Opinion
No. 1063 C.D. 2012
03-28-2013
David S. Krouse, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
David S. Krouse, Jr., (Claimant) petitions for review of the May 9, 2012 order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee that Claimant was ineligible for unemployment compensation (UC) benefits under section 402(b) of the Unemployment Compensation Law (Law), Emergency Unemployment Compensation (EUC) benefits under section 4001(b) of Title IV of the Supplemental Appropriation Act of 2008 (EUC Act), and Federal Additional Compensation (FAC) benefits under section 2002(f) of Title II of the American Recovery and Reinvestment Act of 2009 (ARRA). The Board also affirmed the referee's decision to assess a recoupable fraud overpayment of EUC and FAC benefits under section 4005(a), (b), and (c) of the EUC Act.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Pursuant to section 402(b) of the Law, an individual is ineligible for unemployment compensation benefits if his unemployment is due to voluntarily leaving work without cause of necessitous and compelling nature. 43 P.S. §802(b).
Pub.L. 110-252, 122 Stat. 2323, §4001(b), 26 U.S.C. §3304 Note. Section 4001(b)(1) of the EUC Act provides that a "State agency ... will make payments of [EUC benefits] to individuals who-- (1) have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year...." Eligibility requirements for receipt of regular UC benefits must be met in order to receive EUC benefits. McKenna v. Unemployment Compensation Board of Review, 981 A.2d 415, 417 (Pa. Cmwlth. 2009).
Pub.L. No. 111-5, 123 Stat. 115, §2002(f), 26 U.S.C. §3304 Note. Section 2002(f) of the ARRA provides that "[t]he provisions of section 4005 of the [EUC Act] shall apply with respect to additional compensation (as described in subsection (b)(1)) to the same extent and in the same manner as in the case of [EUC benefits]."
Section 4005(a), (b), and (c) of the EUC Act, 26 U.S.C. §3304, provides, in pertinent part:
(a) In General. If an individual knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such a false statement or representation or of such nondisclosure such individual has received an amount of [EUC benefits] under this title to which such individual is not entitled, such individual --
(1) shall be ineligible for further [EUC benefits] under this title ....
(b) Repayment. In the case of individuals who have received amounts of [EUC benefits] under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such [EUC benefits] to the State agency, except that the State agency may waive such repayment if it determines that—
(1) the payment of such [EUC benefits] was without fault on the part of any such individual; and
(2) such repayment would be contrary to equity and good conscience.
(c) Recovery by State Agency.—
(1) In General. The State agency may recover the amount to be repaid, or any part thereof, by deductions from any [EUC benefits] payable to such individual under this title or from any unemployment compensation payable to such individual....
Claimant was employed as a driver/dock worker with ABF Freight Systems (Employer) from May 17, 2010, until his last day of work, June 1, 2010. The record does not include Claimant's application for benefits or indicate the manner in which he applied. Claimant received EUC benefits in the total amount of $8,064 during claim weeks ending June 5, 2010, through September 25, 2010, and FAC benefits in the total amount of $425 during claim weeks ending June 5, 2010, through September 18, 2010. (Referee's Findings of Fact Nos. 6-7.)
On December 1, 2011, Employer requested a relief of benefit charges and/or a determination on Claimant's eligibility, contending that Claimant voluntarily quit for personal reasons.
In a letter to Claimant dated December 14, 2011, the local service center stated that Claimant's eligibility was to be determined based on forms he submitted. Claimant testified at the hearing that the local service center instructed him not to complete the forms, and the record reflects that no such forms were included with the bureau documents that were considered by the referee. By notice dated and mailed December 30, 2011, the local service center determined that Claimant quit his job with Employer for unknown reasons and, consequently, failed to carry his burden of establishing a necessitous and compelling reason for voluntarily leaving his employment. In this notice, the local service center also determined that Claimant received a fraud overpayment of EUC and FAC benefits, finding that Claimant misrepresented the reason he was not working with Employer. Claimant appealed the local service center's determinations, asserting that he quit work because Employer reduced his hours and was told by the local service center not to complete the forms. A hearing was conducted before a referee on January 31, 2012. Employer provided notice that it would not attend the hearing, and Claimant was the only witness at the hearing.
Before the referee, Claimant testified that Employer's advertisement stated that the position would be for 20 hours a week. During an interview, Employer told Claimant that the position would be more than 20 hours, maybe as much as 40 hours, but Employer did not know for sure. When Claimant was hired, Employer stated that it would tell him at the end of each work day the hours he would be working the next day. Claimant said that shortly after he was hired, another employee of Employer returned to work from medical leave, and Employer placed Claimant "on-call" for approximately one week before his final day of employment on June 1, 2010. Once told that he was placed "on-call," Claimant informed Employer that he cannot be placed on-call because he loses cell phone reception a few miles outside of his residence. After Claimant was placed on-call, Employer did not call him "for days on end." Claimant testified that he worked for 36.32 hours the week before he quit, but only worked for 8 hours during the week he was on-call. (N.T. at 4-6.)
Claimant testified that the day before he quit, Employer called him while he was on-call. Claimant did not receive the calls, and Employer left three messages. According to Claimant, Employer left one "nasty" message, telling Claimant that it needed to get a hold of him and that if he cannot show up for work when he is supposed to, then his position will be terminated. Claimant stated that he went to work the next day, on June 1, 2010, "because [Employer] left the messages and turned in the keys." The referee asked Claimant if he quit due to Employer's messages, and Claimant responded, "Yeah," and then stated, "I told [Employer] prior - when [it] originally told me that I would be on-call, I told [Employer], .... I can't be on-call." The referee followed up with the question, "okay, so why quit," to which Claimant reiterated that he never agreed to be placed on-call and that Employer reduced his work hours. The referee next asked Claimant why he did not try to maintain employment with Employer and file for unemployment to make up the difference in hours, and Claimant stated: "If someone is going to call me and ... threaten my job because of a status that I wasn't even hired to do, I felt that it was time to go; look for another job." When asked why he was unemployed, Claimant responded: "Lack of work. On the unemployment compensation eligibility issues, under the voluntary quit section, there's due to unsuitable work and job not the same as what was anticipated." (N.T. at 5-7.)
By decision and order dated February 1, 2012, the referee concluded that Claimant failed to carry his burden of proving a necessitous and compelling reason for quitting work and that Claimant received a fraud overpayment of EUC and FAC benefits.
Specifically, the referee found that Claimant did not adduce sufficient evidence to establish that Employer unilaterally changed the terms and conditions of his employment; that Claimant's testimony that he quit because he was placed "on call" was not credible; and that as a matter of fact, Claimant quit because he received an inappropriate message from Employer. The referee further determined that Claimant received a fraud overpayment of EUC and FAC benefits, "given that the evidence of record ... indicated that he was unemployed due to lack of work when in essence [Claimant] had voluntarily terminated his employment." (Referee's Decision at 1-3.)
Claimant appealed to the Board, which affirmed the referee's decision. In its findings of fact, the Board found, in pertinent part, as follows:
2. When [Claimant] first began work, [Employer] would tell [Claimant] at the end of the shift when to report the next day.(Board's Findings of Fact Nos. 2-5, 8-9.)
3. One week prior to [Claimant] quitting, [Employer] told [Claimant] he would be on-call and it would call [Claimant] to tell him when to report to work.
4. On or about June 1, 2010, [Employer] tried calling [Claimant], but could not get him and left ... a message that if it could not get a hold of him it could not use him.
5. [Claimant] quit his employment because he was upset with the message which he deemed "nasty."
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8. When filing for benefits, [Claimant] reported that he was unemployed due to lack of work.
9. [Claimant] knowingly withheld the fact that he voluntarily quit his employment.
Based on these facts, the Board concluded that Claimant is ineligible for benefits pursuant to section 402(b) of the Law and that he received a fraud overpayment under section 405 of the EUC Act. In support of its decision, the Board offered the following rationale:
[Claimant] quit his employment alleging that it was not what he thought it would be when [Employer] changed him to on-call and/or ... reduced his work hours. [Claimant's] testimony is not credible. [Claimant] worked on-call for one week and did not quit until after [Employer] left a message that [Claimant] deemed "nasty." [Employer] telling [Claimant] that it needed to get a hold of him is not a
necessitous and compelling reason to quit available employment no matter how "nasty" [Claimant] felt the message was, nor is there any evidence that [Claimant] spoke to [Employer] about the message prior to quitting. [Claimant] has not carried his burden of proof.(Board's Decision at 2-3.)
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[Claimant also] acknowledged that, although he quit his employment, he reported to [the local service center] that he was unemployed due to lack of work. [Claimant's] assertion on appeal that he reported lack of work because of the reduced work hours is rejected. The Board finds that [Claimant] knowingly withheld material information in order to obtain benefits.
On appeal to this Court, Claimant argues that the Board capriciously disregarded his testimony that he terminated his employment because Employer placed him on-call and reduced his work hours. Claimant asserts that his testimony demonstrates that Employer imposed a substantial, unilateral change in the terms and conditions of his employment and, consequently, he established a necessitous and compelling reason to quit. In advancing this contention, Claimant acknowledges that the Board found that he quit as a result of the "nasty" message, but submits that the Board's finding "cannot stand independently" from his testimony that Employer placed him on-call and reduced his hours. (Claimant's brief at 14.)
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
In order to establish eligibility for benefits, a claimant who asserts that he left employment for a necessary and compelling reason has the burden of proving 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." Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 (Pa. Cmwlth. 2011). It is well-settled that a substantial, unilateral change in the terms and conditions of employment may furnish cause of a necessitous and compelling nature for leaving one's employment. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa.Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
In Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), our Supreme Court stated that the capricious disregard standard is an appropriate component of appellate review in every case in which it is raised. However, this Court has emphasized that a capricious disregard of the evidence occurs only when the Board willfully or deliberately ignores evidence that any reasonable person would have considered important. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). In other words, the Board's express consideration and rejection of evidence, by definition, is not a capricious disregard of that evidence. Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005); Christopher v. Workers' Compensation Appeal Board (Consolidation Coal Co.), 793 A.2d 991 (Pa. Cmwlth. 2002).
In addition, this Court is mindful that we cannot apply the capricious disregard standard of review in a manner that intrudes upon the Board's fact-finding role or its decision-making authority. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). In unemployment cases, the Board is the ultimate finder of fact, empowered to resolve conflicts in evidence, assess the credibility of witnesses, and determine the weight to be accorded evidence. Bell v. Unemployment Compensation Board of Review, 49 A.3d 49 (Pa. Cmwlth. 2012). As fact finder, the Board is free to accept or reject the testimony of any witness in whole or in part. Keystone Coca-Cola Bottling Corporation v. Unemployment Compensation Board of Review, 693 A.2d 637 (Pa. Cmwlth. 1997).
Here, the Board found as fact that Claimant quit because of the "nasty" message that he received from Employer, and this finding is supported by Claimant's testimony. Moreover, in making this finding of fact, the Board expressly considered Claimant's testimony that he quit because Employer changed him to on-call status and/or reduced his work hours and rejected this testimony as not credible. Because the Board expressly considered and rejected Claimant's testimony that he quit due to reduced hours and/or on-call status and properly exercised its discretion as fact finder to find that Claimant's real reason for quitting was Employer's message, we conclude that the Board did not capriciously disregard the evidence. Taliaferro; Johnson.
In relevant part, Claimant testified as follows:
[Referee]: So you went to work on June the 1 st?(N.T. at 5-6.)
[Claimant]: I went to work on June the 1st because [Employer] left the messages and turned in the keys.
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[Referee]: So you were turning in the keys because of the messages [Employer] left for you?
[Claimant]: Yeah....
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[Claimant]: If someone is going to like call me and like threaten my job because of a status that I wasn't even hired to do, I felt that it was time to go; look for another job.
Claimant also asserts that the Board's finding that he knowingly failed to disclose a material fact is not supported by substantial evidence. According to Claimant, the record is devoid of any evidence that he possessed "wrongful intent in reporting information" to the local service center. (Claimant's brief at 16).
The Board's findings of fact are binding on this Court where they are supported by substantial evidence, even if there is other contrary evidence. Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728 (Pa. Cmwlth. 2000). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 275, 501 A.2d 1383, 1387 (1985).
In Matvey v. Unemployment Compensation Board of Review, 531 A.2d 840 (Pa. Cmwlth. 1987), the claimant stated in her application for benefits that her unemployment was due to "lack of work." At the hearing, the claimant testified that after discussing her potential resignation with the employer and conveying certain requests, the employer ignored her requests and discharged her, hiring a replacement instead. The claimant also offered testimony to the effect that she intended to resign because she was dissatisfied with the way in which the owner's wife interfered with her job. On appeal, this Court concluded that substantial evidence supported the Board's finding that claimant quit and did so because the employer's wife annoyed her. Citing our decision in Warden v. Unemployment Compensation Board of Review, 454 A.2d 222 (Pa. Cmwlth. 1983), we concluded that by listing "lack of work" as the reason for being unemployed, the claimant made an intentional misrepresentation on her application for benefits. Therefore, this Court upheld the assessment of a fault payment under section 804(a) of the Law.
Similar to section 4005(a) of the EUC Act, section 804(a) of the Law mandates that a person is liable to repay unemployment compensation benefits if he received compensation "by reason of his fault," 43 P.S. §874(a). --------
Nearly identical to the situation in Matvey, Claimant informed the local service center that he was unemployed due to "lack of work." However, Claimant's own testimony supports the Board's finding that Claimant quit and did so because he was dissatisfied with Employer's message. Therefore, we conclude that the Board's finding that Claimant "knowingly" withheld material information is supported by substantial evidence.
For the above-stated reasons, we affirm the Board's order.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of March, 2013, the May 9, 2012 order of the Unemployment Compensation Board of Review is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge