Summary
In McIntyre, the claimant worked on a ship, and his request to work a preferred shift was refused by the ship's captain.
Summary of this case from Huling v. Unemployment Comp. Bd. of ReviewOpinion
October 1, 1980.
Unemployment compensation — Racial discrimination — Voluntary termination of employment — Cause of a necessitous and compelling nature.
1. In an unemployment compensation case, racial discrimination, if clearly demonstrated, is regarded as sufficient cause for termination of employment. [143]
2. Where an unemployment compensation claimant has submitted no evidence to challenge the finding of the Unemployment Compensation Board of Review that an employer's seniority policy used to make work assignments is based upon tenure with the employer and not upon an employee's time aboard a particular vessel, the Board did not capriciously disregard competent evidence in concluding that claimant's voluntary termination was without cause of a necessitous and compelling nature, such as racial discrimination. [144]
Submitted on briefs September 8, 1980, to Judges WILKINSON, JR., ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 632 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Stanton McIntyre, No. B-169230.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Lydia Y. Kirkland, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Claimant Stanton McIntyre appeals from the decision of the Unemployment Compensation Board of Review (board), affirming the referee's decision that claimant was ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law, 43 P. S. § 802(b)(1), because he voluntarily terminated his employment with the Sun Transport Company (employer) without cause of a necessitous and compelling nature.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
Claimant worked for employer, a marine shipping company, for approximately one-and-a-half years, spending his last month-and-a-half aboard the Delaware Sun. Claimant testified that his request to work a preferred split shift on the ship was refused by the captain, so that he was required to remain on a daylight shift which entailed in part some undesirable duties — cleaning toilet bowls.
Claimant admits that he voluntarily terminated his employment on October 21, 1977, but he alleges that the shift change refusal was based on racial discrimination. Such discrimination, if clearly demonstrated, is sufficient cause for quitting. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
The record reveals no evidence of any racial references or racially motivated acts, other than claimant's allegation of discrimination in this solitary instance of assignment. As in Watts v. Unemployment Compensation Board of Review, 49 Pa. Commw. 279, 410 A.2d 976 (1980), "the incidents which the claimant has related really do not establish that he was unjustifiably singled out for, or that there was any racial animus behind, the allegedly differential treatment he claims to have received." 49 Pa. Commw. at 279, 410 A.2d at 978.
Moreover, claimant's failure to introduce such evidence is not relieved by his view that shift assignments were based on ship seniority. On the contrary, as the employer's representative testified and the board found, seniority is based upon tenure with the employer and not upon an employee's time aboard a particular vessel. Claimant has not successfully challenged that finding, nor does he assert that he was entitled to any preference under that policy.
Mindful as we are of the often subtle character of racial animus, we cannot hold on this record that the board capriciously disregarded competent evidence in concluding that claimant's voluntary termination was without cause of a necessitous and compelling nature.
Because the decision below was against claimant, who bears the burden of proving cause of a necessitous and compelling nature, our review is restricted to a determination of whether or not there has been a capricious disregard of competent evidence in that hearing. Watts, supra.
Accordingly, we will affirm.
ORDER
AND NOW, this 1st day of October, 1980, the order of the Unemployment Compensation Board of Review (B-78-1-P-859) dated February 26, 1979 is affirmed.