Opinion
No. 2055 C.D. 2013
06-16-2014
Harold I. Lieljuris, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Harold I. Lieljuris (Claimant) petitions for review from the Order of the Unemployment Compensation (UC) Board of Review (Board) that affirmed the Decision of the UC Referee (Referee) finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) on the grounds that he voluntarily quit his employment with Legion Security Services, Inc. (Employer) without cause of a necessitous and compelling nature. On appeal, Claimant argues that the Board erred in concluding that his concerns for his safety in the face of perceived threats did not constitute necessitous and compelling cause for him to quit his employment as a security guard. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended 43 P.S. § 802(b).
Claimant worked for Employer as an assistant chief of security/patrol officer until May 31, 2013. (Referee Decision, Findings of Facts (FOF) ¶ 1.) Claimant applied for UC benefits and the UC Service Center denied his application. Claimant appealed and a hearing was held before the Referee. Claimant, represented by counsel, testified on his own behalf. Employer presented the testimony of its President, its Chief of Security at Towamensing Trails, and its Regional Manager. After the hearing, the Referee made the following findings of fact:
2. The claimant was hired to work at the employer's client, Towamensing Trail[s] Properties, which is a private, ungated community with 2,500 homes and 60 miles of road.
3. The claimant was aware at the time of hire the job is dangerous and can be life threatening.
4. The claimant carries a military style sidearm and wears a bullet proof vest in the performance of his duties and has been trained/certified under the PA Lethal Weapons and Training Act.
5. The community has been experiencing heightened drug/gang activity.
6. Based on a written directive, the claimant was putting pressure on individuals to leave the community who may be participating in such activities.
7. In November 2012, the claimant informed the company president that he felt threatened due to information he heard from others.
8. The claimant declined the employer's offer to transfer him to a different worksite because he did not want to leave his colleagues and the drive was further from his home.
9. Approximately, mid May 2013, the claimant provided information to police regarding suspicious youths that he had questioned or had removed from the community.
10. Shortly thereafter, the police arrested individuals for drug-related activities.
11. The employer received a report from one of the security officers that indicated one of the residents of the community express[ed] concerns about the safety of the patrol officers working in the community.
12. The report did not communicate a specific threat made towards a particular officer.
13. The employer posted information about the report so the officers could take extra caution in the performance of their work.
14. After receiving information regarding the report, the claimant expressed concerns to the chief of security that he felt specifically threaten[ed] because of how aggressive he was with individuals that may have been arrested.
15. The claimant informed [employer] that . . . he did not want to work in the evening by himself.
16. The claimant requested to have a second patrol officer assigned to second shift and to have his schedule changed so that he could work more first shifts.
17. The employer was unable to accommodate the claimant's requests due to the client contract, which determines the number of hours allotted for the employer[] to provide service and requires supervisory staff to work first shift.
18. Any changes to the contract must be approved by the property board members, who meet once a month.
19. The contract allows the employer to schedule two patrolmen on the second shift, Fridays and Saturdays between Memorial Day and Father's Day.
20. The contract also allows for a second officer on the second shift every day of the week from Father's Day to Labor Day.
21. The shift change would require the employer to take regularly scheduled shifts from the chief of security.
22. After discussing the claimant's concerns with the company president, the chief of security relayed to the claimant the following options: (1) Don't be aggressive or make patrol stops at night; (2) Don't work the evening shifts and lose the hours; (3) Make up lost hours by working at the employer's client location in Pittston, Pa; (4) After Memorial [D]ay, he could make up lost hours on the weekend when two patrolmen are scheduled to work.
23. The claimant chose to lose his second shift hours and removed himself from the schedule for his two evening shifts, May 21, 2013 and May 22, 2013.(FOF ¶¶ 2-35.) The Referee held that Claimant's position was inherently dangerous, that Claimant accepted this danger when he accepted the job, but that aggravating circumstances might still provide necessitous and compelling reason to quit. (Referee's Decision at 3.) The Referee held that Claimant failed to adduce competent evidence to show that he was specifically targeted or threatened, or that Claimant's situation was more dangerous than usual. (Referee Decision at 3.) The Referee also determined that Employer attempted to accommodate Claimant insofar as the constraints of its contracts with its clients permitted. (Referee Decision at 3.) Therefore, the Referee held that Claimant failed to show necessitous and compelling cause for quitting his job. Claimant appealed to the Board, which affirmed and adopted the Referee's Decision. Claimant now appeals to this Court.
24. The claimant continued to ask the chief of security about his request for the shift change and assignment of a second patrolman.
25. On March 31, 2013, the claimant informed the property manager that he may not be working for the employer after that date.
26. Later that day, the company president received a letter from the claimant's attorney indicating that because the claimant's request for a "permanent shift change" was not accommodated, they will consider the claimant to have been constructively discharged until the request was accommodated.
27. The letter also instructed the company president to have his counsel contact the claimant's attorney if there are any further questions.
28. The company president was irate because he felt the issue was resolved and did not want to have attorneys involved in dealing with the issue due to costs.
29. The president called the claimant to discuss the letter, and his contention with using attorneys to resolve the issue, because he felt the issue had been resolved.
30. The claimant refused to speak with the president and continued . . . directing the president to speak with the claimant's attorney.
31. The president was frustrated and used some profanities during the phone call.
32. The claimant often heard the employer use profanities and was not previously concerned with the language.
33. The claimant stopped reporting to work after that date.
34. On June 12, 2013, the employer had his attorney provide written correspondence to the claimant's attorney indicating they made reasonable offers to accommodate the claimant and the company could do no more since the claimant refused the previously made offers of accommodation.
35. The claimant voluntarily quit due to safety concerns.
This date appears to be in error; Claimant testified that he made this statement to the property manager on May 31, 2013. (Hr'g Tr. at 22, R. Item 10.)
This Court's "scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence." Lee v. Unemployment Compensation Board of Review, 33 A.3d 717, 719 n.4 (Pa. Cmwlth. 2011).
Before this Court, Claimant argues that: (1) Claimant had necessitous and compelling cause to quit his employment due to stress-related health problems and his reasonable fear of violence; and (2) the Board failed to take into account Employer's failure to accommodate Claimant's request for a shift change.
Claimant also argues that the Board erred in finding that he quit rather than was "constructively discharged" by Employer. (Claimant's Br. at 8.) The term "constructive discharge" is not generally used in this Court's UC jurisprudence outside of work stoppage cases when an employer hires workers to replace those on strike. See, e.g., Northern Health Facilities v. Unemployment Compensation Board of Review, 663 A.2d 276, 278 (Pa. Cmwlth. 1995) (stating that constructive discharge, rather than a voluntary quit, occurs when an employer hires a permanent replacement worker for a striking employee). However, the gravamen of Claimant's argument on this issue appears to be that Employer created or allowed an untenable situation for Claimant leaving him no option but to quit. This is essentially an argument that Claimant had necessitous and compelling cause to quit his employment, which we discuss infra. --------
Initially, we note that a claimant is ineligible for UC benefits during any week in which his unemployment is due to his voluntary termination of his employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). "Whether or not a claimant had a necessitous and compelling cause for leaving employment is a question of law subject to this Court's plenary review." Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 300 (Pa. Cmwlth. 2013).
We first address Claimant's argument that he had cause of a necessitous and compelling cause to quit his employment due to stress-related health problems. A medical condition or health problem may give rise to cause of a necessitous and compelling nature to terminate employment. Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). In his brief, Claimant states that he "had a very stressful year and was hospitalized and was on medication." (Claimant's Br. at 11.) Claimant does not identify where in the record such testimony may be found, and our review of the record has not uncovered such testimony or any other evidence that would support a finding that Claimant quit his employment due to health reasons. Therefore, this argument has no support and cannot be sustained.
Next, we address Claimant's argument that he had necessitous and compelling cause to quit his employment due to his reasonable fear of violence directed against him. "An unsafe work environment can give an employee a necessitous and compelling reason to resign." Green Tree School v. Unemployment Compensation Board of Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009). A claimant seeking benefits on this basis has the burden of showing that the work environment is actually unsafe; "safety 'fears' alone do not constitute a compelling reason to resign." Id. at 578 (quoting Potts v. Unemployment Compensation Board of Review, 406 A.2d 585, 586 (Pa. Cmwlth. 1979)). In addition, when an employee accepts a job, a presumption arises that the work is suitable. Johnson v. Unemployment Compensation Board of Review, 450 A.2d 1095, 1096 (Pa. Cmwlth. 1982). In order to overcome this presumption, a claimant must show "that the unsuitable conditions were the result of employment factors which changed after acceptance or that he was deceived as to, or was reasonably unaware of, the unsuitable conditions when he accepted the employment." Id.
Here, Claimant argues that his working conditions became unusually dangerous when his life was threatened by gang members and Employer refused to ameliorate the danger. The Board, however, determined that Claimant's position was inherently dangerous. This determination is supported by Claimant's testimony that he frequently encountered individuals he considered to be dangerous, that the job was "dangerous every day," and that he received direct threats "all the time." (Hr'g Tr. at 10, 27, R. Item 10.) While Claimant asserts that he was in increased personal danger due to new threats resulting from drug-related arrests by the Pennsylvania State Police, the Board did not credit that Claimant was personally threatened, but instead found that the threat was a general one. (FOF ¶ 12.) This finding is supported by the record. Employer's Chief of Security for Towamensing Trails testified that he was informed that "we better watch out because someone is out to get us within the community but again, no names." (Hr'g Tr. at 41.) Thus, the Board determined that although Claimant perceived an imminent threat, the work environment was no more dangerous than usual. (Referee Decision at 3.) A subjective concern over an unsafe work environment, absent a showing that the work environment is more unsafe than usual, is not sufficient to constitute a necessitous and compelling cause to quit. Green Tree School, 982 A.2d at 578; Johnson, 450 A.2d at 1096.
Moreover, in this case, Employer attempted to accommodate Claimant's concerns, but Claimant rejected these options. A claimant who asserts a necessitous and compelling cause for voluntarily quitting employment bears the burden of showing that "he made a reasonable effort to preserve his employment and that he had no real choice other than to leave his employment." Department of Corrections v. Unemployment Compensation Board of Review, 547 A.2d 470, 474 (Pa. Cmwlth. 1988). The Board found that Employer offered Claimant four options in an attempt to accommodate his safety concerns:
(1) Don't be aggressive or make patrol stops at night; (2) Don't work the evening shifts and lose the hours; (3) Make up lost hours by working at the employer's client location in Pittston, Pa; (4) After Memorial [D]ay, he could make up lost hours on the weekend when two patrolmen are scheduled to work.(FOF ¶ 22.) Claimant offers no argument on appeal regarding why none of these options, particularly working at Employer's alternate location in Pittston, which would not have required Claimant to lose any hours, was suitable.
Claimant argued before the Board that working at Employer's alternate location was not a viable option because he would leave his fellow employees in danger and the commute was longer. However, Claimant's concern for his fellow employees is at odds with quitting his position and by doing so leaving his fellow employees as surely as if he had accepted Employer's offer of working at a different location. This concern is also at odds with Claimant's contention that the threat was uniquely heightened as to him in particular. In addition, this Court has held that "a claimant cannot base a decision to quit on the putative danger of other employees." Green Tree School, 982 A.2d at 578. Claimant adduced no specific evidence regarding the additional length or cost involved in a commute to Pittston, stating only "it was another location farther away and it wasn't - it would have cost me more money in expenses traveling." (Hr'g Tr. at 13.) This generalized statement is not sufficient to prove that the commute would have rendered temporary relocation to Employer's Pittston site an unreasonable option. See Speck v. Unemployment Compensation Board of Review, 680 A.2d 27, 30 (Pa. Cmwlth. 1996) ("an insurmountable commuting problem may constitute a necessitous and compelling reason for terminating employment" (emphasis added)).
Claimant also argues that the Board failed to take into account Employer's failure to accommodate Claimant's request for a shift change. However, the Board did recognize Claimant's request for a shift change and found that Employer was unable to accommodate this request due to Employer's contractual constraints:
16. The claimant requested to have a second patrol officer assigned to second shift and to have his schedule changed so that he could work more first shifts.
17. The employer was unable to accommodate the claimant's requests due to the client contract, which determines the number of hours allotted for the employer[] to provide service and requires supervisory staff to work first shift.(FOF ¶¶ 16-17.) The finding that Employer was unable to accommodate Claimant's request for a shift change or an additional officer is supported by substantial evidence in the record. Employer's Chief of Security at Towamensing Trails and Employer's President testified that Towamensing Trails, not Employer, determined how many hours of service Employer could provide. (Hr'g Tr. at 43, 47-48.) Employer's President testified that it was not possible to schedule Claimant on first shift during the week because Towamensing Trails wanted the site supervisor on first shift. (Hr'g Tr. at 49.) Moreover, the burden is on a claimant who asserts a necessitous and compelling cause for quitting employment to show that the accommodations offered by the employer are inadequate, Taraschi v. Unemployment Compensation Board of Review, 510 A.2d 400, 402 (Pa. Cmwlth. 1986), not upon the employer to show that the claimant's proposed accommodation is unworkable. As discussed above, Claimant failed to show that the accommodations offered by Employer in response to Claimant's concerns were inadequate.
Because Claimant failed to show that his work environment was objectively more dangerous than usual and did not show that the alternatives offered by Employer were unsuitable, we must affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 16, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge