Opinion
No. 1519 C.D. 2011
02-08-2012
Sharon M. Duncan, 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 SENIOR JUDGE COLINS
Sharon M. Duncan (Claimant), pro se, petitions for review of the July 25, 2011 decision of the Unemployment Compensation Board of Review (Board). The Unemployment Compensation Service Center initially determined that Claimant was eligible for benefits, but the Referee reversed following a hearing. The Referee found that Claimant is ineligible under section 402(b) of the Unemployment Compensation Law (Law) for failing to sustain her burden of proof to show that her reasons for voluntarily quitting her job were of a necessitous and compelling nature. The Board affirmed the Referee. We affirm the Board for the below reasons.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
The facts as found by the Referee are that Claimant was employed at the Academy of Little Learners (Employer), a daycare facility, from December 2009 until January 14, 2011, when she voluntarily quit her job as full-time group supervisor. (R. Item 10, Referee's Decision, May 3, 2011, Findings of Fact (F.F.) ¶1.) On January 13, 2011, Employer's Director, who was Claimant's boss, instructed Claimant to give a tour of the facility to a parent who was searching for daycare services. (F.F. ¶4.) Director subsequently revised her instruction and told another staff member to give the tour. (F.F. ¶5.) Claimant was aware of the changed instructions, but chose to disregard them and gave the tour herself. (F.F. ¶6.) The next day, on January 14, 2011, the Director reprimanded Claimant for failing to follow her instruction. (F.F. ¶7.) Claimant yelled at the Director. (F.F. ¶8.) The owner of the facility heard Claimant yelling from another part of the building. (F.F. ¶9.) Claimant walked off the job for the stated reason of verbal abuse by the Director. (F.F. ¶10.) Although the Director had used profanities toward Claimant in the past, the last time any such incident had occurred was in August 2010. (F.F. ¶¶3-4.) The Director did not use profanity or abusive language during the January 14, 2011 incident. (R. Item 10, Referee's Decision at 2.) Based on these facts, the Referee concluded, and the Board affirmed, that Claimant had no necessitous and compelling reason for quitting her job on January 14, 2011. Claimant appealed.
Our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. 2 Pa.C.S. § 704; Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). Substantial evidence is that evidence which "a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached." Centennial Sch. Dist. v. Dep't of Educ., 503 A.2d 1090, 1093 n.1 (Pa. Cmwlth. 1986).
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 a cause of necessitous and compelling nature." 43 P.S. §802(b). A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005); Township of N. Huntingdon v. Unemployment Comp. Bd. of Review, 450 A.2d 768, 769 (Pa. Cmwlth. 1982) ("The employee seeking unemployment compensation benefits has the burden of proving the existence of a cause of a necessitous and compelling nature."). 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 her employment.Brunswick Hotel & Conference Center, LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006) (citing Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998)). "Whether a claimant had cause of a necessitous and compelling nature to quit a job is a conclusion of law subject to review by this Court." Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d 594, 596 (Pa. Cmwlth. 1997).
On appeal, Claimant contends that the Board erred because "there were other factors which led up to the Appellant [Claimant] quitting, other than the incident on January 13, 2011," which Claimant characterized at the hearing as only "the last straw." (Claimant's Brief at 6; R. Item 9, Transcript of Testimony before the Referee (T.T.) at 5.) Those other factors include: (1) a hostile work environment that the Director created by using profane language and yelling uncontrollably at Claimant and other employees; (2) an unsuitable work environment due to alleged violations of Department of Public Welfare (DPW) regulations applying to daycare facilities; and (3) a change in work conditions and compensation that Employer allegedly promised to Claimant.
The Board raises a threshold legal argument that "Claimant has waived all issues by failing to properly argue them in her brief." (Board's Brief at 5-6.) We disagree. Claimant's brief contains each of the enumerated sections that Rule of Appellate Procedure 2111 requires. In any event, as Claimant is before us pro se, this Court may consider the merits of an appeal where defects in the brief do not preclude meaningful review, as is the case here. Russell v. Unemployment Comp. Bd. of Review, 812 A.2d 780, 784 n.3 (Pa. Cmwlth. 2002) ("In the present case the Court can discern the argument raised by [pro se claimant], and it deems review to be possible.").
Regarding alleged changes in Claimant's conditions of work and compensation, our review of the record, including the hearing transcript, reveals that Claimant has never before raised this issue. Accordingly, Claimant waived the issue. Pa.R.A.P. 1551(a); Westmoreland County v. Pa. Labor Relations Bd., 991 A.2d 976, 987 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 17 A.3d 1256 (2011).
In response, the Board argues that Claimant is merely rehashing her version of the facts that the Referee rejected, and that the Board's findings are supported by substantial evidence and are, as a result, conclusive on review.
We affirm the Board's decision. Pennsylvania courts have found that profanity in the workplace, abusive conduct, and unjust accusations represent adequate justification to terminate one's employment and that the claimant need not be subjected to such conduct or language indefinitely. Porco v. Unemployment Comp. Bd. of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003) (citing Electrical Reactance Corp. v. Unemployment Comp. Bd. of Review, 82 A.2d 277 (Pa. Super. 1951)). However, the question is not whether such an environment existed, but whether the claimant meets her burden of proof to establish that a necessitous and compelling reason existed and actually caused the claimant to voluntarily leave work. See id.; Brunswick Hotel, 906 A.2d at 660. For example, in Porco, we found against the claimant even though he had established that he was "routinely subjected to abusive conduct and profanity" from his manager, because the claimant failed to fulfill his burden of attempting to resolve issues with the employer before quitting. Porco, 828 A.2d at 428-29.
Here, the Referee accepted Claimant's testimony that the Director had verbally abused her in the past. (F.F. ¶2.) The Referee ruled against Claimant, however, because the alleged hostile workplace was not the reason for Claimant's decision to walk off the job on January 14, 2011 (R. Item 10, Referee's Decision at 2). In other words, the Referee found that Claimant's stated reason for voluntarily quitting her job, i.e., verbal abuse by the Director, was not credible because the Director had not verbally abused Claimant for over four months and because Claimant admitted that the Director did not use any abusive or profane language during the January, 14 2011 incident. The Referee concluded that the actual reason for Claimant's decision to quit on that day was her dissatisfaction with her Employer's management decisions, which is not a necessitous and compelling reason for voluntarily quitting a job.
Although the Referee found that the Director used abusive language toward Claimant in August 2010 (F.F. ¶2), Claimant testified regarding "the Director's verbal abuse in front of [her], and in front of the children and [the] other staff members" and that such abuse occurred "constantly." (T.T. at 11, 19.) Claimant's testimony regarding the Director's conduct was not contradicted at the hearing. The Employer's Owner (Director's husband) rebutted all of Claimant's testimony regarding alleged rule violations at the daycare, but according to his own testimony, the Owner worked at the facility only in the morning (T.T. at 20) and he would not have been present to witness Director's behavior. The Director did not testify. Nevertheless, establishing that the employer used profane and abusive language does not, per se, permit an employee to walk off the job and collect unemployment benefits. See Porco, 828 A.2d at 428-29 (finding against claimant even though he had clearly established the existence of a hostile work environment). Claimant must also show that the employer's conduct was the actual reason that caused her to voluntarily leave her job, which she failed to do. --------
We find the Referee's decision is supported by substantial evidence and is not erroneous as a matter of law. Claimant testified that, on the day of the incident, the Director did not use any profane or abusive language, which supports the Referee's determination that verbal abuse was not the reason for Claimant's decision to quit. (T.T. at 5.) Claimant also testified that she was aware that the Director had instructed another employee to give a tour of the facility, but disregarded that instruction (T.T. at 5), which supports the Referee's determination that the actual reason Claimant quit was because she simply did not like her Employer's management decisions. Although Claimant contends on appeal that the litany of alleged DPW violations she described during the hearing constitute a separate necessitous and compelling reason for her decision to voluntarily leave her job, it also supports the Referee's finding that Claimant's real reason for quitting was dissatisfaction with her employer's management decisions.
In summary, this case hinges on a credibility determination of Claimant's conflicting testimony regarding the reasons she decided to voluntarily leave her job with Employer. The Referee, whose findings and conclusions the Board adopted in their entirety, found that Claimant's stated reason for leaving her job was not credible and we cannot overturn that credibility determination on appeal. Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). Accordingly, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of February, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge