Opinion
No. 1512 C.D. 2012
06-04-2013
Sean C. Giosso, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Sean C. Giosso (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision, which, in part, denied Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), relating to voluntary separation without cause of a necessitous and compelling nature. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant filed for unemployment compensation benefits after voluntarily quitting his position as a dock worker with Nardella, Inc. (Employer). The Philadelphia UC Service Center (Service Center) issued a determination finding Claimant ineligible for benefits under Section 402(b) of the Law but eligible for benefits under Section 401(d)(1) of the Law. (Certified Record (C.R.), Item No. 4.) The Service Center explained that where a claimant is ruled both eligible and ineligible for benefits under different sections of the Law, the disqualifying section takes precedence over the eligibility section, and, therefore, Claimant was ineligible for benefits. Claimant appealed the determination, and a Referee conducted an evidentiary hearing.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Section 401(d)(1) of the Law provides:
Compensation shall be payable to any employe who is or becomes unemployed and who [i]s able to work and available for suitable work. . . .
At the hearing before the Referee, Claimant testified on his own behalf. Employer introduced the testimony of John Durante, Employer's president, and the testimony of Judith McDonald, whose job involves human resources for Employer.
Claimant testified that he quit his employment with Employer on February 21, 2012, due to health problems relating to deafness. (C.R., Item No. 12 at 5, 7-8.) Claimant introduced an audiogram from August 2011, indicating that he has no functional hearing in his left ear and mild to moderate hearing loss in his right ear, particularly at low frequencies. (Id. at 8.) Claimant testified that his hearing has gotten progressively worse over time. (Id. at 9.) In fact, between 2005 and August 2011, measurements of his speech discrimination in his right ear decreased from 75% to 60%. (Id.)
Claimant testified that his workplace is noisy. (Id.) He explained that he recently changed positions with Employer, and he now works in a gigantic warehouse freezer, which he described as having 200-250 "giant air conditioner freezers that are constantly on." (Id. at 10.) Claimant testified that Employer was aware of his hearing loss and never offered any accommodations. (Id.) Claimant explained that no medical or surgical treatment is available for his hearing loss. (Id.) He claimed that he tried wearing earplugs, but Employer (through his immediate supervisor) gave him a hard time about it. (Id.) He testified that Employer said that the use of earplugs would present a health hazard to customers because Claimant would not be able to hear customers coming into his work area. (Id.) Claimant denied that Employer ever offered him any type of accommodation that would allow him to work in a less noisy environment. (Id.)
When asked whether he gave any notice of resignation to Employer, Claimant testified that as follows:
C: Yes I did.(Id. at 11.)
CL: What did you tell him?
C: I went up to Mr. Durante, and I said I'd like to put my two-week notice in due to health reasons. I was just getting ready to tell him. He said very well, very well and pretty much shoved me off.
CL: Were you allowed to fully explain to him the reasons why you were quitting?
C: I was allowed to. I was going to tell him but I didn't get the opportunity.
When questioned on cross-examination about his audiogram from 2005, which was performed approximately six months after he began working for Employer, Claimant testified that he did not speak with Mr. Durante or Ms. McDonald regarding his hearing problem nor did he present a doctor's note stating that he should avoid high levels of noise. (Id. at 11.) Claimant testified, however, that he did tell Jim Baldwin (his supervisor) and that he disclosed his hearing loss on his employment application. (Id.) As to his audiogram performed in August of 2011, Claimant testified that he did not provide Mr. Durante or Ms. McDonald with a copy of the report or a doctor's note informing of his increased hearing loss. (Id.) On re-direct examination, Claimant testified that his direct supervisor was aware of his hearing problem and that everyone at Employer's was aware that he was deaf in one ear. (Id. at 12-13.) On re-cross-examination, when presented with a copy of his employment application, which did not mention a hearing problem, Claimant testified that there was another sheet that he had completed as part of his application. (Id. at 16.)
Ms. McDonald testified that she has worked for Employer for 25 years, maintains employee files and prepares payroll, and that she had no idea that Claimant had a hearing issue. (Id. at 17.) She further testified that when Claimant picked up his paycheck, he told her that he was going to become an electrician and bartender. (Id. at 18.)
Mr. Durante, who himself suffers from hearing loss, testified that he did not know that Claimant was deaf in one ear, but he did know "that he was a little hard of hearing in one of his ears." (Id. at 19.) Mr. Durante testified that he has been with Employer for 30 years and that he has never been unavailable for an employee. (Id.) He testified that when Claimant gave him his two week notice, he wished Claimant the best of luck. (Id.) Mr. Durante testified that had Claimant asked to speak with him regarding an issue, he would have done so and attempted to make an accommodation. (Id.) Mr. Durante described a situation where he made an accommodation for another employee. (Id.) When Employer received notice that Claimant applied for unemployment compensation, Mr. Durante did not understand why, particularly because Employer had a position for him. (Id.) On cross-examination, Mr. Durante testified that had Claimant come to him regarding the hearing loss concerns, he could have reassigned him to another job in order to reduce his exposure to noise. (Id. at 21.) Mr. Durante identified two specific jobs that would have been available had he known of the problem. (Id.)
Following the hearing, the Referee issued a decision and order, affirming the determination of the Service Center, thereby resulting in Claimant's ineligibility for benefits under Section 402(b) of the Law. (C.R., Item No. 13.)
Claimant appealed to the Board, and the Board affirmed the Referee's decision and order. In so doing, the Board issued the following findings of fact:
1. The claimant was last employed as a full time dock worker by Nardella, Inc. from April 7, 2005 at a final rate of $16.00 per hour and his last day of work was February 21, 2012.(C.R., Item No. 16.) The Board reasoned:
2. The claimant is deaf in his left ear and has hearing loss in his right ear.
3. The claimant saw his hearing specialist in October 2005 and again in August 2011.
4. The employer's president knew that the claimant had some hearing loss.
5. The claimant provided the employer with two-week notice and quit his job on February 21, 2012 for unspecified "health reasons."
6. The claimant did not request an accommodation for his hearing loss near the time he quit.
While the employer's president was aware that the claimant had some hearing loss, the claimant admitted that he did not connect his hearing loss with his reasons for quitting for unspecified "health reasons." With the employer not fully apprised of the reason for the claimant quitting, it was denied the opportunity to offer an accommodation.(Id.) Based upon its factual findings and the reason set forth above, the Board concluded that Claimant was ineligible for benefits pursuant to Section 402(b) of the Law. Claimant then filed the subject petition for review with this Court.
On appeal, Claimant argues the Board's findings of fact are not supported by substantial evidence of record. Claimant also argues that the Board committed an error of law by concluding that Claimant did not prove a necessitous and compelling reason to voluntarily terminate his employment.
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.
By letter dated January 31, 2013, the Board informed the Court that it would not be filing a brief in this matter. --------
First, we will address whether substantial evidence exists to support the Board's findings. Although findings of fact made by the Board that are not specifically challenged generally are conclusive upon review, Salamak v. Unemployment Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985), Claimant's petition for review and brief may be interpreted as challenging whether substantial evidence exists to support finding of fact number 5, to the extent that it finds that Claimant quit his job for "unspecified 'health reasons,'" (C.R., Item No. 16, Finding of Fact (FF) no. 5.) Claimant appears to argue that finding of fact number 5 is not supported because Employer was aware of Claimant's hearing loss and Claimant informed Mr. Durante that his resignation was due to a health reason, specifically the hazards with his ears. (Petitioner's brief at 11.)
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
In the case at hand, Claimant himself testified that he told Mr. Durante that he would like to put in his two-week notice due to "health reasons," but that he did not explain anything further to Mr. Durante. (C.R., Item No. 12 at 11.) Claimant's testimony, when considered in conjunction with the testimony of Ms. McDonald and Mr. Durante that they were unaware that Claimant's resignation was based on hearing problems, as summarized above, constitutes substantial evidence to support the Board's finding that Claimant quit for "unspecified 'health reasons.'" (See C.R., Item No. 16, FF no. 5.)
Moreover, we note that Claimant is essentially asking this Court to reweigh the evidence in his favor and find Employer's testimony not credible that it did not know that Claimant's resignation was due to health concerns relating to his hearing problems. This we cannot do. In an unemployment case, it is well settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). Questions of credibility are not subject to re-evaluation on judicial review. Id. at 275-76, 501 A.2d at 1388. Here, the Board accepted Employer's testimony that it was unaware of the reason for Claimant's resignation. The fact that Claimant may view the evidence differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings. Tapco, 650 A.2d at 1108-09.
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 her employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
To establish health problems as a reason to quit, the claimant must offer competent testimony that adequate health reasons existed to justify the voluntary termination, have informed the employer of the health problems, and be available to work if reasonable accommodations can be made. Ann Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010). Failure to meet any of these criteria bars a claimant from unemployment compensation. Lee Hospital v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1998).
In the case at hand, because the Board found that Claimant did not specify the health reason necessitating the voluntary quit, the Board properly concluded that Claimant did not fully apprise or inform Employer of his health problems. As a result, the Board did not err in concluding that Claimant failed to prove that he voluntarily resigned his employment for cause of a necessitous and compelling nature.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 4th day of June, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge