Opinion
No. 1477 C.D. 2013
03-12-2014
Patricia Walter, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Patricia Walter (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was last employed as a full-time accounting assistant for Bolus Truck Parts and Towing from April 2011 until January 24, 2013.
2. The employer repairs trucks, provides towing services, and sells trucks as part of its operation.
3. In the workplace, the use of profanity and derogatory remarks are commonplace amongst all employees.Referee's Decision, April 24, 2013, (Decision), Findings of Fact Nos. 1-5 at 1.
4. The claimant would use profanity and derogatory remarks toward coworkers and the owner.
5. On January 24, 2013, the claimant walked off the job due to the use of profanity towards her by the owner.
The referee determined:
In the present case, the claimant testified that on January 24, 2013, she quit the job due to the language used towards her by the owner. The claimant's assertion [that] the use of such language continued after her request for it to stop is found to be incredible. Moreover, the claimant continued working after such a request was made to the owner for a period of approximately three weeks. The employer's witnesses testified that the use of profanity and abusive language towards each other are [sic] commonplace in the workplace. Based on the evidence presented, the Referee finds the claimant did not have a necessitous and compelling reason to quit the job; accordingly, benefits must be denied under Section 402(b) of the Law.Decision at 2.
Claimant appealed to the Board which affirmed. The Board reasoned, "[a]dditionally, the Board finds and concludes that the claimant did not make the owner aware of her concerns prior to her voluntary quit. As a result, the claimant did not take all reasonable steps to resolve her concerns prior to her voluntary quit." Board Opinion, July 3, 2013, at 1.
Before this Court, Claimant raises the following two issues:
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 695 (Pa. Cmwlth. 1994).
1. Did the Unemployment Compensation Board of Review err by failing to consider that the establishment that profanity and abusive language was commonplace in the work areas negated claimant's claim that she was offended by the use of such language.Claimant's Brief at 3.
. . . .
2. Did the Unemployment Compensation Board of Review misunderstand and misconstrue the Referee's findings that the substantiated evidence that the claimant had made requests to the employer that she was offended by such language and that such evidence going unchallenged by the employer, Finding of Fact of the Referee and Appeal Board are not substantiated by substantial evidence that was presented.
Claimant asserts that the Board erred when it found that she did not take reasonable steps to preserve her employment.
This Court has foregone the sequence of Claimant's arguments.
Whether a termination of employment is voluntary is a question of law subject to this Court's review. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. Willet v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
A necessitous and compelling cause for voluntarily leaving one's employment results from circumstances that 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. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
Where employee has failed to take all necessary and reasonable steps to preserve the employment relationship, he or she has failed to shoulder the burden of demonstrating necessitous and compelling cause for voluntary termination, and is not entitled to unemployment compensation benefits. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58 (Pa. Cmwlth. 1996). When a claimant is dissatisfied with working conditions, he must make a reasonable attempt to reconcile this dissatisfaction with his employer prior to quitting employment in order to receive unemployment compensation benefits. Petrick v. Unemployment Compensation Board of Review, 455 A.2d 757 (Pa. Cmwlth. 1983).
Claimant asserts that the record is clear that she addressed her concerns regarding the use of derogatory and profane language by Bob Bolus (Bolus), the president of Bolus Truck Parts and Towing (Employer), to both Bolus and to Sophie Gregory (Gregory), the owner. As a result she argues that she took all necessary and reasonable steps to preserve the employment relationship.
A review of the record reveals that Claimant testified that she attempted to speak to Bolus concerning the language used by Bolus:
It was January 4th -well, there was [sic] a couple times, but on January 4th I left [sic] him know. And his reply was - I told him. I said I'm tired of you yelling, screaming, and swearing at me. His reply was I don't do that and I said yes, you do. I couldn't find a file. There was a file I could not find.Notes of Testimony, April 23, 2013, (N.T.) at 9.
With respect to Gregory, Claimant testified that she attempted to resolve the matter with Gregory and that Gregory told her that one of Bolus's statements was uncalled for. N.T. at 9-10.
Bolus, however, testified regarding Claimant's decision to quit: "No, she quit. And, I called her up the one day. I wasn't even in the office. I didn't even know she quit. She never called me and said I quit. I never had a dialogue with her." N.T. at 27. Bolus believed that Claimant quit after there was an argument concerning whether there was money to pay for parts that one of the employees needed for a repair. N.T. at 27.
The Board specifically found that Claimant failed to make her concerns regarding Bolus's treatment of her known to Employer. As a result the Board determined that Claimant failed to take all reasonable steps to preserve her employment. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Because the Board determined that Claimant failed to inform Employer of her concerns prior to her decision to quit, Claimant did not meet her burden to establish her entitlement to unemployment compensation benefits.
Accordingly, this Court affirms.
Because this Court agrees with the Board that Claimant did not take reasonable steps to preserve her employment, this Court need not address Claimant's remaining issue. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 12th day of March, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge