Opinion
No. 1824 C.D. 2012
04-04-2013
Marjorie P. Knepp, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Marjorie P. Knepp (Claimant) petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because she failed to prove cause of a necessitous and compelling nature for leaving her employment. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
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(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act.
After working only four days and while still in training, Claimant was employed by Days Inn Penn State (Employer) as a full-time house person on the 3:00 p.m. to 11:00 p.m. shift. Claimant purportedly quit her position because she was dissatisfied with her pay; the long commute; childcare concerns; the absence of proper protective wear like gloves and aprons and cleaning equipment; the inappropriate conduct of her immediate supervisor; and she misunderstood the relationship between Employer and the Pennsylvania State University (PSU) and thought that her position with Employer would be a "foot in the door" with PSU. Claimant filed for unemployment compensation benefits with the UC Service Center which denied benefits because she voluntarily left her employment without a necessitous and compelling reason under Section 402(b) of the Law, and Claimant appealed.
Before the Referee, Claimant testified that the main reason that she quit was because the job only paid $8.00 an hour and she had to pay for gas to commute to work in State College from Phillipsburg and for someone to come in and watch her 17-year-old special needs son. Claimant explained that she thought that the job was with PSU and that she would get raises and retirement with the state. She stated that she also could not afford the expense of supplying her own gloves for cleaning that she needed due to a skin condition and that her co-worker called her "honey" and "sang weird songs" that "spooked" her and that she found belittling. Claimant testified that while she spoke with her co-worker regarding his behavior and the availability of gloves, there were no office personnel around when she was working, and that every time she tried to call she could only reach the desk clerks, not management.
Claimant failed to appear at the first hearing conducted before the Referee. Employer's witness testified at that hearing, the Referee denied benefits under Section 402(b), and Claimant appealed that determination to the Board. The Board remanded the matter to the Referee for another hearing and Claimant and Employer's general manager, Jennifer Hartman, testified.
Employer's general manager, Jennifer Hartman (Hartman), testified that Claimant did not report her dissatisfaction with her employment to Employer. Hartman stated that Claimant had four people that she could have contacted: an immediate supervisor; an assistant to him; Hartman's assistant; and Hartman herself. She testified that Claimant started working at 3:00 p.m.; that she is at work until 5:50 p.m.; that her ten managers are there every day until 5:30 p.m.; and that some of them are there until 8:00 p.m. Hartman stated that Claimant was specifically told that the position involved the use of cleaning chemicals and that Claimant was asked if she could work with chemicals and, if not, what she needed to do. Hartman testified that there are two closets on every floor of the facility with OSHA packs in each which contain gloves and an apron. Hartman stated that Claimant would have been provided a uniform, but that it takes about ten days to receive a uniform because they order them by size and order them upon hire. She testified that Employer is not associated with PSU and they never once indicated that they were. Rather, Hartman explained that Employer's name refers to its location like "Days Inn Sea World" or "Days Inn Disney World." While Claimant alleged that she could not contact management about her concerns because they were not there when she worked, Hartman testified that she and ten managers are at work until 5:30 p.m. and some of the managers are there until 8:00 p.m. Hartman stated that if Claimant would have come to her with these concerns, she would have tried to address them; Employer's goal is to keep employees and that it costs money to train people.
On August 23, 2012, the Board issued a decision affirming the UC Service Center's determination, explaining:
Based upon the above Findings, which are supported by the employer's credible testimony, the Board concludes that the claimant did not have necessitous and compelling cause for quitting her position. The claimant was in no way misled by the employer regarding the conditions of her employment, including the lack of relationship between the employer and PSU. Furthermore, with regard to the work conditions including the behavior of her immediate supervisor, the claimant did not complain to any one in management even though several managers including the general manager were available. The claimant did not make a good faith effort to preserve the employment relationship. Therefore, the claimant is ineligible for benefits under Section 402(b) of the Law.(Board's August 23, 2012 Decision at 3). This appeal by Claimant followed.
Our review is limited to determining whether the Board's decision is in violation of constitutional rights, whether an error of law has been committed, or whether the factual findings are supported by substantial evidence. Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 n.2 (Pa. Cmwlth. 2011).
On appeal, Claimant argues that she had a necessitous and compelling cause for quitting because she was mistaken as to the relationship between Employer and PSU; her co-worker exhibited inappropriate behavior; and she was not furnished with proper cleaning supplies and could not afford to purchase them herself.
To the extent that Claimant raises additional issues in the Statement of Questions Involved portion of her appellate brief, they have been waived because they are not developed in the Argument portion of that brief. Pa. R.A.P. 2119; Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998).
Whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). The burden is on a claimant to prove necessitous and compelling reasons for quitting. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). In order to show cause of a necessitous and compelling nature, the claimant must establish 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. Brown, 780 A.2d at 888. --------
However, once an employee accepts the terms of employment, it is presumed that the employment is suitable; therefore, the employee may not later assert that dissatisfaction with those terms constitutes cause of a necessitous and compelling nature to quit, unless there has been a unilateral change in the employment conditions or the employee was deceived by the employer or the employee was reasonably unaware of the unsuitable conditions when accepting the position. Miller v. Unemployment Compensation Board of Review, 580 A.2d 920, 921 (Pa. Cmwlth. 1990). In addition, while sexual harassment may constitute cause of a necessitous and compelling nature requiring a claimant to terminate employment, a claimant has a duty to alleviate the harassment and to preserve the employment relationship by notifying the employer of the offending conduct before quitting. Martin v. Unemployment Compensation Board of Review, 749 A.2d 541, 543-44 (Pa. Cmwlth. 2000); Andrews v. Unemployment Compensation Board of Review, 698 A.2d 151, 153 (Pa. Cmwlth. 1997).
Based upon the evidence found credible by the Board, Employer never changed the terms of employment and Claimant never expressed any of the foregoing concerns prior to quitting her employment. Moreover, the credible evidence establishes that Claimant was never misled regarding the lack of relationship between Employer and PSU or regarding the conditions of her employment and that she was, in fact, supplied with the proper cleaning supplies, including aprons and gloves, necessary to complete the duties of her position. The Board did not err in determining that Claimant was not eligible for benefits under Section 402(b) because she did not make a reasonable effort to preserve her employment.
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of April, 2013, the order of the Unemployment Compensation Board of Review, dated August 23, 2012, at No. B-540854, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge