Opinion
No. 419 C.D. 2013
09-05-2013
Clifford L. Montgomery Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Clifford L. Montgomery Jr. (Claimant) petitions, pro se, for review of the March 12, 2013 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant was ineligible for benefits pursuant to 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). In relevant part, section 402(b) provides that an employee who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation.
Claimant worked for Cleanteam Building Services (Employer) as a custodian from September 29, 2009, to September 13, 2012. Claimant applied for and was hired for a part-time position, working twenty hours per week. During his second year of employment, Claimant began working full-time hours, but he returned to a part-time schedule after Employer lost some business contracts. Employer subsequently assigned Claimant to work at a new location, and Claimant again worked full-time. However, Claimant was removed from that assignment and returned to a part-time schedule after a video allegedly showed him sleeping on the job. Employer attempted to return Claimant to work at that location, but was unsuccessful. (Board's Findings of Fact, Nos. 1-7.)
Claimant complained to Employer that he needed to work more than twenty hours per week. However, Employer could not offer Claimant additional work because Claimant did not have transportation to Employer's other work locations. Claimant then began looking for employment elsewhere and was accepted for commercial driver's license training in Gary, Indiana, with a goal of future employment with CR England. Claimant notified Employer that he was resigning to begin his training and left his employment on September 13, 2012. Unfortunately, Claimant failed the eye examination that was required for employment with CR England, because he did not have his prescription eyeglasses. Claimant then returned to Pennsylvania and applied for commercial driver's license training through CareerLink. (Board's Findings of Fact, Nos. 6-12.)
Claimant applied for unemployment benefits, and the local service center determined that Claimant was ineligible for benefits under sections 401(d)(1) (related to availability for work) and 402(b) (related to voluntarily leaving work) of the Law. 43 P.S. §§801(d)(1), 802(b). Claimant appealed, and the referee held a hearing, at which both Claimant and Employer appeared to present testimony and evidence. Claimant testified that he needed to work full-time and that he had no choice but to quit when Employer reduced his schedule to twenty hours per week. He explained that he made only $8.25 per hour and could not support himself and his 15-year-old son working only a part-time schedule. Claimant stated that he quit his job with Employer and went to Gary, Indiana, to pursue training and better wages with CR England. However, Claimant stated that after four days, CR England ended his participation in the training program because he had not yet received replacements he had ordered for his broken eyeglasses. Claimant said his new glasses arrived soon thereafter but he did not seek to resume training with CR England. Instead, Claimant returned to Pennsylvania and enrolled for commercial driver's license training with CareerLink. Claimant testified that he was scheduled to begin training shortly after the date of the referee's hearing. According to Claimant, he did not contact Employer to see if he could resume work because a job would interfere with the CareerLink training program and he could not live on $8.25 per hour. (Notes of Testimony (N.T.) at 5-6.)
Michael Hoffman, Employer's owner, testified that Claimant had applied for and accepted part-time work when he began his employment. He said that Employer made an effort to provide Claimant with more hours, but the attempts were either unsuccessful or temporary. Hoffman testified that Claimant was removed from one full-time work assignment and could not take certain other assignments because he did not have transportation. (N.T. at 8-10.)
Following the hearing, the referee found Hoffman's testimony credible and affirmed the local service center's determination that Claimant was ineligible for benefits under sections 402(b) and 401(d)(1) of the Law.
Claimant appealed to the Board, which modified and affirmed the referee's decision. The Board concluded that the record did not establish that Claimant is disqualified from receiving benefits under the provisions of section 401(d)(1) of the Law. However, the Board determined that Claimant accepted his original position with Employer knowing that it was a part-time job and that Claimant did not establish that Employer guaranteed him full-time employment. The Board also found that Claimant worked for Employer for approximately three years, and that during this time, Claimant accepted the terms and conditions of working both part-time and full-time hours. Moreover, the Board found that Claimant did not have a definite offer of employment with CR England when he left Employer to begin commercial driver's license training. Therefore, the Board concluded that Claimant failed to establish necessitous and compelling reasons for leaving his employment and that he was ineligible for benefits under section 402(b) of the Law.
On appeal to this Court, Claimant argues that the Board erred as a matter of law in concluding that he was ineligible for benefits under section 402(b) of the Law.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704. --------
Section 402(b) provides that an employee is ineligible for benefits if he voluntarily leaves his employment without cause of a necessitous and compelling nature. 43 P.S. §802(b). A claimant seeking benefits after voluntarily quitting his job carries the burden to demonstrate real and substantial pressure to terminate employment that would compel a reasonable person under similar circumstances to act in the same manner. Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282 (Pa. Cmwlth. 2009). Whether or not a claimant has necessitous and compelling cause for voluntarily terminating employment is a question of law subject to this Court's review. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981).
Claimant asserts that the limited hours and pay available with Employer prevented him from supporting his family and that these circumstances constituted necessitous and compelling reason to quit his job in order to pursue training and possible employment with CR England.
Initially, we recognize that an employer's unilateral change in the terms and conditions of employment may provide necessitous and compelling cause for an employee's voluntary termination of employment. See A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299 (Pa. Cmwlth. 1995) (finding that the employer's failure to complete part of an agreement, which resulted in a reduction of claimant's wages, was a substantial, unilateral change in the claimant's employment and thus constituted necessitous and compelling cause for the claimant's voluntary termination). However, we agree with the Board that such circumstances are not present in this case. As the Board found, Claimant applied for and accepted part-time employment with Employer, worked for three years accepting both part-time and full-time hours, and failed to establish that Employer guaranteed him full-time employment. (Board's Findings of Fact, Nos. 1-5; Board's Decision at 3). In addition, we note that the Board found that Claimant's most recent return to part-time hours was the result of allegations of misconduct on his part. (Board's Findings of Fact, Nos. 3-5.)
Further, we note that the Law was enacted by the legislature to protect employed persons who become unemployed through no fault of their own. Section 3 of the Law, 43 P.S. §752. In Evans, Portnoy & Quinn v. Unemployment Compensation Board of Review, 665 A.2d 548 (Pa. Cmwlth. 1995), we concluded that a law student who knowingly entered into a temporary, part-time employment arrangement and voluntarily left that position to study for exams did not fall within the class of employees that the Law was designed to protect. We explained that the Law "was not intended to subsidize full-time ... students working their way through school." Id. at 552. Accordingly, our courts have consistently held that a desire to further one's education does not constitute necessitous and compelling cause for leaving employment. See, e.g., Earnest v. Unemployment Compensation Board of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 2011); Keisling v. Unemployment Compensation Board of Review, 181 A.2d 717, 718 (Pa. Super. 1962) (holding that voluntarily quitting one's job in order to further one's education does not constitute a necessitous and compelling cause under section 402(b) of the Law, even where a claimant is dissatisfied with the wages he is receiving from his employment). We conclude that this reasoning applies equally to the present case and that Claimant's decision to pursue job training did not constitute cause of a necessitous and compelling nature to terminate his employment.
In addition, we have repeatedly held that the mere possibility of a job offer does not constitute good cause to voluntary quit employment. Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164 (Pa. Cmwlth. 1991); Baron v. Unemployment Compensation Board of Review, 384 A.2d 271 (Pa. Cmwlth. 1978). In Baron, the claimant asserted that he voluntarily left his employment based on the promise of a job elsewhere. However, we affirmed the Board's determination that the claimant did not have an offer of employment that was sufficiently definite to constitute necessitous and compelling reason to terminate his employment. In this case, the Board found that Claimant did not have a definite job offer with CR England when he voluntarily quit his job with Employer; instead, Claimant resigned to pursue only the possibility of obtaining other employment.
Therefore, while we appreciate the difficulties Claimant faced in supporting himself and his child, especially in these challenging economic times, we are constrained to affirm the Board's conclusion that Claimant did not demonstrate necessitous and compelling cause for voluntarily terminating his employment.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 5th day of September, 2013, the order of the Unemployment Compensation Board of Review, dated March 12, 2013, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge