Opinion
No. 2207 C.D. 2011
07-12-2012
Teresa L. Huling, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Teresa L. Huling (Claimant) appeals the September 15, 2011 decision of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant was ineligible for unemployment compensation benefits under section 402(b) of the Unemployment Compensation Law (Law). For the following reasons, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) states, in relevant part, "An employe 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."
Claimant worked as a full time cashier for Sapp Bros. (Employer) for more than seven years. (Finding of Fact No. 1.) On May 2, 2011, Claimant was suspended for three days without pay for parking her car in a reserved customer parking space, after she had been warned on numerous occasions to park in spaces designated for employees. Employer's policy requires an employee who is dissatisfied with a disciplinary action to complain to the next level of management, which in this case was Employer's human relations department. Claimant disagreed with the suspension, and she tendered her resignation without notifying human resources. (Findings of Fact Nos. 2-7.) The local job center denied Claimant's application for benefits on the grounds that she had not exhausted all alternatives before quitting, rendering her ineligible for unemployment compensation under section 402(b) of the Law.
Claimant appealed the determination, and a referee held a hearing on July 20, 2011. Claimant testified that she was being treated unfairly in that Employer's parking rules were not being equally applied to all employees. Claimant, a female employee, provided photos of male employees who also had parked their vehicles in customer reserved parking spaces and had not been disciplined. (N.T. at 15.) Claimant further testified that she felt she could not approach Employer's human resources department with her grievance as company policy dictated because that department had violated its agreement to keep confidential a past report filed by her husband. (N.T. at 8.) Vicki Carr, Claimant's supervisor, testified on Employer's behalf, stating that Claimant had been warned numerous times about parking violations before the suspension. (N.T. at 14.) Veronica Teats, Employer's office manager, testified that she offered to discuss the situation with Claimant before Claimant submitted her resignation. (N.T. at 16.)
"N.T." refers to the transcript of the referee's hearing.
The referee concluded that, because Claimant did not voice her complaints to Employer's human resources department before quitting, she did not make a reasonable effort to preserve her employment as required by section 402(b) of the Law. Accordingly, the referee affirmed the job center's determination that Claimant is ineligible for unemployment compensation. Claimant appealed to the Board, which affirmed the referee's decision, adopting and incorporated the referee's findings and conclusions.
On appeal to this Court, Claimant argues that the Board erred in denying her benefits under section 402(b) of the Law. Specifically, Claimant asserts that Employer discriminated against her on the basis of her sex and that she acted reasonably in resigning her employment. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Peddicord v. Unemployment Compensation Board of Review, 647 A.2d 295, 297 (Pa. Cmwlth. 1994). --------
In order to be eligible for unemployment compensation benefits, a claimant who voluntarily quit her job must establish necessitous and compelling cause. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885 (Pa. Cmwlth. 2001). Necessitous and compelling cause is found where the claimant demonstrates that: circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Id. The question of whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Id.
Harassment or discrimination may provide a necessitous and compelling cause for voluntary termination of employment. See, e.g., Brown (holding that the claimant was under real and substantial pressure to terminate her employment when she was the subject of racial slurs, angry outbursts by co-workers, and withheld financial reimbursements). To demonstrate necessitous and compelling circumstances in the form of discrimination, a claimant must introduce evidence of actions by the employer motivated by a discriminatory animus. McIntyre v. Unemployment Compensation Board of Review, 420 A.2d 34 (Pa. Cmwlth. 1980). In McIntyre, the claimant worked on a ship, and his request to work a preferred shift was refused by the ship's captain. The claimant voluntarily terminated his employment and claimed that the shift change refusal was based on racial discrimination. The Board affirmed the referee's decision that the claimant was ineligible for unemployment compensation because the claimant offered no evidence of racially motivated acts, other than his mere allegation, which the Board rejected as less credible than the employer's contradictory evidence. On appeal, this Court affirmed and held that the claimant failed to meet his evidentiary burden to show that his undesirable shift assignments were based on racial discrimination rather than seniority.
Similarly, in this case, Claimant did not meet her burden of proving she was unjustifiably singled out on the basis of her sex. As in McIntyre, Claimant presented no evidence of sexual discrimination other than her unsupported allegation, which was not credited by the Board.
Moreover, a claimant also bears the burden of proving that she made a reasonable effort to preserve her employment. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003). A claimant does not establish a reasonable effort to preserve employment where she fails to disclose her complaints to management before quitting. Wilson v. Unemployment Compensation Board of Review, 443 A.2d 866, 867 (Pa. Cmwlth. 1982). In Wilson, the claimant worked for a trucking company and voluntarily quit his employment because he was dissatisfied with his burdensome job duties. This Court held that because the claimant failed to disclose his grievances to the company president or request a lighter job duty before quitting, the claimant failed to make a reasonable effort to preserve his employment.
In this case, Claimant did not follow Employer's procedure and contact Employer's human resources department or accept her supervisor's invitation to discuss her complaint. Instead of making a reasonable effort to preserve her employment, Claimant passed on opportunities to inform Employer of her grievances and give Employer a chance to rectify the problem before she quit. Therefore, the Board properly found that Claimant is ineligible for unemployment benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of July, 2012, the order of the Unemployment Compensation Board of Review, dated September 15, 2011, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge