Opinion
No. 972 C.D. 2013
01-24-2014
Joyce Krasavage, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Joyce Krasavage (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review denying her claim for benefits under the Unemployment Compensation Law (Law). In doing so, the Board affirmed the Referee's decision that Claimant was ineligible for benefits under Section 402(b) of the Law, because she voluntarily quit her job without cause of a necessitous and compelling nature. Because Claimant failed to take reasonable efforts to preserve her employment, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914.
Section 402(b) of the Law provides, in relevant part, that "[a]n 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[.]" 43 P.S. §802(b).
Claimant was employed as a secretary by Baber Manufacturing (Employer), which is a sole proprietorship, from August 2010 until she resigned effective November 26, 2012. Claimant applied for unemployment benefits, which were denied by the UC Service Center. Claimant appealed and a hearing was held before a Referee. Claimant appeared pro se, and Employer, Lee Baber, appeared with counsel.
Claimant testified that the environment at work had turned "nasty" as a result of her deteriorating relationship with Baber. Claimant testified that she felt "picked on" by Baber because he criticized such things as the foods she cooked in the microwave oven for lunch. Notes of Testimony, March 14, 2013, at 4, 6 (N.T. ___). Claimant also felt "squeezed out" by another employee Baber hired to cover for Claimant when she was out of the office. As the new employee gradually took over Claimant's responsibilities, Claimant had to find other things to do and was working only 20 hours per week by the time she resigned.
Claimant testified about the specific event that prompted her resignation. On November 12, 2012, Claimant and Baber got into an argument about Claimant's conversation with a police officer, who was conducting an investigation. According to Claimant,
[Baber] said to me I explained that to you in length and I again said I don't remember. There were so many that we were dealing with, so many cases that I was trying to recover money for his business and finally he said to me get off the effing drugs, which I take Flexeril and Xanax as needed which are prescribed by my doctor. I rarely take them but they are considered to [Baber] as drugs and that really hurt my feelings and I lashed out. And that was it. I could not take it anymore.N.T. 5. Claimant gave Baber two weeks' notice and resigned effective November 26, 2012.
After the above testimony, the Referee asked Claimant whether she told Baber how she felt about his comment. Claimant admitted that she did not. Id. Claimant also acknowledged on cross-examination that she never informed Baber of her dissatisfaction with the work environment or that she intended to resign unless it improved. N.T. 8.
The Referee held that Claimant was ineligible under Section 402(b) of the Law, 43 P.S. §802(b), because she did not exhaust all alternatives before quitting. The Referee explained that Claimant failed to satisfy her burden because she never told Baber she was offended by his comment about her prescription medications or expressed any concerns about the work environment. On appeal, the Board adopted the Referee's factual findings and legal conclusions and affirmed the denial of benefits. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred by focusing only on her final argument with Baber and not considering additional abusive comments and actions she reported at the hearing and in her appeal letter to the Board. Claimant argues, alternatively, that the Referee failed to assist her in eliciting testimony to support her burden of proving a necessitous and compelling reason for quitting her job. Claimant contends the Board should have remanded her appeal for a new hearing or assigned a Referee to take additional testimony.
The scope of our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987) (citing 2 Pa. C.S. §704).
The law is well settled that a resignation prompted by normal workplace pressure will not be considered an involuntary resignation. We have explained that a
[n]ecessitous and compelling cause for voluntarily leaving employment [is one that] results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.Mercy Hospital of Pittsburgh v. Unemployment Compensation Board of Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995) (citing Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977)). Whether a claimant's reasons for quitting are necessitous and compelling is a legal conclusion subject to plenary review. Astolfi v. Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa. Cmwlth. 2010). The claimant bears the burden of proving necessitous and compelling reasons for resigning. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). As part of her burden, the claimant must show that she took all reasonable efforts to preserve her employment. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002).
In this case, Claimant testified that she resigned because of a work-related argument with Baber on November 12, 2012. During the argument, Baber told Claimant to "get off the effing drugs." N.T. 5. Although Claimant may have been justifiably displeased with Baber's remark, she did not inform Baber she found the remark objectionable or ask him to refrain from making such comments again. By failing to do so prior to quitting her job, Claimant failed in her duty to act with ordinary common sense and to make a good faith effort to preserve the employment relationship.
Claimant contends that the Board erred by focusing only on her final argument with Baber and not considering additional abusive comments and actions she reported at the hearing and in her appeal letter to the Board. We disagree. Claimant herself admitted at the hearing that this argument with Baber and his remark about her prescription drug use is what precipitated her resignation. Even assuming the other remarks about which Claimant testified established a pattern of objectionable conduct, Claimant also admitted that she never notified Baber that her work environment had become intolerable or gave him any opportunity to improve the situation. Thus, there was substantial evidence to support the Referee's finding, adopted by the Board, that Claimant never complained about "a nasty work environment or about any demeaning comments." Referee's Decision at 1; Finding of Fact No. 7.
We disagree with Claimant's suggestion that it would have been futile to complain to Baber. In Astolfi, 995 A.2d 1286, the claimant resigned after allegedly being subjected to repeated verbal abuse by a co-worker and the owner of the dental practice for which she worked. Before she resigned, however, the claimant approached the owner about the stress she was experiencing in her work environment. The Board specifically found that by doing so the claimant took reasonable steps to preserve her employment. --------
Claimant next argues that the Referee failed to adequately assist her in eliciting testimony to support her burden of proving a necessitous and compelling reason for quitting. Claimant never raised this issue in her appeal to the Board, opting instead to raise it for the first time on appeal. Therefore, the issue is waived. Reading Nursing Center v. Unemployment Compensation Board of Review, 663 A.2d 270, 275 (Pa. Cmwlth. 1995).
Even if Claimant had preserved the issue, it lacks merit. By regulation, where a party is unrepresented by counsel, a referee is obligated only to "advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of [the referee's] official duties." 34 Pa. Code §101.21(a). To require the referee to advise the claimant as to the strength of his case at any point in the hearing because he is not represented by counsel "casts the referee in the role of surrogate counsel and advocate for the claimant," which is not permissible Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1085 (1985) (citation omitted).
Here, the Referee permitted Claimant to testify about the incident that precipitated her resignation and about other incidents which made her unhappy at work. The Referee repeatedly encouraged her to explain how the work environment had turned "nasty." We conclude that the Referee reasonably assisted Claimant in developing the necessary facts and provided Claimant with every assistance compatible with the impartial discharge of his official duties. To the extent Claimant argues the Referee should have acted as her advocate and advised her on specific points of law, such as if she presented sufficient evidence to meet her burden of showing necessitous and compelling cause, her argument is misguided.
For all of these reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 24th day of January, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated May 7, 2013, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge