Opinion
No. 2112 C.D. 2011
06-20-2012
Jennifer P. Marson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Jennifer P. Marson (Claimant) challenges the Order of the Unemployment Compensation Board of Review (Board) which reversed the referee's determination that Claimant was eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as an HR manager by Walker's Pet Hotail from July 15, 2010, at a final rate of $12.75 per hour and her last day of work was May 27, 2011.
2. The claimant was scheduled to work 7am to 1pm on May 27, 2011.
3. The claimant had asked permission to take her parents to a doctor's appointment and was scheduled to work from 7am to 9 am.
4. The previous night, the claimant's son came down with strep and the claimant was unable to take her parents to the doctor's on May 27, 2011.
5. The claimant reported to work at 7am on May 27, 2011, and contacted the office manager, the employer owner's wife, in regard to staying until 1:00pm in order to work on HR matters and to assist in other areas with the staff.
6. The office manager agreed that the claimant could stay past 9am.
7. While at the employer's, the claimant received a telephone call form [sic] East Pittsburgh police in regard to a request to take a dog over the holiday weekend in order to keep it from being euthanized.
8. The claimant called the office manager in regard to accepting the dog.
9. The office manager gave the claimant permission to accept the dog for the weekend.
10. The claimant was talking with the East Pittsburgh police about accepting the dog when the employer telephoned the claimant and specifically stated she was not to take the dog and was to call other places with whom they were associated in order to provide an over-the-weekend stay so the dog would not be euthanized.
11. The claimant hung up the phone and two co-workers informed the claimant that they would take the dog.
12. The claimant called the employer back and informed him that the co-workers would be taking the dog.
13. The employer began yelling over the phone that the co-workers could not take the dog and that she needed to call the shelters.Board Opinion, October 14, 2011, (Opinion), Findings of Fact Nos. 1-17 at 1-2; Reproduced Record (R.R.) at 24a-25a.
14. The claimant argued with the employer stating that the co-workers said that they would keep the dog and that she did not have authority to tell the co-workers they could not keep the dog.
15. The employer then yelled that the claimant should tell them what he told her to tell them.
16. The claimant told the employer that he would have to make an appointment on Monday to talk to her about the way he was speaking to her because it was unacceptable.
17. At some point the conversation ended and the claimant texted the office manager that she quit.
The Board reversed the referee and determined that Claimant was ineligible for benefits under Section 402(b) of the Law:
In this case, the claimant and the employer had a disagreement over the phone regarding keeping a dog for the weekend. The claimant testified that the employer yelled at the claimant over the phone regarding keeping the dog and disagreed that the co-workers could keep the dog. Even taking everything the claimant stated as credible, the Board cannot conclude that the claimant had cause of a necessitous and compelling nature to quit her job. The claimant did not testify or present any evidence that this was anything other than an isolated incident. The claimant did not testify that the employer used profanity. Based upon the record before it, the Board concludes that the claimant did not have cause of a necessitous and compelling nature to quit her job.Opinion at 3; R.R at 26a.
Claimant contends that the Board erred when it determined that Claimant did not have a necessitous and compelling reason to terminate her employment relationship and the Board erred when it failed to consider whether Claimant attempted to take reasonable steps to alleviate a situation that was caused by Walker's Pet Hotail [Employer].
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Initially, Claimant argues that the Board erred when it determined that Claimant did not have a necessitous and compelling reason to terminate her employment relationship. We disagree.
Section 402(b) of the Law, 43 P.S. §802(b), provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Where an unemployment compensation claimant alleges that he or she terminated employment for necessitous and compelling reasons, claimant has the burden of establishing the existence of such reasons.
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). Good cause for voluntarily leaving one's employment 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. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
Claimant testified regarding the nature of her telephone conversation with Employer:
You're just screaming at me. I said the volume on the phone is so loud sometimes I can't even hear the words that you're saying. You know, you're going to have to make an appointment with me on Monday to talk about how you're treating me right now because this is unacceptable and he said no. And I said well let me talk to Michele [Ms. Rubin] because I talked to her and Michele [Ms. Rubin] always speaks normally and professionally. It's never a problem with her.... And I got off the phone with him and I just, you know, after being yelled at for so long I just broke down into tears and I just said, you know, I quit. I text [sic] Michele [Ms. Rubin] I quit. (emphasis added)Notes of Testimony (N.T.), July 20, 2011, at 6; R.R. at 11a.
Here, the Board determined that "[e]ven taking everything the claimant stated as credible, the Board cannot conclude that the claimant had a cause of a necessitous and compelling nature to quit her job." Decision at 3; R.R. at 26a. Claimant did not testify or present evidence that she was continually subjected to "abusive and unnecessary behavior" and "demeaning and harassing actions." Claimant's brief at 11 and 13. The record fails to establish that verbal abuse was a continuing occurrence that placed a substantial burden on Claimant's ability to perform her job. Claimant's testimony was found credible, but failed to establish an intolerable work environment. Being "yelled" at over the telephone, which appears to be the worst thing Claimant suffered, does not establish a necessitous and compelling cause to terminate employment. This was not a resignation for a necessitous and compelling reason, and this Court must conclude Claimant is ineligible for benefits under Section 402(b) of the Law.
Claimant next contends that the Board erred when it failed to consider whether Claimant attempted to take reasonable steps to alleviate a situation that was caused by Employer.
Making a reasonable effort to preserve employment in this situation would involve, at a bare minimum, waiting until her next shift to discuss this incident with Michele Rubin, office manager for Employer, with whom Claimant shared a good relationship. Claimant's assertion that Employer was "abusive and harassing" comes with no supporting evidence, and does not, by itself, justify unilaterally and abruptly terminating the employment relationship.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 20th day of June, 2012, the Order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge