Opinion
No. 842 C.D. 2013
01-07-2014
Susan I. Nichter, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Susan Nichter petitions this court for review of the order of the Unemployment Compensation Board of Review, which affirmed the denial of benefits on the ground that Nichter failed to establish necessitous and compelling reason to terminate her job. We affirm.
According to the referee's findings of fact, which the Board adopted as its own, Nichter was employed by Fairview Dairy, Inc. as a part-time greeter. In May 2012, Nichter had an argument with a co-worker (the co-worker); Nichter continued to work with that co-worker without further incident until December 21, 2012, her last day of employment. On December 21, shortly after she reported to work, Nichter asked to have a meeting with the manager on duty and the co- worker. The co-worker refused to attend the meeting because she was in the middle of her shift and the store manager was not present. Thereafter, approximately 17 minutes after starting her shift, Nichter "punched-out" and left the building because she did not want to work with the co-worker. The store manager was informed of the incident and reported to the store. Nichter was still present when the store manager arrived and a meeting was held, which included the manager on duty, the store manager, Nichter and the co-worker. During the meeting, Nichter demanded an apology from the co-worker for the incident that occurred the previous May and indicated that she wanted the co-worker to cease behavior, which Nichter felt constituted bullying. The store manager told Nichter that she needed to let the May incident go and that she was disrupting work; she further told Nichter that she was "done and could go." Finding of Fact No. 10. Nichter failed to report for her next scheduled shift on December 22.
Although not completely clear, it appears that Nichter worked in a restaurant or food service area. Because Nichter's shift started at 4:00 pm, the incident occurred during the dinner service.
According to Nichter, during the May incident, the co-worker called her an "asshole" in front of customers and other employees. Notes of Testimony (N.T.) at 7. Thereafter, Nichter requested to work different shifts than the co-worker. According to Nichter, when her shifts overlapped with the co-worker, the co-worker displayed a "bully attitude," and would slam cash register drawers when she was around, throw down menus if she was mad about something and sometimes talked to her in a manner which she perceived as degrading. Id. at 7-8. However, the only incident between the two women that Nichter described in detail seemed to illustrate a sarcastic attitude on the part of the co-worker. See N.T. at 8. Nichter also indicated that when the store manager is not present, the co-worker acts like the "holy one in charge." Id.
Notably, because there was an issue regarding whether Nichter quit or was discharged, the Board noted that the store manager was aware that Nichter had walked off the job and believed that Nichter voluntarily quit. In addition, the Board found that when the store manager stated to Nichter that she was "done and could go," she meant that the meeting was over and Nichter could go home. Based upon the above findings, the Board found that Nichter voluntarily terminated her employment by punching-out, walking off the job before the end of her shift and failing to return the next day. Finally, perceiving Nichter's difficulties with her co-worker as those of a personality conflict, which did not create an intolerable work environment, the Board concluded that Nichter lacked necessitous and compelling cause to leave her job. Accordingly benefits were denied. This appeal followed.
On appeal, Nichter first argues that the Board erred in concluding that she voluntarily terminated her employment. Specifically, Nichter argues:
Claimant was told during the meeting that she was "done" and she took that to be her termination. These words came after another failed attempt to resolve an ongoing situation of verbal abuse. The manager was Co-worker's aunt. It is easy to see, considering all of the circumstances, how claimant might have perceived that everyone, including management, was against her. This led her to believing she was fired.Nichter's brief at 11. There is no merit to this argument.
Whether a claimant was discharged or voluntarily terminated her employment is a question of law to be resolved based on the Board's findings of fact. Miller v. Unemployment Comp. Bd. of Review, 431 A.2d 1138, 1139 (Pa. Cmwlth. 1981). While the specific words "fired" or "discharged" do not need to be spoken in order for an employee to be discharged, only words possessing the immediacy and finality of a firing may be interpreted as a discharge. Torsky v. Unemployment Comp. Bd. of Review, 474 A.2d 1207, 1209 (Pa. Cmwlth. 1984). We have held that statements such as, "[i]f this is what you want, then go," and "[y]ou can leave now," do not meet the requirement of immediacy and finality because the employee has the option to stay or leave. See, e.g., Miller; Yasgur v. Unemployment Comp. Bd. of Review, 328 A.2d 908 (Pa. Cmwlth. 1974). "[T]he totality of the circumstances surrounding the incident must be considered when determining the intent to quit." Monaco v. Unemployment Comp. Bd. of Review, 523 Pa. 41, 46, 565 A.2d 127, 129 (1989).
Here, the credited evidence and the reasonable inferences drawn therefrom establish that Nichter was not discharged. The store manager testified that Nichter had prematurely punched-out from her shift and left the building before she arrived and she specifically denied that she fired Nichter. Considering the circumstances surrounding the incident and that testimony, the store manager's statement at the end of the meeting that "you're done and . . . can go" lacks the immediacy and finality required to find that a discharged occurred.
Nichter next argues that the Board erred in concluding that she lacked necessitous and compelling cause to terminate her employment. Nichter reasserts her version of the facts, contending that she was continuously harassed by her co-worker. This argument lacks merit as well. First, the Board, as the ultimate fact-finder, rejected Nichter's assertions regarding on-going harassment, and we are bound by that finding on appeal. Craighead-Jenkins v. Unemployment Comp. Bd. of Review, 796 A.2d 1031, 1033 n.4 (Pa. Cmwlth. 2002). Second, Nichter's description of the conflicts with her co-worker demonstrate only a personality conflict and lack of civility between co-workers; her testimony, even if fully credited, does not demonstrate the requisite intolerable work environment required to constitute necessitous and compelling cause to quit a job. See generally Gioia v. Unemployment Comp. Bd. of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995); Karloff v. Unemployment Comp. Bd. of Review, 531 A.2d 582, 584 (Pa. Cmwlth. 1987). Therefore, as the record fails to demonstrate sufficient cause to quit, the Board committed no error in affirming the denial of benefits.
The order of the Board is affirmed.
Nichter's final argument, that the matter should be remanded for a new hearing "so she can, with the assistance of counsel, more effectively advance her claim . . . ." has been waived due to her failure to, inter alia, raise it in her petition for review. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of January, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge