Opinion
No. 323 C.D. 2012
11-07-2012
Nancy Jozwick, 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 LEADBETTER
Nancy Jozwick petitions for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits. Petitioner challenges the Board's determination that she voluntarily quit her employment without necessitous and compelling cause. We affirm.
Petitioner was employed full-time as client associate by Wells Fargo (Employer) from October 3, 1995 through July 27, 2011 at a final salary of $32,083. Following her last day of employment, Petitioner applied for unemployment compensation benefits. The Unemployment Compensation Service Center denied Petitioner's application for benefits determining that she voluntarily quit her employment and she did not have a necessitous and compelling reason for doing so. Petitioner appealed the denial of benefits.
The referee held a hearing at which Petitioner testified on her own behalf and Michael Touscany, branch manager, testified for Employer. Petitioner testified that she considered her working conditions unfair and unbearable because her supervisor, Michael Touscany, treated her and another coworker differently. Specifically, Petitioner stated that Employer had a policy requiring employees to take one ten minute break in the morning and one ten minute break in afternoon. Petitioner testified that Touscany allowed the coworker to add the ten minute breaks to her lunch hour creating an 80 minute lunch break, but she was denied permission to cut the breaks into four, five minute segments. She testified that she approached human resources several times regarding her problems with Touscany, but human resources did not find her complaints actionable. Petitioner testified that on July 27, 2011, she met with two brokers and Touscany to discuss her working conditions. At the meeting, Petitioner stated that she was contemplating resigning because she was unhappy with her work conditions. One of the brokers suggested that Petitioner take the rest of the day off to consider whether she really wanted to quit. Petitioner stated that after the meeting she returned to her desk and began packing up her personal belongings. Touscany then presented her with a letter acknowledging her resignation. Petitioner testified that she never signed the letter.
Touscany stated that Employer's policy did not allow employees to cut up the breaks into smaller segments and that the policy was aimed at reducing time spent away from the office on smoke breaks. Touscany testified that following the meeting he contacted Employer's human resources department, which instructed him to provide Petitioner with a letter acknowledging her resignation. Touscany stated that he presented the letter to Petitioner for her signature and that she voluntarily signed the letter. Touscany did not produce a copy of the letter at the hearing.
The referee found that Petitioner had voluntarily signed the resignation letter. Referee's Finding of Fact No. 7. The referee concluded that Petitioner had not demonstrated that she had a necessitous and compelling reason to quit as the evidence presented did not establish that her working conditions were intolerable. Petitioner appealed the denial of benefits. The Board affirmed the Referee's decision adopting and incorporating the referee's findings and conclusions. This appeal followed.
An employee who seeks unemployment benefits after voluntarily terminating employment has the burden of demonstrating that she had a necessitous and compelling reason for doing so. Brunswick Hotel & Conference Center, LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Personality conflicts, absent an intolerable work atmosphere, do not amount to a necessitous and compelling cause for leaving one's employment. Wert v. Unemployment Comp. Bd. of Review, 41 A.3d 937, 940 (Pa. Cmwlth. 2012). The Board is the ultimate finder of fact and is empowered to resolve conflicts in evidence, determine the credibility of witnesses, and determine the weight to be assigned to evidence. Bell Beverage v. Unemployment Comp. Bd. of Review, 49 A.3d 49, 56 (Pa. Cmwlth. 2012)
First, Petitioner argues that the Board erred in finding that she voluntarily quit. Petitioner relies upon her own testimony that she never signed the resignation letter and Touscany's failure to produce the letter at the hearing. The Board resolved the conflict in testimony regarding the resignation letter and found that Petitioner had voluntarily signed the letter. In reaching this conclusion, the Board implicitly deemed Touscany's testimony to be more credible than Petitioner's testimony. As the resolution of conflicting testimony and the credibility of witnesses is the sole province of the Board, this Court is not empowered to disturb the Board's findings.
Next, Petitioner challenges the Board's determination that she failed to demonstrate a necessitous and compelling reason for quitting her job. Petitioner argues that Touscany's rudeness, inequitable distribution of work, shameless favoritism, and lack of interest in improving his working relationship with her constituted necessitous and compelling grounds for her voluntary termination of employment.
The Court notes that Petitioner failed to raise this argument in her petition for review and, therefore, the issue is waived. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012) (failure to raise argument in petition for review results in waiver). Even if this issue had been preserved for appellate review, Petitioner's argument is without merit. Petitioner's testimony established only that she simply did not like Touscany's management style and decisions, which resulted in a personality conflict between Touscany and Petitioner. As noted above, mere personality conflicts do not constitute necessitous and compelling cause to voluntarily terminate employment.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of November, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge