Opinion
No. 1696 C.D. 2011
04-24-2012
Wilfredo Medina, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Wilfredo Medina (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for benefits. In doing so, the Board affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. §802(b), because he voluntarily terminated his employment without cause of a necessitous and compelling nature. Claimant argues he was forced to resign because of verbal harassment. Because Claimant did not notify Employer of the problem prior to quitting, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It provides that an employee is ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature...." 43 P.S. § 802(b).
Claimant was employed by Manpower, Inc. (Employer), which assigned him to work at Keystone Automotive as a customer service representative, earning $13 per hour. Claimant worked at Keystone Automotive from October 6, 2010, until March 4, 2011, when he left and applied for unemployment benefits. Claimant informed the UC Service Center that he quit because his boss was verbally abusive and unprofessional, and the harassment continued in spite of his complaint. The UC Service Center found that Claimant did not have necessitous and compelling reasons for quitting and denied his application for benefits. Claimant appealed, and a hearing was held before the Referee.
At the hearing, Claimant testified that after he left Keystone Automotive, Employer offered him another position paying $11 per hour. Claimant turned it down because the compensation was less than what he earned at Keystone Automotive. Claimant then testified about his position at Keystone Automotive. He explained that his boss, Ida Martinez, verbally harassed him by cursing in Spanish, using a "very insulting Spanish word" to suggest Claimant's "wife would be having sex with another man." Notes of Testimony, June 6, 2011, at 4. Martinez cursed him numerous times, and the final such incident took place a month before he quit. As an ordained minister, Claimant was sensitive to such conduct. Finally, Claimant testified that he reported the harassment to Keystone Automotive. When asked by the Referee if he had reported the problems at Keystone Automotive to Employer, Claimant acknowledged that he had not done so.
Krissy Cesari, a staffing specialist for Employer, testified on behalf of Employer. She stated that after Claimant quit, she sent him to interview at Vector Security, where the job paid between $12 to $13 per hour. However, Claimant withdrew his name from the interview list. Cesari testified that Claimant telephoned Employer on March 3rd that he was quitting the job with Keystone Automotive but he did not inform Employer it was due to harassment. On March 4th Claimant informed Employer that he quit because of his supervisor's use of profanity and personal attacks.
The Referee determined that Claimant left his employment because of language offensive to Claimant and that Claimant never advised Employer of this matter prior to quitting. By not informing Employer of the problem, Claimant did not make a reasonable effort to preserve his employment. Concluding that Claimant did not exhaust all alternatives prior to quitting, the Referee denied benefits. Claimant appealed to the Board. The Board affirmed by adopting and incorporating the Referee's findings and conclusions.
The Referee held that the issue of whether Claimant refused suitable work with Vector Security was not before him and, hence, would not be decided.
Claimant petitioned for this Court's review. On appeal, Claimant raises two issues. He argues that the Board erred in holding that there was insufficient evidence that he was verbally abused and in denying his application for benefits.
Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact were supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n.3 (Pa. Cmwlth. 1997).
We begin with a review of the applicable law. To be eligible for benefits, the claimant must prove that necessitous and compelling reasons existed for quitting. Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). The claimant must establish "that [he] acted with ordinary common sense in quitting [his] job, that [he] made a reasonable effort to preserve [his] employment, and that [he] had no other real choice than to leave [his] employment." Id. Acting with common sense includes notifying an employer of the "true reason" for terminating employment prior to quitting, so that the employer has the opportunity to address the problem. Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 380 (Pa. Cmwlth. 1996).
In the statement of questions section of his brief, Claimant argues that the Board erred in concluding there was insufficient evidence that Claimant was verbally abused. However, Claimant does not address this issue in the argument section of the brief; this constitutes waiver of the issue. In any case, the Board did not deny benefits on the basis of lack of evidence. It denied benefits because Claimant did not notify Employer of the harassment he encountered at Keystone Automotive.
In his brief, Claimant alleges that Martinez was using foul language against him on a regular basis through March 3rd. However, at the hearing Claimant testified that the last instance of abuse by Martinez occurred a month prior to Claimant's decision to quit. --------
Claimant admitted that he never advised Employer that he was being harassed prior to quitting. Claimant argues that he took steps to preserve his employment because he was willing to take another assignment with Employer at the same wage. Claimant offers too narrow a view of what is required to preserve employment. He needed to notify Employer of the harassment prior to quitting so that Employer had the opportunity to address the issue. Claimant did not do so, and for this reason the Board properly denied benefits.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 24th day of April, 2012, the order of the Unemployment Compensation Board of Review dated August 22, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge