Opinion
No. 1968 C.D. 2012
07-10-2013
George J. Nagy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
George J. Nagy (Claimant) petitions for review of the September 25, 2012 order of the Unemployment Compensation Board of Review (Board), which vacated a referee's determination that Claimant's appeal was untimely but held 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). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week in which his unemployment is due to voluntarily leaving work without necessitous and compelling cause.
Claimant worked for the Bethlehem Housing Authority (Employer) as a building construction inspector from August 19, 1994, to November 4, 2011. In 1994, Claimant was diagnosed with depression. Claimant informed his immediate supervisor of his diagnosis at that time. Throughout his employment, Claimant believed he was overworked and exposed to a hostile work environment. On October 24, 2011, believing that his depression was worsening as a result of his negative work situation, Claimant gave Employer notice of his decision to resign. His last day of work was November 4, 2011. (Board's Findings of Fact Nos. 1-4, 15-16, 24-25.)
The local service center determined that Claimant was ineligible for unemployment compensation benefits under section 402(b) of the Law. Claimant filed an appeal. After a hearing, the referee dismissed Claimant's appeal as untimely under section 501(e) of the Law. Claimant filed a further appeal from that decision, and the Board remanded the case to a referee. Acting as a hearing officer for the Board, the referee held additional hearings to gather information on the timeliness of Claimant's appeal and the merits of the case under section 402(b) of the Law.
43 P.S. §821(e). Section 501(e) of the Law provides that a determination shall be final unless a claimant files an appeal with the board within fifteen calendar days after notice of a determination was delivered personally to him, or mailed to his last known post office address.
Claimant offered the testimony of Robin Gordon, secretary to Claimant's counsel, to establish that his appeal was timely filed. Gordon testified that she typed Claimant's appeal on December 19, 2011, and mailed it on either December 19 or 20. She stated that she applied the appropriate address and postage stamp to the envelope before mailing the letter via regular mail. Gordon said that she never received any notification that there was a problem with the mail and it was never returned to her. (Notes of Testimony (N.T.), 4/30/12, at 3-5.)
In order to be valid under the Law, the appeal had to be filed by December 21, 2011. Though Claimant claims the appeal was filed on December 19, it was not recorded as received. Instead, the local service center recognized a follow-up letter postmarked January 31 as the initiation of Claimant's appeal, thus giving rise to the timeliness issue. (Board's Findings of Fact No. 28, 32-33.)
Claimant testified that he left his job because his depression was exacerbated by his negative work situation. Claimant stated that he informed his direct supervisor, Curtis Kichline, of his depression when he first received the diagnosis in the early 1990s. Claimant maintained that he repeatedly told Kichline and others working for Employer about his depression and work-related struggles. Claimant said that he was nevertheless overworked, assigned jobs outside of his job description, intimidated, and ridiculed. (Id. at 8-11, 14, 17, 30.)
Claimant testified that he learned how to use computer-aided-design (CAD) software in 2004 and, thereafter, Employer asked Claimant to do work on the level of an architect. Claimant stated that, outside of his CAD training, he was not educated for this type of work. Claimant stated that he tried on multiple occasions to express to Employer that this level of work was more than he could handle, but Employer did not listen. Claimant briefly received assistance with his job duties when Employer hired another inspector to work in Claimant's department, allowing Claimant more time to focus on his upper-level CAD projects. However, Employer reassigned this additional inspector to another department and never replaced him. Claimant testified that he could not keep up with all of the work he was assigned. (Id. at 11-12.)
Claimant also asserted that he was subjected to ridicule and intimidation during his employment. Claimant testified that Kichline called him derogatory names, things would go missing from his desk, and people would go through his personal items. Claimant also felt that Employer tried to intimidate him by unfairly disciplining him for not completing construction logs. According to Claimant, he informed Gene Gonzalez, Deputy Executive Director for Construction and Maintenance, of the negative comments and intimidation. Claimant testified that Gonzalez dismissed Claimant's attempts to talk about the negative work environment. (Id. at 10-13, 18-19, 22.)
Claimant testified that his negative work situation resulted in a worsening of his depression and its side effects such as insomnia, stomach illness, and migraines. Claimant explained that he had to use many sick days, but he did not seek leave under the Family Medical Leave Act (FMLA), 29 U.S.C. §§2601-2654, that time because he believed he would have more leave accumulating in the near future. According to Claimant, Employer put a great deal of pressure on him to improve his attendance. Claimant testified that his depression continued to worsen and, following a discussion with his physician, Claimant felt his only option for better health was to quit his job. (Id. at 11-14, 25.)
Employer presented the testimony of Clara Kendy, Employer's Executive Director, who said that in the twelve months before Claimant resigned, Claimant never discussed his health issues with her. The most recent health-related discussion she could recall took place during a 2010 meeting with Claimant and Gonzalez to discuss Claimant's sick leave. Kendy testified that in light of Claimant's frequent use of sick days, she recommended that he file FMLA papers. Kendy stated that, while the 2010 meeting included a discussion of Claimant's various ailments, Claimant never mentioned his depression at that time. (N.T., 5/31/12, at 3-7.)
Kendy further testified that Claimant did not file any official complaints with her office regarding his work load or work environment. She noted that Claimant received additional compensation for his long tenure and CAD-related work. Kendy also stated that she never heard, or used, any derogatory comments in regard to Claimant. (Id. at 3-12.)
Kichline, Claimant's direct supervisor for his entire employment, testified that Claimant only mentioned his depression when he was first diagnosed. Kichline stated that he told Claimant to talk to him if Claimant could not do any assigned work because of the depression. Kichline said that he told Claimant they could work around it, but Claimant never discussed the depression with him again. (Id. at 12-13.)
Kichline testified that he and Claimant usually shared their department's work load. Kichline explained that another inspector was briefly assigned to the department, and given some of Claimant's work to do, in anticipation of an increased work load from a new program. However, once it became clear that the increase in work would not occur, the other inspector had to be transferred to another department because there was not enough work to keep two inspectors in that department. Kichline testified that things then went back to the way they were before, with Kichline and Claimant sharing their department's work load. (Id. at 15-17.)
Kichline admitted that he called another employee a derogatory name, but he maintained that he never used such names to refer to Claimant. Kichline testified that over the years he actually spoke highly of Claimant, approaching upper management on various occasions to advocate on Claimant's behalf in different matters. For example, Kichline said that when Claimant was facing disciplinary action for failing to complete required logs, Kichline's advocacy resulted in Claimant receiving a reduced punishment. (Id. at 13-14, 17.)
Gonzalez's testimony corroborated the testimony given by Kendy and Kichline. Specifically, Gonzalez testified that Claimant never mentioned depression among his various ailments during or after their 2010 meeting with Kendy. Gonzalez stated that he was not aware of anyone, including Kichline, making derogatory comments towards Claimant. (Id. at 24-27.)
The Board considered the evidence gathered by the referee. The Board found Gordon's testimony to be credible and concluded that Claimant's appeal was timely. However, the Board concluded that Claimant failed to present sufficient credible evidence to support his assertion that he had to quit his job due to his depression. The Board found Employer's witnesses to be credible and resolved all conflicts in testimony in Employer's favor. Specifically, the Board found that Claimant never mentioned his depression to Employer after the discussion with Kichline in 1994 and that a hostile work environment did not exist. (Board's Findings of Fact Nos. 18-23.) Based on these findings, the Board concluded that Claimant did not have necessitous and compelling cause for terminating his employment and, therefore, he was ineligible for benefits under section 402(b) of the Law. (Board's decision at 3-5.)
On appeal to this Court, Claimant argues that the Board erred by finding that he did not have necessitous and compelling cause to leave his employment. Claimant asserts that the Board's decision failed to account for reasons apart from his poor health that caused him to resign from his position. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Pursuant to section 402(b) of the Law, an employee is not eligible for benefits if he voluntarily terminates his employment without necessitous and compelling cause. 43 P.S. §802(b). When a claimant voluntarily terminates his employment, he has the burden of proving that such cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). A cause is of a necessitous and compelling nature if it results from overwhelming conditions which place actual and substantial pressure on a person to terminate his employment and such conditions would compel a reasonable person to do the same. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 697 (Pa. Cmwlth. 1994). While health issues may create necessitous and compelling cause to leave employment, in order to establish those health problems as good cause: (1) the claimant must offer competent testimony that sufficient health issues existed to justify the termination; (2) he must have informed the employer of the health problems; and (3) he must have been available to work if the employer made reasonable accommodations. Id. at 698. If a claimant fails to meet any of these conditions, his claim for unemployment compensation will fail. Id.
"Whether a claimant had cause of a necessitous and compelling nature to quit a job is a conclusion of law subject to review by this Court." Warwick v. Unemployment Compensation Board of Review, 700 A.2d 594, 596 (Pa. Cmwlth. 1997).
In this case, the Board accepted Kichline's testimony as credible and found that Claimant informed Kichline of his depression in 1994, but did not inform Employer of his depression after that time. (Board's Findings of Fact Nos. 3-4, 23.) A claimant who wishes to terminate his employment due to health reasons must communicate his health problem to the employer so that the employer can try to provide reasonable accommodations for the problem. Blackwell v. Unemployment Compensation Board of Review, 555 A.2d 279, 281 (Pa. Cmwlth. 1989). Because the Board found that Claimant did not provide Employer notice of his depression or health concerns, and this finding is supported by substantial evidence, the Board properly concluded that Claimant failed to establish necessitous and compelling cause for voluntarily terminating his employment.
Although Claimant does not raise this issue, we note that the Board's statement that Claimant failed to provide sufficient, credible, medical evidence may erroneously imply that medical evidence is necessary to show good cause. See Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 442 (Pa. Cmwlth. 1996) (noting that the claimant's sole testimony may have established the existence of claimant's alleged medical problems). --------
Claimant also asserts that the Board's decision failed to consider his burdensome work load and hostile work environment as additional factors showing good cause for terminating his employment. "While an adjudication must include all findings necessary to resolve issues raised by the evidence which are relevant to the decision, it need not always include findings regarding all allegations and defenses raised by a party." Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544, 549 (Pa. Cmwlth. 1994). During the hearings, both parties presented testimony regarding Claimant's work load and work environment. The Board considered this testimony and found that a hostile work environment did not exist. (Board's decision at 4.) In addition, although the Board did not directly address Claimant's allegations of a burdensome work load, it found that Employer was acting in good faith at all times with Claimant. (Board's Findings of Fact No. 21.)
Essentially, Claimant's arguments rely on his preferred version of the facts. However, in unemployment compensation proceedings, the Board is the ultimate fact finder and has the power to determine the credibility of witnesses and resolve conflicts in the evidence. McIntyre v. Unemployment Compensation Board of Review, 687 A.2d 416, 418 (Pa. Cmwlth. 1997). The Board's findings are conclusive and binding on appeal if, when examined in its entirety, the record contains substantial evidence to support those findings. Id. In this case, the Board found the testimony of Employer's witnesses credible and resolved all conflicts in evidence in Employer's favor. Because the record contains substantial evidence to support the Board's decision, the Board properly concluded that Claimant is 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 July, 2013, the order of the Unemployment Compensation Board of Review, dated September 25, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge