Opinion
No. 1051 C.D. 2012
11-30-2012
Frederick D. Wagner, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Frederick D. Wagner (Claimant) petitions this Court, pro se, for review of the Unemployment Compensation Board of Review's (UCBR) May 17, 2012 order affirming the Referee's decision denying Claimant Unemployment Compensation (UC) benefits under Section 402(b) of the Unemployment Compensation Law (Law). Claimant essentially presents one issue for this Court's review: whether the UCBR erred in finding that Claimant presented insufficient evidence to prove he had a necessitous and compelling reason to voluntarily quit his job. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Sears, Rose Park Mall (Employer) hired Claimant in July 2011 as a part-time employee to work in its appliance department. Due to a non-work related accident Claimant took a medical leave of absence. Upon his return, Employer transferred Claimant to the fine jewelry department because Employer was unable to determine whether Claimant could handle the amount of walking and bending required for the position due to his injury. Claimant's employment was part-time with no assurance of a minimum number of work hours. Claimant was typically scheduled to work over twenty hours a week in the fine jewelry department. Claimant saw a preliminary schedule, wherein, he was scheduled to work only seven hours during the following week. He questioned the store manager and interpreted her response to mean that termination of his employment was possible. In order to avoid a discharge on his employment record, Claimant voluntarily resigned his employment on November 15, 2011.
Claimant subsequently applied for UC benefits. The Duquesne UC Service Center denied his application under Section 402(b) of the Law. Claimant appealed and a hearing was held before a Referee. On April 5, 2012, the Referee affirmed the UC Service Center's determination. Claimant appealed to the UCBR. On May 17, 2012, the UCBR affirmed the Referee's decision. Claimant appealed to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant argues that the UCBR erred in finding that Claimant presented insufficient evidence to prove he had a necessitous and compelling reason to leave his employment. Specifically, Claimant contends that the unilateral significant reduction in his work hours is a necessitous and compelling reason to leave his employment.
Section 402(b) of the Law provides that an employee 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 . . . ."
An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1)
circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve [his] employment.Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). "Lack of work, perpetual layoffs and drastic reductions in hours constitute necessitous and compelling reasons to quit one's job." Earnest v. Unemployment Comp. Bd. of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 2011).
Claimant testified at the hearing that he resigned because when he saw that he was scheduled to work only seven hours the following week, he asked the store manager why, and she responded that he was being tested. Claimant interpreted this response to mean that termination of his employment was possible. However, when specifically asked what the store manager said that made him think he might get fired, Claimant responded:
I - again, I'm just alleging. I don't - she was an aisle and a little bit more away from the fine jewelry department. And I yelled over to her, and she kept on walking. She didn't stop, and I said [c]an you share with me why I'm only getting seven hours after two weeks straight of 23 and 23 hours? And she said, [y]ou're being tested. And I didn't hear, and I didn't challenge her. I assumed that I was being tested at a possible chance of being fired. And again, I'm alleging that. I'm not saying that she said that. That's . . . [.]Original Record (O.R.), Item No. 9 at 8. Further, when asked if he went to human resources, he responded: "No, that was a mistake on my part." O.R., Item No. 9 at 7. We hold that a store manager telling Claimant that he was being tested in response to an inquiry concerning his work hours is not a necessitous and compelling reason to voluntarily terminate one's employment. Accordingly, the UCBR did not err in concluding that Claimant offered insufficient evidence to prove he had a necessitous and compelling reason to quit his job.
Claimant alludes to hearsay and false evidence offered by Employer, which he was not permitted to refute. Said allegations, however, need not be addressed in light of our holding in this case. --------
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 30th day of November, 2012, the Unemployment Compensation Board of Review's May 17, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge