Opinion
No. 873 C.D. 2013
02-25-2014
Donald J. McGrail, 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 LEADBETTER
Claimant, Donald J. McGrail, petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's decision denying him unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law), which provides that an employee is ineligible for benefits during any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
The referee also affirmed the UC Service Center's denial of benefits under Section 401(f) of the Law, 43 P.S. § 801(f). Under Section 401(f), an employee can be eligible for benefits after having been previously disqualified due to circumstances involving voluntary quit, willful misconduct or self-employment if, after disqualification, he earns remuneration for services equal to or in excess of six times his weekly benefit rate. Having failed to assert that he earned six times his weekly benefit rate in subsequent employment, Claimant has not challenged the denial under Section 401(f).
The facts as found by the referee, which the Board incorporated and adopted in their entirety, are as follows. Claimant worked approximately two months as a part-time security officer for US Security Associations (Employer) and was assigned to Canonsburg General Hospital. When his manager advised him on a Friday that Employer was removing him from the hospital assignment, Claimant expressed dissatisfaction and would not discuss other locations within the general Allegheny/Washington County area. In fact, Claimant advised the manager that he quit and did not need the job. Notwithstanding Claimant's statement, his manager urged him to think over his decision and speak to a supervisor on Monday regarding another assignment. On Monday, however, Claimant went to Employer's office and returned his uniforms, keys, badge and any other company property in his possession. He neither asked if another assignment was available nor made any arrangements in that regard. Accordingly, the referee concluded as follows: 1) Employer did not terminate Claimant's position; it merely removed him from a specific assignment; and 2) continuing work was available to Claimant.
Claimant applied for benefits, which the Duquesne UC Service Center denied. After a hearing at which both Claimant and two witnesses for Employer presented evidence, the referee affirmed. She determined that "the claimant's actions of submitting his equipment, uniforms, etc., to the employer on October 15, 2012 without discussion or without questioning whether they [sic] would place him in another assignment amounted to a voluntary termination." Referee's Decision at 2. In addition, she found that the manager "credibility testified that continuing work was available and that the claimant could [have moved] on to another position with the employer." Id. The Board affirmed and Claimant's timely petition for review followed.
A claimant in a voluntary quit case bears the burden of proving that his separation from employment was involuntary. Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). An employee has voluntarily quit for unemployment compensation benefit purposes when he or she resigns, leaves, or quits without action by the employer. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). When determining whether an employee quit voluntarily, this Court considers the totality of circumstances. Id. A determination of whether an employee has quit voluntarily or has been discharged is a question of law, subject to plenary review by this Court. Id. A claimant who voluntarily quit bears the burden of proving necessitous and compelling cause for leaving his or her job. Brunswick Hotel & Conf. Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). In order to show such cause, the claimant must establish, inter alia, that he made a reasonable effort to preserve his employment. Id. at 660.
In addition, where, as here, the Board resolved any credibility conflicts in favor of Employer, we are bound to view the evidence, and every reasonable inference deducible therefrom, in the light most favorable to Employer as the prevailing party. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 630, 437 A.2d 1213, 1218 (1981). It is well established that "[q]uestions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review." Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1388 (1985).
Claimant argues that the record supports a conclusion that his separation from employment was in the nature of a discharge. We disagree. Notwithstanding Claimant's citations to portions of the record which he believes sound in discharge, this appeal presents a credibility dispute. The Board chose to accept Employer's version of the events and we cannot overturn that credibility determination on appeal. Id. The pertinent testimony from the manager describing her encounter with Claimant the Friday preceding his voluntary quit is as follows:
EW1 [manager]: Okay. Then immediately leaving the meeting [with client Canonsburg Hospital] it was the end of [Claimant's] shift and I approached him as he was getting ready to leave his shift and told him in complete detail of the situation and what I was told [as to why Employer wished to switch his assigned location]. And he said to me ... well, I'm from Allegheny County and this is Washington County, and this is a whole other world down here, and these people aren't anything like me and they're uneducated. And I said, well, you may feel that way...
C [Claimant]: Objection.
EW1: ...[B]ut you cannot speak these things out loud.
R [referee]: What is your objection, sir?
C: My objection is the statements attributed to me. I never said - I said Washington County and Allegheny County are quite different. I don't deny that. I didn't
make any statements about the people here being totally uneducated.Referee's January 16, 2013 Hearing, Notes of Testimony (N.T.) at 9-10 (emphasis added).
EW1: That's untrue, ma'am. Then I further said that he was not being terminated, that he could be put on another site that he may be more suited to where he doesn't have as much interaction with others.... At that time he said I don't need this job, it was beneath him anyway, he didn't need the money. And I said - he did say something about ... returning his uniforms. I said we didn't get that far. That's up to you if you're not going to work with us. I said please take the weekend and decide. I don't know where ... we might place him, but if he decided to come to work to call [the supervisor]. Otherwise, if he decided to decline and quit ... to bring in the uniforms and turn them in.... And he said, you mean I have to take this jacket back, I really like this jacket. And I believe I did say he looked good in it. And I said, well, some of our sites require a blazer, some of them don't. I cannot answer where you will be. And at that time he said, okay, you know, I'm probably going to quit. And I said well, I really am leaving that up to you for the weekend to decide.... I was told that you were a nice gentleman, unfortunately the comments and the discomfort of the volunteers made it be inappropriate for us to keep you at that site. You were under 90 days with us which often happens. Not everybody is a fit at certain sites. And we do have - we did have work available for you to continue, even at 32 hours, and you declined it.
R: Anything else you wish to tell me, Ms.....
EW1: Yes. Briefly. Upon employment our officers are required to sign and carry with them at all times our officer security guard handbook. And section 2.71 states that officer will accept job assignments based on company need and job requirements within a 50 mile radius of the hiring facility. He - if an officer fails to accept any of the assignments offered, or fails to report in person for reassignment [it] will be considered a voluntary determination [sic]. That would be Exhibit 1.
In conclusion, the manager's credible testimony constitutes substantial evidence to support the findings that Claimant's separation from employment was voluntary and that continuing work was available. Claimant was afforded an opportunity on Friday to think over his decision and he returned to Employer's premises on Monday and turned in his uniforms, badge and keys. In addition, there is no indication that Claimant made a reasonable effort to preserve his employment in that, when he returned on Monday, he failed to request a discussion regarding alternative assignments and returned all of Employer's property. Accordingly, we affirm.
The Board's findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence to support those findings. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
Claimant raises additional issues regarding the referee's alleged interference with his ability to present his case and her failure to address the Law's willful misconduct provision. There is no merit to Claimant's assertions. Having carefully considered the entire hearing transcript, there is no indication that the referee failed in her obligation to assist Claimant as a pro se litigant. See 34 Pa. Code § 101.21(a) (referee has affirmative duty to assist a pro se party in eliciting facts probative to his case, to act reasonably in assisting in the development of necessary facts and to provide the party with a reasonable opportunity to challenge hearsay evidence.) At the beginning of the hearing, for example, she explained the contents of the appeal file, how the hearing would be conducted, the issue to be addressed and the corresponding burden of proof. Referee's January 16, 2013 Hearing, N.T. at 1-4. In addition, there is nothing in the remainder of the transcript to indicate that she failed in her obligation to assist Claimant or interfered with his ability to present his case.
Moreover, regarding the referee's failure to address the willful misconduct provision, we note that the issue was irrelevant in light of Claimant's failure to establish that his separation was due to termination and not a voluntary quit. Finally, notwithstanding the fact that the notice of hearing indicated that the willful misconduct provision could be at issue, the referee was not obligated to address that provision where the UC Service Center in its notice of determination based its ineligibility determination on Section 402(b) of the Law. See 34 Pa. Code § 101.87 (referee's scope of review limited to those issues expressly ruled upon by the UC Service Center or those issues both parties agree may be considered by the referee.)
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of February, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge