Gardiner v. Unemployment Comp. Bd. of Review

MEMORANDUM OPINION BY JUDGE McGINLEY

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Beverly A. Gardiner (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 found by the Board, are as follows:

1. The claimant was last employed as a full-time secretary by Gates & Burns Realty, Inc. from February 7, 2005 at a final rate of $9.75 per hour and her last day of work was June 11, 2013.
2. The employer's business increased as a result of a television commercial and the claimant became very busy.
3. The claimant was responsible for setting up files and placing active listings on the employer's website and scheduling appointments for potential buyers to view active properties.
4. Any special requests for the active properties were to be written on the inside of the file by the listing agent.
5. On June 11, 2013, the claimant placed a listing on the employer's website for a property on Georgetown Road. She did not notice that the listing agent, William Moon, Jr., placed a footnote indicating that appointments should be scheduled after June 17, 2013.
6. The claimant began to schedule appointments to show the property.
7. The listing agent became aware of the scheduled appointments and was angered by the claimant's oversight of his notation.
8. The claimant asked if she should cancel the appointments and the listing agent said he would call the property owner.
9. The claimant believed that the listing agent was mumbling and being demeaning towards her.
10. On June 11, 2013, the claimant announced that she was quitting and left the employer's office without discussing the situation with employer.

Board Opinion, October 4, 2013, (Opinion), Findings of Fact Nos. 1-10 at 1-2.

The Board determined:

The claimant alleges that her frustrations date back to an incident in 2011; however, the Board finds the prior incident occurred too far in the past to be considered in the analysis of the claimant's June 2013 quit. Accordingly, the Board will confine its analysis to the events of June 11, 2013. The claimant made an error
with regard to a listing and scheduled appointments prior to the date noted in the file. The listing agent was upset and the claimant alleges that he was mumbling and being demeaning towards the claimant. The claimant was not unjustly reprimanded. In general, personality conflicts with supervisors or co-workers, absent an intolerable working environment, will not constitute necessitous and compelling cause to quit. The claimant failed to establish with credible testimony that the listing agent created an intolerable work environment. Additionally, the claimant admits that she did not discuss her concerns with the employer, and provide the employer with time to remedy these concerns, before quitting.

Opinion at 2.

Claimant contends that she had a necessitous and compelling reason to quit her job with Gates & Burns Realty, Inc. (Employer).

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).

Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. 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. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Good cause for voluntarily leaving one's employment results from circumstances which 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). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982).

A claimant must make a reasonable effort to preserve her employment. Platz v. Unemployment Compensation Board of Review, 709 A.2d 450 (Pa. Cmwlth. 1998).

Claimant argues that Cynthia Moon (Mrs. Moon), the manager of Employer, made dishonest statements because she sided with her son, William Moon, Jr. (Moon), the agent with whom Claimant had a disagreement. Claimant also asserts that Mrs. Moon lied when she said that Claimant quit because a family member had cancer and that she lied when she said that Claimant did not discuss the situation with her. Claimant admits that she did not talk to Mrs. Moon on the day she quit but did attempt to talk to her two days later, and Mrs. Moon told Claimant that she had nothing to say to her. Claimant also asserts that Mrs. Moon lied when she said at the hearing that the parties could have worked something out. According to Claimant, Moon lied when she stated that Claimant had been an average employee when she worked there.

First, this Court notes that 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, 378 A.2d 829 (Pa. 1977). In general, Claimant is asking this Court to accept her own credibility determinations and reject those of the Board. This Court is not permitted to do so.

Second, the Board did not determine that Claimant quit because of the health of a family member so that assertion by Claimant is irrelevant. Third, Claimant admitted that she quit and left the premises without discussing the situation with Employer. Fourth, the assertion that Mrs. Moon lied when she stated that Claimant was an average employee has no bearing on the circumstances of her quitting. Fifth, Claimant's assertion that Mrs. Moon lied when she said that Employer and Claimant could have worked something out regarding the situation again goes to the credibility determination of the Board.

Claimant also asserts that Moon was dishonest because he:

Tried to sugarcoat what he said to me on June 11, the day I quit. His rude words to me indicated that I did not do my job well, But in reality . . . William [Moon] did not follow company protocol and write details inside the file folder for me to know how to handle showing appointments, based upon any special instructions.

(Emphasis in original). Claimant's Brief at 8.

Moon testified that he told Claimant "apparently you can't read the data sheet" when she made the appointments for potential buyers to see the property because it could not be shown until June 17. Notes of Testimony, July 31, 2013, (N.T.) at 10. Claimant admitted that there was a footnote on the data sheet which indicated that the property was not to be shown though it was not written in the file at the place for such information according to Employer's protocol. N.T. at 5. The Board determined that Claimant made an error with respect to the listing. Even if Moon did reprimand her and tell her she made a lot of mistakes, N.T. at 11, that did not constitute a necessitous and compelling reason to quit. See Ann Kearney Astolfi DMD, PC. v. Unemployment Compensation Board of Review, 995 A.2d 1286 (Pa. Cmwlth. 2010).

Claimant also asserts that there was a possibility that the referee knew Mrs. Moon and Moon because the hearing seemed to be a "little 'one-sided.'" Claimant's Brief at 9. There is no specific allegation of bias here. Claimant does not elaborate on her contention. Based on the record, this issue is without merit. --------

Claimant had the burden to prove that she had a necessitous and compelling reason to quit her employment. The Board found that she did not shoulder this burden. This Court agrees. Even if Claimant did not get along with Mrs. Moon and Moon, a personality conflict without an intolerable work atmosphere does not constitute a necessitous and compelling reason for leaving employment. Wert v. Unemployment Compensation Board of Review, 41 A.3d 937 (Pa. Cmwlth. 2012).

Accordingly, this Court affirms.

/s/_________

BERNARD L. McGINLEY, Judge ORDER

AND NOW, this 3 day of June, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

/s/_________

BERNARD L. McGINLEY, Judge