Opinion
No. 622 C.D. 2013
08-20-2013
Jeffrey F. Polachek, 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 PRESIDENT JUDGE PELLEGRINI
Jeffrey F. Polachek (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding him ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because he did not have a necessitous and compelling reason for leaving his employment with INETU (Employer). Finding no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Under Section 402(b) of the Law, an individual is not eligible for unemployment compensation benefits if his unemployment is due to "voluntarily leaving work without cause of necessitous and compelling nature." Id. "Necessitous and compelling cause" occurs under circumstances where there is a real and substantial pressure to terminate one's employment that would compel a reasonable person to do so. See Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358-59, 378 A.2d 829, 832-33 (1977). A claimant in an unemployment case bears the burden of proving necessitous and compelling reasons for quitting. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must prove that he acted with ordinary common sense in quitting and made a reasonable, good faith effort to preserve the employment relationship. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996).
Claimant was employed as a full-time junior assistant administrator for Employer. Prior to the end of his three-month probationary period, he interviewed for a permanent position with the company and was subsequently offered a position as a system administrator. However, he declined the offer because he allegedly did not have the required knowledge or skill for the position. He filed for unemployment compensation benefits which were granted by Unemployment Compensation Service Center; Employer appealed.
Before the Referee, Claimant testified that he started working for Employer pursuant to a three-month, fixed-term contract for the position of junior assistant administrator, which he described as paid training in system administration. He said his training was limited to hearing from a "delegated employee [who] would ... speak for approximately an hour to an hour and a half on some relevant subject to their business," (Hearing Transcript, dated November 28, 2012, at 6), a few days per week and reading assignments, sometimes several hundred pages, from industry textbooks and training manuals. Claimant and others hired with him were also provided work stations and "a rack of a few web servers in the corner of the room that were there as ... a type of lab [] to try to practice." Id., at 7. Claimant said that near the end of his contract, he was re-interviewed and offered the systems administrator position, but he declined the offer because he lacked "any experience or credentials for that role." Id., at 8. He said he also interviewed around the same time for a position with Employer's network team, for which he felt he was qualified to work, but was not offered that position. Claimant finally testified that he did not believe the systems administrator position was suitable work given the lack of training.
Scott Walters (Walters), Employer's director of client services, testified that Claimant was one of four individuals brought on for the junior systems administrator training program, and Employer originally intended the training program to run for approximately three months, although the employees were considered at-will employees pursuant to language in their employment contracts. He said that after approximately two months of training, Employer felt that Claimant and the other trainees had sufficiently progressed in their training and they were all interviewed and offered the permanent systems administrator positions. Walters further testified that Claimant emailed him to decline the offer and said he was pursuing other opportunities. He said that during the training process, Employer had received feedback from all four trainees that the training goals were aggressive but that Employer had specific goals in training the individuals aggressively, and it felt it had accomplished those goals in making job offers to all four trainees.
Based on the testimony and evidence presented at the hearing, including the original Employment agreement and Claimant's email to Walters declining the employment offer, the Referee found that Claimant had interviewed for a permanent position with Employer while he was still employed and nearing the end of his probationary period. He found that Employer offered Claimant a position as a system administrator and that "[C]laimant made no attempt to perform the job functions of the new position." (Referee's Decision and Order, dated November 30, 2012, at 1.) The Referee further found that Claimant declined the job offer because he allegedly did not have the knowledge necessary to fulfill the job duties and that continuing work was available for Claimant as a system administrator. Based on these findings, the Referee determined that Claimant failed to establish a necessitous and compelling reason for voluntarily leaving his employment. Claimant appealed to the Board, which affirmed based on Walters' testimony, which it deemed credible, and this appeal by Claimant followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were not supported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 376, 625 A.2d 622, 624 (1993). "Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001). Absent an error of law or showing of fraud, the decision of the Board must be affirmed. Flanyak v. Unemployment Compensation Board of Review, 306 A.2d 399, 402 (Pa. Cmwlth. 1973). --------
On appeal, Claimant argues that the Board erred in concluding that he failed to demonstrate a necessitous and compelling reason for leaving his employment because Employer failed to adequately train and educate him for the systems administrator position, and he was therefore justified in quitting. He argues that the lack of training, which he believes he was promised, constituted a unilateral change in the terms and conditions of employment.
To constitute a necessitous and compelling reason for quitting, a unilateral alteration in the terms and conditions must be substantial; the substantiality of a change in a term of employment "is measured by the impact on the employee, and whether the change involves any real 'difference' in employment conditions." McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1272 (Pa. Cmwlth. 2003). While Claimant argues that he did not feel he had sufficient training to perform the duties of a systems analyst, he does not explain how the training was insufficient or demonstrate that Employer was unwilling to provide adequate training. Moreover, Walters testified that Employer believed "[C]laimant and the other trainees had progressed enough to interview for system administrator positions," (Board's Decision Order, dated March 5, 2013, at 1), and the Board deemed his testimony credible. Employer's confidence in Claimant's ability to fulfill the duties and responsibilities of the new position was further evinced in its offer of employment. Additionally, Claimant made no attempt to preserve the employment relationship, but rejected the offer outright and said he was pursuing other opportunities. Because personal dissatisfaction with one's job qualifications does not constitute necessitous and compelling cause for quitting where the employer was satisfied with the claimant's job performance, Clark v. Unemployment Compensation Board of Review, 411 A.2d 879, 880 (Pa. Cmwlth. 1980), the Board's decision was not in error.
Accordingly, we affirm the order of the Board.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 20th day of August, 2013, the order of the Unemployment Compensation Board of Review, dated March 5, 2013, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge