Opinion
No. 637 C.D. 2014
11-07-2014
Angelo Scott, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Angelo Scott (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board) holding that he is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (the Law) because he voluntarily quit his job without a necessitous and compelling reason. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. § 802(b). Section 402(b) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ...." Id.
The facts found by the Board concerning Claimant's employment with XTL Inc. (Employer) and his separation from that employment are as follows:
2. The Claimant was employed as a Warehouse Associate from October 19, 2012 until July 18, 2013; at the time of separation he was working full time and was earning $18.91 per hour.
3. On July 18, 2013, the Claimant and the co-worker were nearly involved in an accident involving vehicles operated by each of them in the Employer's warehouse facility.
4. A verbal altercation between the Claimant and the co-worker arose out of the near-accident. During the altercation, the Claimant and his co-worker used profanity.
5. Later the same day, the co-worker involved in the verbal altercation approached the Claimant and, in the presence of the union shop steward, told the Claimant, "I'm going to make it easy for you. I will stay away from you and you stay the f---away from me."
6. The Claimant reported the altercation with his co-worker to the Employer and his union representative.
7. The Employer initiated an investigation into the incident and found that no violation of the Employer's workplace violence prohibition had occurred.
8. The Claimant refused an offer of mediation of the situation and refused an assignment to a different area of the Employer's facility.
9. The Claimant's physician advised him that due to a medical condition he should not return to work on or about July 25, 2013. The Claimant's physician did not release him to return to work until September 19, 2013.
10. The Claimant did not return to work when released to do so by his physician because he believed the situation would
not change and feared another confrontation with his coworker.(Record Item (R. Item) 15, Referee's Decision and Order, Findings of Fact (F.F.) ¶¶2-10; R. Item 20, Board Decision and Order.)
The Unemployment Compensation Service Center issued a determination that Claimant was ineligible for benefits because he had voluntarily quit his employment without a necessitous and compelling reason. Claimant appealed, and the referee conducted a hearing at which Claimant was represented by counsel. (R. Item 14, Referee's Hearing Transcript (H.T.) at 1.) Three witnesses testified at the referee's hearing: Claimant, Employer's human resources manager and an employee who witnessed the confrontation at issue. (R. Item 14, H.T. at 1-2, 24.) On December 20, 2013, the referee issued a decision affirming the Service Center's determination that Claimant was ineligible for benefits under Section 402(b) of the Law because he had voluntarily left his job without a necessitous and compelling reason. (R. Item 15, Referee's Decision at 2-3.)
The referee also held that Claimant was ineligible for benefits under Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1), for the period from July 25, 2013 through September 19, 2013 because he was not able to work and available for suitable work due to his physician's instructions, and modified the Service Center's determination in this respect. Claimant has not asserted that the Board's affirmance of this determination was in error, arguing only that the referee and Board erred in holding that he did not show necessitous and compelling safety reasons for leaving his employment. In any event, there is no error in this determination, as the finding that Claimant was unable to work at all during the July 25, 2013 through September 19, 2013 period is supported by substantial evidence. (R. Item 14, H.T. at 9-12, 19 & Claimant Exs. 1, 2.)
Claimant appealed the referee's decision to the Board. On March 6, 2014, the Board affirmed the referee's decision and adopted and incorporated the referee's factual findings and conclusions. (R. Item 20, Board Decision and Order.) Claimant then filed the instant petition for review appealing the Board's order to this Court. Claimant argues that he resigned from his job because he was in fear for his safety and that this safety concern constituted necessitous and compelling circumstances for leaving that employment. Contrary to Claimant's assertions, the Board's rejection of this claim is both factually supported and legally correct.
Our review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 297 n.6 (Pa. Cmwlth. 2013). --------
A claimant seeking benefits after voluntarily quitting his job has the burden to demonstrate that he had a necessitous and compelling reason for doing so. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013); Green Tree School v. Unemployment Compensation Board of Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002); Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). To prove a necessitous and compelling reason for leaving employment, the claimant must not only show circumstances that produced real and substantial pressure to terminate employment and would compel a reasonable person to act in the same manner, but must also show that he acted with ordinary common sense and made reasonable efforts to preserve his employment. Mathis, 64 A.3d at 299-300; Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Craighead-Jenkins, 796 A.2d at 1033 & n.3. Where the claimant has failed to take all necessary and reasonable steps to preserve the employment relationship, he cannot demonstrate a necessitous and compelling reason for leaving his job and is ineligible for benefits. Nolan, 797 A.2d at 1046-47; PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996).
Concern for personal safety, including fear of physical attacks by co-workers, can constitute necessitous and compelling reasons for leaving employment. Green Tree School, 982 A.2d at 577; Department of Corrections v. Unemployment Compensation Board of Review, 547 A.2d 470, 473 (Pa. Cmwlth. 1988); Howell v. Unemployment Compensation Board of Review, 501 A.2d 718, 719 (Pa. Cmwlth. 1985). The mere fact that the claimant is subjectively afraid, however, is not sufficient; the safety risk must be objectively real to constitute a sufficient reason for resigning from one's job. Green Tree School, 982 A.2d at 578.
Moreover, even where the safety concern is real and serious, the claimant must show that he made a reasonable attempt to seek protection from the danger and that the employer's response gave him no choice but to leave his employment. Department of Corrections, 547 A.2d at 474; Iaconelli v. Unemployment Compensation Board of Review, 423 A.2d 754, 756 (Pa. Cmwlth. 1980); Mackanic v. Unemployment Compensation Board of Review, 390 A.2d 884, 886 (Pa. Cmwlth. 1978). If the employer has offered alternative work arrangements that could solve the safety issue, quitting without even attempting to work under those arrangements does not constitute a reasonable attempt to preserve employment and bars the claimant from benefits. Department of Corrections, 547 A.2d at 474; Iaconelli, 423 A.2d at 756-57; Mackanic, 390 A.2d at 886. "If the employer promises to take action to alleviate the problem, good faith requires that the employee continue working until or unless the employer's action proves ineffectual." Craighead-Jenkins, 796 A.2d at 1034.
Here, Claimant showed neither a real danger sufficient to force him to leave his job nor a reasonable effort to maintain his employment. The only conduct found by the Board consisted of a co-worker using profanity toward Claimant in a heated argument following a near-collision on the job and later the same day. (R. Item 15, Referee's Decision and Order, F.F. ¶¶3-5; R. Item 20, Board Decision and Order.) There was no physical attack by the co-worker. Nor was there any expressed threat to harm Claimant in the future; to the contrary, Claimant testified that the co-worker's only statement of his future intent was "I'm going to make things easy for you, you stay away from me and I stay the F away from you." (R. Item 14, H.T. at 13.) Compare Department of Corrections, 547 A.2d at 473 (supervisor repeatedly invited claimant to fight with him, saying "I'm gonna beat your ass, I'm gonna beat it bad"); Howell, 501 A.2d at 719 (claimant was struck twice at work by co-worker); Iaconelli, 423 A.2d at 756 (co-worker threatened to meet claimant outside in the parking lot that evening); Mackanic, 390 A.2d at 886 (claimant was repeatedly told by co-workers that he and his family would be "dealt with" if he didn't reduce his production output and threatening calls were made to claimant's wife).
In addition, Employer offered to mediate the situation between Claimant and the co-worker and offered to assign Claimant to a different area of the warehouse to reduce contact between him and the co-worker. (R. Item 15, Referee's Decision and Order, F.F. ¶8; R. Item 20, Board Decision and Order; R. Item 14, H.T. at 17, 21.) Claimant, however, refused those offers and resigned without any attempt to see if they could resolve the problem. (R. Item 15, Referee's Decision and Order, F.F. ¶8; R. Item 20, Board Decision and Order; R. Item 14, H.T. at 17, 19, 21.) Claimant asserted that he had no obligation to see if these proposed solutions could work because the co-worker's job as a forklift operator could bring him into any part of the warehouse and contends that the only sufficient response would have been to move Claimant or the co-worker to a different shift, which was not possible due to union seniority requirements. (R. Item 14, H.T. at 17, 19, 28.) We do not agree.
The evidence before the referee showed that Employer's warehouse facility was large, as much as a football field in length. (Id., H.T. at 15.) Given the absence of a physical attack or clear threat of future assault, Claimant's refusal to even try the offer of assignment to a different part of the facility and see if that kept him away from the co-worker did not satisfy his obligation to take reasonable steps to preserve his employment. Department of Corrections, 547 A.2d at 474 (claimant could not show necessitous and compelling reasons for leaving his job where he turned down employer's offer of a transfer so he would no longer work under supervisor who threatened to fight him); Iaconelli, 423 A.2d at 756-57 (claimant could not show necessitous and compelling reasons for leaving his job where he did not seek an emergency transfer although he knew such a procedure was available); Mackanic, 390 A.2d at 886 (claimant could not show necessitous and compelling reasons for leaving his job due to threats from co-workers to him and his family where he turned down employer's offer of a transfer to another department of its large plant and made no attempt to determine the nature and type of those alternative jobs).
Claimant contends that the Board erred in refusing to consider alleged evidence that the co-worker had a criminal record. This argument likewise fails. No such evidence was introduced in the record at or before the referee's hearing. Claimant submitted the document in question, a print-out purporting to be a court summary of 10 to 20 year-old criminal charges, all but one of which were dismissals, in a January 28, 2014 fax communication to the Board in his appeal from the referee's decision. (R. Item 18, Claimant Additional Information for Appeal). The Board cannot consider such post-hearing factual communications as evidence in making its determination. Han v. Unemployment Compensation Board of Review, 42 A.3d 1155, 1157 (Pa. Cmwlth. 2012); Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (en banc); Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 737-38 (Pa. Cmwlth. 1990). Moreover, Claimant has admitted that he had this document before the referee hearing and chose not to introduce it on the advice of his counsel. (R. Item 16, Claimant's Appeal from Referee's Decision; R. Item 2, Claimant Questionnaire.)
Claimant also argues that the Board erred in finding credible the testimony of the Employer witness who was present during the July 2013 confrontation between Claimant and the co-worker and in failing to find that there had been a prior incident three months earlier in which the same co-worker had insulted Claimant. These contentions are without merit. The Board is the ultimate fact finder and the arbiter of witness credibility. Mathis, 64 A.3d at 299; Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). "That Claimant may have given 'a different version of the events, or ... might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings.'" Bruce, 2 A.3d at 671-72 (quoting Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994)). The Board's findings concerning the July 2013 confrontation are supported by the testimony of Employer's eyewitness (R. Item 14, H.T. at 24-27), and are therefore supported by substantial evidence. The Board was not required to reject the competent testimony of that witness nor was it required to credit Claimant's testimony concerning that incident or the earlier incident. Ductmate Industries, Inc., 949 A.2d at 344. Moreover, even if the Board had found Claimant's testimony credible in its entirety, Claimant's own version of events did not show a danger to Claimant's safety that could excuse him from trying Employer's offer to transfer him to a different part of the building before concluding that he had to resign.
For the foregoing reasons, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of November, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. Petitioner's request to expedite, filed October 6, 2014, is dismissed as moot.
/s/_________
JAMES GARDNER COLINS, Senior Judge