Opinion
No. 1147 C.D. 2014
02-12-2015
Gail E. Lucas, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Gail E. Lucas (Claimant) petitions pro se for review of the June 11, 2014 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision and held that Claimant is ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant worked as a full-time administrator for ACM/Protoclean (Employer) from November 8, 2008, until December 6, 2013. After December 6, 2013, Claimant began calling off work. (Findings of Fact Nos. 1, 4.)
On December 13, 2013, Claimant applied for unemployment benefits, stating that she was not working due to intimidation by co-workers and had requested to work from home. (Record Item 2.) In response, Employer indicated that Claimant abandoned her job. (Record Item 3.) After considering information provided by both parties, the local job center determined that Claimant was ineligible for benefits under section 402(b) of the Law because she had not shown necessitous and compelling reason for leaving her job. (Record Items 4-6.)
Claimant appealed, and a referee held a hearing on March 25, 2014. Claimant, represented by counsel, testified that she last worked on December 6, 2013, and then called off sick for approximately thirty days due to extreme anxiety. Claimant attributed her anxiety to problems at work that began in April 2013. According to Claimant, associates who were unhappy with her distribution of payroll would yell and scream at her and, on one occasion, an associate threw a piece of paper at her. Claimant stated that she was diagnosed with severe anxiety in December 2013. (Notes of Testimony (N.T.) at 6-9.) Claimant also submitted medical forms dated February 17 and February 25, 2014, which reflected diagnoses of hypertension and anxiety disorder. (Ex. C-1, C-2.)
Claimant testified that she attempted to resolve the situation with Employer and spoke with her manager, Tom Ciuppa, and the company's president and owner, Janet Ford, about the possibility of working from home. Claimant said she was asked to return to work on January 15, 2014, but when she awoke that morning she was very ill and very anxious. Claimant called and left a message for Ciuppa that she would be in the next day, but Ciuppa later left a message on Claimant's phone stating that she was no longer needed at work. Claimant stated that she called Ciuppa and he repeated that her services were no longer needed, and she called Ford the following Monday and was told to apply for Social Security disability benefits. (N.T. at 14-15.)
During her testimony, Claimant acknowledged that she received unemployment benefits for some of the weeks that she was calling off work, but she stated that she had answered all questions on the claimant questionnaire honestly. (N.T. at 10-13.)
Ciuppa testified that Claimant began calling off work on December 9, 2013, by leaving messages on his cell phone early in the morning. Ciuppa stated that he and Ford contacted Claimant on January 8, 2014, and learned that she was not comfortable at work and wanted to work from home on a part-time basis. Ciuppa said that Employer attempted to remedy the situation and tried to hire another employee to perform some of Claimant's office duties. Ciuppa testified that Employer placed an advertisement in the paper and interviewed several individuals but none were willing to work for the budgeted salary. Ciuppa stated that he advised Claimant that Employer was not able to accommodate her request and Claimant then said that she would return to work on January 15, 2014. According to Ciuppa, when Claimant called off work that day, Employer considered her to have abandoned her job and notified Claimant that it had accepted her voluntary resignation. (N.T. at 16.)
Patricia Davis testified that she worked for Employer as a supervisor and reported to Ciuppa. Davis stated that she spent most of the day in the office and was aware of certain incidents at work. However, Davis said that she diffused situations that needed to be addressed and did not observe anything out of the ordinary. Davis explained that people were not happy when they were told that they had to wait for their paychecks but "never to my point of recognition that they ever would turn violent." (N.T. at 17-18.)
By decision and order dated March 26, 2014, the referee rejected Claimant's testimony that conditions at work caused her health problems, noting that she had been treated for health issues prior to December 2013 and citing testimony that Employer appropriately addressed incidents that arose at work. The referee found that, at times, Claimant would raise concerns about how she was treated by coworkers, and that Employer addressed all concerns that needed to be addressed. (Findings of Fact Nos. 2, 3.) The referee further found that Employer considered Claimant's failure to report to work on January 15, 2014, to be a voluntary resignation. (Finding of Fact No. 5.)
On the same date, the referee issued a second decision, identified as appeal number 14-09-A-1163, which incorporated the findings cited above and included two additional findings of fact, reflecting that Claimant received unemployment benefits from December 21, 2013, to January 4, 2014, and that, during those weeks, Claimant did not advise unemployment authorities that she was calling off work. (Findings of Fact Nos. 1-2.)
The record reflects that Claimant did not challenge these additional findings or raise any issues concerning her eligibility for the benefits she received in her appeal to the Board, although she later referenced the second decision, appeal number 14-09-A-1163, in her request to the Board for reconsideration. The Board's June 11, 2014 order cites only the first decision issued by the referee, identified as appeal number 14-09-A-1162. Because our review is limited to the record made before the Board, we do not address Claimant's eligibility for benefits she received. Pa.R.A.P. 1551.
The referee concluded that each time Employer became aware of an incident, Employer addressed Claimant's concerns appropriately, and Claimant did not communicate her problems to Employer before calling off work in December 2013. Therefore, the referee concluded that Claimant failed to make a good faith effort to preserve her employment and held that she was ineligible for benefits under section 402(b) of the Law.
Claimant appealed to the Board, stating that she had been too stressed and anxious during the hearing to provide all of the relevant information or rebut the testimony of Employer's witnesses. In an attached letter, Claimant detailed alleged incidents of harassment and intimidation and asserted that Ciuppa was not truthful when he denied awareness of incidents at work.
By order dated June 11, 2014, the Board affirmed the referee's decision. The Board adopted the referee's findings and conclusions and noted that Claimant had been represented by counsel at the hearing. Thereafter, Claimant filed a request for reconsideration, which the Board denied.
On appeal to this Court, Claimant asks this Court to reverse the Board's determination that she did not establish necessitous and compelling reason to leave her employment and, specifically, that she failed to make a reasonable effort to maintain her employment relationship.
Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
In order to be eligible for compensation, a claimant who voluntarily terminates her employment bears the burden of proving that she left her job for cause of a necessitous and compelling nature. Nimitz v. Unemployment Compensation Board of Review, 699 A.2d 822, 823 (Pa. Cmwlth. 1997). In order to show necessitous and compelling cause, 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 her employment. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). The question of whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Id.
On appeal, Claimant does not contend that the testimony she provided at the hearing satisfied her burden of proving necessitous and compelling cause to leave her employment. However, Claimant asserts that she was too timid and stressed to provide sufficient testimony about the hostile nature of her work environment. Claimant also asserts that she testified honestly at the hearing and that the notes she submitted to the Board contain the information necessary to meet her burden, including the fact that she spoke to Ciuppa on many occasions, beginning in November 2013, in an effort to maintain her employment. In sum, Claimant asks this Court to reconsider the evidence.
However, while we recognize that administrative proceedings can be intimidating for some individuals, we are obliged to affirm the Board's decision. 2 Pa.C.S. §702. In unemployment compensation proceedings, the Board is the ultimate fact-finder, empowered to determine the credibility of witnesses and resolve conflicts in evidence. Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). Where, as here, the Board's findings are supported by substantial evidence, they are conclusive on appeal. Id.
In relevant part the statute provides that
the court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.
In this case, the Board accepted the testimony of Employer's witnesses as credible and rejected Claimant's testimony concerning her work environment. Questions of credibility and the resolution of evidentiary conflicts are matters within the discretion of the Board and are not subject to re-evaluation by this Court on appeal. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Although Claimant suggests that some of the testimony offered by Employer's witnesses was not accurate, the Board's credibility determination is binding on this Court. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977); Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth 1994).
We conclude that the credible testimony of Employer's witnesses constitutes substantial evidence to support the Board's findings that Employer addressed all of Claimant's concerns that needed to be addressed and that Claimant called off work for more than thirty days. (Findings of Fact Nos. 3, 4.) Because the Board rejected Claimant's testimony that problems with co-workers caused her to suffer extreme anxiety, she did not demonstrate a necessitous and compelling reason for voluntarily separating from her employment.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of February, 2015, the order of the Unemployment Compensation Board of Review, dated June 11, 2014, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
2 Pa.C.S. §704. Substantial evidence means such evidence that a reasonable mind would accept as adequate to support a conclusion. Joy Global, Inc. v. Workers' Compensation Appeal Board (Hogue), 876 A.2d 1098, 1103 (Pa. Cmwlth. 2005).