Opinion
No. 886 C.D. 2012
02-15-2013
Annette Micklesavage, 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 PRESIDENT JUDGE PELLEGRINI
Annette Micklesavage (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding her ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she did not have a necessitous and compelling reason for leaving her employment with The News Item (Employer). Finding no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Under Section 402(b) of the Law, an individual is not eligible 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). "Necessitous and compelling cause" occurs under circumstances where there is a real and substantial pressure to terminate one's employment that would compel a reasonable person to do so. See Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1030 (Pa. Cmwlth. 2010). A claimant in an unemployment case bears the burden of proving necessitous and compelling reasons for quitting. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must prove that she acted with ordinary common sense in quitting and made a reasonable, good faith effort to preserve the employment relationship. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996).
Claimant was employed as a full-time advertising salesperson for Employer but voluntarily terminated her employment because she was not making enough money. She filed for unemployment compensation benefits which were denied by Unemployment Compensation Service Center because she voluntarily left her employment; Claimant appealed.
Before the Referee, Claimant testified that she worked as an independent sales consultant for Employer from August 28, 2011, through December 27, 2011. She said her salary was $10 per hour, for a total of $400 per week, plus commission. When she applied for the position, she had another full-time job, at which she was making $16 per hour, and she left that position because she was told that she could attain her $32,000 yearly requirement after commission. After a month of employment, Claimant testified that she approached the director of advertising and told him she was not making enough money, and he lowered her advertising sales goals, making it easier to reach those goals and receive bonuses. Even with these lower sales goals, she testified that she only made approximately $1,800 per month, plus approximately $100 per month in reimbursement for her travel between her home and the office, which was roughly 40 miles each way. Finally, she said she understood that she was responsible for earning commission and meeting sales goals in her position.
Michael Joyce (Joyce), Employer's director of advertising, testified that Employer reduced Claimant's sales goals "[t]o have the proper goal set for the proper territory," (Hearing Transcript dated March 2, 2012, at 12), and that this would make it easier for Claimant to hit her sales goal and, in turn, get a bonus. He also testified Employer's other outside sales representative works on a salary plus commission basis, as well, and that Claimant's territory covered Employer's prime market, which has a bigger account base than the other territories.
The Referee found that Claimant was notified when she was hired that she would be paid $400 per week, or $10 per hour, plus commission, and that she understood at the time she was hired that her commission income "would be dependent upon the actual sales that she made in her normal territories of advertising." (Referee's Decision and Order dated March 2, 2012, at 1.) Although Claimant was dissatisfied that she was not earning what she had hoped, the Referee determined that Employer did not misrepresent the goals Claimant had to meet and that she failed to meet those goals in the four months she worked for Employer. The Referee also noted that Claimant was well aware that her position was commission-based and offered no guarantee as to her salary goals. For these reasons, the Referee determined that Claimant failed to establish a necessitous and compelling reason for voluntarily leaving her employment. Claimant appealed to the Board, which affirmed, and this appeal by Claimant followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were not supported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 376, 625 A.2d 622, 624 (1993). "Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001). Absent an error of law or showing of fraud, the decision of the Board must be affirmed. Borman v. Unemployment Compensation Board of Review, 316 A.2d 679, 680 (Pa. Cmwlth. 1974). --------
On appeal, Claimant argues that the Board erred in concluding that she failed to demonstrate a necessitous and compelling reason for leaving her employment because the job did not meet her monetary expectations. However, when she accepted the position she was aware that her base pay would be $10 per hour, plus commission, and that the commission income was dependent upon the actual sales she made. Claimant was not deceived as to her salary and testified that she understood that she was responsible for making commission and achieving the sales goals set for her. While she was unhappy with the advertising accounts she was given, this Court has repeatedly recognized that dissatisfaction with pay or work assignments is not sufficient to demonstrate a necessitous and compelling reason for a voluntary quit, and we have recognized that this principle extends to cases involving individuals receiving payment on a commission basis. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa. Cmwlth. 1995). See also World's Finest Chocolate v. Unemployment Compensation Board of Review, 616 A.2d 1114, 1117 (Pa. Cmwlth. 1992); Stiffler v. Unemployment Compensation Board of Review, 438 A.2d 1058, 1060 (Pa. Cmwlth. 1982).
Accordingly because the Board did not err in affirming the Referee's conclusion that Claimant did not have a necessitous and compelling reason for leaving her employment, its decision is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 15th day of February, 2013, the order of the Unemployment Compensation Board of Review, dated April 18, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge