Opinion
No. 752 C.D. 2012
12-07-2012
Charles F. Young, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Charles F. Young, acting pro se, petitions this court for review of the order of the Unemployment Compensation Board of Review which affirmed the referee's decision denying him unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). This section provides that a claimant shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant was employed as a Computer Aided Design (CAD) operator for Keystone Printed Specialties Company (Employer) for ten years, until his last day worked on December 28, 2011. On that date, Claimant and Employer's CEO, John McInerney, got into a heated discussion regarding the status of die cuts for a scheduled print job. Claimant believed that McInerney terminated his employment by telling him to get his hat and coat and go home. Employer learned that after ending the conversation with McInerney, Claimant told a few coworkers that he was done, shook hands and left Employer's premises. Employer therefore considered that Claimant quit and voluntarily abandoned his employment. Claimant filed for unemployment compensation benefits with the Scranton Unemployment Compensation Service Center, which granted him benefits. Employer appealed, and a hearing was held before the referee on February 3, 2012, at which Claimant and Employer's Accounting Manager, Angelo Alfano, testified.
At the start of the hearing, the referee explained that as there was a dispute over the circumstances surrounding Claimant's separation from employment, with Claimant alleging that he was fired and Employer contending that Claimant quit, that she would determine whether Claimant quit or was fired based on the testimony and evidence. After setting forth the burdens of proof with respect to each, and laying out the procedure for the hearing, the referee explained to Claimant that he had the right to testify, to present documentary evidence and to question Employer's witnesses. Claimant indicated that he understood both the law and the process. Notes of Testimony (N.T.), at 4-7.
Alfano testified that on the day in question, he and two other employees, Brad Coleman, IT Director, and Jesse Zito, Plant Manager, were in CEO McInerney's office when McInerney telephoned Claimant and placed him on speakerphone. Alfano testified that McInerney questioned Claimant about why the die casts were not ready when they had a scheduled print job the day before and that Claimant's response was that management did not schedule that operation as well as they should have. Alfano testified that Claimant was told he was still expected to be on top of things and that Claimant actually disconnected the call, at which point McInerney had to call Claimant back. Alfano testified that Claimant said he hung up because he thought the conversation was over. Alfano testified that after this conversation ended, they received a phone call from another employee who told them that Claimant had made his goodbyes and left the plant. Alfano testified that he was in McInerney's office the entire time, that Claimant was "never told to put his hat and coat on and go the F home. [Claimant] chose to leave that day and not come back." Hearing of February 3, 2012, Notes of Testimony (N.T.), at 12. Finally, Alfano testified that Claimant never called anyone at Employer or notified his direct supervisor that he was quitting and that under Employer's policy, two days of no call, no show are considered job abandonment.
Claimant testified that on the afternoon of December 28, 2011, he got a phone call from McInerney asking him why a certain die had been cut down and why it had taken so long to get ready. Claimant testified that he told McInerney he had to go out to the floor to check it out with another employee. He then hung up the phone and went to get the information McInerney wanted. Claimant testified that another employee told him that the die had to be stripped and cut down because it was too big for Employer's press. Claimant testified that he returned to his office and called McInerney with this information and that when McInerney asked him another question, he hung up again and went to check on the problem. Claimant testified that when he called McInerney back a second time, McInerney "[got] arrogant" with him and "wouldn't listen to reason." N.T. at 10. Claimant testified that he asked McInerney to "do [him] a favor and check the schedule" and that McInerney's response was he does not do favors for anyone. Id. Claimant testified that at that point, it got quiet on the line, so he hung up, assuming the conversation was over. Claimant further testified that McInerney called back screaming at him that it was insubordination to hang up on him. McInerney then told him to "[p]ut your hat and coat on and go the F home." Id. at 11. Claimant testified that he picked up his stuff, said "I'm done," and walked out. Id.
The referee credited Employer's testimony that it did not make any statements to Claimant that could be interpreted as suspending or terminating Claimant's employment. The referee further found that Claimant initiated his separation from employment when he left the building. Noting that the Claimant offered no evidence of necessitous and compelling reasons to voluntarily resign his employment and that there was no evidence that Employer advised Claimant to quit or be fired or otherwise prompted the separation from employment, the referee denied benefits under Section 402(b) of the Law.
Claimant appealed the referee's decision and asked the Board to remand for a hearing to allow him to subpoena the records of his telephone conversation with the UC Center representative which he argues would prove Employer's admission that he had been asked to leave the premises on the day in question.
The Board concluded that the referee's decision was proper and resolved the conflicting testimony in favor of Employer in finding that Claimant was not told to leave Employer's property on December 28, 2011. The Board adopted and incorporated the referee's findings of facts and conclusions of law and concluded that the record was sufficiently complete for its decision. The Board found no evidence supporting Claimant's allegation that Employer provided information to the UC Center that contradicted testimony provided at the hearing. Finding that Claimant had not advanced good cause for a remand hearing, the Board denied Claimant's request and affirmed the decision of the referee. This appeal followed.
Claimant raises several issues on appeal. Specifically, Claimant asserts that 1) the Board misconstrued and misunderstood Alfano's testimony that he was present during all of the conversations leading to Claimant's separation from employment; 2) the Board failed to consider the discrepancy in Alfano's testimony regarding the number of phone calls that were made and the extent of conversation that occurred; 3) the Board failed to clarify Alfano's exact location and whether he was present when McInerney received the phone call that Claimant had left the building; 4) the Board failed to clarify the contradiction between Alfano's written statement that at some point in their conversation, Claimant was asked by McInerney if he wanted to leave and Claimant said yes, and his testimony that the conversations between Claimant and McInerney only concerned the production issues; 5) the Board's decision to deny his request for a subpoena to obtain the full transcript of the telephone interview between himself and a UC Center representative denied Claimant the right to present critical evidence on his own behalf; and 6) the Board erred in rendering its decision on the basis of a record that was insufficient and incomplete in light of this missing evidence.
The Board argues Claimant's arguments are without merit as they constitute an impermissible attack on its credibility determinations, which are within its discretion to make and are not subject to judicial review. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 501 A.2d 1383 (1985). We agree.
Whether a claimant's separation from employment was due to a voluntary resignation is a question of law to be determined based on the facts of each case. Procyson v. Unemployment Comp. Bd. of Review, 4 A.3d 1124 (Pa. Cmwlth. 2010). To be eligible for benefits under Section 402(b) of the Law, a claimant who resigned from employment must prove that the resignation was due to a necessitous and compelling reason. To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027 (Pa. Cmwlth. 2010). Whether the claimant's separation from employment was due to a necessitous and compelling reason is a question of law subject to this court's plenary review. Procyson. --------
In addressing the arguments set forth by Claimant, we note that the Board is the ultimate fact finder, empowered to resolve conflicts in the evidence and to determine the credibility of the witnesses. Peak; Schnitzer v. Unemployment Comp. Bd. of Review, 880 A.2d 728 (Pa. Cmwlth. 2005). According to Employer's witness, Alfano, he and two other coworkers were present in CEO McInerney's office on December 28, 2011, when McInerney placed a phone call to Claimant and put him on speakerphone. Alfano testified that Claimant was asked to explain why dies for the previous day's print job were not ready for the job to run properly. Claimant hung up after stating that Employer's scheduling caused the delay. Alfano further testified that when McInerney called Claimant back, Claimant was told that he was expected to be on top of things regardless of what he thought about the scheduling problems and that the conversation then ended. Alfano further testified that nothing was said during the phone calls to make Claimant believe that he was fired and that Claimant was never told to put his hat and coat on and go the "f" home. Finally, Alfano testified that "[t]he whole time these calls transpired, I was in Mr. [McInerney's] office." N.T. at 12.
Claimant argues that his version of events is "[t]he only accurate testimony regarding the separation from [his] job" and that the Board misunderstood and misconstrued Alfano's testimony. He insists that there were four phone calls between himself and McInerney as he attempted to verify information for McInerney about the dies, and that Alfano was not present for the two subsequent phone calls during which McInerney became infuriated and told him to go home. Claimant essentially asks that we credit his version of events. However, that determination was solely for the Board to make as ultimate fact-finder. Because the Board's findings are supported by its credibility determinations, they may not be disturbed on appeal. Peak. Claimant had a full and fair opportunity to present his version of the facts and to question Alfano about his testimony and his written statement. In this case, the Board as fact-finder chose to believe the Employer's testimony regarding the facts surrounding Claimant's separation from his employment.
Finally, we address Claimant's contention that a remand is required to allow him to present the transcript of his telephone interview with the UC Center representative. The crux of Claimant's argument is that Employer must have admitted to the UC Center that it had asked Claimant to leave that day because of the questions the UC representative posed to him during his initial interview. Although Claimant contends that this transcript was critical to his case and that he was denied his right to present it, we disagree. The essential elements of due process are notice and an opportunity to be heard in a full and fair hearing before an impartial decision maker. Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005) (citation omitted). A review of the entire record supports the Board's conclusion that there was no evidence supporting Claimant's allegation and that "the parties had the opportunity for a full and fair hearing." Board's Decision at 1. Moreover, his argument is nothing more than an impermissible attack on the Board's credibility determinations, which are not subject to our review. Therefore, we agree with the Board that Claimant has not advanced good cause for a remand.
Because the evidence in the record supports the Board's conclusion that Claimant's separation from employment was due to his voluntarily leaving employment without necessitous or compelling reasons, we affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of December, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge