B.A. Keller v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon A. Keller, :
Petitioner :
: Nos. 790 & 791 C.D. 2016
v. :
: Submitted: November 10, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: March 29, 2017
Brandon A. Keller (Claimant) petitions, pro se, for review of the March
31, 2016 orders of the Unemployment Compensation Board of Review (Board),
affirming the decisions of a referee to deny him benefits under section 401(d)(1) of
the Unemployment Compensation Law (Law)1 for claim week ending on November
21, 2015, and to deny him benefits under section 402(b) of the Law2 for claim week
ending on December 5, 2015. We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§801(d)(1). Section 401(d)(1) of the Law states that a claimant is eligible for benefits only if he
“[i]s able to work and available for suitable work.” Id.
2
43 P.S. §802(b). Section 402(b) of the Law provides that a claimant “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.” Id.
The unchallenged findings of this case are as follows.3 Claimant worked
as a cook with Lena’s Café (Employer) from January 16, 2014, until August 17,
2015. While working for Employer, Claimant was on court-ordered probation. On
August 17, 2015, Claimant was subjected to and failed a random drug test that was
administered as part of the terms of his probation. The police subsequently arrested
Claimant and he was incarcerated from August 17, 2015, to September 20, 2015. At
the time of his arrest, Claimant contacted Employer and inquired as to whether he
could keep his employment. In response, Employer informed Claimant that it would
consider his circumstances when he was able and available to work. (Findings of
Fact Nos. 1-6.)
On September 20, 2015, Claimant was released from incarceration. On
that same date, Claimant overdosed on heroin and was hospitalized until September
23, 2015. Immediately following his discharge from the hospital, Claimant was
incarcerated to October 28, 2015, at which point he was transferred to an inpatient
rehabilitation facility where he stayed until his release on November 17, 2015.
(Findings of Fact Nos. 7-10.)
Three days after his release, on November 20, 2015, Claimant sent a text
message to Employer, inquiring about the possibility of working. On December 1,
2015, Employer informed Claimant that he could report for a shift of work on that
evening. In response, Claimant told Employer that he would let Employer know
whether he would come to work that evening. Thereafter, Claimant did not contact
Employer. (Findings of Fact Nos. 11-14.)
3
Unchallenged findings are conclusive on appeal and are binding on this Court. Munski v.
Unemployment Compensation Board of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011).
2
Claimant filed an application for benefits under the Law. The local
service center issued two determinations, concluding that Claimant was ineligible for
benefits for claim week ending on November 21, 2015, pursuant to section 401(d)(1)
of the Law, and was ineligible for benefits for claim week ending on December 5,
2015, pursuant to section 402(b) of the Law. Claimant appealed, and the referee
convened a hearing.
At the hearing, Employer adduced evidence establishing the facts
described above. Claimant testified that he had experienced a conflict with other
employees in the months prior to the date on which he failed the drug test, August 17,
2015, and asserted that the employees created a hostile working environment by
being mean and/or unprofessional toward him. In rebuttal, Employer testified that
after Claimant informed it of the employees’ behavior, it discussed the matter with
the employees and Claimant did not complain about their conduct since then. (Notes
of Testimony (N.T.) at 13-17.)
In two separate decisions and orders, the referee concluded that Claimant
was ineligible for benefits. First, for claim week ending on November 21, 2015, the
referee determined that Claimant was not able and available to work:
The evidence of record indicates that [Claimant] was either
incarcerated, hospitalized, or in an inpatient rehabilitation
facility between August 17, 2015, and November 20, 2015
. . . . Because [Claimant] did not . . . attempt to speak with
[Employer] about returning to work until November 20,
2015, the Referee concludes that [Claimant] is not able and
available for suitable work during this claim week under
section 401(d)(1) of the Law.
(Referee’s Decision, 16-09-D-0954, at 2.)
3
Second, for claim week ending on December 5, 2015, the referee
determined that Claimant failed to prove a necessitous and compelling reason to
voluntarily quit employment:
[T]he burden of proof is on [Claimant] to show he has
voluntarily terminated his employment for necessitous and
compelling reasons. [Claimant] testified . . . that he
experienced a personality conflict with other employees
prior to August 17, 2015, in which he felt other employees
were being either mean or unprofessional toward him.
[Employer] credibly testified that after this issue was raised
by [Claimant], he spoke to these other employees and never
received another issue or concern from [Claimant] . . . .
Even assuming [Claimant] did not voluntarily terminate his
employment at the time he was beginning his incarceration
on August 17, 2015, through his release from rehabilitation
on November 17, 2015, [Employer] offered work for
[Claimant] to return for a shift of work on December 1,
2015, which [Claimant] simply failed to take advantage of
and never had any contact with [Employer] thereafter.
[Claimant] has clearly failed to meet his burden, and he is
ineligible for benefits under section 402(b) of the law.
(Referee’s Decision, 16-09-D-0957, at 3.)
Claimant appealed, and by orders dated March 31, 2016, the Board
affirmed the referee’s determinations. Claimant then filed two petitions for review
with this Court.4
Before this Court,5 Claimant argues that he did not want to continue his
employment with Employer after he was discharged from the rehabilitation facility,
4
By order dated June 16, 2016, this Court consolidated Claimant’s petitions.
5
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
(Footnote continued on next page…)
4
because “the harassment would have definitely continue[d]” and it would have been
“much worse.” (Claimant’s brief, Attachment B at 4.) Claimant contends that the
“only reason [the harassment] had stopped . . . was due to the fact that [he] had
become incarcerated . . . .” Id.
Under the Law, the claimant has the burden of proving that he had a
necessitous and compelling cause for voluntarily terminating his employment. PECO
Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 60 (Pa.
Cmwlth. 1996). A necessitous and compelling cause is that which “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.” Taylor v. Unemployment Compensation Board of Review,
378 A.2d 829, 832-33 (Pa. 1977). Absent an intolerable working environment, mere
dissatisfaction with working conditions or the existence of a personality conflict do
not constitute a necessitous and compelling reason for a voluntary quit. Uniontown
Newspapers, Inc. v. Unemployment Compensation Board of Review, 558 A.2d 627,
629 (Pa. Cmwlth. 1989).
Further, to meet his burden of establishing just cause for a voluntary
quit, the claimant must demonstrate that he took “all necessary and reasonable steps
to preserve the employment relationship.” PECO Energy Co., 682 A.2d at 61.
Pursuant to this obligation, the claimant must attempt to resolve and inform the
employer of any conflicts with co-workers and/or supervisors. See Craighead-
(continued…)
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).
5
Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033-34
(Pa. Cmwlth. 2002). The claimant must also continue working until or unless the
employer’s attempt to rectify the situation proves ineffectual. See id.
Here, the Board found credible Employer’s testimony that it spoke with
the employees about allegedly harassing Claimant and that it did not receive any
complaints from Claimant thereafter. Consequently, Employer had every reason to
believe that the conflict between Claimant and his co-workers had resolved, and, if
the harassment persisted after Employer’s involvement, it was Claimant’s duty to
inform Employer of this fact. However, Claimant did not do so, and he cannot now
rely on his speculative fear that if he returned to employment with Employer, the
harassment would have continued. Therefore, we agree with the Board that Claimant
failed to prove a necessitous and compelling cause for terminating his employment
and/or declining Employer’s offer of employment after he was discharged.
Claimant also argues that he should have received benefits for the claim
week ending on November 21, 2015. More specifically, Claimant contends that he
was attending to personal matters from the date of his discharge from rehabilitation
on November 17, 2015, and did not have access to his apartment and personal effects
until November 20, 2015.
In order to be eligible for unemployment benefits under section
401(d)(1) of the Law, the claimant must show that he is able and available for
suitable work. Rohde v. Unemployment Compensation Board of Review, 28 A.3d
237, 243 (Pa. Cmwlth. 2011). In this regard, the real question is whether the claimant
has been subjected to conditions or circumstances “which so limit his availability as
to effectively remove him from the labor market.” Harwood v. Unemployment
Compensation Board of Review, 531 A.2d 823, 826 (Pa. Cmwlth. 1987).
6
Here, Claimant was not able or available to work due to physical
confinement ordered in connection with violations of his probation and he was
effectively removed from the labor market during this time. See also Masko v.
Unemployment Compensation Board of Review, 447 A.2d 328, 329 (Pa. Cmwlth.
1982) (“Incarceration does not suspend an employe’s obligation to be available for
work.”). Although Claimant was released on November 17, 2015, his above
contentions establish that he was not available and able to work for the claim period
at issue. At best, Claimant’s arguments merely provide an excuse as to why he could
not work immediately following his discharge, which is irrelevant and not part of the
analysis under section 401(d)(1) of the Law. Therefore, we conclude that the Board
did not err in determining that Claimant was ineligible for benefits because he was
not able and available for work.
Accordingly, having determined that the Board correctly denied
Claimant benefits for the time periods at issue under sections 402(b) and 401(d)(1) of
the Law, we affirm the Board’s orders.
________________________________
PATRICIA A. McCULLOUGH, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon A. Keller, :
Petitioner :
: Nos. 790 & 791 C.D. 2016
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 29th day of March, 2017, the March 31, 2016 orders
of the Unemployment Compensation Board of Review are hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge