Opinion
No. 969 C.D. 2013
01-23-2014
Aaliyah Zakat, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Aaliyah Zakat (Claimant) petitions pro se for review of the April 23, 2013 order of the Unemployment Compensation Board of Review (Board), which held that Claimant is ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). In relevant part, section 402(b) provides that an employee who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation.
Claimant was employed by the School District of Philadelphia (Employer) as a special education classroom assistant from August 2010 until November 3, 2012. In a November 9, 2012 letter to the school principal, Claimant stated that she was resigning her position due to "the unfortunate personal, private circumstances that surround my life." (Record Item No. 3.) Claimant applied for unemployment benefits, stating that she quit her position for personal reasons, specifically, due to "very personal safety issues involving unprosecuted criminals" who committed crimes against Claimant and her family. (Record Item No. 2.) In response to the bureau's request for information, Employer stated that Claimant did not discuss her situation with Employer or attempt to resolve her concerns prior to resigning. (Record Item No. 4.)
The local job center determined that Claimant quit due to personal safety issues but did not inform Employer of her reason for leaving and, therefore, was ineligible for benefits under section 402(b). Claimant appealed, and a referee held a hearing on February 7, 2013. Claimant, who was living out of state, submitted documents and testified by telephone; Employer did not participate in the hearing.
Claimant testified that she was forced to leave the state due to unsafe conditions involving unprosecuted criminals. She stated that crimes had been committed against her and her family, including insurance fraud, civil rights violations, sexual harassment, mail fraud, and mail tampering. Claimant testified that after she reported these crimes, she suffered retaliation, including sexual assault. Claimant stated that she observed more people than usual outside her home, cars with black-tinted windows sped up and almost hit her, and she felt like she was being followed. Claimant was involved in a motor vehicle accident in which she was rear-ended, and Claimant believed that this was retaliatory conduct because the other driver did not know his fiancee's telephone number. (Notes of Testimony (N.T.) at 8-12.)
Claimant also submitted into evidence numerous letters and faxes she sent to Employer and various law enforcement agencies expressing concern for her safety and citing unspecified crimes committed against her that she alleged were not properly investigated or prosecuted. (Record Item No. 11.) Claimant said that she met with a district attorney and reported these crimes, but he did not follow up with her and has not returned her call. (N.T. at 10.) Although the referee asked Claimant several times for more specific information, Claimant did not provide any details concerning the unsafe conditions which compelled her to flee from her home. Unfortunately, before Claimant could respond to the referee's final request for more specific information, her telephone was disconnected. (N.T. at 12-13.) The referee subsequently attempted to contact Claimant several times without success. (N.T. at 13-14.)
The referee determined that Claimant voluntarily quit her job citing unsafe conditions; accordingly, she was required to establish dangerous conditions that were real and not merely perceived to be dangerous. The referee concluded that Claimant failed to present competent evidence of any specific threats of harm, and therefore, he was constrained to hold that she was ineligible for benefits under section 402(b) of the Law.
Claimant appealed to the Board, which found that Claimant failed to offer sufficient credible testimony to support her contentions that she was in danger from unprosecuted individuals and had to leave her job. The Board concluded that Claimant failed to meet her burden of proving necessitous and compelling reason to quit her employment and affirmed the referee's decision. Claimant requested reconsideration, but her request was deemed denied by operation of law when the Board failed to act within the permissible time period. (Record Item No. 17.) Claimant now appeals to this Court.
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.
Under section 402(b) of the Law, a claimant who voluntarily quits her employment bears the burden of proving that she had necessitous and compelling reason for doing so. Yurack v. Unemployment Compensation Board of Review, 435 A.2d 663, 664 (Pa. Cmwlth. 1981). We have held that a reasonable fear for one's safety can constitute necessitous and compelling cause to voluntarily terminate employment. Howell v. Unemployment Compensation Board of Review, 501 A.2d 718, 719 (Pa. Cmwlth. 1985); Kama Corporation v. Unemployment Compensation Board of Review, 410 A.2d 974, 975 (Pa. Cmwlth. 1980); Hoy v. Unemployment Compensation Board of Review, 391 A.2d 1144, 1145 (Pa. Cmwlth. 1978). A person in physical peril need not wait until she is actually assaulted before she can establish necessitous and compelling reasons for quitting her job. Hoy. However, a claimant must demonstrate that the danger is real and not merely perceived as dangerous. Howell.
In Howell, the claimant was struck in the face by a coworker on June 23, 1983. The claimant informed her employer about the incident and the employer immediately discharged the other employee. The next day, the discharged employee gained access to the employer's premises and again struck the claimant in the face. On June 27, 1983, the claimant notified her employer that she was terminating her employment because she was afraid that she would be harassed further.
The referee determined that the claimant was eligible for benefits, but the Board reversed, reasoning that since the employer dismissed the other employee, the claimant had no reason to fear harassment and thus did not have a necessitous and compelling reason to quit her employment. On appeal to this Court, we reversed and held that the Board had ignored the fact that after the discharged employee was fired, the employee returned to the employer's workplace and again struck the claimant. We explained that the claimant's fear of physical harm and her consequent termination of employment were "dictated by the application of common sense and prudence to real, substantial and reasonable factors rather than facts which are imaginary, trifling or whimsical." Howell, 501 A.2d at 719.
Kama Corporation involved a claimant who voluntarily quit his job during a work stoppage. The claimant, a non-union laborer, testified that he was told by two union members that his knees would be broken with a baseball bat if he returned to work. He also testified that his car was vandalized the following day. The Board held that the claimant had necessitous and compelling cause to terminate his employment, and this Court agreed. We concluded that having been threatened and having sustained property damage, the claimant established that he reasonably responded to a substantial threat.
The claimants in Hoy were employed at a Sheetz Kwik Shopper in Blair County. During the winter months of 1976, two murder-robberies were committed in Blair County in retail stores similar to the Sheetz Kwik Shopper. On the evening of March 16, 1976, the claimants were advised by a policeman that the suspected murderer was believed to be in the area. The claimants contacted a supervisor about the police report, discussed the possibility of leaving work early, and were advised to use their discretion; the claimants closed the store at 10 p.m., two hours earlier than usual. The store's owner subsequently advised the claimants that they were never to close early without his permission; if they feared for their safety they were to contact him, lock the doors, and await the arrival of an armed guard. The claimants ultimately quit their jobs, asserting that the protection the employer offered was not adequate to assure their safety.
The Board found that the claimants were ineligible for benefits under section 402(b). On appeal, this Court reversed. Considering the nature of the potential crime, we concluded that claimants' conduct was reasonable and that, under those circumstances, it would be unreasonable to require the claimants to lock the door and stand by awaiting help. In reaching that decision, we stated that there was "no question that the circumstances arousing [the claimants'] concerns for their safety were real and substantial." Hoy, 391 A.2d at 1145.
In this case, Claimant asserts that she was forced to quit her job and flee from her home to escape danger posed by unprosecuted criminals, whose crimes against Claimant included sexual assault, theft, vehicular damage, and intentional emotional suffering. However, other than these mere assertions, Claimant offered no specific testimony or other evidence concerning the persons who threatened her safety or the nature of the alleged threats.
The Board concluded that Claimant did not present sufficient credible evidence to meet her burden of demonstrating necessitous and compelling reason to terminate her employment. It is well settled that in unemployment cases the Board is the ultimate fact-finder, empowered to assess the credibility of witnesses and the weight to be afforded evidence. Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). In making such determinations, the Board is free to reject the testimony of any witness, including testimony that is uncontradicted. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). Thus, we will not disturb the Board's credibility determinations on appeal. Doyle v. Unemployment Compensation Board of Review, 58 A.3d 1288, 1291 n.4 (Pa. Cmwlth. 2013). Because the Board did not credit Claimant's testimony, we are constrained to uphold the Board's determination that she did not establish necessitous and compelling cause to leave her employment and is ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 23rd day of January, 2014, the order of the Unemployment Compensation Board of Review, dated April 23, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge