Opinion
No. 607 C.D. 2012
11-05-2012
Pedro W. Estevez, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Pedro W. Estevez (Claimant), pro se, petitions for review from an Order of the Unemployment Compensation Board of Review (Board) finding Claimant ineligible for unemployment compensation (UC) benefits under Section 402(b) of the Unemployment Compensation Law (Law). On appeal, Claimant argues that he was compelled to resign when PNC Bank (Employer) changed its compensation structure. Because Claimant did not establish what his compensation had been prior to Employer's change or how the change in compensation structure would affect him in the future, Claimant has not proven that he had a necessitous and compelling reason to quit his job. We, therefore, affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was last employed as a full-time mortgage loan officer when he resigned on May 5, 2011, and filed an internet claim for UC benefits on May 11, 2011. (Claim Record at 1, R. Item 1.) The Allentown UC Service Center (Service Center) issued a determination finding Claimant not ineligible for benefits under Section 402(b) of the Law. (Notice of Determination at 1, R. Item 5.) Employer appealed, contending that Claimant voluntarily quit due to dissatisfaction with his compensation even though continuing work was available. (Petition for Appeal at 2A, R. Item 6.) The Referee conducted an evidentiary hearing on October 5, 2011, at which Employer's witness testified via telephone; Claimant did not appear. Following the hearing, the Referee reversed the Service Center's determination and found Claimant ineligible for benefits, reasoning that Claimant resigned even though continuing work was available. (Referee's Decision/Order at 2.)
Claimant appealed to the Board, contending that he never received notice of the Referee's October 5, 2011 hearing (Hearing Notice), and that his resignation was not voluntary, but necessary. (Claimant's Petition for Appeal, R. Item 14.) Pursuant to 34 Pa. Code § 101.104(c), the Board remanded for a second hearing to receive evidence on the issue of notice and on the merits. (Board's Remand Order at 1.) On December 12, 2011, a Referee conducted the remand hearing at which Claimant appeared; however, Employer chose not to participate. In a Decision and Order dated February 14, 2012, the Board found Claimant's testimony credible that he did not receive the Hearing Notice for the reasons Claimant presented, and agreed to consider the testimony from both hearings. (Board's Decision/Order at 2.) The Board made the following findings of fact:
1. [C]laimant was last employed as a full-time mortgage loan officer by [Employer] from January 4, 2010 at a final rate of $2,000 per month plus commission on closed loans and his last day of work was May 5, 2011.(Findings of Fact (FOF) ¶¶ 1-10.) Based upon these facts, the Board concluded that Claimant was ineligible for UC benefits because he resigned due to dissatisfaction with Employer's change in the compensation structure. The Board determined that Claimant neither made a reasonable effort to preserve his employment relationship nor met his burden, pursuant to Section 402(b) of the Law, to prove that he had a necessitous and compelling reason to leave his employment. (Board's Decision/Order at 3.)
2. On May 5, 2011, [C]laimant and [E]mployer met to discuss the changes made by [E]mployer to the compensation schedule.
3. [E]mployer changed the compensation schedule [due] to regulatory changes in the mortgage industry.
4. Loan officers were still guaranteed a salary of $2,000 per month; however, the loan officers would have to earn $2,000 in commission to avoid a deficit.
5. Loan officers were still able to earn commission above the $2,000 per month.
6. [C]laimant provided [E]mployer with a resignation letter citing the changes to the compensation schedule.
7. [C]laimant did not attempt to work under the changed compensation schedule to determine whether or not it would have an impact upon his earnings.
8. [E]mployer accepted [C]laimant's resignation.
9. [C]laimant lived in a townhouse community where mailboxes are located close together.
10. Neighbors often, but do not always, give the mistakenly delivered mail to the appropriate person.
On appeal, Claimant argues, among other things, that he was compelled to resign because Employer changed the compensation structure. Claimant contends that this change would cause him negative economic consequences that would be further exacerbated by delays in the closing times of Claimant's loan portfolio and the reassignment of his best four branches to another loan officer from another territory. Essentially, Claimant contends that these changes to his employment terms and conditions caused him to resign for necessitous and compelling reasons.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant also argues that he should be entitled to receive UC benefits merely because Employer did not appear at the remand hearing. However, "there is no authority for the proposition that an employer has any burden of proof with respect to a claim for benefits under 402(b). Indeed, the opposite is true." Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1104 (Pa. Cmwlth. 2005). "[B]ecause the burden remains on the claimant to demonstrate necessitous and compelling cause" to quit his employment, "this Court [has] held that it is not the employer's burden to come forth with evidence." Id. at 1105. As such, Claimant is not automatically entitled to UC benefits just because Employer did not testify at the remand hearing, or in fact, even if Employer had never testified at any hearing. Here, Claimant did not appear at the first hearing due to Claimant's failure to receive the Hearing Notice, but Employer appeared and testified. After appealing his failure to receive the Hearing Notice, a remand hearing was ordered at which Claimant appeared and testified, but Employer declined to do so, having already testified by telephone at the Referee's hearing on October 5, 2011. Thereafter, the Board considered the testimony from both hearings in making its determination. (Board Decision/Order at 2.)
Section 402(b) provides that a claimant shall be ineligible for benefits for a period "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. § 802(b). A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The law is clear that an employee who voluntarily resigns for reasons alleged to be necessary and compelling must prove that: (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) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). The circumstances producing pressure to leave must be both real and substantial. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 49, 51 n.1 (Pa. Cmwlth. 1996). This Court must also evaluate a claimant's behavior in a given situation to decide whether he acted reasonably under the circumstances. Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 441 (Pa. Cmwlth. 1996). Whether an employee has a necessitous and compelling reason to voluntarily quit is a question of law fully reviewable by this Court. Pacini v. Unemployment Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986).
Here, the Board determined that even though Employer changed its compensation structure due to regulatory changes in the mortgage industry, the $2,000 monthly base salary was still guaranteed. (FOF ¶ 3.) The Board found that while "loan officers would have to earn $2,000 in commission to avoid a deficit" against future commissions, they "were still guaranteed a salary of $2,000 per month[.]" (FOF ¶ 4.) These findings are supported by substantial evidence. Employer's witness testified that "either way, you're still . . . guaranteed receiving . . . $24,000 or $2,000 a month" and that "even if you were in a deficit, [Employer] still had to pay you the $2,000 a month." (Referee's Hr'g Tr. (October 5, 2011) at 7.) Although Claimant testified differently, stating that the change in compensation structure caused a change to the guarantee of the base pay of $2,000 monthly, (Referee's Hr'g Tr. (December 12, 2011) at 13), the Board credited Employer's testimony to find that Claimant's guaranteed salary did not change. (Board's Decision/Order at 3.) Ultimately, the Board determined that it could not "conclude that [C]laimant had good cause for quitting prior to working under the revised compensation schedule to determine whether or not it would affect his earnings." (Board's Decision/Order at 3.)
We note that Claimant does not specifically challenge the Board's findings; therefore, they are conclusive on appeal. "Findings of fact made by the Board, which are not specifically challenged, are conclusive upon review." Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624 A.2d 237, 239 n.5 (Pa. Cmwlth. 1993). However, even if Claimant had challenged the Board's findings of fact, they would be conclusive on appeal if supported by substantial evidence. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978).
Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). In reviewing the record for whether there is substantial evidence to support the findings, we "must view the record in a light most favorable to the party which prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence." Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). That the claimant may have testified to "a different version of the events, or . . . 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 Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
The law is clear that the Board is the ultimate finder of fact, and that "questions of credibility and evidentiary weight" are matters for the Board as fact finder and not for a reviewing court. Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). --------
Claimant disputes the Board's conclusion and argues that the changed compensation structure, together with his other complaints about work conditions, proves that he would have been impacted negatively by Employer's changes. The record confirms that Claimant testified that he believed other factors would exacerbate the negative impact of the changed compensation structure; specifically that: he had 25-40 loans in the pipeline, but that it was not his fault that the loans were not closing in as timely a manner as his clients expected; the crash occurred in 2008; and branches were taken away from him. (Referee's Hr'g Tr. (December 12, 2011) at 15.) Notably absent from Claimant's testimony, however, is any proof of how his compensation would be affected by Employer's changes when combined with these other factors. Claimant did not testify to, or submit evidence: (1) establishing what his compensation had been prior to Employer's change; or (2) how the change in compensation structure would affect him in the future, other than to speculate broadly that it would be a negative change. Instead, Claimant's testimony merely presents broad speculation about the potential for negative consequences.
Accordingly, the Board properly concluded that Claimant did not have good cause for quitting when he resigned before attempting to work under the revised compensation structure. A claimant must act with ordinary common sense in quitting a job, must prove that he made a reasonable effort to preserve his employment, and that he had no other real choice but to quit. Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). Claimant did not prove that he did so here; therefore, he did not prove that he quit his employment for necessitous and compelling reasons. Moreover, despite Claimant's argument that he voluntarily quit because he was dissatisfied with Employer's change to the compensation structure that, he alleges, was exacerbated by other work factors, it is well settled that mere dissatisfaction with wages or working conditions is not sufficient to establish necessary and compelling reasons to voluntarily quit employment. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 48, 565 A.2d 127, 130 (1989).
For the foregoing reasons, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 5, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge