Opinion
No. 962 C.D. 2013
12-06-2013
Pamela J. Hildebrand, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Pamela J. Hildebrand (Claimant) petitions for review, pro se, of the April 15, 2013, order of the Unemployment Compensation Board of Review (UCBR) affirming the referee's decision to deny Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law) because she voluntarily quit her employment 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 is ineligible for UC benefits for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. §802(b).
Claimant worked for Consumers Eye Magazine (Employer) from September 13, 2010, until December 6, 2012. On September 4, 2012, Employer changed Claimant's classification from employee to independent contractor. Claimant confronted Employer and asked to be returned to employee status. On November 27, 2012, Employer reclassified Claimant as an employee. Claimant had to repay taxes that would have been withheld during the period that she worked as an independent contractor. (UCBR's Findings of Fact, Nos. 1, 2, 4, 9, and 10.)
We note that the UCBR's finding of fact number 1 lists Claimant's start date as September 13, 2012. However, the referee correctly found that the start date was September 13, 2010, based on the testimony presented at the hearing. (Referee's Findings of Fact, No. 1; N.T. at 3.)
In November 2012, Employer required Claimant to work in Maryland occasionally. Employer reimbursed Claimant for the extra expenses involved in the trip. Employer also required Claimant to check in via e-mail every hour when she worked from home. A dispute arose regarding the amount of back taxes that Claimant owed. Employer told Claimant that she had a supreme attitude and that she needed to make herself valuable to Employer. On December 6, 2012, Claimant quit, claiming that Employer was retaliating against her and creating a toxic work environment. (Id., Nos. 5, 6, 7, 8, 11, 12, and 13.)
Claimant applied for UC benefits with the local service center, which denied benefits pursuant to section 402(b) of the Law. Claimant appealed this determination to a referee. The referee held a hearing on January 25, 2013. Claimant appeared, but Employer did not. On February 4, 2013, the referee affirmed the denial of UC benefits because Claimant had not demonstrated a necessitous and compelling reason for voluntarily quitting.
Claimant appealed to the UCBR. On April 15, 2013, the UCBR affirmed the referee's decision, finding Claimant ineligible for benefits under section 402(b) of the Law. Claimant petitioned this court for review.
"Where, as here, the burdened party is the only party to present evidence and does not prevail before the agency, our scope of review is whether the agency erred as a matter of law or capriciously disregarded competent evidence." Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 n.5 (Pa. Cmwlth. 1998).
Claimant argues that she had a necessitous and compelling reason for terminating her employment because: (1) Employer changed her tax status to independent contractor; (2) Employer withheld her money; (3) Employer required her to commute to Maryland several times; and (4) Employer reprimanded her and told her that she needed to bring value to the company. We disagree.
An employee who voluntarily terminates her employment has the burden of proving that a necessitous and compelling cause existed for the termination. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The employee 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 or her employment." Philadelphia Housing Authority v. Unemployment Compensation Board of Review (DiGiacomo), 29 A.3d 99, 101 (Pa. Cmwlth. 2011).
Employer did change Claimant's employee status to independent contractor. However, upon Claimant's request and before Claimant voluntarily quit, Employer reclassified her as an employee. Thus, the change in status could not have created real and substantial pressure on Claimant to quit.
Similarly, Claimant contends that Employer withheld money from her last paycheck as a result of the dispute over taxes. The UCBR noted that Claimant provided insufficient evidence supporting this assertion. Regardless, while the dispute about Claimant's tax status occurred prior to Claimant's resignation, the withholding of wages occurred after Claimant quit and is therefore irrelevant to her motivation for terminating her employment.
Next, Claimant contends that Employer began requiring her to commute to Maryland periodically. Although a substantial, unilateral change in employment conditions can render a job unsuitable, an employer can unilaterally make reasonable changes in job assignments. See Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998). While perhaps an inconvenience, this change to Claimant's job assignments was a reasonable modification. Moreover, Employer reimbursed Claimant's expenses incurred during the commute.
Finally, Claimant argues that Employer reprimanded her during the disagreement about her employee status. "Resentment of a reprimand, absent unjust accusations, abusive conduct or profane language, does not constitute a necessitous and compelling reason to terminate." Taylor v. Unemployment Compensation Board of Review, 432 A.2d 642, 643 (Pa. Cmwlth. 1981). The UCBR noted that "[Employer's] comments to [Claimant] about her attitude amount to mere criticism, and did not create a toxic environment," (UCBR's Op. at 3), and we do not find anything in the record that would have us conclude otherwise.
Multiple causes, which individually are not necessitous or compelling, do not become necessitous and compelling when aggregated. See Spadaro v. Unemployment Compensation Board of Review, 850 A.2d 855, 860 (Pa. Cmwlth. 2004). In summary, Claimant's mere unhappiness with her working conditions did not create a necessitous and compelling cause for voluntarily quitting her employment.
Claimant also asserts that she could not question Employer because Employer did not attend the referee's hearing. However, an employer has no burden of proof in a claim for benefits under Section 402(b) of the Law, Employer had no duty to attend the hearing, and Employer's non-attendance did not prejudice Claimant's presentation of evidence. Additionally, Claimant did not seek a subpoena to compel Employer's testimony. See Section 506 of the Law, 43 P.S. §826. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 6th day of December, 2013, we hereby affirm the April 15, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge