Opinion
No. 1829 C.D. 2012
06-10-2013
Jason Miller, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jason Miller (Claimant) petitions for review of the August 21, 2012 order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee and holding 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 an employee shall be ineligible for benefits for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant is a certified master arborist and a member of the International Society of Arboriculture (ISA). Claimant worked as the Director of Arboriculture for Clauser Tree Care and Landscape (Employer) from April 6, 2009, to February 28, 2012. Employer included on its website a professional logo signifying Claimant's certification without obtaining Claimant's permission. After work hours on February 28, 2012, Claimant and his girlfriend noticed the professional logo on Employer's website. (Findings of Fact Nos. 1-4.)
Claimant expressed anger about the use of the professional logo on the website to his girlfriend because the unauthorized use could have negatively impacted Claimant's career and subjected Claimant to fines. Subsequently, Claimant's girlfriend sent an e-mail to Employer stating that Claimant would only return to work if Employer corrected its website. The e-mail used a derogatory tone and also demanded additional compensation for Claimant's services. The next day, Claimant failed to appear at work, and Employer left a voicemail message on Claimant's phone informing Claimant that Employer accepted his resignation and that Claimant should return all company property. However, Employer had continuing work available for Claimant. (Findings of Fact Nos. 5-7, 11-12, 14.)
Claimant filed a claim for benefits. The local service center determined that Claimant was ineligible for benefits under section 402(b) of the Law because he voluntarily resigned from his position without a necessitous and compelling reason.
Claimant appealed, and a referee held a hearing on May 8, 2012. Claimant testified that he never authorized his girlfriend to send an e-mail to Employer on his behalf that made demands and threatened to quit. (Notes of Testimony (N.T.) at 8-9.) However, Claimant also testified that he never attempted to rescind the e-mail because he agreed with its contents. (N.T. at 10, 15-16.) Claimant stated that he was angry because the unauthorized use of the professional logo regarding his certification on Employer's website could cause him to lose his certification and result in fines. (N.T. at 8-9, 15-16.) Claimant further testified that he did not discuss his issues with Employer because he received a voicemail message at 6:30 a.m. on February 29, 2012, that he interpreted as a termination of his employment. (N.T. at 9, 14-15.)
Lorraine Lutz (Lutz), Employer's Art Director/Bookkeeper, testified for Employer. Lutz testified that Claimant never came to work on February 29, 2012. (N.T. at 11.) Lutz stated that Employer's policy is to treat employees' actions of not appearing for work as resignations. (N.T. at 12.) Lutz also stated that she and Claimant's girlfriend engaged in a chain of e-mails on February 29, 2012, attempting to rectify the situation. (N.T. at 13.) Lutz further testified that, even though Employer did not recognize Claimant's girlfriend as an authorized representative of Claimant, Employer still accepted Claimant's resignation by sending Claimant a letter of resignation on February 29, 2012, because Claimant failed to communicate with Employer or appear for work on that day. (N.T. at 13-14; C.R. Item No. 11, Employer's exhibit 2.)
By decision and order dated May 10, 2012, the referee affirmed the local service center's determination that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed to the Board, which issued the findings summarized above and affirmed the referee's decision. The Board specifically found that Claimant voluntarily quit his job and failed to establish necessitous and compelling reason for doing so. In particular, the Board stated that Claimant made no effort to preserve the employment relationship before he voluntarily resigned.
The mere fact that a claimant voluntarily terminates his employment does not alone act as an absolute bar to receiving unemployment compensation benefits. Allegheny Valley School v. Unemployment Compensation Board of Review, 548 Pa. 355, 361, 697 A.2d 243, 246 (1997). In order to be entitled to unemployment benefits, an employee who voluntarily terminates his employment bears the burden of proving that he had cause of a necessitous and compelling nature. Wert v. Unemployment Compensation Board of Review, 41 A.3d 937, 940 (Pa. Cmwlth. 2012). Generally, necessitous and compelling cause exists when there is real and substantial pressure to terminate one's employment that would compel a reasonable person to do so under similar circumstances. Id. A claimant must show that he acted with ordinary common sense in quitting, made a reasonable effort to preserve his employment, and had no real choice but to leave his employment. Cowls v. Unemployment Compensation Board of Review, 427 A.2d 722, 723 (Pa. Cmwlth. 1981).
On appeal to this Court, Claimant argues that the Board erred in concluding that he voluntarily quit his employment. Where the employee alleges that he did not quit, but was fired, the employee bears the burden to prove that he was discharged by the employer. Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). In order for a voluntary termination to be found, an employee must have a conscious intent to resign from his employment. Monaco v. Unemployment Compensation Board of Review, 565 A.2d 127, 129 (Pa. Cmwlth. 1989). Additionally, when determining whether there has been a voluntary resignation, the totality of circumstances must be considered. Philadelphia Parent Child Center, Inc. v. Unemployment Compensation Board of Review, 403 A.2d 1362, 1363 (Pa. Cmwlth. 1979). Whether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings of fact made by the Board. Goffi v. Unemployment Compensation Board of Review, 427 A.2d 1273, 1274 (Pa. Cmwlth. 1981).
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Relying on Roberts v. Unemployment Compensation Board of Review, 432 A.2d 646 (Pa. Cmwlth. 1981), Claimant first argues that the evidence does not demonstrate a conscious intent on his part to quit his job. In Roberts, a nurse received a correspondence on pink-colored paper stating that "you will no longer function at Kane Hospital under the job description of a Licensed L.P.N." while he was on vacation. Id. at 647. The nurse believed that his employment had been terminated and did not return to work. Five days later, the nurse contacted the hospital's administrative assistant and learned that the hospital was treating his separation from employment as a voluntary quit because he did not return to work within three days after the end of his vacation. The Board concluded that, because the correspondence had no language indicating termination of employment, the nurse had voluntarily quit. This Court reversed the Board's decision, determining that it was reasonable for the nurse to conclude that he had been fired based on the language of the correspondence coupled with the pink-colored paper and that the record did not demonstrate the nurse's conscious intent to quit.
The facts of this case are distinguishable. In Roberts, the nurse never made any demands nor threatened to quit. In this case, however, Claimant's girlfriend sent an e-mail to Employer presenting ultimatums and stating that Claimant would not be returning to work until the demands were met. Moreover, while Claimant never authorized his girlfriend to send the e-mail to Employer, he did not contact Employer to rescind the e-mail and he failed to appear for work the next day. Thus, Claimant's reliance on Roberts is misplaced.
Next, Claimant relies on Wise v. Unemployment Compensation Board of Review, 700 A.2d 1071 (Pa. Cmwlth. 1997), to argue that Employer's communication had the immediacy and finality needed for a discharge. In Wise, the employer and the employee had a two-month long argument concerning who would pay the bill for cleanup of a coal spill. The employee stated that he would quit before he would pay the bill. The employer made the decision to deduct the payment from the employee's paycheck, prompting another argument between the employer and the employee that resulted in the end of the employee's employment. A local service center determined that the employee was entitled to benefits under section 402(e) of the Law because the employee was not fired for willful misconduct. A referee reversed and determined that the employee voluntarily quit without a necessitous and compelling reason. The Board affirmed the referee's decision and held that the employee was ineligible for benefits under section 402(b) of the Law. This Court reversed the Board's order and held that, based on the employer's statement during the second argument that it would "be down to pick [the truck] up" and the circumstances surrounding the statement, the employer discharged the employee. Id. at 1074.
The employee testified that "[the employer said] if I want my money back fine, go get it. Just get down and fix the truck up. I said, fine, it'll be cleaned. . . . I said you want me to bring it up, I'll bring it up. He said, no, we'll be down to pick it up. They come [sic] down and picked it up." Id. at 1073.
The facts of this case are also distinguishable from those in Wise. Unlike the employee in Wise, Claimant never addressed his issues with Employer, either before or after his girlfriend sent the e-mail. Whereas the employer in Wise spurred the separation by deducting the payment from the employee's paycheck, it was Claimant that placed his employment status with Employer into question. Lastly, the employee in Wise made a vague statement about quitting his job and then the employee remained at work for two months. Here, Claimant's girlfriend sent an e- mail with employment demands and a threat to quit, and then Claimant chose not to appear at work the next day. These facts support the Board's conclusion that Claimant's separation from his employment was voluntary.
Having so concluded, we need not address Claimant's final argument that he had no obligation to make efforts to preserve his employment after he was discharged by Employer. --------
As Employer correctly notes, Claimant only challenges the Board's conclusion that he voluntarily resigned, and he does not alternatively allege that he had necessitous and compelling reasons to quit. Because the record supports the Board's finding that Claimant voluntarily resigned without cause of a necessitous and compelling nature, the Board properly concluded that Claimant was ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 10th day of June, 2013, the August 21, 2012 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge