Opinion
No. 660 C.D. 2013
12-23-2013
Jay H. Sylvester, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Jay H. Sylvester (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) finding him ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law). On appeal, Claimant argues that he had a necessitous and compelling reason to quit his employment with Minsec, LLC when Minsec was acquired by Community Education Centers (Community) because: (1) he was informed that he was not going to be offered employment with Community; and (2) based upon his prior employment relationship with Community, he had serious ethical concerns regarding the standards and level of care provided by Community. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was last employed by Minsec as the Director of the Luzerne Treatment Center from March 3, 2012 through November 30, 2012. (Board Decision, Findings of Fact (FOF) ¶ 1.) Claimant applied for UC benefits. The UC Service Center determined that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law since Claimant voluntarily quit his job because he did not want to work for Community. (Notice of Determination, R. Item 3.) Claimant appealed the UC Service Center's determination and a hearing was held before a UC Referee (Referee). Claimant appeared and testified on his own behalf. Neither Minsec nor Community appeared, and the Referee affirmed the UC Service Center's determination. Claimant appealed to the Board, which made the following findings of fact:
2. At some point during the claimant's tenure with the employer, the claimant was informed that Community Education Centers would be taking over Minsec.
3. The claimant had previously worked for Community Education Centers from 2008 until June 2011.
4. The claimant did not like the way Community Education Centers treated its staff and patients.
5. The claimant was not offered a position with Community Education Centers, but continuing work was available through the transition.
6. The claimant never went to management or human resources to discuss his reservations about Community Education Centers or to discuss his future with the company past the transition.(FOF ¶¶ 2-8.) In the discussion portion of its Decision, the Board did not find Claimant's testimony credible that he was informed that he would be terminated upon Community's acquisition of Minsec because Claimant "did not provide any competent, corroborating evidence of his manager's text message stating this." (Board Decision at 2.) The Board observed that Claimant "could not identify a specific date on which he would be terminated." (Board Decision at 2.) The Board determined that the real reason Claimant voluntarily quit his employment was due to his negative past experience with Community; however, Claimant did not present any evidence that working for Community "would be so intolerable as to necessitate a quit." (Board Decision at 2-3.) The Board determined further that Claimant did not discuss his reservations regarding Community or his future employment with Community with management or human resources. Finally, the Board stated that continuing work was available for Claimant through the transition and that Claimant did not make a reasonable effort to preserve his employment before voluntarily quitting. Accordingly, the Board concluded that Claimant did not have a necessitous and compelling reason to terminate his employment and denied Claimant's claim for UC benefits pursuant to Section 402(b) of the Law. Claimant now petitions this Court for review of the Board's Order.
7. On November 30, 2012, Community Education Centers officially took over Minsec.
8. Upon hearing of the official take over, the claimant sent his manager a text message stating he did not feel comfortable working for Community Education Centers because of the way they treat their staff and patients.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
In this appeal, Claimant states the issues are: (1) whether Claimant was offered employment with Community after it acquired Minsec; and (2) whether Claimant's concerns regarding the business practices of Community raised serious ethical concerns which constituted compelling and necessitous reasons for leaving his employment. In support of his appeal, Claimant first points out that neither Minsec nor Community appeared at the Referee's hearing; therefore, the adverse findings are against the record as Claimant's evidence was competent and unrebutted. Claimant asserts that, because he was not offered a position with Community after it acquired Minsec, as found by the Board in finding of fact number 5, he had no choice but to resign his job. Claimant maintains that, because his testimony was unrebutted, there should be no reason to doubt his testimony that he was not offered a position with Community. Finally, Claimant argues that while his position with Minsec was suitable employment, the circumstances changed when Community acquired Minsec. Claimant contends that, having worked previously for Community, he was well aware of the standards and level of care Community provided and that his ethical concerns were not speculative because the concerns were based upon his prior experience with Community.
Initially, we note that it is the claimant, not the employer, who has the burden to prove a claimant's eligibility for UC benefits. Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810, 815 (Pa. Cmwlth. 1996). "In other words, in order to be eligible for unemployment compensation benefits, the claimant bears the burden of proving separation from employment, whether voluntary or involuntary." Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). In a case involving a voluntary quit, the claimant has the burden to prove that he had cause of a necessitous and compelling nature for the voluntary quit. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). As the burdened party, a claimant must meet both his burden of production and his burden of persuasion in order to prevail on his claim for benefits. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).
We hope that Referees, as part of their role pursuant to 34 Pa. Code § 101.21 (requiring the Referee to assist and advise unrepresented parties), caution unrepresented claimants that even when their employer does not appear, they still must present a full case in support of their application for UC benefits. --------
Section 402(b) of the Law provides that a claimant shall be ineligible for benefits for a period "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ." 43 P.S. § 802(b). "Whether an employee has a necessitous and compelling reason to voluntarily quit employment is a question of law fully reviewable by this Court." Brunswick Hotel & Conference Center, 906 A.2d at 660. An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such 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. Id.
We begin with Claimant's assertion that, because Minsec did not appear at the Referee's hearing, his evidence was unrebutted and supports his claim for UC benefits. However, as stated above, it is Claimant's burden to establish his eligibility under Section 402(b) of the Law. Jennings, 675 A.2d at 815. Minsec had no burden to prove anything in this matter, and its decision not to participate is of no consequence because UC "benefits are available only when the [L]aw allows." Unangst v. Unemployment Compensation Board of Review, 690 A.2d 1305, 1306 (Pa. Cmwlth. 1997) (emphasis added). Claimant's burden includes both the burden of production and the burden of persuasion. Kirkwood, 525 A.2d at 844. While Claimant may have produced evidence to support his claim for UC benefits, the Board was not persuaded by and did not credit that evidence. The Board is the ultimate fact finder and is empowered to accept or reject even uncontradicted evidence. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). Accordingly, that Minsec did not appear at the Referee's hearing and submit evidence to rebut Claimant's evidence does not alter the fact that the Board found that Claimant did not meet his burden of proof and is not grounds for reversing the Board's Order.
We now turn to Claimant's argument that he was justified in resigning his position because Community did not offer him a job when it acquired Minsec. While the Board did find that Community did not offer Claimant a position, the Board found further that continuing work was available to Claimant during the transition. This finding is supported by Claimant's own testimony. Claimant testified that his supervisor encouraged him to stay through the transition, he did not know when his employment was going to end, and that on November 30, 2012, he still had continued employment. (Hr'g Tr. at 5-9.) As such, Claimant's contention that he had no choice but to resign is not supported by the record. Thus, Claimant's separation from employment must be deemed to have been voluntary.
Finally, we address the question of whether Claimant had a necessitous and compelling reason to terminate his employment. Claimant asserts that his past experiences with Community led him to have ethical and professional concerns regarding how Community treats its staff and clients and, consistent with Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), those concerns provided him with a necessitous and compelling reason to terminate his employment. Moreover, Claimant contends that, even if his job with Minsec was suitable employment, the conditions of that position became unsuitable once Community acquired Minsec and the ethical issues arose.
As Claimant acknowledges, a claimant's acceptance of a job creates a presumption that the job is suitable. Spinelli v. Unemployment Compensation Board of Review, 437 A.2d 1320, 1321 (Pa. Cmwlth. 1981). Thus, an employee's subsequent mere dissatisfaction with his wages or working conditions neither rebuts the presumption of job suitability nor justifies the employee's voluntary resignation of employment. Id. at 1321-22. However, a substantial unilateral change to the employee's working conditions may render a previously suitable job unsuitable and provide the employee with necessitous and compelling cause to terminate his or her employment. Fitzgerald, 714 A.2d at 1129.
This Court has held that, where an employee is required to perform a duty that affects the employee's personal and professional integrity and the claimant informs the employer of this belief, the claimant may have a necessitous and compelling reason to quit. Id. at 1130 (citing Tom Tobin Wholesale v. Unemployment Compensation Board of Review, 600 A.2d 680, 683 (Pa. Cmwlth. 1991)). However, "[w]here there is no express violation of law, regulation or professional ethics . . . an employee does not establish cause of a compelling or necessitous nature in this type of case unless the employee proves that the duties required by employer so affected his or her professional and personal integrity that it would justify the voluntary quit." Ayres v. Unemployment Compensation Board of Review, 598 A.2d 1083, 1087 (Pa. Cmwlth. 1991). "The practice of employer, at best, must be highly questionable so that avoidance of the practice would be the prudent course of action." Id. An employee's "unsubstantiated beliefs standing alone will not suffice" to establish that the employee had a necessitous and compelling reason for voluntarily terminating his or her job. Miller v. Unemployment Compensation Board of Review, 458 A.2d 334, 335 (Pa. Cmwlth. 1983).
Claimant accepted his position with Minsec and performed the duties associated with that position for approximately eight months; thus, it is presumed that his position was suitable employment. Spinelli, 437 A.2d at 1321. Claimant asserts that this position became unsuitable once Community acquired Minsec because of his ethical concerns regarding Community's operations; however, he asserted no specifics to support that concern beyond stating that he was uncomfortable with how Community treated its patients and staff. (FOF ¶¶ 4, 8; Hr'g Tr. 6-8.) Claimant neither asserted that working for Community would require him to violate a law, regulation, or specific professional ethics nor did he present any specific evidence from which there could be a finding that Community's practices were "highly questionable so that avoidance of the practice would be the prudent course of action." Ayres, 598 A.2d at 1087. Rather, Claimant essentially cited his belief, unsubstantiated by the record, that working for Community would somehow violate his ethics. Such unsubstantiated beliefs are insufficient to meet a claimant's burden. Miller, 458 A.2d at 335.
Moreover, Fitzgerald is distinguishable and does not support Claimant's argument because in that case, unlike here, the claimant presented specific evidence describing how the change in her job duties and increase in her responsibilities, from being a unit manager (in charge of only one floor) to being the house supervisor (in charge of five floors, between 140 and 150 patients, and numerous other nurses and nursing assistants), with only one and a half years of experience as a nurse endangered her professional ethics and nursing license. Fitzgerald, 714 A.2d at 1127-30. Additionally, the claimant in Fitzgerald informed her employer about her specific concerns with the new position before quitting, id. at 1130; Claimant did not do the same here, (FOF ¶ 6). Therefore, there was no error in the Board's conclusion that Claimant did not meet his burden of proving that he had a necessitous and compelling reason for voluntarily terminating his employment.
Accordingly, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 23, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge