Opinion
No. 1937 C.D. 2008.
Submitted: April 9, 2009.
Filed: July 23, 2009.
BEFORE: McGINLEY, Judge; JUBELIRER, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
Rand O. Lapp (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a Referee's decision denying him unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law). On appeal, Claimant argues that because George H. Blouch Fuel Service, Inc. (Employer) did not provide him with help to complete his job duties within the limitations of a 50-hour work week, and because he was required to work a shift for which he was scheduled to be off, he established a necessitous and compelling reason to quit.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,as amended, 43 P.S. §§ 751-914.
Claimant applied for unemployment compensation benefits after quitting his employment with Employer. The Department of Labor and Industry, Bureau of UC Benefits and Allowances issued a determination finding Claimant ineligible for benefits under Section 402(b). Claimant appealed and an evidentiary hearing was held before a Referee. During the evidentiary hearing, Claimant testified on his own behalf. David Blouch, Employer's owner, David Allweing, Employer's Comptroller, and Barbara Showers, Employer's Director of Store Operations, testified on behalf of Employer. The Referee made the following findings of fact:
1. The claimant was last employed by George H. Blouch Fuel Service, Inc., for approximately one year[. H]is last position [w]as a store manager at 15th Avenue Blouch's Mini Market at a final hourly rate of $12.31 and his last day of work was March 21, 2008.
2. The claimant was initially hired to work [at] the Grantville location but after six months was asked if he would agree to transfer and assist at the 15th Avenue location.
3. The claimant agreed and at that time the supervisor indicated that she would ask the president of the company to approve a raise.
4. The claimant was not promised a raise although the supervisor did make that request on several occasions. It was turned down each time.
5. The claimant worked at the 15th Avenue location and found the schedule much more hectic and could not complete his duties during regular work hours.
6. The claimant was expected to work a 50-hour week schedule, twelve days on two off, but he often worked more than 50 hours to complete his work.
7. The claimant was not required to work more than 50 hours and did have the authority to hire employees to assist him with his work.
8. The claimant was unsuccessful hiring anyone to assist him and eventually the employer assigned a co-manager to assist the claimant one day a week.
9. The claimant continued to work the hectic schedule and in February 2008 the employer offered to move the claimant to a store closer to the claimant's home that was much less busy.
10. The claimant was given a week to make his decision but turned down the offer stating that he liked his location and believed that he could continue at that store.
11. As a manager the claimant was responsible for seeing that shifts were covered or occasionally working shifts when employees could not be moved around to cover unexpected absences.
12. The Friday before Easter Sunday, March 21, 2008, the supervisor called the 15th Avenue store and told the claimant's co-manager that there was a scheduling problem and the employee scheduled to work Easter Sunday could not work that day.
13. The supervisor instructed the co-manager and the claimant that they needed to make sure that shift was covered.
14. The claimant and co-manager were free to contact employees and schedule them for Easter Sunday or work the hours themselves.
15. The claimant refused to work the hours and told the supervisor he would not work.
16. The claimant left the store and went to the office to speak to the comptroller.
17. The claimant turned in his letter of resignation effective immediately.
18. The comptroller asked the claimant to think about his decision, as he did not want to lose him as [an] employee.
19. The claimant insisted and his resignation was accepted effective March 21, 2008.
20. The following day the claimant spoke with the president of the company and met with the president March 24, 2008.
21. The claimant did offer to return to work and when that offer was declined[, Claimant] offered to work out a two-week notice.
22. The employer accepted the claimant's resignation effective March 21, 2008.
(Referee's Decision, Findings of Fact (FOF) ¶¶ 1-22.) The Referee determined that Claimant failed to establish that he had necessitous and compelling reasons for leaving his employment. Specifically, the Referee stated that "[C]laimant made a personal decision to quit because he was dissatisfied with the working conditions and was unwilling to use the tools and opportunities available to him to assist him in his job." (Referee's Decision at 2.) The Referee noted that: Employer offered to move Claimant to a less stressful location, which Claimant declined; Employer permitted Claimant to hire additional employees, which Claimant did not do; and Employer permitted Claimant to assign another employee to work Easter Sunday instead of working it himself. (Referee's Decision at 2.) Accordingly, the Referee determined that Claimant was ineligible for benefits under Section 402(b).
Claimant appealed the Referee's Decision to the Board. On appeal, the Board adopted and incorporated the Referee's findings and conclusions. The Board stated:
The claimant asserted that he was not given enough help on a consistent basis and that he experienced chest pains due to stress. Yet, the claimant acknowledged that the director of store operations stopped at the claimant's store three or four days a week and offered some assistance, in addition to a co-manager who assisted one day a week. Moreover, the claimant received a doctor's excuse for time off but elected to work anyway and never gave the employer any medical documentation of a health condition. The claimant even elected to work on his scheduled days off. While the claimant's dedication to his job is highly commendable, the claimant has not demonstrated that he was required to work excessive hours without help. The Board agrees that the claimant did not take advantage of opportunities provided to him by the employer to make his job less stressful. The claimant has not demonstrated cause of a necessitous [and] compelling nature for voluntarily quitting his employment.
(Board Order.) Thus, the Board affirmed the Referee's decision denying Claimant benefits. Claimant now petitions this Court for review.
This Court's review is "limited to determining whether the necessary findings of fact were supported by substantial evidence, constitutional rights were violated, or errors of law were made." Pearson v. Unemployment Compensation Board of Review, 954 A.2d 1260, 1263 n. 2 (Pa.Cmwlth. 2008).
On appeal, Claimant argues that he had necessitous and compelling reasons to quit his employment because: (1) Employer did not provide him with help to complete his job duties within a 50-hour work week; and (2) Employer required him to personally work a shift on Easter Sunday, for which he had been scheduled to be off. Claimant did not specifically challenge any of the Referee's factual findings, which, in turn, renders the findings conclusive on appeal. Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167, 1169 (Pa.Cmwlth. 1997). However, based on his argument, this Court can deduce a challenge as to the findings with regard to Claimant's request for help to complete his job duties and the shift he alleges he was personally told to work even though he was scheduled to be off.
We note that the issues raised by Claimant in his Statement of Questions Involved are unclear. However, because this Court can reasonably discern the issues being raised by Claimant in the argument section of his pro se brief, we will address these issues in a logical order.
It is well-settled that, in unemployment compensation cases, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276-79, 501 A.2d 1383, 1388-89 (1985). In making those determinations, the Board "may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Compensation Board of Review, 450 A.2d 229, 230 (Pa.Cmwlth. 1982). This Court will not overturn the Board's factual findings so long as those findings are supported by substantial evidence in the record. On Line Inc. v. Unemployment Compensation Board of Review, 941 A.2d 786, 789 n. 7 (Pa.Cmwlth. 2008). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citing Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233, 1238 (Pa.Cmwlth. 2001)).
With regard to Claimant's argument that he had to work more than 50 hours per week because Employer did not provide him with help, the Referee rejected this argument. The Referee found that Employer did not require Claimant to work more than 50 hours and, in fact, offered Claimant help through several means to assist him in completing his duties within the 50-hour time frame. (FOF ¶ 7.) Specifically, the Referee found that Employer: (1) gave permission to Claimant to hire employees to assist with the duties (FOF ¶ 7); (2) assigned a co-manager to assist Claimant one day per week (FOF ¶ 8); and (3) offered to move Claimant to a less busy store. (FOF ¶ 9.) In spite of these efforts by Employer, the Referee found that Claimant did not hire additional help and that Claimant refused the store transfer. (FOF ¶¶ 8, 10.) These factual findings are supported by the substantial evidence of record. Specifically, Claimant testified that Ms. Showers never told him that he had to work more than 50 hours a week for Employer. (Referee Hr'g Tr. at 14.) Claimant also testified that: a co-manager was hired one day per week to assist Claimant with his duties, (Referee Hr'g Tr. at 10); Ms. Showers took the responsibility of scheduling shifts of employees away from Claimant (Referee Hr'g Tr. at 9, 17), and often times would stop in the store to help Claimant (Referee Hr'g Tr. at 20); he had the authority to hire an assistant manager, but was unsuccessful (Referee Hr'g Tr. at 11); and he had the authority to hire other store clerks to help with some of his responsibilities. (Referee Hr'g Tr. at 15.) Claimant and Employer's witnesses also testified that Employer offered to transfer Claimant to work as a store manager at a less busy store that was closer to his home, but Claimant declined the opportunity. (Referee Hr'g Tr. at 16-17, 25-26.)
With regard to Claimant's contention that Employer told him that he, personally, had to cover the Easter Sunday shift for which he was scheduled off, the Referee found no such conversation to have taken place. Although Claimant testified that Ms. Showers told him that he had to work on Easter Sunday, the Referee credited Ms. Showers' testimony that she instructed both Claimant and his co-manager that they both were responsible for making sure the shift was covered and the store remained open. Ms. Showers explained that, when a shift is not covered, it is the store manager's responsibility to either cover the shift personally or assign another employee to fill the vacant slot. (FOF ¶¶ 11, 13-14; Referee Hr'g Tr. at 24-25.) When Ms. Showers notified Claimant and his co-manager of the vacant slot, Claimant testified that he never even attempted to call any of his employees to cover the shift. (Referee Hr'g Tr. at 18.) Because the findings of fact are fully supported by the record, this Court cannot overrule them and, thus, cannot find in favor of Claimant.
To the extent that Claimant argues that the Board erred in finding Claimant ineligible for benefits, we note that, under Section 402(b), a claimant will not be eligible to receive unemployment compensation in a week where "his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ." 43 P.S. § 802(b). Whether a claimant had "cause of a necessitous and compelling nature" is a question of law which may be reviewed by this Court. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977). A claimant has the burden of showing that he had necessitous and compelling reason to quit his job. Central Dauphin School District v. Unemployment Compensation Board of Review, 893 A.2d 831, 832 (Pa.Cmwlth. 2006). Generally, cause of a necessitous and compelling nature is cause 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." Taylor, 474 Pa. at 358-59, 378 A.2d at 832-33.
Claimant fails to make any legal argument or cite to legal authority in support of his argument that the Board erred as a matter of law. Moreover, Claimant has failed to establish that circumstances existed which produced real and substantial pressure to quit his employment. The record establishes that Employer was on notice of Claimant's level of stress and inability to complete his work within a 50-hour work week. In order to address this issue, Employer gave Claimant the authority to hire employees to help with his duties, actually hired a co-manager one day a week, and offered to transfer Claimant to a less busy store. Claimant was either unsuccessful at hiring employees to help, or declined to take advantage of the opportunities presented to him in order to alleviate some of his stress. As such, we are constrained to conclude that Claimant's decision to quit his employment was not based on a necessitous and compelling reason.
Accordingly, we affirm the order of the Board.
ORDER
NOW, July 23, 2009, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.