N.L. Gavin v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nancy L. Gavin, :
Petitioner :
:
v. : No. 1751 C.D. 2016
: Submitted: May 26, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: August 23, 2017
Nancy L. Gavin (Claimant), representing herself, petitions for review
of an order of the Unemployment Compensation Board of Review (Board) denying
her unemployment compensation benefits under Section 402(b) of the
Unemployment Compensation Law (Law).1 Claimant contends the Board erred in
determining that she voluntarily left her employment without cause of a
necessitous and compelling nature where her employer implemented substantial
unilateral and deceptive changes in the conditions of her employment, and where
she made reasonable efforts to preserve her employment. Claimant also asserts the
Board’s essential findings were not supported by substantial evidence. Upon
review, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) of the Law provides “[a]n employe shall be ineligible for compensation
for any week … [i]n which [her] unemployment is due to voluntarily leaving work without cause
of a necessitous and compelling nature ….” 43 P.S. §802(b).
I. Background
The Board found the following facts. Claimant worked for the
Commonwealth, Department of Labor and Industry (Employer) as a full-time
Administrative Officer I from May 18, 2010 until June 27, 2016. Her job
requirements included the ability to lift up to 60 pounds and to do other duties as
assigned. Claimant also supervised two Maintenance Repair II (MRII) positions.
Their job responsibilities included lifting, unloading trucks and moving furniture.
During October 2015, Claimant worked under lifting restrictions as a
result of a medical procedure. Employer accommodated Claimant’s restrictions.
Also in October 2015, one of the two MRIIs left. Consequently, Employer
expected Claimant to assist in lifting and moving duties. However, Employer did
not expect Claimant to lift heavy objects.
In mid-June 2016, the second MRII left. About the same time,
Claimant’s doctors lifted her medical restrictions and released her to full duty. On
or about June 20, 2016, Robyn Graham (Administrative Officer III), advised
Claimant that if she needed help unloading trucks, to let Administrative Officer III
know. On June 23, 2016, Claimant sent Administrative Officer III an email
mentioning John Smith (Supervisor), her direct supervisor and an Administrative
Officer II, dedicating two days per week to equipment control.
On June 27, 2016, her last day of work, Claimant distributed 48 chairs
on three floors of the Labor and Industry Building. Although there were other
2
employees available to help her, Claimant did not ask for any assistance.
Maintenance was also available to help if no MRIIs were available.
Claimant, however, thought Supervisor would complete the moving
and lifting tasks by himself. On June 27, Supervisor emailed Claimant that he
would help her complete the moving and lifting tasks two days per week. In
response, Claimant responded that she could not do this work anymore and advised
Supervisor that she would resign at the close of business that day.
Supervisor did not understand Claimant’s response and asked her to
discuss the situation. Claimant responded that there was nothing to discuss.
Supervisor then went to Claimant’s desk and told her that they could work through
this. Claimant responded that she did not wish to discuss it and that she was done
at the end of the day.
In addition, Employer’s Division Chief for Contracts, Property
Management and Designer Renovation, Richard Faul (Division Chief) last saw
Claimant around lunchtime and asked if she planned on coming to see him.
However, Claimant informed Division Chief that she was done.
Based on these facts, the Board determined Claimant voluntarily
resigned because she believed Employer was asking her to perform the duties of an
MRII. Claimant felt that she could not perform the physical aspects of the job
Employer asked her to perform. Claimant also appeared unhappy with Employer’s
response for her requests for help.
3
Following her separation, Claimant filed an application for
unemployment benefits. The Department of Labor and Industry (Department)
issued a notice of determination ruling Claimant ineligible for benefits under
Section 402(b) (voluntary quit). See Certified Record (C.R.), Item No. 6. The
Department determined that there were alternatives to resolve the situation, and
Claimant did not exhaust all the alternatives prior to quitting. Id.
Claimant appealed and testified at a referee’s hearing. Employer,
represented by counsel, presented the testimony of four witnesses. Following the
hearing, the referee affirmed the Department’s notice of determination and denied
Claimant benefits under Section 402(b). In her decision, the referee stated:
In this present case, [Claimant] contends the percentage
of physical work she was being required to perform
exceeded the amount on her position description, and felt
[Employer] was ignoring her requests for assistance.
However, [Claimant’s] position description does not
provide any percentages with respect to the amount of
physical work she may be required to perform.
Additionally, although [Claimant] was assisting with the
[MRII] work, [Employer] accommodated her health
restrictions until they were lifted and [Claimant] failed to
request assistance from [Supervisor] or other co-workers.
[Supervisor’s] request that [Claimant] be available on
days he was scheduled to provide assistance was a
reasonable request. Under the circumstances, [Claimant]
has not met her burden in proving her reasons for leaving
work were necessitous and compelling. Accordingly,
benefits are denied under Section 402(b) of the Law.
Referee’s Op., 8/19/16 at 3 (emphasis added).
Claimant appealed. In affirming the referee and holding Claimant
ineligible for benefits under Section 402(b), the Board stated:
4
[Claimant] voluntarily resigned because she believed she
was being asked to perform the duties of an [MRII], did
not feel that she could perform the physical aspects of the
job that were being asked of her, and was unhappy with
the response from management for her requests for help.
The [Board] concludes that the modification of
[Claimant’s] job duties was reasonable because two
[MRIIs] left and others needed to help cover their job
duties. The Board concludes that [Employer’s]
reasonable modification in the [Claimant’s] job duties
was not a substantial unilateral change in [Claimant’s]
employment nor was [Claimant] deceived as to the
conditions of employment. [Claimant’s] job description
specifically required [Claimant] to be able to lift up to
sixty pounds with no cap or percentage of how often she
would be required to do so. The job description also
listed as job duties the completion of tasks assigned.
Even were the Board to find that there was, in fact, a
substantial change in the employment agreement or that
[Claimant] was deceived as to conditions of employment,
fatal to [Claimant’s] case is the fact that there were others
who could have helped her perform her job duties, such
as [Administrative Officer III], [Supervisor], and
maintenance, but [Claimant] did not ask them for help.
On the day [Claimant] resigned, two people, [Supervisor]
and [Division Chief], asked [Claimant] to discuss the
matter, but [Claimant] had already made up her mind to
quit and refused to discuss the matter any further.
Therefore, the Board concludes [Claimant] did not make
reasonable efforts to preserve her employment before
quitting.
Bd. Op., 10/13/16 at 3-4 (emphasis added). Claimant petitions for review.2
2
Our review is limited to determining whether the Board’s necessary findings were
supported by substantial evidence or whether the Board erred or violated the petitioner’s
constitutional rights. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa.
Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would accept as
(Footnote continued on next page…)
5
II. Discussion
A. Issues
Claimant contends the Board erred in determining that she voluntarily
left her employment without cause of a necessitous and compelling nature where
Employer implemented substantial unilateral and deceptive changes in the
conditions of her employment, and where she made reasonable efforts to preserve
her employment. Claimant also asserts the Board’s essential findings were not
supported by substantial evidence.
B. Argument
Claimant asserts she had a necessitous and compelling reason to
separate from her employment. As Claimant acknowledges, an employee who
claims she quit for necessitous and compelling reasons must prove: (1)
circumstances existed that produced real and substantial pressure to terminate
employment; (2) such circumstances would compel a reasonable person to act in
the same manner; (3) the employee acted with ordinary common sense; and, (4) the
employee made a reasonable effort to preserve her employment. Brunswick Hotel
& Conference Ctr., LLC v. Unemployment Compensation Board of Review, 906
A.2d 657 (Pa. Cmwlth. 2006). Nonetheless, an employer’s imposition of a
substantial unilateral change in the terms of employment may constitute
necessitous and compelling cause for a voluntary quit. Id. Further, there is no
(continued…)
adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d
558 (Pa. Cmwlth. 2012).
6
talismanic percentage for determining change so substantial as to warrant a
necessitous and compelling reason to leaving employment. Id. Rather, each case
must be examined in accord with its individual circumstances. Id.
Claimant acknowledges a unilateral alteration in a condition of
employment must be substantial in order to constitute a necessitous and compelling
reason for a compensable voluntary quit. McCarthy v. Unemployment Comp. Bd.
of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003). The focus of the inquiry is on the
impact the employer’s changes have on the employee, not the employer’s reasons
for implementing the changes. Id. To that end, “substantiality” involves a
significant change in employment conditions which renders the job unsuitable. Id.
at 1272.
Here, Claimant asserts she held her last position as Administrative
Officer I from April 2015 through her last day on June 27, 2016. Although her job
description required the ability to lift 60 pounds, her primary duties were
administrative. They included scheduling pickups and deliveries, organizing
surplus, and working as a liaison to general services.
In addition, Claimant supervised two MRII positions. The primary
responsibilities of an MRII involve loading and unloading trucks. An
Administrative Officer I is expected to briefly assume the duties of an MRII who is
on leave or unable to perform a task without assistance. In October 2015, one of
the MRIIs left work. In June 2016, the other MRII left work. Because of the
budget impasse, the Department could not readily fill these positions.
7
Consequently, Claimant worked in the capacity of both an Administrative Officer I
and an MRII from October 2015 to her last day of work. In particular, Claimant
asserts, during her last two weeks of work she performed all the essential functions
of both positions.
In sum, Claimant maintained she performed the essential function of
one MRII for eight months and two MRIIs during her last two weeks. Claimant
asserts this resulted in an amount of physical labor beyond the terms of her
employment as an Administrative Officer I. Therefore, Claimant argues,
Employer’s expectation that she perform physically laborious tasks outside of her
administrative duties for an extended period of time constitutes a substantial
unilateral change in her employment conditions thereby justifying her voluntary
quit.
Claimant also contends Employer deceived her as to the suitability of
the job at the time she accepted it. Sixty years of age at the time she accepted the
position, Claimant believed her daily job duties were administrative. She did not
have the physical abilities necessary to load and unload trucks, move furniture and
perform other laborious tasks on a regular basis. Although Claimant understood
some physical labor was occasionally necessary, Employer never outlined, inferred
or explained to her that she would be required to perform the physical tasks of an
MRII for eight or more months during a budget impasse. Rather, Employer forced
such physical exertion upon her, without any evaluation as to her suitability to
perform such work, after she accepted the position. Therefore, Claimant argues
Employer deceived her as to the suitability of the position.
8
In addition, Claimant asserts she made reasonable efforts to preserve
her employment by making repeated requests for assistance and by offering
suggestions for alternative ways to remedy the situation. Claimant maintains
Supervisor disregarded her requests as indicated by the fact Employer’s other
witnesses at the referee’s hearing, Nathan Bortner (Director), the Department’s
Director of Administrative Services, Administrative Officer III and Division Chief
testified they were unaware that Claimant was having trouble performing her job.
Claimant posits that if Supervisor actually forwarded her concerns to his
supervisors, Director, Division Chief and Administrative Officer III would have
been aware of her problems performing the physical tasks. However, given the
fact Employer completely disregarded her requests for assistance, Claimant argues
the Board erred in determining she did not make reasonable efforts to preserve her
employment.
C. Analysis
1. Burden of Proof
Whether a claimant had cause of a necessitous and compelling nature
to voluntarily leave her employment is a question of law subject to appellate
review. Anne Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of Review,
995 A.2d 1286 (Pa. Cmwlth. 2010). A claimant seeking benefits following a
voluntary quit bears the burden of demonstrating a necessitous and compelling
reason for leaving her employment. Id. As noted above, an employee who claims
she quit for necessitous and compelling reasons must prove: (1) circumstances
existed that produced real and substantial pressure to terminate employment; (2)
such circumstances would compel a reasonable person to act in the same manner;
9
(3) the employee acted with ordinary common sense; and, (4) the employee made a
reasonable effort to preserve her employment. Wert v. Unemployment Comp. Bd.
of Review, 41 A.3d 937 (Pa. Cmwlth. 2012).
In addition, a disagreement with an employer’s policies or
dissatisfaction with an employer’s management style does not constitute a
compelling reason for a voluntary quit under Section 402(b). Gioia v.
Unemployment Comp. Bd. of Review, 661 A.2d 34 (Pa. Cmwlth. 1995). Further,
multiple causes, which, considered separately, do not constitute necessitous or
compelling cause, do not in combination become necessitous and compelling.
Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855 (Pa. Cmwlth.
2004).
2. Board’s Findings of Fact
In unemployment compensation cases, the Board, as the ultimate fact-
finder, is empowered to resolve all issues of witness credibility, conflicting
evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp.
Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Also, it is irrelevant whether
the record includes evidence that would support findings other than those made by
the Board; the proper inquiry is whether the evidence supports the findings actually
made. Id. Further, the party prevailing below is entitled to the benefit of all
reasonable inferences drawn from the evidence. Id.
Here, the Board made 19 findings of fact. Claimant, however, asserts
the Board’s essential findings were not supported by substantial evidence. In
10
response, the Board asserts Claimant waived her substantial evidence challenge by
failing to develop such an argument in her brief. After reviewing Claimant’s brief,
we must agree with the Board. Although Claimant raises a one-sentence
substantial evidence challenge in her Statement of Questions Involved and again in
her Summary of Argument, she does not otherwise discuss this issue in her brief or
specify which findings are not supported by the evidence. Unchallenged findings
are conclusive on appeal. Munski v. Unemployment Comp. Bd. of Review, 29
A.3d 133 (Pa. Cmwlth. 2011). In addition, arguments not properly developed in an
appellate brief are deemed waived. Rapid Pallet v. Unemployment Comp. Bd. of
Review, 707 A.2d 636 (Pa. Cmwlth. 1998).
Nevertheless, we construe filings by uncounseled claimants liberally
when we are able to discern the legal issues raised. Smithley v. Unemployment
Comp. Bd. of Review, 8 A.3d 1027 (Pa. Cmwlth. 2010). As such, we will review
the record to determine whether the record supports the Board’s essential findings.
First, the Board found Employer’s job description for the
Administrative Officer I position included the ability to lift up to 60 pounds and
perform other duties as assigned. Finding of Fact (F.F.) No. 2; Notes of Testimony
(N.T.), at 11; Employer’s Ex. #3 (job description). However, it did not specify
how much lifting Employer expected.
Claimant acknowledged that she supervised two MRII positions
whose job duties included lifting, unloading trucks and moving furniture. F.F. No.
3; N.T. at 10, 33. In October 2015, one of the MRIIs left about the time Claimant
11
underwent a medical procedure and worked under lifting restrictions. F.F. Nos. 4-
5; N.T. at 11, 16, 34. Employer accommodated Claimant’s medical restrictions
until her doctor lifted them as of June 15, 2016. F.F. Nos. 4, 6; N.T. at 11-12.
Also in mid-June 2016, approximately two weeks prior to Claimant’s
separation, the second MRII left. F.F. No. 7; N.T. at 32. About June 20,
Administrative Officer III told Claimant that if she needed help unloading trucks to
let her know. F.F. No. 8; N.T. at 32. On June 23, Claimant emailed
Administrative Officer III about Supervisor’s intention to dedicate two days per
week to help with equipment control. F.F. No. 9; N.T., Employer’s Ex. #4 at 3-4.
Claimant thought Supervisor alone would be completing the lifting and moving
tasks. F.F. No. 13 (emphasis added); N.T. at 7, 13.
On June 27, Claimant distributed 48 chairs to the basement, first and
second floors of the Labor and Industry Building. F.F. No. 10; N.T. at 7, 38.
Claimant did not ask for assistance in performing this task; there were other
employees available to help her. F.F. No. 11; N.T. at 33. The same day,
Supervisor sent Claimant an email stating he would help Claimant two days a week
with moving and lifting tasks. F.F. No. 14; N.T. at 7, 36.
Claimant replied by email to Supervisor, stating “Helping me? I can’t
do this anymore. I am resigning effective COB [close of business] today.” F.F.
No. 15; N.T., Employer’s Ex. #4 at 3. Supervisor replied: “I’m sorry. I don’t
understand your response. Can we discuss?” F.F. No 16, Employer’s Ex. #4 at 3.
In addition, Supervisor testified he walked over to Claimant’s desk and said this is
12
not the way you want to do this, we can work through this, and “she point blank
told me I do not wish to discuss it, I’m done at the end of the day.” See F.F. No.
17; N.T. at 37.
In addition, Division Chief testified he saw Claimant around
lunchtime on June 27 and asked her if she was coming to see him. F.F. No. 18;
N.T. at 26. Claimant told Division Chief that she was done and that there was
nothing further to talk about. F.F. No. 18; N.T. at 25-26.
Ultimately, the Board determined Claimant voluntarily quit because
she believed she was asked to perform the duties of an MRII, which she felt she
could not perform because of the position’s physical requirements. F.F. No. 19.
Also, Claimant was unhappy with Employer’s response to her requests for help.
Id. These findings are supported by the following testimony from Claimant (with
emphasis added):
I felt as though I was expected to pick up the duties of the
MRII, Maintenance Repairman II, which I no longer had
any. One left in October. The other one had left two
weeks prior, mid June. And, quite honestly, I fell apart.
I just couldn’t do it anymore. I forwarded the email to
[Division Chief] and we went to his office and I said
[Supervisor] was trying to turn me into an MRII. He
denied that. I said I cannot do this anymore, Rich, and he
said everyone has to pitch in. I’d been pitching in since
October just to keep the peace because whenever it came
up that it was too much for me, it turned into –
[Supervisor] throws these passive aggressive little hissy
fits.
13
N.T. at 8. Having determined the Board’s findings are amply supported by
substantial evidence, we dismiss Claimant’s evidentiary challenge.
3. Board’s Decision
As noted above, Claimant contends the Board erred in determining
she voluntarily quit without necessitous and compelling cause where Employer
implemented substantial, unilateral and deceptive changes in the conditions of her
employment, and where she made reasonable efforts to preserve her employment.
We disagree.
Generally, by voluntarily accepting employment which she later
terminates, a claimant admits to the initial suitability of the terms and conditions of
her employment. Kistler v. Unemployment Comp. Bd. of Review, 416 A.2d 594
(Pa. Cmwlth. 1980). When an employer hires an employee, the employee is
usually assigned to perform particular tasks. Id. However, an employer need not
promise it will never modify an employee’s tasks. Id. As long as the
modifications are reasonable, the employee must abide by the modifications or risk
ineligibility for unemployment benefits. Id.
Here, Claimant accepted an Administrative Officer I position, which
required her to be able to lift 60 pounds and to perform other duties as assigned.
As a result of budget impasse and a lack of acceptable applicants, Employer could
not fill the MRII positions under Claimant’s supervision as they became vacant.
The first vacancy in the MRII position occurred in October 2015. Supervisor
testified that Employer expected Claimant, like other employees, to help with some
14
of the duties previously performed by the departed MRII. N.T. at 33-34. In
addition, Administrative Officer III testified she advised Claimant several days
prior to her resignation to let her know if she ever needed help with the physical
aspects of her job. F.F. No. 8; N.T. at 32. As such, we view Employer’s
modification of Claimant’s duties to be reasonable. Kistler. Also, similar to
Kistler, the record contains no evidence indicating these changes were permanent.
Therefore, given the amount of help available to Claimant, we reject her contention
that Employer’s changes to her job duties were so substantial and deceptive as to
constitute a necessitous and compelling cause for a compensable voluntary quit.
Id.
Moreover, despite Employer’s notice to Claimant that help was
available, Claimant did not request any help on June 27, the day she resigned. F.F.
Nos. 10, 11.
In addition, we must recognize Claimant’s decision on June 27 to
resign effective immediately that afternoon despite requests from Supervisor and
Division Chief to reconsider her decision and make an attempt to “work through”
the situation in order to preserve her employment. As reflected by the applicable
case law, Claimant’s refusal to discuss her reasons for quitting with Employer prior
to her resignation, despite repeated requests to do so, constitutes a significant
factor in rendering her ineligible for benefits under Section 402(b) of the Law. See
Middletown v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth.
2012) (a claimant seeking benefits for a voluntary quit based on necessitous and
15
compelling cause is nevertheless required to make reasonable efforts to preserve
her employment).
III. Conclusion
For the above reasons, we discern no error or abuse of discretion in
the Board’s decision holding Claimant ineligible for unemployment compensation
benefits. Accordingly, we affirm the Board’s order.
ROBERT SIMPSON, Judge
Judge Hearthway did not participate in the decision in this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nancy L. Gavin, :
Petitioner :
:
v. : No. 1751 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of August, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge