Opinion
No. 412 C.D. 2014
09-26-2014
Stanley S. Delozier, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Stanley S. Delozier (Claimant) petitions, pro se, for review of the January 30, 2014 order of the Unemployment Compensation Board of Review (Board) which held that Claimant is ineligible for benefits pursuant to section 402(a) 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(a). Section 402(a) of the Law provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to his failure, without good cause, to either apply for or accept suitable work offered to him by any employer.
Claimant last worked for Altoona Manpower (Employer), a staffing or placement agency, on March 31, 2012. (Notes of Testimony (N.T.) at 2, 4.) In January 2013, Employer contacted Claimant regarding a work assignment in State College, but Claimant, a resident of Pleasantville Mountain, Bedford County, stated that he did not want to travel to State College. (Finding of Fact (F.F.) No. 1; N.T. at 5-6.) On October 1, 2013, Employer contacted Claimant regarding a work assignment in Claysburg, Blair County, which is located approximately twenty minutes from Claimant's residence. (F.F. Nos. 2-3.) Claimant declined the work assignment, (F.F. No. 8), and Employer filed documentation with the local unemployment office, indicating that Claimant refused an offer of employment. (Record Item 3.)
On October 16, 2013, the local service center determined that Claimant was not ineligible for benefits under section 402(a) of the Law because Claimant had good cause for refusing the job offer, i.e., Claimant was not listed on Employer's active employee roster after Employer relocated to State College. (Record Item 6.) Employer appealed, and the referee convened a hearing.
At the hearing, Johnna Weston, a staffing specialist for Employer, testified that she called Claimant on October 1, 2013, and offered him a job in Claysburg for $8.00 an hour. Weston stated that she did not have the opportunity to explain the details of the job to Claimant because Claimant said that he would not work for $8.00 an hour, would not work for Employer again, and then hung up the phone. According to Weston, the job was a full-time, long-term, temp-to-hire position at a company called National Imprint. Weston explained that the job was located in a factory setting and entailed repacking envelopes that were in boxes, taking them out for inspection, putting the envelopes in other boxes, and then shrinkwrapping those boxes. Weston said that Claimant previously worked as an assembler in a factory on an assignment for Employer and that the shrinkwrapping job would be similar to that job. (N.T. at 2-4.)
Claimant testified that when Weston called him, he told her that he did not want to work for Employer. Claimant stated that he informed Weston that Employer previously contested his application for unemployment benefits, contending that he was fired and/or quit when, in fact, the company relocated, and a referee ultimately granted him benefits. Claimant also testified that he told Weston that he informed Employer over a year ago that he wanted off its schedule and employee list and requested that Employer not call him. Claimant said that he had maintained a full-time job at Green Earth Mechanics, LLC, for over a year (since he last worked for Employer) and would like to be recalled to that job. Claimant stated that after he provided Weston with this information, he asked her where the job is and how much does it pay; in response, Weston said she could not give Claimant this information because he had already refused the job. Claimant testified that he then ended the conversation. (N.T. at 4-5, 7.)
Upon questioning by the referee, Claimant said that if Weston explained to him the details of the job, he "probably" would have accepted it, but he was in the process of looking for other jobs in his own county. Claimant admitted that Claysburg is a twenty-minute drive from his home but reiterated that he told Employer that he wanted "off their roster." Claimant added that he was paid $10.00 an hour at his job at Green Earth Mechanics, LLC. (N.T. at 5-6.)
By decision mailed November 19, 2013, the referee found that Employer offered Claimant the shrinkwrapping job in Claysburg; Claimant refused the job before Employer could provide all of the details of the position; and Claimant declined the offer of employment because he has animosity toward Employer based upon his past experiences. (F.F. Nos. 3, 6, 8.) The referee found that Weston's testimony indicated that the offered job was suitable for Claimant and that Claimant failed to submit any competent evidence to establish that the position was not suitable for him or that he had good cause for failing or refusing to accept it. Accordingly, the referee determined that Claimant was ineligible for benefits under section 402(a) of the Law. (Referee's decision at 2.)
Claimant appealed, and the Board affirmed, adopting and incorporating the referee's findings and conclusions. (Board's decision at 1.)
On appeal to this Court, Claimant argues that he had good cause for refusing the offered job because he requested Employer to remove him from its contact list, he was waiting to be recalled to work at Green Earth Mechanics, LLC, and he was pursuing employment in his county through the Bedford County Careerlink.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
In pertinent part, section 402(a) of the Law provides that "[a]n employe shall be ineligible for compensation for any week . . . in which his unemployment is due to failure, without good cause . . . to accept suitable work when offered to him by the employment officer or by any employer . . . ." 43 P.S. §802(a).
When determining whether a claimant is ineligible for benefits under section 402(a), the issues of suitability of work and of good cause must be looked at separately; they are distinct concepts. Suitability of work and good cause are questions of law, and are subject to the review of this Court. The claimant bears the burden of proof on both issues.Rising v. Unemployment Compensation Board of Review, 621 A.2d 1152, 1153-54 (Pa. Cmwlth. 1993).
Section 4(t) of the Law defines suitable employment as "all work which the employe is capable of performing" and considers such factors as the claimant's physical fitness, prior training and experience, the distance of the work place from the residence, and the degree of risk that the job possesses to the claimant's health and safety. 43 P.S. §753(t). We have held that "[g]ood cause exists where a claimant maintains a real and substantial reason for refusing suitable work." Big Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492, 495 (Pa. Cmwlth. 2012).
Here, it was Claimant's burden to establish that the shrinkwrapping job was not suitable for him. On appeal, the only relevant argument Claimant presents concerns his testimony that he was looking for another job. However, Claimant had been receiving unemployment benefits for at least five months when Employer offered him the assignment in Claysburg. (Record Item 1, #8.) While an employee must have a reasonable opportunity to obtain other employment in the area of his customary trade or occupation, a period exceeding two months is unreasonable and insufficient to show that an offered job is not suitable. Rising, 621 A.2d at 1154 (concluding "that a period exceeding two months is an unreasonable allowance of time" to find a job commensurate with one's experience). Moreover, Claimant did not adduce any evidence to establish that he was physically unable or lacked the skill to complete the offered job; there is nothing in the record to suggest that the job was dangerous; the difference between $10.00 an hour at Green Earth Mechanics, LLC, and $8.00 an hour at the job in Claysburg is not patently unreasonable; and the offered job was located in close proximity to Claimant's residence. Therefore, Claimant failed to demonstrate that the offered job was not suitable.
"Even substantial disparity between a claimant's previous wages and the remuneration of the proffered position does not itself render work unsuitable." Rising, 621 A.2d at 1153 n.3. --------
In addition, section 402(a) of the Law states that an employee must accept work offered to him "by any employer," 43 P.S. §802(a) (emphasis added), and the plain meaning of "any" is broad enough to include an employer who submits an unsolicited or even unwelcomed offer of employment. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 97 (Gove, ed. 1986) (defining "any" in relevant part as "one, no matter what one: Every."). The Board found, and Claimant does not dispute, that Claimant rejected Employer's offer because he generally possessed ill-will toward Employer. However, "[a] claimant may not decide for [himself] what is 'suitable work' simply because a position may not be to [his] liking." Nieddu v. Unemployment Compensation Board of Review, 434 A.2d 224, 225 (Pa. Cmwlth. 1981). Although Claimant was hoping to be recalled to his job with Green Earth Mechanics, LLC, and was looking for work through Bedford County Careerlink, "it has long been held that a claimant must be at all times ready and willing to accept suitable employment, and this requirement cannot be excused by the expectation of possible recall to former employment or by the possibility of another offer." Rising, 621 A.2d at 1155. Consequently, Claimant failed to establish good cause for refusing Employer's offer of employment.
Because Claimant failed to meet his burden of proving either that the offered job was not suitable or that he had good cause for refusing Employer's offer of employment, the Board properly held that Claimant is ineligible for benefits under section 402(a) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of September, 2014, the January 30, 2014 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge