Opinion
No. 929 C.D. 2011
12-01-2011
Debra Mikucki, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Debra Mikucki (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of 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 initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was last employed as a scheduling secretary by Community Medical Center at $13.86 per hour from May of 1989 with her last day of work being October 04, 2010.
2. The claimant voluntarily terminated her employment due to a change in working conditions.
3. The claimant's position of scheduling secretary was eliminated by the employer.Referee's Decision, January 13, 2011, (Decision), Findings of Fact Nos. 1-8 at 1.
4. The employer advised the claimant that she would be placed in another position identified as a patient flow specialist at the same rate of pay and hours of work and that such position was a clerical position.
5. The claimant refused the employer's offer of a transfer to the patient flow specialist.
6. The claimant assumed that she was not qualified for the patient flow specialist position.
7. The employer provided that the transfer position, in question, was clerical and would have required on the job training.
8. Continuing work was available.
The referee determined:
The referee wishes to emphasize that the burden rests with the claimant to show that she had necessitous under [sic] compelling cause to sever the employment relationship. In the opinion of the referee, the claimant has failed to meet that burden. The claimant had an opportunity to remain employed, however she refused a transfer to another clerical position when the claimant's scheduling secretary position was eliminated by the employer. The offered position was similar in rate of pay and hours of work. The new position would have required some on the job training and the claimant's assumption that she was not qualified for same does not provide the claimant with a necessitous under [sic] compelling cause to sever the employment relationship. Under these circumstances, the referee must conclude that the claimant has failed to show that she had necessitous under [sic] compelling cause to quit her job
and, that being the case, the claimant must be denied benefits under Section 402(b) of the Law.Decision at 2.
The Board affirmed.
Claimant contends that the Board erred as a matter of law when it concluded that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). Claimant asserts that the new job offered to her would involve a risk to her health and she believed that she was neither qualified nor healthy enough for such a high level position. Also, the new position had different hours and would require Claimant to work weekends and holidays and be on call.
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, the Board argues that Claimant's petition for review should be dismissed because Claimant's brief failed to comply with the Pennsylvania Rules of Appellate Procedure. While Claimant's brief does not comply with the appellate rules, this Court is able to glean the essential points of her argument and will address the merits of the case.
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). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). 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). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982).
The Board found that the new position offered to Claimant had the same rate of pay and hours of work as her previous position as scheduling secretary. The Board further found that the new position was clerical, as was the prior position, and that she would receive on the job training. These findings are supported by the testimony of Marianne Acker (Acker), human resources information analyst with Community Medical Center (Employer). Although Claimant stressed that she was unqualified for the position, the Board accepted Acker's testimony that Claimant was qualified and would receive the necessary training. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Acker testified, "[t]here was a position that was the same number of hours per week and we were going to keep her at the same rate of pay. And it was another clerical position. They were both clerical positions." Notes of Testimony, January 11, 2011, at 4.
In conclusion, there is nothing in the record that establishes Claimant presented her concerns to Employer. When a claimant fails to attempt to resolve her concerns by discussing them with her employer prior to voluntarily quitting, benefits must be denied. Petrick v. Unemployment Compensation Board of Review, 455 A.2d 757 (Pa. Cmwlth. 1983). The Board did not err when it found that Claimant quit without a necessitous and compelling reason.
Although Claimant mentions health concerns as a reason for quitting in her brief, she did not raise that issue at the hearing. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 1st day of December, 2011, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge