Opinion
No. 890 C.D. 2014
02-20-2015
Wayne Wittik, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Wayne Wittik (Claimant) petitions this Court, pro se, for review of the Unemployment Compensation Board of Review's (UCBR) April 16, 2014 order affirming the Referee's decision denying him unemployment compensation (UC) benefits under Section 402(b) of the UC Law (Law). Claimant presents four issues for this Court's review: (1) whether Claimant had a necessitous and compelling reason to quit his employment; (2) whether Claimant suffered from an intolerable or abusive work environment; (3) whether Green Tree School v. Unemployment Compensation Review Board, 982 A.2d 573 (Pa. Cmwlth. 2009), applies to the instant matter; and (4) whether Claimant had sufficient opportunity to present his evidence. After review, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b) (referring to voluntarily leaving work without cause of a necessitous and compelling nature). --------
Claimant was employed part-time by American Health Care Apparel (Employer), working between 20 and 25 hours per week as a manager from February 23, 2003 until his last day of work on October 29, 2013. Claimant supervised employees during Employer's off-site events. Since 2010, Claimant has experienced insubordination from the workers he supervises. As a manager, Claimant has the authority to discipline his subordinates. On October 28, 2013, Claimant provided instructions to a subordinate who told Claimant to shut up. After work on October 28, 2013, Claimant sent Employer's President/CEO Howard Gordon (Gordon) an e-mail outlining the latest incident. Gordon conducted a disciplinary meeting with the employee. During the meeting, Gordon instructed the employee to stop being insubordinate towards Claimant, and notified her that any further similar actions would result in additional discipline. Claimant did not find Employer's actions to be sufficient. On October 30, 2013, Claimant notified Employer he would no longer work with the subordinate. By November 4, 2013 e-mail, Employer notified Claimant that the issue had been addressed, and if Claimant did not report to work as scheduled on November 5, 2013, his action would be considered a voluntary separation. Claimant did not report to work on November 5, 2013 or any day thereafter.
Claimant applied for UC benefits. On December 11, 2013, the Allentown UC Service Center issued a determination finding Claimant ineligible for benefits under Section 402(b) of the Law. Claimant appealed and on January 22, 2014, a Referee held a hearing. The Referee affirmed the UC Service Center's determination. Claimant appealed to the UCBR. On April 16, 2014, the UCBR affirmed the Referee's decision. Claimant appealed to this Court.
Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court's review. A claimant who voluntarily quits his employment bears the burden of proving that necessitous and compelling reasons motivated that decision. In order to establish cause of a necessitous and compelling nature, a claimant must establish that (1) circumstances
existed that produced real and substantial pressure to terminate employment, (2) like 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 her employment.Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 227-28 (Pa. Cmwlth. 2012) (citations omitted).
This Court's scope of review is limited to determining whether an error of law was committed, constitutional rights were violated, or necessary findings of fact are supported by substantial evidence. In unemployment compensation cases, the [UCBR] is the ultimate finder of fact. If a petitioner fails to challenge the [UCBR's] factual findings, they are conclusive on appeal. Moreover, we must examine the evidence in the light most favorable to the party who prevailed before the Board.Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 494 (Pa. Cmwlth. 2000) (citations omitted). Claimant did not challenge any of the UCBR's findings of fact.
Claimant argues that he had a necessitous and compelling reason to quit his job. However, the following exchange occurred at the Referee hearing:
R[eferee] What is your reason - what is your belief of the reason for the separation? Did you resign your position?
C[laimant] No.
R Were you terminated from employment or were you told there was no more work available?
C Terminated.
R And who terminated you?
C [Employer's President/CEO] Howard [Gordon (Gordon)].
. . . .
R And what was the reason you were provided for your termination?Reproduced Record (R.R.) at 4-5 (emphasis added). Claimant never returned to work. Although Claimant maintains: "I made it clear that I was not quitting, and offered to work an[y] day any[]where except with a certain employee," Claimant, not Employer, chose his employment status by not returning to work. Claimant Br. at 22 (emphasis added). From these circumstances, it is apparent that Claimant made a conscious decision to resign from his employment.
C They told me because I refused to work with an employee that if I didn't come to work the next day that they would accept that as my resignation.
R Okay. So you had the option to either return to work or not return to work. Is that correct?
C That Monday.
R Is that correct?
C Yes.
Claimant alleges that he quit due to an on-going intolerable or abusive work environment. Specifically, he contends: "[S]ince 2010, [he] has been subjected to the worse kind of treatment and abuse imaginable. Enough to affect [his] mental and physical health, and [his] management ha[d] been made acutely aware of this through[]out the past several years." Claimant Br. at 19-20. However, the record evidence reveals that Claimant specifically left his employment because his Employer would not separate him from his subordinate who he claimed was not properly disciplined for talking back to him. The record evidence does not establish the requisite factors Claimant was required to meet in proving that he had a necessitous and compelling reason to quit his job. Viewing the evidence in the light most favorable to Employer, as we must, it is clear that Claimant simply chose not to return to work.
Claimant also asserts that the intolerable working environment was detrimental to his health. However,
[t]o establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Failure to meet any one of these conditions bars a claim for unemployment compensation. . . .Ann Kearney Astolfi DMD PC. v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010) (citation omitted) (quoting Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994) (citation omitted; emphasis added)). Here, Claimant did not present any evidence of health problems. Accordingly, this argument cannot stand.
Claimant next argues that the UCBR erred because it relied upon Green Tree in support of its opinion. Specifically, the UCBR stated: "Although the claimant may have desired a different management decision, such as termination of his subordinate, employees do not enjoy a general right to participate in management decisions. [Green Tree.]" UCBR Dec. at 1. As the Green Tree Court expressly held: "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department[.]" Id. at 578. Because the controlling legal principle in Green Tree is analogous to the facts in the instant case, the UCBR properly relied upon Green Tree.
Claimant further contends, inter alia, that because he was a manager, Green Tree does not apply. However, Claimant's manager position consisted of his right to supervise employees, not to operate the company. Although Claimant acknowledges that he does not get involved in major decisions regarding reorganizations, as a manager he should be involved in management decisions concerning the employees he supervises. As Gordon stated in an email to Claimant: "As a manager, you are ordered the responsibility to enforce disciplinary measures, up to the firing of the personnel, which is my responsibility." Notes of Testimony, January 22, 2014 (N.T.) at 28; Ex. E-2(a)(5). Thus, the UCBR properly applied the Green Tree holding to the facts of this case.
Lastly, Claimant argues that the Referee did not give him sufficient opportunity to present his case. Specifically, Claimant avers: "As an unemployed person with little income and unable to get legal representation, the Referee and the UCBR should have been more considerate of my ignorance." Claimant Br. at 18.
The Pennsylvania Supreme Court has long held that ' 'any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.' ' Vann v. Unemployment Comp. Bd. of Review, . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)). More recently, this Court clarified that, 'referees should reasonably assist pro se parties to elicit facts that are probative for their case.' Hackler v. Unemployment Comp. Bd. of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).
The referee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.
[Hackler], 24 A.3d at 1115 (quoting Bennett v. Unemployment Comp. Bd. of Review, . . . 445 A.2d 258, 259 (Pa.Cmwlth. 1982)). Although the law requires that the referee reasonably assist in development of the facts necessary to render a decision, 'the referee is not required to become and should not assume the role of a claimant's advocate.' McFadden v. Unemployment Comp. Bd. of
Review, 806 A.2d 955, 958 (Pa.Cmwlth.2002). 'The referee need not advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.' Brennan v. Unemployment Comp. Bd. of Review, . . . 487 A.2d 73, 77 (Pa.Cmwlth.1985) (citation omitted; emphasis added).Stugart v. Unemployment Compensation Bd. of Review, 85 A.3d 606, 609 (Pa. Cmwlth. 2014). First, Claimant maintains that he should have been permitted to testify regarding Gordon "let[ting] everyone . . . know that his compan[y's] contribution to unemployment was too high[,]" but "the Referee immediately stopped [him.]" Claimant Br. at 16, 17. However, Claimant was not testifying at the time of said declaration, but rather was giving his closing statement. See N.T. at 38-39. As this subject was not mentioned during the hearing, the Referee properly stopped him from raising new arguments at that time. Second, Claimant asserts that "there were several instances . . . when the [R]eferee prevented [him] from providing evidence and testimony because [he] was unable 'to ask a question'." Claimant Br. at 17. Again, Claimant was not testifying at those times, instead, he was supposed to be questioning witnesses. Thus, the Referee properly directed him to ask questions. See N.T. at 14, 24, 25, 31, 32. A review of the record reveals that Claimant had a full and fair opportunity to present his case. Accordingly, this argument is without merit.
For all of the above-stated reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 20th day of February, 2015, the Unemployment Compensation Board of Review's April 16, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge