Opinion
No. 913 C.D. 2011
03-14-2012
Raymond E. Allen, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Raymond E. Allen (Claimant), proceeding pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board), that affirmed the Unemployment Compensation Referee's (Referee) determination that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because Claimant voluntarily quit his employment 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). Section 402(b) of the Law provides that a claimant is ineligible for compensation if his unemployment is due to his voluntarily leaving employment without cause of a necessitous and compelling nature.
Claimant was employed with Ken Crest Services (Employer). In July 2010, Claimant was promoted to billing supervisor, a position that involved expanded responsibilities, increased hours, and the ability for Claimant to work from home. Claimant felt overwhelmed by the new position and experienced work-related stress that caused problems in his personal relationship. Although Employer was not dissatisfied with Claimant's work and Claimant was in good standing, Claimant voluntarily quit his position due to being overwhelmed by stress and October 25, 2010 was his last day of work. (Referee's Findings of Fact (FOF) ¶¶ 1-7.)
Claimant filed for UC benefits, which were denied by the local service center under Section 402(b) of the Law. Claimant appealed and, following a hearing at which Claimant and Employer's Supervisor (Supervisor) testified, the Referee affirmed. The Referee reasoned that Claimant could not establish that he had a necessitous and compelling reason for quitting because Claimant failed to preserve his employment when he did not inform Employer of the stress he was experiencing. The Referee concluded that Claimant's failure to communicate with Employer about his stress-related problems prevented Employer from having any opportunity to provide Claimant with an accommodation, such as a demotion to his former position. The Referee additionally determined that Claimant was able and available for other types of work that were not as stressful and, therefore, would be eligible for UC benefits under Section 401(d)(1) of the Law. However, the Referee concluded Claimant was ineligible for UC benefits pursuant to Section 402(b), noting that in situations where a claimant is ruled both eligible and ineligible under different sections of the Law, the disqualifying section of the Law takes precedence. (Referee's Decision/Order at 2.) Claimant then appealed to the Board which, after considering the entire matter, adopted and incorporated the Referee's findings of fact and conclusions of law, and affirmed the Referee's denial of UC benefits. (Board's Decision/Order.) Claimant filed a Petition for Review with this Court.
43 P.S. § 801(d)(1). Section 401(d)(1) of the Law provides that a claimant is eligible for compensation when able to work and available for suitable work.
On September 14, 2011, the Board filed an application for relief in the form of a Motion to Strike Claimant's Brief and Quash this Appeal. (Board's Motion to Strike.) The Board argued that Claimant: failed to preserve any issue within this Court's scope of review; sought only to argue facts that were not in the record; and did not include any citations to the law or the record in his brief. (Board's Motion to Strike, ¶¶ 4, 6-7.) On October 18, 2011, this Court issued an Order denying the Board's Motion to Strike after concluding that: Claimant did, in fact, raise issues concerning FOF ¶¶ 7, 8, and 9; and the defects in Claimant's brief did not preclude meaningful review. This Court entered the October 18th Order without prejudice to the Board to argue in its brief that other issues raised in Claimant's brief were not properly preserved. The Board continues to argue in its brief that, as a threshold matter, Claimant has waived all arguments raised in his Petition for Review when Claimant failed to argue any of those issues in his brief. Citing Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1988), the Board contends that "[i]t is not the court's role to become Claimant's counsel to clarify Claimant's arguments" or "[t]o require the Board to sift through the record trying to glean possible issues from . . . inadequate . . . argument," but "must include some indication of precisely where errors occurred and where the tribunal should focus its attention." (Board's Br. at 8, 10.)
Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010).
We note preliminarily that Claimant stated in his Petition for Review that the Board overlooked "[t]ransportation & discriminating comments," in objecting to the Board's decision. (Petition for Review at 1.) However, Claimant did not raise this argument with the Board and, as the Board correctly points out, he also does not present a legal argument about this in his brief. There is no evidence of the factual predicates to support these objections in the record. Our courts have been clear and have consistently held that "[n]o question shall be heard or considered by the court which was not raised before the government unit." Pa. R.A.P. 1551. An issue is waived if a claimant "failed to raise th[e] issue before the Board and attempts to assert it for the first time on appeal to this Court." Schneider v. Unemployment Compensation Board of Review, 523 A.2d 1202, 1204 (Pa. Cmwlth. 1987). See Wing v. Unemployment Compensation Board of Review, 436 A.2d 179, 181 (Pa. Cmwlth. 1981) (adopting the rationale for applying the waiver rule to UC cases). "We have repeatedly applied the waiver rule where an issue was not specifically raised before the Board." Merida, 543 A.2d at 596. The Supreme Court has stated:
Claimant's appeal to the Board stated only the following:
Reason for appeal(Petition for Appeal at 3.)
It is my intention to prove my employer not only knew about the amount of stress in my position, but was also participatory in creating an environment that lead [sic] to my breakdown. If I knew that is where the burden of proof lied, I would have been prepared to prove that at the referee hearing.
In the "Summary of Argument" section of his brief, Claimant states that he was having problems, in part, arising from "the loss of his vehicle" because public transportation required him to undergo "three transfers, two hours each way, resulting in a four hour commute." (Claimant's Br. at 7.) In the "Argument" section, Claimant merely lists "5b. Transportation Problems" but does not include any argument under that heading. (Claimant's Br. at 8.) Therefore, Claimant has waived these issues for failure to comply with the requirements of Chapter 21 of the Rules of Appellate Procedure. "[W]hen an issue is presented in a petitioner's petition for review, the issue is waived if it is not addressed in the petitioner's brief." Jackson v. Indiana University of Pennsylvania, 695 A.2d 980, 983 (Pa. Cmwlth. 1997). See also Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006) (quoting Pa. R.A.P. 1513(d)). These details about Claimant's transportation problems are not included in the evidence of record in this case, are therefore included inappropriately in Claimant's brief, and we cannot consider them. Additionally, Claimant does not present any argument in his brief to this Court regarding the issue of "discriminating comments" listed in his Petition for Review.
[T]he administrative law tribunal must be given the opportunity to correct its errors as early as possible; diligent preparation and effective advocacy before the tribunal must be encouraged by requiring the parties to develop complete records and advance all legal theories; and the finality of the lower tribunals' determinations must not be eroded by treating each determination as part of a sequence of piecemeal adjudications.Wing, 436 A.2d at 181. Claimant's appeal to the Board was based upon the argument that Employer "not only knew about the amount of stress in my position, but was also participatory in creating an environment that lead [sic] to my breakdown." (Petition for Review at 3.) This is the argument the Board considered when it concluded that the Referee's determination was proper. (Board Decision/Order.) Claimant did not present any argument to the Board regarding what he now refers to as "transportation and discriminating comments." Therefore, in accordance with Pennsylvania Rule of Appellate Procedure 1551 and case law, these arguments have been waived.
We, thus, address Claimant arguments that FOF ¶¶ 7, 8, and 9 are erroneous. FOF ¶¶ 7, 8, and 9 are as follows:
Notwithstanding this Court's Order of October 18, 2011 denying the Board's Motion to Strike, the Board continues to argue that Claimant has waived his arguments regarding FOF ¶¶ 7, 8, and 9; however, we will not reconsider our Order. We note that Rule 105 of the Rules of Appellate Procedure provides that "[t]hese rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable." Pa. R.A.P. 105. Additionally, Rule 2101 does not mandate that we quash or dismiss a case when a brief may contain technical defects not in compliance with Chapter 21 of the Rules, but permits this Court to exercise discretion whether to suppress defects or, if substantial, to quash or dismiss the appeal. Pa. R.A.P. 2101.
7. Claimant did not inform [E]mployer that the job was too stressful and overwhelming to him.(Referee's FOF ¶¶ 7-9.) We first examine the record to determine whether these findings are "supported by substantial evidence" and, therefore, "conclusive on review." Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994). Supervisor's uncontradicted testimony was that Claimant "did have two other staff . . . to assist him." (Referee's Hr'g Tr. at 8.) Supervisor also testified that "[i]f I really understood that it was really giving him a lot of stress, I would have taken his staff away and he would have retained his previous position because he was very good in his job." (Referee's Hr'g Tr. at 9.) This testimony supports FOF ¶¶ 8 and 9. When Claimant and Supervisor testified at the Referee's hearing, Claimant was asked whether he ever informed Employer that working from home on the new software was too much for him. Claimant responded that he "[d]id not," stating "it should have been obvious" and that he "ha[d] the type of personality where I don't want to disappoint an Employer." (Referee Hearing Tr. at 4-5) (emphasis added). Claimant additionally said that he "believe[d]" that the Employer knew that the job was becoming too stressful because of "[t]he amount of work that I was producing" and that "[he] and [Supervisor had] a heated discussion and meeting [on] my last day there right before my breakdown." (Referee Hr'g Tr. at 4, 6) (emphasis added). However, when the Referee repeatedly questioned Claimant about whether he had ever told Employer about the stress of Claimant's increased responsibilities in his new position, losing his car, and having a four hour per day commute on public transportation, Claimant contradicted his earlier response, stating:
8. Claimant had two other staff persons upon which he could delegate some duties but failed to do so.
9. If [C]laimant had informed [E]mployer of the problems he had with the new billing supervisor position, [E]mployer would have demoted [C]laimant to his former position.
Actually[,] I did. There w[ere] several different instances where every time someone would leave[,] I would inherit their work. And there w[ere] several instances where [Supervisor and] I had said that it was becoming too much. I can think of one right off the top of my head where that yes, that it was becoming too much. And I couldn't get this done and get that done and get this done. And then I was told well you have to delegate better. And then I was like well, I need good staff to delegate better and I just didn't have in place of short of doing everything all by myself, which I tried to do. I did have discussions with [Supervisor] about things that I thought w[h]ere it was becoming too much. And it wasn't that the overall job was becoming too much. It was every time they would give me additional tasks or additional things to do, is when it would come up well they needed to prioritize. If you want me to do this, I can't do this. It was that type of scenario where they knew that it was too much for me to handle.(Referee's Hr'g Tr. at 6-7.) After the Referee asked whether Claimant was ever disciplined for not getting everything done, Claimant replied, "No because I always get it done." (Referee's Hr'g Tr. at 7.) Then the Referee questioned how Employer would have any way of really knowing that Claimant couldn't get his work done when Claimant did not tell Employer because he just completed his work. In response, Claimant agreed, and said, "Part of my problem." (Referee's Hr'g Tr. at 7.) Supervisor testified that she was surprised when Claimant quit after she had requested a doctor's note when Claimant had called out for a couple of weeks, and then had a conversation before Claimant quit in which Claimant did not express that he felt overworked or stressed. (Referee's Hr'g Tr. at 7-8.) Supervisor explained that Claimant had prioritized his work so the most important things were done but when something remained unfinished, she would send it to someone else or was just aware that it wasn't done. (Referee's Hr'g Tr. at 8.) Supervisor also testified that she "[did not] feel that [Claimant] expressed to me that he was overworked in such manner that he was having a lot of stress about it." (Referee's Hr'g Tr. at 8.) Claimant added that he felt it was "[his] own fault for not speaking up" and that he has learned through therapy that "[he] should." (Referee's Hr'g Tr. at 8-9.) Thus, there is testimony in the record to support FOF ¶ 7 that "Claimant did not inform [E]mployer that the job was too stressful and overwhelming to him."
The law is clear that the Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight to be given [to] conflicting testimony are matters for" the Board as fact finder and not for a reviewing court. Freedom Valley Federal S & L Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). If the Board's findings are supported by substantial evidence, they are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978). Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). That Claimant may have provided "a different version of the events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, 650 A.2d at 1108-09.
The Board resolved all conflicts in the testimony in Employer's favor. Claimant's testimony that he did not inform Employer of his stress from his new position, and that it was "[p]art of [his] problem" that he would just get his work done without telling Employer about his stress so that Employer would not know there was an issue, in addition to Supervisor's testimony, are such relevant evidence which a reasonable mind would accept as adequate to support the Board's conclusion that Claimant did not inform Employer that he was overwhelmed by stress.
Claimant's argument is essentially that he quit work because of his stress at work and his "breakdown," which provide a necessitous or compelling cause and, thus, he should be eligible for benefits pursuant to Section 402(b) of the Law. Claimant, therefore, had the burden to prove: (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. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Whether Claimant had a necessitous and compelling reason to voluntarily quit is a question of law fully reviewable by this Court. Pacini v. Unemployment Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986.)
We conclude that the Board was correct that Claimant did not make a reasonable effort to preserve his employment when Claimant quit without giving Employer notice of his limitations that may have enabled Employer to demote Claimant to his former job in an effort to provide him with suitable work. There is no evidence that Claimant ever presented Employer with any medical evidence, communicated to Employer that his work was creating a medical problem, or that a medical problem was interfering with his work. Because Claimant did not make a reasonable effort to inform Employer of his specific difficulties, including any health issues, he "precluded Employer from the opportunity of accommodating h[is] situation." Fox v. Unemployment Compensation Board of Review, 522 A.2d 713, 716 (Pa. Cmwlth. 1987). Therefore, pursuant to Section 402(b) of the Law, Claimant has not met his burden to prove that he acted with ordinary common sense or made a reasonable effort to preserve his employment.
To the extent Claimant may be attempting to raise the argument that he had a "breakdown" justifying his voluntary quit under Section 402(b), Claimant has not met his burden of proof on this issue because he did not claim this as the reason for terminating his employment, did not testify to this as the reason, or provide medical proof. In fact, Supervisor testified that she requested a doctor's note but "did not get a response and then he quit." (Referee's Hr'g Tr. at 7.) --------
For the foregoing reasons, we are constrained to affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 14, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge