Opinion
No. 1457 C.D. 2014
04-15-2015
Thomasina DeFelice, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Thomasina DeFelice (Claimant) petitions pro se for review of the June 24, 2014 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to 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). Section 402(b) provides that an employee shall be ineligible for compensation for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant was employed by Berlin Packaging LLC (Employer) as a procurement specialist from February 1992 until her last day of work on January 31, 2014. (Finding of Fact No. 1.) The local job center determined that Claimant was ineligible for benefits under section 402(b) of the Law, and Claimant appealed. A referee held a hearing on March 26, 2014, at which Claimant was the only witness to testify. Employer did not participate in the hearing; Employer had requested a telephone hearing on March 25, 2014, but the request was denied due to insufficient notice. (Record Item No. 8.)
Claimant originally worked for another company, All-Pack, which was acquired by and merged with Employer in 2010. (Finding of Fact No. 2.) Claimant testified that after the merger there were numerous personnel changes, and many former All-Pack employees left Employer. Claimant stated that her job was secure due to its technical nature. (Notes of Testimony (N.T.) at 4.)
Claimant testified that her personal circumstances began to change in late 2013, as work she typically did was taken away and her interactions with staff and customers were curtailed by her immediate supervisor. (N.T. at 4-5.) Claimant testified: "My work [was] slowly being removed. I was asked not to interact with the sales force. I was asked not to get involved with any suppliers. . . . [My supervisor] kept eliminating everything I did." (N.T. at 4, 6.) Claimant stated that, "Berlin's management style was pressure, intimidation. Their rule was you work 24/7." (N.T. at 4.) Claimant said that she felt pressured and uncomfortable and she believed that her supervisors were intentionally making her life miserable in order to force her out. (N.T. at 6-7.)
Claimant testified that the situation came to a head when her supervisor asked her to move from her office, which had a window, to a cubicle farther back in the building, where it was darker and where Claimant would be alone. (N.T. at 5-7.) Claimant acknowledged that the request did not involve an increase in her responsibilities or workload. Claimant testified that after considering the request for three days, she told her supervisor she was "really stressed about moving to that cubicle." (N.T. at 5.) Claimant said she discussed this request and the resulting stress with another member of Employer's management team, Lee Ford. (N.T. at 5-6.) Claimant said she told Ford, "I don't understand, why do you want me to move to a cubicle? . . . It would really be bad for me." (N.T. at 5.) According to Claimant, Ford gave her until January 31st to vacate her office and move to the cubicle so he could use Claimant's office for other purposes. (N.T. at 7.) Claimant testified that the lighting was bad, the desk was old, and she felt that the move was undeserved. Claimant believed that she was forced to leave her employment "because [Ford] wanted [her] office." (N.T. at 7.)
By decision and order dated March 31, 2014, the referee found that Claimant was dissatisfied with changes that were occurring in the workplace, including the reassignment of some of her job duties. The referee further found that Claimant voluntary quit her employment because Employer wanted her to move to a dark cubicle, away from other employees, after she had worked in an office with a window for many years. (Findings of Fact Nos. 5-8.) Noting that dissatisfaction with reasonable changes in employment conditions is not considered good cause for termination, the referee determined that Employer's requirement that Claimant move to a cubicle was not unreasonable or so onerous as to compel a reasonable person to quit under the circumstances. The referee concluded that Claimant did not have a necessitous and compelling reason for leaving her employment, and, therefore, she was ineligible for benefits under section 402(b) of the Law.
Claimant appealed to the Board, which affirmed the referee's decision, adopting the referee's findings and conclusion. The Board also noted that Claimant's appeal discussed facts not included in the record before the referee, which the Board could not, and did not, consider in rendering its decision.
On appeal to this Court, Claimant contends that the Board erred in finding that she did not establish necessitous and compelling reason for leaving her employment.
Where, as here, the burdened party is the only party to present evidence and did not prevail before the Board, our scope of review on appeal is whether the Board committed an error of law or capriciously disregarded the evidence. Eby v. Unemployment Compensation Board of Review, 629 A.2d 176, 178 (Pa. Cmwlth. 1993). --------
Under section 402(b) of the Law, a claimant who voluntarily terminates her employment has the burden to demonstrate that she did so due to cause of a necessitous and compelling nature. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008). Whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). In order to show necessitous and compelling cause, the claimant must establish that: circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Id.
Claimant argues that the Board erred in determining that being asked to move to a cubicle was the sole reason she left her job. Claimant asserts that she was subject to bullying and intimidation due to her age, gender, and high salary, and that the resulting stress threatened her mental and physical health. Claimant maintains that these circumstances would compel a reasonable person using common sense to quit her job. Claimant also argues she made a reasonable effort to preserve her employment by offering to move to an empty office, to no avail.
We first note that in unemployment compensation proceedings, the Board is the ultimate fact-finder and is empowered to determine all matters of witness credibility and evidentiary weight. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). Findings made by the Board are conclusive on appeal if the record contains substantial evidence to support them. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). The Board is free to reject any testimony, even if it is uncontradicted. Russo. Additionally, where the burdened party presents evidence that, even if believed, is nonetheless insufficient as a matter of law to meet her evidentiary burden, she cannot prevail. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).
Claimant first asserts that being asked to move to a cubicle was not the sole reason she left her job. However, we conclude that the Board's finding to that effect is supported by Claimant's own testimony. According to Claimant, conditions at work began to change in 2010, and since then about eighty percent of her former coworkers have left the company. Claimant stated that her personal work situation began to change in the last quarter of 2013; some of her work was removed and she was asked not to interact with the sales force. (N.T. at 4.) Ultimately, however, Claimant acknowledged that her decision to leave her employment was due to Employer's insistence that she move from her office to a cubicle.
[Referee:] So the bottom line is you left because you were being asked to move to a cubicle instead of an office?(N.T. at 6.) After Claimant repeated her assertion that the elimination of her duties reflected that Employer was forcing her to retire, the referee asked Claimant again whether, "at the bottom [she] finally did resign just because of the cubicle?" Claimant responded, "Well . . . ." (Id.) Claimant testified that she was given until January 31st to move from her office to the cubicle and on that same day she left her employment. (N.T. at 7.)
[Claimant:] Right.
Mindful of our scope of review, we inquire only whether Claimant's testimony supports the finding that she left her employment because she was unhappy about being moved to a cubicle. The testimony cited above does support the Board's finding, which may not be disturbed on appeal. Kelly. Additionally, we do not consider Employer's motives for requesting that Claimant move to a different workplace. When an employer has changed a claimant's job duties, the analysis of a claimant's entitlement to benefits under section 402(b) focuses "on the impact that a change has upon [the claimant] and not the employer's reasons for making the change." Unangst v. Unemployment Compensation Board of Review, 690 A.2d 1305, 1307 (Pa. Cmwlth. 1997).
A substantial unilateral change in the terms and conditions of employment may furnish cause of a necessitous and compelling nature to justify a claimant's voluntary resignation from her employment. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 800 (Pa. Cmwlth. 1997). However, it is well settled that mere dissatisfaction with working conditions does not constitute cause of necessitous and compelling nature for terminating one's employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Additionally, an employer is entitled to reasonable modifications of employment specifications with regard to time, place, and manner. Radnor Township School District v. Unemployment Compensation Board of Review, 580 A.2d 934, 935 (Pa. Cmwlth. 1990); Kistler v. Unemployment Compensation Board of Review, 416 A.2d 594, 597 (Pa. Cmwlth. 1980).
[W]hen an employer hires an employee the employee is usually assigned to perform particular tasks in assigned places at assigned times, but the employer need not agree never to modify the tasks or the times or places where the tasks are to be performed. As long as the modifications are reasonable, the employee must abide by the employer's decision or risk being held ineligible for unemployment compensation benefits if he refuses.Id. Although Claimant was understandably unhappy about having to move from an office to a cubicle, she offered no reason for refusing Employer's directive other than her feeling that she did not deserve to be moved. Because Employer's change of Claimant's work location is not obviously unreasonable, we conclude that it is insufficient to establish necessitous and compelling cause for Claimant to leave her employment.
Claimant contends that she also was subject to bullying and intimidation and that the overall situation created stress which threatened her mental and physical welfare. However, before the referee, Claimant offered only these vague allegations, and she presented no testimony or other evidence indicating how the alleged stress affected her health and welfare. We conclude that even if the Board credited Claimant's testimony in this regard, that testimony is insufficient as a matter of law to establish that her work conditions had an adverse impact on her health. Kirkwood, 525 A.2d at 844.
Claimant's final argument is that she made a reasonable effort to preserve her employment by offering to move to a vacant office instead of a cubicle. However, Claimant did not attempt to work in the cubicle as Employer requested. As previously noted, Employer is entitled to reasonable modifications of employment conditions such as time, place, and manner, Kistler, and Claimant failed to demonstrate that Employer's request that she move to a cubicle was unreasonable.
For all of the foregoing reasons, the Board correctly determined that Claimant is ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 15th day of April, 2015, the order of the Unemployment Compensation Board of Review, dated June 24, 2014, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge