Opinion
No. 1092 C.D. 2013
04-03-2014
Alvin Boney, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Alvin Boney (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed, as modified, an Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation 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. For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant filed for unemployment compensation benefits after he ceased employment with People's Emergency Medical Center (Employer) on January 24, 2013. The Lancaster UC Service Center (Service Center) issued a determination denying benefits to Claimant because he failed to show a necessitous and compelling reason for voluntarily terminating his employment. (Certified Record (C.R.), Item No. 4 at 1.) Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing.
During the hearing before the Referee, Claimant testified to the circumstances surrounding his separation from employment. He stated that his supervisor had informed him that he must stay late at work to complete a job and that he would receive no pay for doing so. (C.R., Item No. 8 at 12.) He said that he refused to work for no pay, so he left at 4:00 p.m., leaving his keys with his supervisor. (Id.) He did not return for work the next day, and he contended that he was discharged. (Id. at 5.) Employer's witness testified that Claimant was not asked to work for no pay and that he never told Claimant that he was discharged. (Id. at 9-10, 19-20.) Employer's witness stated that Claimant voluntarily resigned. (Id. at 5.)
Following the hearing, the Referee issued a decision, which affirmed, as modified, the Service Center's determination denying Claimant unemployment compensation benefits. (C.R., Item No. 9 at 3.) The Referee determined that Claimant had been discharged from his position, but that he had committed willful misconduct by refusing to comply with a reasonable supervisory order. (Id.) The Referee, therefore, concluded that Claimant was ineligible for benefits under Section 402(e) of the Law, relating to willful misconduct. (Id.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant appealed to the Board, which affirmed the Referee's decision with modification. (C.R., Item No. 11 at 3.) Contrary to the Referee's decision, the Board determined that Claimant had voluntarily resigned from employment and that he failed to show a necessitous and compelling reason for doing so. (Id.) The Board made the following findings of fact:
1. The claimant was last employed as a full-time maintenance technician by People's Emergency Work Center from February 19, 2007 at a final rate of $12.79 an hour and his last day of work was January 24, 2013.
2. On January 24, 2013, the claimant was scheduled to work from 8:00 a.m. to 4:00 p.m.
3. At 1:45 p.m., on January 24, 2013, the employer's maintenance supervisor became aware that an assignment, which was assigned earlier in the day, had not been completed.
4. The claimant was supposed to assist two other co-workers in covering the residents' rooms' windows with plastic because the temperature was below freezing.
5. The employer's maintenance supervisor asked the claimant and other employees why the work was not completed.
6. The claimant responded that it was not his responsibility.
7. The employer's maintenance supervisor informed the claimant that the work needed to be completed because it was for the safety and health of the residents, and that no one was able to leave before it was completed.
8. Approximately an hour later, the claimant contacted the maintenance supervisor and stated "I think I misunderstood what you said. Are you saying that I can't get any overtime."
9. The employer's maintenance supervisor informed the claimant that he would not get overtime.(Id. at 1-2.)
10. The claimant was not told that he would be "working off the clock" or that he would not have been paid because the job should have already been completed.
11. The claimant would not have been paid overtime, but still would have been paid for the time he stayed after 4:00 p.m.
12. Approximately thirty minutes later, the claimant called the maintenance supervisor and stated "you might as well terminate me now because I'm leaving." The claimant further stated that he was leaving at his regular time.
13. In the maintenance supervisor's office, the claimant asked the maintenance supervisor if he wanted his keys and phone. The maintenance supervisor told the claimant to put them on the table and the claimant left.
14. Two co-workers of the claimant finished the job at 10:00 p.m.
15. The claimant did not report for work on January 25, 2013.
16. The claimant voluntary quit based upon his allegation that he would not have been paid for staying past 4:00 p.m.
The Board, in concluding that Claimant failed to prove that he had cause of a necessitous and compelling nature to leave his employment, reasoned:
Because the claimant's sole reasons for not staying beyond 4:00 p.m. was based on his contention that he would not be paid, and because the employer credibly testified that the claimant would have been paid, the
Board determines that the claimant did not have good cause for voluntarily leaving his position.(Id. at 3.)
On appeal, Claimant essentially argues that the Board's finding that he was not instructed to "work off the clock" is not supported by substantial evidence. Claimant also argues that the Board committed an error of law when it analyzed his claim under Section 402(b) of the Law, relating to voluntary termination of employment without cause of a necessitous and compelling nature, because it should have analyzed the matter under Section 402(e) of the Law, relating to discharge for willful misconduct. Alternatively, he appears to argue that the Board erred in concluding that he did not have a necessitous and compelling reason for his voluntary resignation.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
First, we will address Claimant's argument that substantial evidence does not exist to support the Board's finding that "[t]he claimant was not told that he would be 'working off the clock' or that he would not have been paid because the job should have already been completed." (Board opinion, Finding of Fact (F.F.) No. 10.) Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Claimant argues that substantial evidence of record does not exist to support the finding that "[t]he claimant was not told that he would be 'working off the clock' or that he would not have been paid because the job should have already been completed." (Board opinion, F.F. No. 10.) This finding was based upon the Board weighing contradictory witness testimony and finding the Employer's witness to be credible. (Id. at 3.) At the hearing before the Referee, Mr. Baker, Claimant's supervisor, testified that he did not tell Claimant that he would not be paid for hours worked after 4:00 p.m. (C.R., Item No. 8 at 19-20.) Although Claimant presented a different version of the facts, the Board was not required to credit his testimony. The Board has sole discretion to make credibility determinations and resolve evidentiary conflicts, and these determinations are not subject to judicial review. Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2012). Because Employer testified that Claimant was not informed that he would have to "work off the clock," there is substantial evidence of record to support the Board's finding.
Next, we will address Claimant's argument that the Board committed an error of law when it analyzed his claim under Section 402(b) of the Law, relating to voluntary termination of employment without cause of a necessitous and compelling nature, because it should have analyzed the matter under Section 402(e) of the Law, relating to willful misconduct. Whether a Claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to this Court's review and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). "It is a claimant's burden to prove that his separation from employment was a discharge." Id. at 412. If a claimant proves that he was discharged, then the burden to prove that the claimant was discharged for willful misconduct is on the employer. Id. at 412-13. If a claimant fails to prove that he was discharged, then the claimant has the burden to prove necessitous and compelling reasons for quitting. See Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). A finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave his employment. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). On the other hand, to be interpreted as a discharge, the employer's language must possess the immediacy and finality of a firing. Charles v. Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989).
In order to determine whether the Board properly determined that Section 402(b) of the Law applies to the instant matter, we must examine the findings of fact issued by the Board. The Board found that after Claimant was informed that he would not receive overtime pay but would be paid for hours worked after 4:00 p.m., he called his supervisor and stated "you might as well terminate me now because I'm leaving." (Board opinion, F.F. Nos. 11, 12.) Later that day Claimant asked the supervisor if he should return his keys and phone and the supervisor responded that he should leave them on the table in his office. (Id., F.F. No. 13.) Claimant did not return for work the following day. (Id., F.F. No. 15.) Claimant's failure to return to work coupled with his statement that Employer might as well terminate him demonstrates a conscious intention to terminate his employment. Thus, Claimant failed to meet his burden to prove that he was terminated.
Finally, we address Claimant's alternative argument that the Board erred in concluding that he did not have a necessitous and compelling reason for his voluntary resignation. Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court's review. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits his employment bears the burden of proving that necessitous and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 650, 794 A.2d 364 (1999). In order to establish cause of a necessitous and compelling nature, a claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like 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 her employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 265 (Pa. Cmwlth. 2008).
Claimant appears to argue in the alternative that he voluntarily resigned for necessitous and compelling reasons. He fails to expand on these reasons, however, in his brief. (Claimant's brief at 18.) The Board found that Claimant's "sole reason for not staying beyond 4:00 p.m. was based on his contention that he would not be paid." (Board opinion at 3.) As discussed above, the Board did not credit Claimant's testimony that he would not have been paid for his work had he stayed past 4:00 p.m. We agree with the Board, therefore, that Claimant failed to establish good cause for voluntarily resigning from his position.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 3rd day of April, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge