Opinion
No. 2837 C.D. 2010
06-15-2011
Christine M. Dumm, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Christine M. Dumm (Claimant) petitions, pro se, for review of the November 4, 2010 order of the Unemployment Compensation Board of Review (Board) affirming a Referee's determination denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), and assessing non-fault and non-fraud overpayments. The issues before this Court are: (1) whether there was substantial evidence to support the Referee's findings that Claimant was not deceived relative to the terms and conditions of her employment; and (2) whether Claimant had a necessitous and compelling reason for quitting her job. For the reasons that follow, we affirm the order of the Board.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was employed full-time as a sales counselor for StoneMor GP, L.L.C. (Employer) beginning April 12, 2010, selling cemetery plots, caskets and funeral-related items. Claimant quit her position with Employer on May 17, 2010, claiming that she had been deceived as to her work hours and compensation, and that she could not afford to continue working there.
Claimant filed for unemployment compensation (UC) benefits through the Duquesne UC Service Center, which: denied her benefits pursuant to Section 402(b) of the Law, declared a non-fault overpayment of $310.00, and declared a non-fraud overpayment of $50.00. Claimant appealed the decision, and a hearing was held before a Referee, at which Claimant and Employer's representative, Barbara Etheredge, testified. On August 30, 2010, the Referee issued an order affirming the UC Service Center's decision denying benefits under Section 402(b) of the Law for Claimant's voluntarily leaving work without cause of a necessitous and compelling nature, and affirming the UC Service Center's determinations of overpayment. Claimant appealed to the Board. On November 4, 2010, the Board affirmed the Referee's order, adopting and incorporating the Referee's findings and conclusions. Claimant appealed to this Court.
By letter dated October 27, 2010, Claimant requested a rehearing to clarify or expand testimony because she had new witnesses she had not previously considered. In its November 4, 2010 order, the Board denied Claimant's request, stating that she was provided sufficient opportunity to present her case before the Referee.
On November 15, 2010, Claimant sought reconsideration of the Board's decision on the basis that she had new proof that Employer's witness lied at the hearing before the Referee. By order issued December 7, 2010, the Board denied Claimant's request for reconsideration.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
Claimant argues that the Board erred by affirming the following findings of fact made by the Referee because they were not supported by substantial evidence:
1. . . . Claimant's rate of pay was $7.25 per hour while training, then $250.00 per week draw v. commission until her license came in.Referee Findings of Fact (FOF) 1, 3, 4, 5, 6 and 15. We disagree with Claimant's contention.
. . . .
3. When the Claimant was interviewed, she was told that she would be working 6 or 7 days per week sometimes and that Monday night was a call night.
4. When the Claimant was interviewed she was told that she could be working over 40 hours per week sometimes, although sometimes less than 40 hours.
5. The Claimant was told that she would be receiving 20% commission on her personally developed leads, though less commission on other things.
6. The Claimant was told that she would be working some holidays.
. . . .
15. The Claimant worked for the Employer only a little over 1 month, then left because she was not satisfied with the hours or the money that she was making.
"Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008) (citation omitted). According to our review of the record in this case, there was substantial evidence to support the Referee's findings of fact, which were adopted and incorporated by the Board.
Claimant testified that Employer told her she would be required to work 40 hours per week, including some holidays, and she would earn 20% commission, so she had the potential of earning $4,000.00 to $5,000.00 per month down the road. Claimant also testified she was told that she would earn $7.25 per hour for 40 hours of training and, thereafter, would earn "$250 a week, commission versus draw, so $250 a week and any commission that would be above $250." Notes of Testimony, August 23, 2010 (N.T.) at 5. Claimant avers that, in fact, she worked 50 to 60 hours per week, including Saturdays and Sundays, late hours on Mondays, and holidays not previously mentioned by Employer (i.e., Mother's Day). She claimed that, in her five weeks with Employer, she had 36 appointments, but closed only 3 sales. Finally, she claims she only earned $7.25 per hour, plus commissions (representing only 3% to 17%, rather than 20%, of her sales), which ultimately resulted in her earning less than minimum wage. Because she believed that she had the capability of making more money elsewhere, Claimant quit.
Claimant's supervisor, Barbara Etheredge, testified on Employer's behalf. She testified that she told Claimant she would receive $250.00 per week in training pay, until her license came in. Thereafter, she would be paid "for 40 [in-office] hours a week or commission whichever is greater." N.T. at 5, 15-16. She told Claimant she would be required to work 6 days per week, which included later nights on Mondays and certain holidays. She also told Claimant she would be required to work Sundays during weeks in which Employer was not on budget. She explained that, some weeks, Claimant would be required to work more than 40 hours and others she would not. Finally, she testified that there was a statement in "the packet" that explains the commission structure, and reflects that personally-developed and certain other sales would result in a 20% commission, while other sales would result in different commissions. N.T. at 14.
The Referee's determination, which was expressly adopted and incorporated by the Board, turned upon the Referee's assessment of the credibility of the witnesses. The fact that the Referee deemed Ms. Etheredge's testimony more credible is clear from her conclusion that "the Claimant was not deceived about the terms and conditions of her employment. Instead, the Claimant was dissatisfied because she was not making as much money in commissions as she thought she should." Referee's Decision/Order at 3. This Court has held:
It has been established that in unemployment compensation cases, the Board is the ultimate fact finder and findings of fact made by the Board are conclusive on appeal as long as they are supported by substantial evidence. Where there is conflict in testimony, credibility determinations and the resolution of evidentiary conflicts are within the Board's discretion and not subject to re-evaluation on judicial review.Horton v. Unemployment Comp. Bd. of Review, 953 A.2d 851, 854 n.7 (Pa. Cmwlth. 2008) (citation omitted). "The fact that a witness has presented a different version of the facts as found by the Board is not a basis for reversal if substantial evidence supports the Board's findings." Ruiz v. Unemployment Comp. Bd. of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005).
In this case, the Referee's findings as to Claimant's hours (FOF 3, 4), commissions (FOF 5), and holidays (FOF 6) are directly supported by Ms. Etheredge's testimony. Claimant's reason for quitting was supported by her own testimony (FOF 15). The Referee's finding regarding Claimant's rate of pay (FOF 1) is less clear, probably due to the confusing nature of the testimony on this point. That notwithstanding, the Referee's crucial finding, that Claimant would receive "commission versus draw," represents what both Claimant and Ms. Etheredge stated on the record. Our review of Claimant's pay statements, however, reflects that she in fact earned $7.25 per hour for 40 hours each week (i.e., $290.00), plus a $96.88 commission for the week ending May 14, 2010. Thus, although the Referee's FOF 1 is supported by the testimony, it does not seem to be supported by Claimant's pay statements. Since, however, it appears that Claimant received the rate of pay she expected, but quit nonetheless, the Referee's conclusion that Claimant was dissatisfied because she was not making as much money as she thought she should is clearly supported. Because the record supports the Referee's findings, we cannot disturb them. Accordingly, the Board did not err by affirming the Referee's findings of fact.
Next, Claimant argues that she had necessitous and compelling cause for quitting her job. We disagree. Section 402(b) of the Law provides, in relevant part, that a person shall be ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ." This Court has held:
Although '[o]ne who voluntarily accepts a job thereby admits to its initial suitability,' a claimant may successfully assert that the employment was so unsuitable as to be a compelling cause for leaving by proving that employment conditions have changed or that the claimant was deceived or unaware of such conditions when entering into the job.Broadus v. Unemployment Comp. Bd. of Review, 544 A.2d 1098, 1100 (Pa. Cmwlth. 1988) (citing Sloss v. Unemployment Comp. Bd. of Review, 367 A.2d 803, 804 (Pa. Cmwlth. 1976)). There was substantial evidence in this case to support the conclusion that Claimant quit merely because she was dissatisfied with her earnings. It is well established that "[m]ere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment." Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Claimant has not met her burden of proving that she left her employment for necessitous and compelling reasons. Thus, the Board committed no error of law by affirming the Referee's decision.
For the above reasons, the order of the Board is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 15th day of June, 2011, the November 4, 2010 order of Unemployment Compensation Board of Review is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge