Opinion
No. 736 C.D. 2012
11-13-2012
Jason Giza, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jason Giza (Claimant) petitions for review, pro se, of the March 19, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to deny unemployment 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) of the Law states that an employee shall be ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
The UCBR, incorporating the referee's findings of fact and conclusions of law in their entirety, found as follows. Claimant worked as a mechanic for Irvine Alignment (Employer) from July 5, 2010, until October 31, 2011. (UCBR's Findings of Fact, No. 1.)
The UCBR's findings of fact are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
Claimant believed that he would receive two additional dollars per hour if he worked over forty-five hours in a week. (UCBR's Findings of Fact, No. 2.) Claimant worked more than fifty hours in a week on five occasions. (UCBR's Findings of Fact, No. 3.) For these weeks, Claimant did not receive the increased pay rate. (UCBR's Findings of Fact, No. 4.)
In December 2011, Employer agreed to pay Claimant a minimum of forty hours per week even if Claimant did not work forty hours. (UCBR's Findings of Fact, Nos. 5-6.) In August 2011, Claimant switched back to being paid for his billed hours because he could potentially earn more. (UCBR's Findings of Fact, Nos. 7-8.) Claimant billed fewer than forty hours during each of his last several weeks of employment and Employer paid him only for those hours billed. (UCBR's Findings of Fact, Nos. 9-10.) Claimant quit the position on October 31, 2011, without notice. (UCBR's Findings of Fact, No. 11.)
Claimant applied for unemployment compensation benefits with the local job center, and was found ineligible for benefits under section 402(b) because he had not made a reasonable effort to preserve his employment. Claimant appealed to a referee, who affirmed the denial of benefits. Thereafter, Claimant appealed to the UCBR, which affirmed. Claimant's petition for review to this court followed.
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.
Claimant argues that he had a necessitous and compelling reason for quitting because of pay disputes, a bounced payroll check, and alleged safety issues. We disagree.
The question of whether a claimant had a necessitous and compelling cause for quitting is a legal conclusion subject to review. Magazzeni v. Unemployment Compensation Board of Review, 462 A.2d 961, 962 (Pa. Cmwlth. 1983).
In a voluntary termination case, the claimant has the burden of proving that he or she had a necessitous and compelling cause for leaving employment. Ganter v. Unemployment Compensation Board of Review, 723 A.2d 272, 273-74 (Pa. Cmwlth. 1999). This court has established that:
"An employee who claims to have left employment for a necessitous and compelling reason 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 her employment."Shupp v. Unemployment Compensation Board of Review, 18 A.3d 462, 464 (Pa. Cmwlth. 2011) (quoting Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006)).
Claimant argues that he had a necessitous and compelling reason for quitting because, on multiple occasions, Employer did not pay him for forty hours of work. Claimant testified that Employer agreed to pay him forty hours for weeks that he did not complete forty hours of work. (N.T., 12/16/11, at 4-5.) The UCBR concluded that no such agreement existed after Claimant switched to billable hours in August. The UCBR relied heavily on the three previous paychecks compensating Claimant for less than forty hours and contradicting testimony from Employer. (N.T., 12/16/11, at 12.)
However, assuming arguendo that such an agreement existed, Claimant still needed to make a reasonable effort to preserve his employment. Claimant asserts he had no choice but to quit after he brought his consternation over being shorted several hours of work on multiple paychecks to the company president and, instead of getting an explanation or a simple, clarifying statement about his compensation rate, he was insulted. Although we can understand Claimant's dissatisfaction with this response, options remained available to Claimant besides immediately quitting. Thus, the UCBR determined that Claimant had not made reasonable efforts to preserve his employment, and this determination is supported by substantial evidence.
Employer told him that he received reduced compensation because he had a bad attitude. (N.T., 12/16/11, at 5.)
Claimant also contends that by failing to pay a $2-per-hour bonus for the weeks that Claimant worked more than forty-five hours, Employer presented Claimant a necessitous and compelling cause to leave his job. "[D]issatisfaction with wages is not a compelling and necessitous reason for voluntary termination of employment." Hostovich v. Unemployment Compensation Board of Review, 414 A.2d 733, 735 (Pa. Cmwlth. 1980). Sufficient evidence existed in the record for the UCBR to conclude that no such overtime agreement existed.
None of the pay stubs in the record list Claimant as receiving anything besides his $20-per-hour base pay.
Claimant next argues that the bounced payroll check in September 2011, constituted a necessary and compelling cause to quit his job. Certainly, failing to make a timely payment for services rendered can create real and substantial pressure upon an employee to terminate employment. Shupp, 18 A.3d at 465. However, the claimant in Shupp had been habitually denied payment for multiple weeks and made reasonable efforts to address the situation before quitting. Id. Here, Claimant received a bad check only once, two months prior to his quitting, and he was subsequently and quickly recompensed. This lapse of time obviates any pressure to quit that Claimant may have felt on October 31, 2011.
Finally, Claimant contends that safety issues created a necessary and compelling cause to quit. "An unsafe work environment can give an employee a necessitous and compelling reason to resign." Green Tree School v. Unemployment Compensation Board of Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009). However, because Claimant did not include this issue in his petition for review, the issue is waived.
Regardless, a claimant must demonstrate by objective evidence the unsafe working conditions that placed the employee at risk. Green Tree School, 982 A.2d at 578. Here, Claimant presented no evidence before the UCBR detailing the dangerous conditions that he faced and, thus, failed to meet his burden.
Claimant's testimony chronicled a work environment that felt toxic to him given its communication problems, personality conflicts, and disorganization. Claimant also detailed the troubles he faced in procuring his last paycheck and retrieving his personal tools from the shop after October 31, 2011. Claimant's general dissatisfaction and his desire to quit are understandable. But unfortunately for Claimant, as uncomfortable as his work environment had become for him, within the meaning of Section 402(b) of the Law, he did not prove a necessitous and compelling cause for quitting.
The UCBR's determination that the events following Claimant's resignation were not relevant to whether he had a necessitous and compelling reason for quitting on October 31, 2011, is not a clear error of law.
It is worth noting that "multiple causes, none compelling or necessitous, do not in combination become one qualifying cause." Hostovich, 414 A.2d at 735. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 13th day of November, 2012, the order of the Unemployment Compensation Board of Review, dated March 19, 2012, is affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge