Opinion
No. 349 C.D. 2013
08-21-2013
Phyllis M. Brennan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Phyllis M. Brennan (Claimant), representing herself, petitions for review of the Unemployment Compensation Board of Review's (Board) decision to deny benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) on the grounds she voluntarily quit her employment without necessitous or compelling cause. Claimant contends the Board erred in determining she quit without necessary and compelling cause where the employer misrepresented the terms of employment, discriminated against her based on age and engaged in unfair labor practices. Additionally, Claimant asserts the Board erred in finding she failed to take reasonable steps to maintain her employment and in finding continuing work was available. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Claimant worked part-time as a Classified Sales Representative for South Philly Review (Employer) from 2008 until Claimant's last day of employment on August 15, 2012. Claimant subsequently applied for unemployment compensation benefits, which the local service center denied. Claimant appealed.
A referee held a hearing at which Claimant testified. James Stokes, Employer's Vice President (Employer's Witness), testified for Employer. The referee made the following findings.
Employer hired Claimant to work on a part-time basis. Employer did not promise Claimant a full-time position. Claimant became dissatisfied because she did not receive a promotion to a full-time position, which she believed she deserved. On August 15, 2012, Claimant voluntarily terminated her employment. Claimant did not inform Employer of her intention to quit if she did not receive a promotion to a full-time position. Continuing work was available to Claimant had she desired to remain employed. Referee's Op., 11/19/12, Findings of Fact Nos. 2-7.
Based on these findings, the referee determined Claimant voluntarily quit her employment, and he denied Claimant benefits pursuant to Section 402(b) of the Law. Claimant appealed to the Board.
The Board adopted the referee's findings of fact and conclusions of law and affirmed the referee's decision denying Claimant unemployment compensation benefits. Claimant appeals to this Court.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Spence v. Unemployment Comp. Bd. of Review, 29 A.3d 117 (Pa. Cmwlth. 2011). --------
On appeal, Claimant maintains the Board erred in finding Claimant's voluntary quit was not due to a necessary and compelling reason. Claimant argues Employer's misrepresentation of the terms of employment, age discrimination and unfair labor practices are necessary and compelling reasons to terminate employment. Specifically, Claimant asserts at her initial hiring and throughout her tenure she was promised she would be promoted to a full-time position. Claimant alleges Employer has a policy of hiring young people and passed Claimant over for a promotion because of her age. Claimant contends her less-than-minimum wage earnings and reduction in hours constitute unfair labor practices because she is unable to earn a living wage.
"It is well-settled that, in unemployment cases, the Board is the ultimate fact-finder, empowered to determine the credibility of witnesses and resolve conflicts in evidence." Spence v. Unemployment Comp. Bd. of Review, 29 A.3d 117, 118 (Pa. Cmwlth. 2011). Moreover, the appellate court reviews the case in the light most favorable to the party who prevailed before the Board, drawing all reasonable and logical inferences for that party to determine whether substantial evidence exists. Craighead-Jenkins v. Unemployment Comp. Bd. of Review, 796 A.2d 1031 (Pa. Cmwlth. 2002). "Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion." Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). If the Board's findings are supported by substantial evidence, they are conclusive on appeal. Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064 (Pa. Cmwlth. 2009).
Section 402(b) of the Law mandates a claimant is ineligible for compensation benefits for any week in which her unemployment is due to voluntarily leaving work without necessitous and compelling cause. 43 P.S. §802(b). It is the claimant's burden to show necessitous and compelling cause for terminating employment. Middletown.
To prove necessitous and compelling cause to terminate employment, a claimant must show: 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) claimant acted with ordinary common sense; and, 4) claimant made a reasonable effort to preserve her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). What constitutes a necessitous and compelling cause to voluntary terminate employment is a question of law subject to this Court's review. Id.
An employer's imposition of a substantial, unilateral change in the terms of employment may constitute a necessitous and compelling reason for an employee to terminate employment. Id.; see also McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003) (holding where an employer changes the age employees must reach before employees can receive health insurance benefits on retirement is a substantial change constituting a necessary and compelling cause to terminate employment). Moreover, a "[claimant's] charge of age discrimination, if supported by evidence in the record, would constitute a necessitous and compelling reason for leaving [her] employment." MacGregor v. Unemployment Compensation Bd. of Review, 415 A.2d 141, 142 (Pa. Cmwlth. 1980). A drastic reduction in hours may also constitute a necessary and compelling cause to terminate employment. Earnest v. Unemployment Comp. Bd. of Review, 30 A.3d 1249 (Pa. Cmwlth. 2011).
However, this Court holds that "mere discontent with wages, hours and working conditions is not adequate to cause a necessitous and compelling reason for an employee to quit." Brunswick, 906 A.2d at 663. Furthermore, if an employer acts reasonably and in good faith to modify specifications of employment, such modifications do not constitute a necessary and compelling cause to terminate employment. Radnor Twp. School Dist. v. Unemployment Comp. Bd. of Review, 580 A.2d 934 (Pa. Cmwlth. 1990). Failure to receive a desired promotion is not a necessitous and compelling reason to terminate employment. Neaus v. Unemployment Comp. Bd. of Review, 645 A.2d 356 (Pa. Cmwlth. 1994).
Here, Claimant's assertion that Employer misrepresented the terms of employment is unsupported by the record. Employer's Witness testified Employer hired Claimant for part-time work. Notes of Testimony (N.T.), 11/15/12, at 11. Although Claimant responded to an advertisement for full-time work, she accepted Employer's offer of part-time work. Certified Record (C.R.), Item No. 8 at 4. Claimant was aware of her employment conditions at the initial hiring, and acquiesced in those conditions for over four years. N.T. at 9. Claimant conceded Employer's offer letter referenced only part-time employment and contained no promise of future full-time employment. Id. at 8-9. Moreover, the "assurances" about which Claimant testified were "many implied promises" of full-time employment throughout her tenure. C.R., Item No. 13 at 3. However, other than Claimant's subjective beliefs, Claimant offered no evidence to support her claims. Claimant did not subpoena any witness or provide any documentation to corroborate her allegations. N.T. at 8. Therefore, Claimant's argument that Employer misrepresented the terms of employment is not reflected in the record.
Nor does the record support Claimant's allegation of age discrimination. Promotion of a more qualified employee does not, in itself, establish age discrimination. MacGregor. Employer's Witness testified the open positions to which Claimant referred were in a different department. N.T. at 11. The positions also required a different skill set than that required for Claimant's position. Id. Moreover, Employer's Witness testified Employer never passed Claimant over for any full-time position within her department. Id.
In addition, the only evidence Claimant offered to support her age discrimination argument is uncorroborated hearsay from a supervisor indicating Employer preferred to hire young employees because Employer could mold them to its way of doing sales. Id. at 5. Employer properly objected to the hearsay statement, which the referee noted. Id. "It has long been established in this Commonwealth that hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board, whether or not corroborated by other evidence." Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 377, 625 A.2d 622, 625 (1993) (emphasis in original). Thus, Claimant's assertion that Employer participated in age discrimination is unsupported by the record.
The record also contains no evidence of unfair labor practices. Claimant argues she was earning less than minimum wage and thus unable to earn a living wage. However, she testified her actual wages were "$6.25 an hour plus commission." N.T. at 4. Moreover, as to her commissions, Claimant stated her "sales achievements were often higher than the full-time personnel." Claimant's Br. at 11.
Claimant's assertion that Employer participated in unfair labor practices based on reduction in hours is equally unpersuasive. Although Employer reduced Claimant's hours from three full working days per week to two, it attempted to restore Claimant's hours; however, it could only restore a half-day because the summer is a slow business season. C.R., Item No. 2 at 4. Moreover, there is nothing in the record specifying Claimant's part-time hours. It cannot be said Employer acted unreasonably or in bad faith in reducing Claimant's hours. See Radnor. Therefore, the Board did not err in finding Claimant's reduction in hours was not an unfair labor practice.
Next, Claimant contends the Board erred in finding Claimant did not take reasonable steps to preserve her employment. Specifically, Claimant argues she should not be required to give Employer an ultimatum regarding her resignation.
If a claimant does not take "all necessary and reasonable steps to preserve the employment relationship, he or she has failed to meet the burden of demonstrating necessitous and compelling cause." PECO Energy Co. v. Unemployment Comp. Bd. of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996). This Court requires a claimant to inform the employer of unsuitability of working conditions prior to voluntary terminating employment to give the employer an opportunity to remedy the situation. See Blackwell v. Unemployment Comp. Bd. of Review, 555 A.2d 279 (Pa. Cmwlth. 1988). Moreover, speculation regarding future employment status cannot establish the required necessary and compelling cause to voluntarily terminate one's employment. Mansberger v. Unemployment Comp. Bd. of Review, 785 A.2d 126 (Pa. Cmwlth. 2001).
Here, Claimant did not take reasonable steps to maintain her employment. Claimant testified if she had been offered a full-time job, she would not have quit. N.T. at 4. However, Claimant did not convey this to Employer. Rather, she speculated, "I am sure that if I had stated that I was going to resign if I was not given full-time employment ... I would have been told to leave that day and been escorted from the premises." C.R., Item No. 13 at 4. Moreover, in Claimant's retirement letter, she did not express any dissatisfaction or make any attempt to preserve her employment. C.R., Item No. 3 at 2. Instead, she thanked Employer for its "many kindness" and stated her reason for resigning was "to pursue other interests." Id. Claimant also refused to complete an exit interview because "[she] felt uncomfortable stating the true reason for [her] leaving." C.R., Item No. 4 at 1. By failing to discuss her dissatisfaction with Employer and give Employer a fair opportunity to remedy the situation, Claimant failed to take reasonable steps to maintain her employment. Thus, the Board did not err in this regard.
Finally, Claimant argues the Board erred in finding continuing work was available. Claimant asserts unfair labor practices and age discrimination created an environment where Claimant was unable to continue working for Employer.
Contrary to Claimant's assertions, Employer's Witness provided credible testimony establishing continuing work was available to Claimant. N.T. at 10. Therefore, Claimant's contrary argument is unpersuasive, and the Board's findings are conclusive. See Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027 (Pa. Cmwlth. 2010) (holding where continuing work is available, a claimant is ineligible for unemployment compensation).
Accordingly, because the Board's findings are supported by substantial evidence and are in accordance with the law, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 21st day of August, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge