Opinion
No. 594 C.D. 2011
05-10-2012
Kimberly K. Whitsel, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Kimberly K. Whitsel (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee), which found Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). Claimant argues that the Board erred in finding her ineligible for UC benefits because she had necessitous and compelling reasons to quit as a result of the additional work responsibilities placed on her by Reichard Law Offices (Employer). Additionally, Claimant argues that she had necessitous and compelling reasons to quit, in the form of ethical and moral concerns, and that the Board failed to make findings of fact regarding these concerns.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was last employed by Employer as a full-time paralegal from September 13, 2005 through September 17, 2010. Claimant filed a claim for UC benefits on September 18, 2010, stating that she voluntarily quit her employment because she was assigned work in areas that she had no experience, and she had moral and ethical concerns regarding Employer's business practice of taking clients' monies without doing any work on their claims. By Notice of Determination mailed October 5, 2010, the Lancaster UC Service Center (Service Center) determined that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law. The Service Center determined that Claimant failed to sustain her burden of proof that she quit for necessitous and compelling reasons. Claimant timely appealed and the Referee held a hearing on December 17, 2010, at which both Claimant and Employer testified. The Referee affirmed the Service Center's Determination and found that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law. (Board's Order, Findings of Fact (FOF) ¶ 1, R. Item 12; Internet Initial Claims at 3, R. Item 2; Notice of Determination, R. Item 5; Referee's Hr'g Tr. at 1, R. Item 9; Referee's Decision at 2, R. Item 10.)
Claimant appealed to the Board, which made the following findings of fact.
1. [C]laimant was last employed as a full-time paralegal by [Employer] from September 13, 2005 . . . and her last day of work was September 17, 2010.
2. [C]laimant primarily worked with bankruptcy cases.
3. On July 27, 2010, after another paralegal left, [C]laimant was given additional responsibilities in regard to finances and accounting that she had never done before.
4. [C]laimant advised [E]mployer that she did not feel comfortable working with his finances.
5. When [E]mployer asked [C]laimant if she was capable of handling the additional finance and accounting duties, she answered in the affirmative.
6. [C]laimant was dissatisfied that she was coming in during the evenings, on weekends, and on holidays to help [E]mployer with the workload.
7. [C]laimant complained to [E]mployer regarding the workload.
8. [E]mployer provided [C]laimant with a co-worker to assist her in preparing the bankruptcy files.
9. [E]mployer also agreed to see clients himself in order to have clients sign petitions, rather than having [C]laimant handle that responsibility.
10. [C]laimant felt physically ill from the workload but did not advise [E]mployer of any health issues or complain any further regarding the workload.
11. [C]laimant was accumulating a backlog in regard to her workload but did not advise [E]mployer.
12. On September 17, 2010, when [C]laimant reported for work, [E]mployer advised her that the internet and cable had been turned off due to non-payment and that she needed to use whatever means she could to get them turned back on.
13. [C]laimant was dissatisfied that [E]mployer had approached her regarding the internet and cable problem before she even had a chance to turn the lights on in the office.
14. Subsequently, on September 17, 2010, [E]mployer left the office due to illness.
15. [C]laimant resolved the internet and cable issues and worked the remainder of the day.
16. At the end of her workday on September 17, 2010, [C]laimant left a resignation notice for [E]mployer indicating that she was resigning as a result of her dissatisfaction with the working conditions.
17. [E]mployer was unaware that [C]laimant had resigned until he received a call from his assistant on the morning of September 20, 2010, advising that [C]laimant had left a resignation notice.
18. [C]laimant admits that she did not address her dissatisfactions with [E]mployer prior to leaving because she knew [E]mployer would
have attempted to accommodate her and she was not interested in staying.(FOF ¶¶ 1-18.) The Board concluded that Claimant was ineligible for UC benefits because Claimant failed to sustain her burden of proving that she had necessitous and compelling reasons to quit. The Board reasoned that general dissatisfaction with one's working environment does not constitute a necessitous and compelling reason to quit. Moreover, the Board concluded that Claimant had failed to make reasonable efforts to preserve the employment relationship by addressing her concerns with Employer. (Board's Order at 3, R. Item 12.) Claimant now petitions this Court for review of the Board's Order.
This Court's scope of review "is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence." Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 961 A.2d 261, 263 n.2 (Pa. Cmwlth. 2008).
On appeal, Claimant first argues that the additional work responsibilities placed on her by Employer provided a necessitous and compelling reason to quit. At the time Claimant quit, Claimant alleges that she was working on approximately 200 bankruptcy petitions, as well as assisting Employer with his personal and professional finances. Secondly, Claimant argues that she had a necessitous and compelling reason to quit due to moral and ethical concerns with Employer's business practice of continuing to accept new clients and client monies without doing any work for these clients. Lastly, Claimant argues that certain findings of fact made by the Board are not supported by substantial evidence.
Section 402(b) of the Law provides that an employee is ineligible for UC benefits when her "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. § 802(b). A claimant who voluntarily terminates her employment has the burden of proving that the termination was for cause of a necessitous and compelling nature. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). A necessitous and compelling cause for unemployment "results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003). Whether a claimant had a necessitous and compelling reason to quit is a question of law subject to this Court's review. Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998).
We note, however, that this Court has previously recognized the necessity of distinguishing "those employees who merely find their work distasteful or who dislike their duties from employees whose work required them to do something wrong." Ayres v. Unemployment Compensation Board of Review, 598 A.2d 1083, 1087 (Pa. Cmwlth. 1991). Thus, it was the responsibility of the Board to determine whether Claimant voluntarily terminated her employment for subjective, personal reasons or whether there existed an objective justification which would support a finding of necessitous and compelling cause. Here, the Board specifically determined that Claimant resigned for personal and subjective reasons related to "[Claimant's] dissatisfaction with the working conditions." (FOF ¶ 16.)
The law is clear that the Board's findings of fact are "conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings." Taylor, 474 Pa. at 355, 378 A.2d at 831. Substantial evidence is defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). A claimant's belief that a different version of the events took place does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Moreover, a witness's testimony may provide substantial evidence to support a factual finding. See Holt v. Unemployment Compensation Board of Review, 840 A.2d 1071, 1072-73 (Pa. Cmwlth. 2004) (citing witnesses' testimony as substantial evidence for a finding of the Board).
A review of the record reveals that there is substantial evidence to support the Board's findings of fact. Here, the Board determined that Employer's testimony was more credible. The Board rejected Claimant's testimony that the additional work responsibilities constituted a necessitous and compelling reason to quit. (FOF ¶ 16.) As such, the Board concluded that Claimant failed to meet her burden. (Board's Order at 3.) Additionally, the Board concluded that Claimant failed to make reasonable efforts to preserve the employment relationship since Claimant failed to discuss her concerns with Employer prior to quitting. (FOF ¶¶ 17-18; Board's Order at 3.) This finding is supported by Claimant's testimony that she did not discuss her complaints with Employer on the day she quit because "[Claimant] wasn't prepared to go through two weeks of what [she] thought would be . . . a constant negotiation" with Employer. (Referee's Hr'g Tr. at 4.) The Board credited Employer's testimony that he had previously attempted to address Claimant's concerns regarding the workload by providing additional support and assistance. (Referee's Hr'g Tr. at 14-15.) Because the Board is the ultimate finder of fact and resolves "questions of credibility and evidentiary weight," Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981), this Court is required to uphold these findings when they are supported by substantial evidence.
Claimant also argues that she had a necessitous and compelling reason to quit due to her moral and ethical concerns with Employer's business practice of taking on additional clients without doing any of the work on these new cases. This Court has previously held that a claimant may have a necessitous and compelling reason to quit where the claimant is required to engage in tasks that violate legal or ethical standards of conduct. See Miller v. Unemployment Compensation Board of Review, 458 A.2d 334, 335 (Pa. Cmwlth. 1983) (reasoning that a violation of law, regulation, or professional ethics may constitute necessitous and compelling cause); Share v. Unemployment Compensation Board of Review, 512 A.2d 794, 795 (Pa. Cmwlth. 1986) (reasoning that job duties which negatively affect a claimant's personal and professional integrity may constitute necessitous and compelling cause).
Claimant's difficulty here is that her testimony before the Referee was of a general nature, although she did testify that she had some concerns regarding Employer's practice of continuing to accept new clients. (Referee's Hr'g Tr. at 5-6.) However, a reasonable inference from this testimony is that Claimant was concerned that the overwhelming backlog of cases would prevent any work from being done on these new cases, not that there were ethical issues. (FOF ¶ 11.) Claimant did not, in her testimony, describe her moral or ethical concerns when asked by the Referee why she quit. (Referee's Hr'g Tr. at 4-5.) Although Claimant made thorough arguments in her brief before this Court as to why she had necessitous and compelling reason to quit based on moral and ethical concerns, Claimant did not make these arguments at the hearing or adduce sufficient evidence to support them on review.
Lastly, Claimant argues that certain findings of fact made by the Board are not supported by substantial evidence. Claimant's argument essentially asks this Court to reject the Board's credibility determinations and to consider evidence not contained in the record. As previously mentioned, the Board is the exclusive arbiter of credibility determinations and such determinations are not subject to review by this Court. Freedom Valley, 436 A.2d at 1055. As a result, we cannot disturb the Board's determination that Employer's testimony was more credible than Claimant's testimony. Additionally, we note that our scope of review is limited to determining whether the Board's findings of facts 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). Here, Claimant seeks to strengthen her appeal by presenting additional evidence into the record through her brief before this Court. However, this evidence was not introduced by Claimant at the hearing and may not be considered now. Moreover, as the Board points out, there is substantial evidence in the record to support each of the challenged findings of fact. (Referee's Hr'g Tr. at 3-6, 14.) As a result, this Court must uphold these challenged findings of fact.
Specifically, Claimant argues that FOF ¶¶ 5, 6, 8, 10, 11, 13, 16, and 18 are not supported by substantial evidence.
Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990) (reasoning that this Court's appellate review is restricted to those facts certified in the record). --------
Taking all logical and reasonable inferences and viewing them in the light most favorable to the prevailing party, Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997), we must conclude that the testimony supports the Board's findings that Claimant's increased workload and dissatisfaction with her working conditions did not constitute necessitous and compelling cause to quit her employment. (FOF ¶¶ 11, 16; Board's Order at 3.) The Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 10, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge