Opinion
No. 785 C.D. 2012
11-19-2012
Avalon at Sharon, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Avalon at Sharon, Inc. (Employer) petitions for review of the Unemployment Compensation Board of Review's (Board) order granting unemployment compensation benefits to Charles Frankel (Claimant) because, due to reduced work hours, he was "unemployed" within the meaning of Sections 401 and 4(u) of the Unemployment Compensation Law (Law). For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§801 and 753(u). Section 401 of the Law provides, in relevant part, that "[c]ompensation shall be payable to any employe who is or becomes unemployed..." Section 4(u) provides, in relevant part:
An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to any week of less than full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly partial benefit rate plus his partial benefit credit. (Emphasis added).
Claimant has worked part-time for Employer since August 24, 2009, as a cart attendant during the summer and locker room attendant during the winter at a rate of $7.25 per hour. Employer scheduled Claimant to work three days per week scattered throughout the week at a variable number of hours per day. In the fall of 2010, Claimant asked Employer to schedule him for consecutive days rather than scattering his shifts throughout the week, and Employer granted his request. However, as a result of the scheduling changes, Claimant's work hours were reduced. Claimant lost another job and filed for benefits with the UC Service Center, which determined that the reduction in wages at his part-time job constituted "unemployment" within the meaning of Sections 401 and 4(u) of the Law. Employer appealed, contending that the reduction in hours was due solely to accommodating Claimant's request for a schedule change.
The UC Service Center found that Claimant established financial eligibility based in part on wages paid to him by a full-time employer and in part on wages paid by Employer. Claimant filed for benefits after losing his full-time position. (See January 30, 2012 Hearing Transcript at 5, 8).
Before the Referee, Claimant testified that he currently worked approximately 18 to 20 hours per week for Employer, but was available to work more hours if scheduled. Claimant stated that there was never a time that he was unavailable to work extra hours, and that he would always work extra hours if Employer needed him. Claimant further explained that unless he had a doctor's appointment, he never told Employer that he could not work certain days or certain hours.
Cynthia Shaffer (Shaffer), an administrative assistant for Employer, testified that Employer pays Claimant on a bi-weekly basis, and introduced a spreadsheet showing the number of hours Claimant worked during each two-week pay period in 2010 and 2011. Shaffer testified that from Employer's viewpoint, there was not a material change in Claimant's employment after his request for a scheduling accommodation.
Adam Schuster (Schuster), Employer's Golf Supervisor, testified that in the fall of 2010:
[Claimant] said that he would prefer to work a day or two and if I could, to make him say, a Monday, Tuesday or Tuesday, Wednesday back to back so that he could travel down to Pittsburgh and spend some time with his girlfriend and I was ok with that and I was scheduling back-to-back shifts.(January 30, 2012 Hearing Transcript at 16). Schuster testified that Claimant normally worked three days per week prior to making that request. He stated that he had more work available for Claimant and could have kept his schedule at three days per week, but reduced Claimant's work schedule to two days per week per Claimant's request. He also indicated that Claimant was always available to work whenever Employer needed him to. Finally, Schuster testified that from Employer's viewpoint, the reduction of one day per week in Claimant's schedule did not constitute a material change in Claimant's employment.
Because Claimant worked less than full-time hours and earned less than his weekly benefit amount plus partial benefit credit, the Referee concluded that he met the eligibility requirements set forth in Sections 401 and 4(u) of the Law and, accordingly, granted benefits. In his decision, the Referee, noting that Claimant worked an average of 24.27 hours per week from December 14, 2009, through September 18, 2010, and an average of 17.71 hours per week from September 19, 2010, through December 24, 2011, explained that "[E]mployer scheduled the claimant for two days per week, but there was no persuasive testimony or evidence that the claimant requested reduced hours." (February 1, 2012 Referee's Decision at 2). Employer appealed to the Board. Finding Claimant's testimony credible, the Board found that Claimant was available to work all hours Employer needed him to work. This appeal by Employer followed.
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Gusky v. Unemployment Compensation Board of Review, 51 A.3d 316, 318 n.5 (Pa. Cmwlth. 2012). --------
On appeal, Employer argues that the uncontroverted evidence shows that Claimant requested a reduction in his work schedule. In making that argument, it primarily relies on the following exchanges that took place between Claimant and Employer's counsel regarding Claimant's request for a scheduling accommodation:
[Employer's Counsel]: ...And isn't it a fact that you told [Employer] that you would prefer to work one or two days a week because you wanted to go down to Pittsburgh to be with your girlfriend? And let me - and I'll make it a compound question.(January 30, 2012 Hearing Transcript at 8, 10).
[Claimant]: Yeah.
[Employer's Counsel]: And didn't you request [Employer] to schedule you consecutive days to make it more convenient...
[Claimant]: Yeah.
[Employer's Counsel]: ...for you to be down there?
[Claimant]: I did ask [Employer] if it would be possible to work days in a row rather than work Saturday and then Friday. You know, I preferred them together. Yes, I did.
***
[Employer's Counsel]: But you - I guess the point I'm making is you did request [Employer] to change your hours so you could go to Pittsburgh to be with your girlfriend and to give you consecutive days; isn't that...
[Claimant]: Yeah.
[Employer's Counsel]: ...correct?
[Claimant]: Yes.
However, because of the way the questions are framed and the Board's findings, this testimony does not establish that Claimant asked for his hours to be reduced.
As to the probity of the testimony itself, in the first portion of that testimony, because of the manner in which Employer's counsel phrased the question, it is unclear whether Claimant was responding affirmatively when asked whether he requested a reduction in hours. In the concluding portion of Claimant's cross-examination testimony, he merely confirmed that he requested a change in his work hours, not a reduction in those hours. Even assuming Claimant was testifying that he did request a reduction in his work schedule, that testimony would directly conflict with his direct testimony that he was available to work more hours and that he never told Employer that he could not work certain days or certain hours. Resolving that conflict, the Board, apparently believing that Claimant was confused, specifically found Claimant not credible to the extent that he testified that he agreed that he asked to have his hours reduced, but found credible Claimant's testimony that he was available to work all hours Employer needed him to work. Because the Board is the ultimate factfinder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses, Ross v. Unemployment Compensation Board of Review, 861 A.2d 1019, 1022 (Pa. Cmwlth. 2004), accepting Claimant's direct testimony on that issue over his cross-examination responses was well within the Board's discretion.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 19th day of November, 2012, the order of the Unemployment Compensation Board of Review, dated April 4, 2012, at No. B-533384, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge