Opinion
No. 1418 C.D. 2013
04-23-2014
Tyrone Gay, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Tyrone Gay (Claimant) petitions for review of the July 3, 2013, order of the Unemployment Compensation Board of Review (UCBR), affirming the decision of a referee to deny Claimant's request for unemployment compensation (UC) benefits under section 402(b) of the Unemployment Compensation Law (Law) and section 4001(d)(2) of the Emergency Unemployment Compensation Act of 2008 (EUC Act). The UCBR determined that Claimant quit his job without cause of a necessitous and compelling nature. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that an employee shall be ineligible for benefits during any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature."
Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323, Section 4001, 26 U.S.C. §3304.
Claimant applied for UC benefits with the local service center. The service center denied Claimant benefits and Claimant appealed to a referee, who conducted a hearing.
The local service center also issued a separate determination assessing a non-fault overpayment under section 4005 of the EUC Act.
Claimant, who was not represented by counsel, and a witness for Trusted Transportation (Employer) testified before the referee, who made the following findings of fact. Claimant worked full-time for Employer as a truck driver from November 1, 2011, until January 23, 2013. (Findings of Fact, No. 1.) Employer provides trucking service to various clients. (Id., No. 4.) Employer has rules and policies requiring a late or absent employee to contact the client and Employer. (Id., No. 2.) The rules and policies also provide that an employee who does not receive a job assignment from a client must immediately contact Employer to request a new assignment and maintain Employer contact three times per week. (Id., No. 3.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law. (UCBR's Order at 1.)
On January 24, 2013, Claimant called off from work due to a family emergency. (Id., No. 5.) Claimant contacted the client but did not contact Employer. (Id.) Thereafter, Claimant did not contact Employer for additional work assignments. (Id.) Claimant waited for either the client or Employer to contact him. (Id., No. 6.) Continuing work was available to Claimant. (Id., No. 7.)
The referee credited Employer's testimony that Claimant failed to contact Employer about additional work after January 24, 2013, and failed to take reasonable steps to maintain and preserve the employment relationship. The referee affirmed the service center's denial of benefits concluding that Claimant quit his employment without cause of a necessitous and compelling nature. Claimant appealed to the UCBR, which resolved all conflicts in favor of Employer and affirmed the decision.
Thereafter, Claimant appealed to this court. Subsequently, the UCBR filed a motion for partial summary relief seeking to strike portions of Claimant's brief, which this court granted. We now address the merits of the case.
Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
On appeal, Claimant maintains that he did not quit his employment but that Employer discharged him from his position. The claimant bears the burden of proving that his separation from employment was a discharge. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). Whether a claimant voluntarily quits or was discharged is a question of law reviewable by this court. Willis v. Unemployment Compensation Board of Review, 500 A.2d 1293, 1294 (Pa. Cmwlth. 1985). In determining whether a claimant had a conscious intent to abandon his employment, this court must consider the totality of the circumstances. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2010).
Claimant relies on Wing v. Unemployment Compensation Board of Review, 426 A.2d 198 (Pa. Cmwlth. 1981), for the proposition that his brief absence from work did not evidence an intent to abandon his position. We disagree.
In Wing, the claimant, who was on an approved leave of absence, discussed with her employer her desire to use some of her accrued vacation time instead of returning to work after the expiration of her leave. Id. at 200. The claimant believed that the employer had approved her request and thus, she did not return to work after expiration of her leave. Id. After the claimant failed to report to work for four days, the employer sent the claimant a letter terminating her employment. Id.
The referee and UCBR denied benefits, concluding that the claimant voluntarily terminated her employment without cause of a necessitous and compelling nature. On appeal, this court reversed, concluding that the claimant's four-day absence, during a time that she thought her vacation had been approved, without more, was not a sufficiently prolonged absence to constitute an abandonment of employment. Id. at 200-01.
Here, unlike Wing, Employer did not terminate Claimant after his four-day absence. Moreover, after reporting his absence on January 24, 2013, to the client, Claimant did not return to the assignment. Claimant also failed to inform Employer of his absence and did not contact Employer to request additional work. Claimant's absence from work in addition to his failure to follow Employer's rules and policies, distinguishes this case from Wing. Thus, the UCBR properly concluded that Claimant abandoned his employment.
Claimant next alleges that he acted in a reasonable manner to preserve his employment relationship by waiting for Employer to call him for additional assignments. However, as found by the UCBR, Employer's rules and policies required employees to maintain contact with Employer. Claimant did not comply with Employer's requirements and offered no explanation for his failing to do so.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 23rd day of April, 2014, we hereby affirm the July 3, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge