Opinion
No. 1357 C.D. 2012
02-13-2013
Festus Kandjabanga, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Festus Kandjabanga (Claimant), representing himself, petitions for review from an order of the Unemployment Compensation Board of Review (Board) that denied him benefits under Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit). Claimant asserts the Board misconstrued his failure to report to work after a three-week vacation as a voluntary termination. Claimant contends he took a six-month leave of absence with the permission of his manager. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(b).
Claimant worked for North Parking Corporation (Employer) as a full-time parking attendant for five-and-a-half years until his last day of employment on September 8, 2011. Claimant applied for unemployment compensation benefits, which the local service center denied. Claimant appealed to a referee.
The referee held a hearing at which Claimant testified. Taofeek Balogun, Employer's manager (Manager), and Larry Spada, Employer's regional operations department representative (Regional Represenative), both testified for Employer. The referee made the following findings.
Claimant had three weeks of vacation time. Employer does not permit the accrual of any unused vacation time. Manager does not have the authority to grant leave beyond the three-week vacation period. Claimant went on vacation on September 9, 2011. Claimant did not report for work after the expiration of his three-week leave.
Based on these findings, the referee determined Claimant voluntarily quit his employment and denied benefits pursuant to Section 402(b) of the Law. Claimant appealed.
The Board adopted the referee's findings of fact and conclusions of law in their entirety. Additionally, the Board found that Claimant testified he parked his car in Employer's garage after his final day of work; he entered the parking garage weekly; and Manager never directed Claimant to return to his job. However, the Board credited Employer's witnesses' testimony that Claimant was not authorized to be absent from work longer than three weeks. Employer was not obligated under the Law to contact Claimant when he failed to return to work after his three-week vacation. Under Section 402(b) of the Law, it is Claimant's burden to establish that he took reasonable steps to preserve the employment relationship before quitting. The Board concluded Claimant did not satisfy this burden of proof. Thus, the Board affirmed the referee's decision.
Claimant then filed a petition for review with this Court. Claimant contends he did not intend to quit; rather, he requested and received permission from Manager to take a six-month leave of absence. Claimant asserts the testimony to the contrary is not credible. Claimant reasonably relied on Manager's approval.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
The Board responds that it properly denied benefits under Section 402(b) because the record shows Employer did not authorize the six-month leave, and Claimant failed to report to work or discuss with Employer his intention to return to work after his three-week leave ended.
Section 402(b) provides a claimant 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. 43 P.S. §802(b). A voluntary quit occurs when the employee causes the separation and continuing work is available. Monaco v. Unemployment Comp. Bd. of Review, 523 Pa. 41, 565 A.2d 127 (1989).
Whether a claimant's separation from employment was voluntary depends on his intent. Id. "[A] finding of voluntary termination is essentially precluded unless the claimant had a conscious intention to leave his employment." Id. at 45, 565 A.2d at 129. In determining intent, it is necessary to consider "the totality of the circumstances surrounding the incident." Id. at 45-46, 565 A.2d at 129.
An employee's absence from work for an unreasonable length of time, without notice to the employer of an intention not to abandon the job, may constitute a voluntary quit. Simpson v. Unemployment Comp. Bd. of Review, 370 A.2d 432 (Pa. Cmwlth. 1977) (the claimant, who was absent from work for four months, was ineligible for benefits because she failed to notify employer of the reason for her absence and her intention to return to work). The burden is on the employee to manifest his intention not to abandon employment. Smith v. Unemployment Comp. Bd. of Review, 413 A.2d 49 (Pa. Cmwlth. 1980). It is the employee's responsibility to approach his employer regarding the reason for his absence and his desire to remain employed. Id.
Furthermore, the Board is the ultimate fact-finder in unemployment compensation matters. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). The Board is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded to the evidence. Id. In addition, we must examine the testimony in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences from the testimony. Id.
Here, Claimant testified Manager authorized his six-month leave, and he relied on Manager's approval. Notes of Testimony (N.T.), 4/26/12, at 9-11. Claimant further testified Employer allowed him to park his car in Employer's garage free of charge during this period and that free parking is only available to employees. Id. at 11. Employer never directed Claimant to return to his job during his absence. Id. at 14. Claimant asserts this evidence sustains his burden of proving his desire not to abandon employment.
However, the Board did not find Claimant's testimony credible. Board Op., 6/15/12, at 1; see Referee's Op., 4/27/12, at 2. Rather, the Board credited the testimony offered by Employer's witnesses that Claimant was not authorized to be absent from work longer than three weeks. Id. Board Op., 6/15/12, at 1.
Manager testified he verbally approved leave for three weeks, not six months. Id. at 7, 14. Manager testified he expected Claimant to report back to work on October 3, 2011, but Claimant never did. Id. Manager stated, "I don't have power to give anybody six-month leave. The leave everybody takes is for three weeks." Id. at 14. Manager testified Claimant never communicated his desire to return to work. Id.
Regional Representative testified Employer does not permit employees to carry over any unused vacation or sick time into another year. Id. at 15-16. Instead, Employer pays employees for any accrued leave time at the end of the year. Id. at 15. Management does not have authority to grant leave beyond the leave time accrued, which in this case was three weeks. Id. at 16. Requests for additional leave time are referred to Employer's corporate office. Id.
In an unemployment compensation case, questions of credibility and the resolution of conflicts in the evidence are for the Board, not for this Court. Ductmate. We will not accede to Claimant's request to reweigh the evidence. The mere fact Claimant's testimony presents a different version of events does not compel reversal of the Board's order. See Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (providing the existence of evidence that contradicts the Board's determinations is not grounds for reversal if substantial evidence supports the Board's findings).
It cannot be said here that Claimant made a reasonable effort to preserve his employment. Claimant's decision to take a six-month leave of absence, which Employer did not approve, was in effect a decision to quit his job. See Schwarzenbach v. Unemployment Comp. Bd. of Review, 387 A.2d 519 (Pa. Cmwlth. 1978) (an employee's taking of unauthorized leave time and his failure to contact his employer at any time after his departure supported Board's determination that he voluntarily left his work). Although Claimant occasionally spoke with Employer during his absence, Claimant did not advise Employer of his desire to return to work. It was Claimant's responsibility, not Employer's, to state his intentions. See Smith. Claimant's evidence that he continued to park his car in the garage after the three-week leave is not sufficient to prove an intention not to abandon employment. Thus, under these circumstances Claimant's actions manifest the requisite intent to quit. See Monaco. The Board properly concluded Claimant voluntarily quit without a necessitous and compelling reason to do so. As such, Claimant is not eligible for benefits.
Claimant attached cell phone records to his brief to support his contention that he spoke with his manager after October 3, 2011. This evidence is not part of the certified record and cannot be considered by this Court. See Croff v. Unemployment Comp. Bd. of Review, 662 A.2d 24 (Pa. Cmwlth. 1995) (providing this Court may not consider auxiliary information attached to a brief that was not part of the certified record on appeal). Nevertheless, Claimant's manager did not dispute he spoke with Claimant on several occasions after the three-week leave. N.T. at 8, 14. --------
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of February, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge