Opinion
Argued January 9, 1975
June 2, 1975.
Unemployment compensation — Scope of appellate review — Questions of law — Capricious disregard of competent evidence — Inferences — Credibility — Evidentiary weight — Voluntary termination — Cause of a necessitous and compelling nature — Burden of proof — Racial discrimination — Injury to health — Medical testimony — Abusive language — Sufficient evidence.
1. In an unemployment compensation case where the Unemployment Compensation Board of Review found against the claimant with the burden of proof, review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether the findings and the order of the Board can be sustained without a capricious disregard of competent evidence, giving to the party prevailing below the benefit of all inferences reasonably deducible from the evidence and leaving to the Board questions of credibility and evidentiary weight. [394-5]
2. In an unemployment compensation case the burden is upon a claimant who voluntarily terminated his employment to prove that such termination was for cause of a necessitous and compelling nature, and discrimination by the employer against the claimant in job advancement because of his race would constitute such a cause if proved. [395]
3. Mere statements of an applicant for unemployment compensation benefits unsupported by any medical evidence that conditions of employment adversely affected his health are insufficient to establish that the termination of his employment was for cause of a necessitous and compelling nature. [396]
4. Abusive and profane language directed at an employe over a long period of time rendering working conditions intolerable may constitute a necessitous and compelling cause justifying a voluntary termination of employment, but to constitute such a cause the remarks must be of such a nature and of such frequency as to prompt a reasonably sensitive person to terminate his employment. [396]
5. Where evidence in the record supports a determination of the Unemployment Compensation Board of Review which evaluated the weight and credibility of the evidence presented, the determination cannot be reversed on appeal although the reviewing court may have reached a different result. [396-7]
Judge ROGERS filed a dissenting opinion in which Judges KRAMER and BLATT joined which was substantially as follows:
1. In an unemployment compensation case the question of whether the undisputed facts presented demonstrate a cause of a necessitous and compelling nature for the voluntary termination of employment is one of law subject to review by the Commonwealth Court of Pennsylvania on appeal. [397-8]
2. Racial discrimination and insults directed at an employe constitute a cause of a necessitous and compelling nature for termination of employment. [398]
Argued January 9, 1975, before Judges CRUMLISH, JR., ROGERS and BLATT, sitting as a panel of three. Resubmitted on briefs April 28, 1975 to President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 423 C.D. 1974, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Martin Taylor, No. B-120719.
Application to Bureau of Employment Security for unemployment compensation benefits. Benefits denied. Employe appealed to the Unemployment Compensation Board of Review. Denial affirmed. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Petition for reargument filed and denied.
Mark B. Segal, with him Harold I. Goodman, for appellant.
Charles G. Hasson, with him Sydney Reuben, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.
This is a direct administrative appeal from a decision of the Unemployment Compensation Board of Review denying a claimant unemployment compensation on the ground that he voluntarily terminated his employment without cause of a necessitous and compelling nature and was thus disqualified under Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The claimant, Martin Taylor, was last employed by Victor's Cafe, Philadelphia, Pennsylvania, for three years as a chef at $175.00 per week. Claimant is a black man, and Victor's Cafe is located in a predominantly white area of Philadelphia, serving a predominantly white clientele. On May 26, 1973, he terminated his employment there due to what he described as an atmosphere of racial tension prevailing at the cafe which made him mentally and physically ill while on the job. Shortly thereafter, he filed for unemployment compensation, but his application was disallowed by the Bureau of Employment Security under Section 402(b)(1), 43 P. S. § 802(b)(1). On appeal, a referee and the Unemployment Compensation Board of Review (Board) sustained claimant's ineligibility under Section 402(b)(1), holding that claimant had failed to meet his burden of proving cause of a necessitous and compelling nature for his termination. In support thereof, the Board made the following findings of fact relevant to our review:
Providing in pertinent part: "An employe shall be ineligible for compensation for any week —
"(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."
"2. The claimant contends that during this period of employment, incidents and remarks made on the employer's premises created an atmosphere of racial tension.
"3. The majority of remarks and incidents which claimant alleges created an atmosphere of racial tension was (sic) made by customers at the bar on the employer's premises.
"4. The claimant's work station was in the basement and most of the remarks and incidents as alleged by claimant did not occur in his presence.
"5. The employer did not create an atmosphere of racial tension in his establishment.
"6. The employer did not discriminate against the claimant.
"7. On May 26, 1973, claimant voluntarily terminated his employment because he felt the racial tension on the job was making him physically and mentally ill.
"8. The claimant at the time of his termination was not under a doctor's care nor was he advised by a physician to leave his work.
"9. Continuing work was available for claimant had he desired to remain employed."
As claimant had the burden of proof, and the Board found against him, our review is limited to questions of law and whether the findings and order of the Board can be sustained without a capricious disregard of competent evidence. Crumbling v. Unemployment Compensation Board of Review, 14 Pa. Commw. 546, 322 A.2d 746 (1974); Zysk v. Unemployment Compensation Board of Review, 12 Pa. Commw. 409, 316 A.2d 663 (1974). The party prevailing below is entitled to all favorable inferences reasonably deducible from the evidence. Questions of credibility and weight to be given the evidence, of course, remain the exclusive province of the Board, and this Court will not disturb these determinations on appeal. Peluso v. Unemployment Compensation Board of Review, 12 Pa. Commw. 250, 315 A.2d 340 (1974); Woodson v. Unemployment Compensation Board of Review, 7 Pa. Commw. 526, 300 A.2d 299 (1973), rev'd on other grounds, ___ Pa. ___, 336 A.2d 867 (1975).
Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commw. 131, 318 A.2d 398 (1974).
After a careful examination of the record, we must agree that claimant failed to establish that his employer had discriminated against him in job advancement because of his race, which if proven by competent evidence would constitute cause of a necessitous and compelling nature. See James v. Unemployment Compensation Board of Review, 6 Pa. Commw. 489, 296 A.2d 288 (1972). Nor was claimant's statement, unsupported by any medical evidence, that the conditions of his employment adversely affected his health sufficient to establish good cause for leaving. Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commw. 597, 317 A.2d 332 (1974).
Unlike Woodson v. Unemployment Compensation Board of Review, supra, where the Supreme Court reversed the compensation authorities' determination that the claimant's absenteeism and tardiness constituted willful misconduct under Section 402(e), 43 P. S. § 802(e), the record here does not establish that the employer adopted a different standard for job advancement as between white employees and black employees. The claimant fails to recognize that under Section 402(e), the provision under which Woodson was decided, the employer had the burden of proof as well as coming forward with evidence to establish that an involuntary termination was for willful misconduct. See O'Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commw. 151, 333 A.2d 815 (1975). As previously indicated, however, under Section 402(b)(1), the claimant had the burden of proving that his voluntary termination was for necessitous and compelling reasons. United States Steel Corporation v. Unemployment Compensation Board of Review, 18 Pa. Commw. 71, 333 A.2d 807 (1975); Stalc v. Unemployment Compensation Board of Review, supra. In the instant case, the only evidence presented by the claimant of job discrimination was a statement by the employer's minor son to the effect that claimant had advanced as far as he could go when he "walked through the door." Even were we to assume that this was admissible evidence, it certainly does not establish job discrimination in the context of employment in a small cafe of limited positions where claimant had held a chef's position for three years.
There remains the question, however, of whether, as an independent ground, the racial slurs directed at claimant in his place of employment were sufficient to warrant his voluntary termination. It has been consistently held by the courts of this Commonwealth that abusive and profane language directed at an employe over a long period of time may render his working conditions intolerable and constitute necessitous and compelling cause justifying a voluntary termination. Palmitessa v. Unemployment Compensation Board of Review, 197 Pa. Super. 618, 179 A.2d 679 (1962); Trinovitch v. Unemployment Compensation Board of Review, 169 Pa. Super. 269, 82 A.2d 277 (1951). The abusive remarks, however, must be more than the mere "kidding" frequently encountered in employment situations and be of such a nature as would prompt a reasonably sensitive employe to terminate his employment. See Thibodeau v. Unemployment Compensation Board of Review, 178 Pa. Super. 10, 112 A.2d 427 (1957). In this respect, the instant record tests the limits of our review. The only testimony presented before the referee and Board was by claimant and two co-workers who testified on his behalf. The employer did not appear at either hearing. Although the Board in its findings and discussion of the case agreed that numerous incidents evidencing a racial animus toward claimant had, in fact, occurred in his place of employment, it found that they were not of such a nature and frequency as to warrant claimant's voluntary termination. Necessarily, this determination was based upon a critical evaluation of the credibility and demeanor of the respective witnesses and the weight to be given the acknowledged incidents of racial prejudice. There can be no question but that from the cold printed record before us we would have reached a different decision. But that is not our function. We cannot find that the Board abused its fact-finding discretion or otherwise capriciously disregarded competent evidence in holding that claimant had not met his burden of proving that his voluntary termination was the product of an atmosphere of racial tension existing at his place of employment.
Hence, we enter the following
ORDER
AND NOW, this 2nd day of June, 1975, the decision of the Unemployment Compensation Board of Review is affirmed, and claimant's appeal is dismissed.
I respectfully dissent.
As the majority points out, the employer failed to appear at either of the two hearings conducted by referees. The appellant's uncontradicted evidence consisted of his account of an uncomplimentary remark by his employer concerning persons of the black race, an insulting epithet, followed by an insincere apology, directed to him by the employer's son, and of racial slurs by customers of the employer's restaurant. Two fellow employees testified in behalf of the appellant that the employer referred to the appellant in disparaging racial terms. The Board of Review found as a fact that Mr. Taylor quit his job "because he felt the racial tension . . . was making him physically and mentally ill."
The majority goes astray, in my opinion, in concluding that our scope of review precludes us from reversing the Board's determination that the facts do not demonstrate necessitous and compelling reasons for appellant's leaving his employment. The question of whether undisputed facts constitute such cause is one of law which it is our duty to review. See Stryker v. U.C.B.R., 14 Pa. Commw. 429, 322 A.2d 737 (1974). The compensation authorities having found that instances evidencing racial animus occurred and that they caused the appellant to leave his employment, it is for us on review to determine whether these facts in law constitute necessitous and compelling cause for appellant to quit. It is my belief that they did.
The majority concedes that "the instant record tests the limits of our review" and declares that "[a]lthough the Board in its findings and discussion of the case agreed that numerous instances evidencing a racial animus toward claimant had, in fact, occurred in his place of employment, it found that they were not of such a nature and frequency as to warrant claimant's voluntary termination."
Racial discrimination is a compelling and necessitous cause for voluntary termination. See James v. U.C.B.R., 6 Pa. Commw. 489, 296 A.2d 288 (1972). So, too, are insults. Palmitessa v. U.C.B.R., 197 Pa. Super. 618, 179 A.2d 679 (1962).
I would conclude on this record that the appellant had carried his burden of proving necessitous and compelling cause for leaving his employment with Victor's Restaurant and I would reverse the Board's denial of benefits.
Judge KRAMER and Judge BLATT join in this dissent.