Opinion
No. 793 C.D. 2013
02-25-2014
George O'Rourke, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
George O'Rourke (Claimant) petitions this court for review of the order of the Unemployment Compensation Board of Review (Board) which reversed the decision of the referee and denied benefits under Section 402(b) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that a claimant is 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 was employed as a teacher by Pennsylvania Treatment and Healing (Employer) from January 5, 2005, until his last day of work, June 5, 2012. Claimant taught in the alternative education program teaching students who were unable to function in the public school system. Claimant's hours were originally set at approximately 30 to 39 hours per week, which he worked until Employer reduced his hours to 22 ½ hours per week in February 2012, due to lower student enrollment. Claimant continued to work the reduced hours until Employer asked Claimant to return to a 35-hour weekly schedule, informing him that the increase in hours was necessary due to the resignation of another teacher and that it would need him to continue at these hours in the fall. Claimant refused, citing the fact that he had adjusted his schedule accordingly and did not wish to return to teaching more than 22 ½ hours per week. After Employer informed him that working the reduced hours was not an available option, Claimant left his employment.
Claimant filed for unemployment compensation benefits which were granted by the Unemployment Compensation Service Center (UC Center) under Section 402(e) of the Law. Employer appealed, and a hearing was held before the referee at which Claimant and Employer's witnesses testified. After the referee issued a decision affirming the UC Center's determination, Employer appealed to the Board. Noting that the parties agreed that both Sections 402(b) and 402(e) were at issue before the referee, the Board determined that Section 402(b) was applicable and made its own findings of facts and conclusions of law. Specifically, the Board determined that Claimant voluntarily left his employment and that he did not meet his burden of proving that he did so for a necessitous and compelling reason. Accordingly, the Board reversed the decision of the referee and concluded that Claimant was ineligible for benefits under Section 402(b) of the Law. This appeal followed.
Section 402(e) provides that an employee shall be ineligible for benefits for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e).
In the original hearing notice, as well as the subsequent notices sent after the hearing was continued twice, the issues listed for consideration on appeal were Sections 402(e) and 402(b). See Original Record, Items 10, 14, and 17. We further note that at the beginning of the hearing, the referee explained that she would be considering both issues and set forth the relative burdens of proof under each section. See Hearing of January 8, 2013, Notes of Testimony (N.T.) at 4.
Claimant argues that the Board erred as a matter of law in reversing the decision of the referee because the Board's findings do not support a determination that he voluntarily quit his employment. Claimant asserts that he did not quit and that he was never offered a position for the fall of 2012. Claimant argues that he was, in fact, discharged by Employer. Assuming arguendo that this court agrees with the Board that he voluntarily quit his employment, Claimant further avers that the evidence of record establishes that he had cause of a necessitous and compelling reason to do so. We disagree.
Whether a claimant's separation from employment was due to a voluntary quit or a discharge is a question of law subject to plenary review by this court, based upon an examination of the totality of the facts surrounding the termination. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). It is the claimant's burden to establish that his separation from employment was a discharge, and if he succeeds in this regard, then the burden shifts to employer to prove that the claimant was discharged for, inter alia, willful misconduct under Section 402(e) or the Law. Id. If, however, the claimant fails to prove that he was discharged, then pursuant to Section 402(b) of the Law, the claimant must prove that he had cause of a necessitous and compelling nature to quit his employment. Id. A necessitous and compelling reason for leaving one's employment is one which "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." Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977).
Here, the parties agree that Claimant's hours were reduced in February 2012, but they presented conflicting evidence as to whether or not Claimant was informed that the reduced hours would not be available in the fall or that Employer needed him to return to a 35-hour work week in the upcoming school year. Employer asserted that the reduction in Claimant's weekly hours was not permanent and that Claimant was told that Employer needed an employee to work the normal 35 to 39 hours per week in the fall. Employer's Human Resource Manager Heather Koons testified that Claimant's schedule "would go back up to the 35 to 39 hours per week once the school year started in August, but [Claimant] said he did not wish to do that." Notes of Testimony (N.T.) at 8. Ms. Koons further testified that Claimant was told "what schedule was available in August" and that they did not have the 22 ½ hour week but they "had the 35 [hour week]." Id. Ms. Koons repeated that Claimant did not wish to do that.
Steve Gaito, Employer's Regional Director, testified that he had a conversation with Claimant in May 2012 in which he informed Claimant that a teacher had resigned and that during that conversation, he asked Claimant "if he would be willing to resume his previous work hours . . . [and] [Claimant] said he would not, he wanted to stay at the hours that were reduced at that time." Id. at 10. Mr. Gaito testified that Claimant "didn't really give a reason" for being unwilling to resume the normal work hours and that he told Claimant that while he understood that he couldn't work those hours, "that's not going to be beneficial or work for us." Id. Finally, Employer's Program Manager, Catherine Reuthers testified that after his hours were reduced, she asked Claimant to work more hours and he refused because "he had made additional plans in his life like scheduled doctor's [sic] appointments and made other things so that he was unable to make the hours that we needed him to because he had already adjusted his schedule after the reduction in hours." Id. at 12.
Claimant denied having any conversation with any of Employer's witnesses in which he stated that he would not come back, and denied telling either Ms. Reuthers or Mr. Gaito that he would not work the extra hours, testifying that, "I never said I would not work any more hours. I was never asked." Id. at 13. The Board, however, credited Employer's witnesses that although Claimant told Employer that he did not wish to return to his 35 hours per week but instead wished to remain at 22 ½ hours per week, Employer told Claimant that this "would not work for [them] as they needed a full time 35 hour a week employee in the position." Board's Decision at 2. The Board found that "when the claimant informed the employer he would not take the increased work that he voluntarily left his employment . . . ." Id. The Board further found that Claimant was not credible that he believed he could continue to work the reduced hours and concluded that he did not act as a reasonable person in refusing to return to work full time.
The Board's findings of fact are conclusive on appeal if, upon examination of the record as a whole, it contains substantial evidence to support them. Middletown Twp., 40 A.3d at 223. Here, the Board properly analyzed Claimant's appeal under Section 402(b), having determined that Claimant, while employed, refused to accept an offer of continued employment and was therefore deemed to have quit his position. See Middletown Twp.; Shrum v. Unemployment Comp. Bd. of Review, 690 A.2d 796 (Pa. Cmwlth. 1997); Delaney v. Unemployment Comp. Bd. of Review, 574 A.2d 1198 (Pa. Cmwlth. 1990); Hosp. Serv. Ass'n of Ne. Pa. v. Unemployment Comp. Bd. of Review, 476 A.2d 516 (Pa. Cmwlth. 1984). Furthermore, Claimant failed to offer any explanation for his actions which would indicate that he was under real and substantial pressure to compel him to quit his employment, other than stating he "wished not to do that." N.T. at 8. As aptly stated by our Supreme Court in Snyder v. Unemployment Compensation Board of Review, 509 Pa. 438, 445, 502 A.2d 1232, 1236 (1985), when defining what constitutes a necessitous and compelling reason for voluntarily leaving employment, "it was never contemplated that the 'circumstances' might be the employee's personal goals, aspirations or ambitions which conflicted with some reasonable policy or requirement of the employer." Accordingly, because we also agree with the Board that Claimant did not meet his burden of proving a necessitous and compelling reason to quit, we affirm the order of the Board denying Claimant benefits under Section 402(b) of the Law.
Claimant argues in his brief that the unavailability of child care can be a necessitous and compelling reason to quit, citing Truitt v. Unemployment Compensation Board of Review, 527 Pa. 138, 589 A.2d 208 (1991) and Jones v. Unemployment Compensation Board of Review, 510 A.2d 1278 (Pa. Cmwlth. 1986), and that he told Employer that he did not want to go back to full time "given that he was the primary caregiver." Claimant's Brief at 8. Claimant further contends that "this testimony was not developed on the record" and requests a remand for a hearing "on that point." Id. at 11-12. Had the Board failed to make any findings with respect to this issue, we might be inclined to agree with Claimant. However, here the Board specifically found that Claimant told Employer that he had made other plans and adjusted his schedule and that was why he did not wish to work the 35 hours per week. See Board's Decision and Order, Finding of Fact No. 7. Thus, having credited the Employer's witnesses, the Board determined that Claimant failed to meet his burden of proving a necessitous and compelling reason for voluntarily leaving his employment. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of February, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge