899 (Pa. Cmwlth. 1998) (citations omitted).
Here, the Board determined, and we agree, that based on Claimant's testimony, the precipitating event leading to Claimant's voluntary quit was his receipt of Employer's reprimands for his tardiness and refusal to work Saturdays. "Resentment of a reprimand, absent unjust accusations, abusive conduct or profane language, does not constitute a necessitous and compelling reason to terminate" employment. Taylor v. Unemployment Comp. Bd. of Review, 432 A.2d 642, 643 (Pa. Cmwlth. 1981). Our review of the record reveals that Employer's reprimands did not include any of the elements justifying Claimant's voluntary quit. Moreover, Claimant failed to make a reasonable effort to preserve his employment. Rather, Claimant walked off the job upon receiving Employer's reprimands. The Board, therefore, did not err in denying Claimant benefits.
Furthermore, we reject Claimant's argument that Employer's reprimands were unjustified, because Employer permitted Claimant to be late and knew that Claimant could not work on Saturdays. Claimant was late almost every day for his four years of employment. (Finding of Fact (F.F.) no. 3.) Although Employer admitted to allowing Claimant to appear late for his shifts prior to issuing its reprimand, the Board credited Employer's testimony that it did not want to continue to allow Claimant to appear late for work, as other employees began to model Claimant's behavior of appearing late. (C.R., Item No. 17.) Thus, Employer was justified in reprimanding Claimant for his tardiness. See Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982) ("An employer has the right to expect that his employees will attend work when they are scheduled, that they will be on time and that they will not leave work early without permission."); see also City of Beaver Falls v. Unemployment Comp. Bd. of Review, 441 A.2d 510, 512 n.3 (Pa. Cmwlth. 1982) (providing that "an employer who has not consistently enforced a rule in the past is [not] forever precluded from doing so for unemployment compensation purposes"). As for Claimant's refusal to work Saturdays, Employer's manager, Norma Gamrat, testified that it was a requirement that every employee work at least one Saturday per month. (C.R., Item No. 12, at 16.) Employer's reprimand of Claimant for his refusal to work Saturdays, because Saturday was his day to do laundry, (F.F. no. 3.), was also justified. See Jimenez v. Unemployment Comp. Bd. of Review, 417 A.2d 870, 872 (Pa. Cmwlth. 1980) ("[I]t is the employer's prerogative to determine the work schedule, not the employee's."). --------
Accordingly, we affirm the order of the Board.
PER CURIAM
ORDER
AND NOW, this 14th day of January, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.