K.A. West v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen A. West, :
Petitioner :
:
v. : No. 1426 C.D. 2015
: Submitted: November 20, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: March 31, 2016
Karen A. West (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
holding that Claimant was ineligible for benefits under the Unemployment
Compensation Law (Law).2 In doing so, the Board affirmed the Referee’s
determination that Claimant was ineligible for benefits under Section 402(b) of the
Law, 43 P.S. §802(b),3 because she voluntarily quit her employment. Specifically,
the Board found that Claimant left her job for dissatisfaction with Employer’s
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914.
3
Section 402(b) provides that “[a]n employe 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.” 43 P.S. §802(b).
approach to job training, which is not a necessitous and compelling reason under
Section 402(b). We affirm.
On December 29, 2014, Claimant began employment with
Warminster Dental Associates (Employer) as a dental receptionist. As the
receptionist, Claimant reported to Employer’s office manager and the dentists who
own the practice. Claimant resigned on January 20, 2015, and she applied for
unemployment compensation benefits. Claimant reported on her questionnaire that
she quit her job because she was dissatisfied with the training that Employer
provided and because Employer’s manager commented negatively about her job
performance. Employer reported on its questionnaire that Claimant voluntarily
quit because “she felt like she wasn’t grasping the work.” Certified Record Item
No. 3, at 1. The UC Service Center denied benefits, finding that claimant was
ineligible under Section 402(b) of the Law because she left her job because of the
office manager’s derogatory remarks.
Claimant appealed, and a hearing was conducted before a Referee.
Employer, although being notified of the date, time and place of the hearing, did
not appear. Following the hearing, the Referee affirmed the denial of benefits,
reasoning as follows:
Mere dissatisfaction with working conditions is not good cause
for terminating one’s employment. The claimant must further
prove that he acted with ordinary common sense in quitting and
that reasonable efforts were made to preserve the employment.
There is insufficient evidence in the record before the Referee
that the claimant had a necessitous and compelling reason to
resign. Therefore, the claimant is denied benefits under Section
402(b) of the Law.
Referee’s Decision at 2. Claimant appealed.
2
On review, the Board remanded for a new hearing because the
transcript of the original Referee’s hearing had been lost. Employer did not
participate in the second hearing.
At the remand hearing, Claimant testified that she worked for
Employer for approximately three weeks, from the end of December 2014 to
January 20, 2015. Claimant testified that she had previous experience as “a dental
hygienist” and that she had been “in dentistry 30 years,” but that it had been
approximately 25 years since she had worked as a receptionist. Notes of
Testimony, 05/08/15, at 3 (N.T. at ___). Claimant testified that she received little
instruction from Employer on how to do certain aspects of the receptionist
position, such as handling the insurance deductibles for patients. As she explained:
I did the best to my ability. But I was unsure of a lot of
computer[,] insurance, money involved things that scared me
but you have to have instruction. It has to be shown at any
job.... I would approach the doctors at the practice with my
complaint of not getting instruction. Nothing was ever done.
And on my final venture to the doctor on I believe the 20th, she
told me the job wasn’t right for me; that’s the instruction that
they give because they’re busy. So she suggested that it’s not
right for me and that she would give me a call if any dental
hygiene [position] would arise because she liked me and I got
along with everybody and so she suggested it wasn’t for me.
N.T. at 2-3.
The Board affirmed the Referee’s decision that Claimant was
ineligible for benefits. Thereafter, Claimant sought reconsideration of the Board’s
decision, which was denied. Claimant then petitioned for this Court’s review of
the Board’s adjudication.
3
On appeal,4 Claimant argues that the Board erred in concluding that
Claimant lacked a necessitous and compelling reason to resign. Claimant contends
that Employer’s failure to provide her with adequate training to perform her job
duties constituted a compelling reason for her to voluntarily quit. The Board
counters that, although Claimant did inform Employer that she was having
difficulty with parts of the receptionist job, Claimant did not specify how her
training had been inadequate.5
“Where a claimant has voluntarily terminated [her] work, the claimant
bears the burden of proving that such termination was with cause of a necessitous
and compelling nature.” Petrill v. Unemployment Compensation Board of Review,
883 A.2d 714, 716 (Pa. Cmwlth. 2005) (quoting Pacini v. Unemployment
Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986)).
Although the Law does not define the terms “necessitous and compelling,” this
Court has held that an employee must prove that:
(1) circumstances existed which produced real and substantial
pressure to terminate employment; (2) such circumstances
would compel a reasonable person to act in the same manner;
(3) the claimant acted with ordinary common sense; and, (4)
4
Our standard of review is to determine whether constitutional rights were violated, whether an
error of law was committed and whether necessary findings of fact are supported by substantial
evidence. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957
A.2d 811, 814 n.2 (Pa. Cmwlth. 2008).
5
In its brief, the Board also argues that Claimant’s separation from employment was voluntary,
not a discharge. The Board notes that although one of the dentists “suggested” that the position
might not be the right fit for Claimant, this was not tantamount to an imminent discharge. Cf.,
Keast v. Unemployment Compensation Board of Review, 503 A.2d 507, 508 (Pa. Cmwlth. 1986)
(employer’s question, “How would you like to leave here?” did not constitute imminent
discharge). Here, there is no dispute that Claimant’s separation from employment was a
voluntary resignation and not a discharge. On their respective questionnaires, both Claimant and
Employer described Claimant’s separation as a “voluntary quit.”
4
the claimant made a reasonable effort to preserve her
employment.
Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation
Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).
Precedent provides insight into when the circumstances of a job will
be found to create real and substantial pressure that would compel a reasonable
person to resign. Lack of work, perpetual layoffs, or drastic reductions in hours
could produce real and substantial pressure to resign. Earnest v. Unemployment
Compensation Board of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 2011) (citing
Staub v. Unemployment Compensation Board of Review, 673 A.2d 434, 437 (Pa.
Cmwlth. 1996)). Likewise, abusive conduct, unjust accusations, and profanity in
the workplace can cause a necessitous and compelling reason to voluntarily quit
one’s employment. Porco v. Unemployment Compensation Board of Review, 828
A.2d 426, 428 (Pa. Cmwlth. 2003) (citing Electrical Reactance Corporation v.
Unemployment Compensation Board of Review, 82 A.2d 277 (Pa. Super. 1951)).
In contrast, “a disagreement with an employer’s policies or dissatisfaction with
working conditions centered on differences with the employer’s management
style,” absent an intolerable work atmosphere, is not a necessitous and compelling
reason to voluntarily quit one’s job. Gioia v. Unemployment Compensation Board
of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995) (citations omitted).
Here, the question is whether the circumstances of Claimant’s job
produced “real and substantial pressure” that would compel a reasonable person to
resign. Claimant found it frustrating that she could not do the job as well as she
would have liked and requested additional training. Employer’s response was that
it was too busy to provide more training than it was providing. Essentially,
Employer expected Claimant to learn the job as her mistakes were pointed out.
5
Claimant did not testify that in time she would not be able to learn the job in this
way; she had 30 years of experience in dentistry. As a new employee, Claimant
had a probationary period of 90 days to learn the job.
Claimant, however, was unwilling to work in a position where she
was “thrown into it.” Personal dissatisfaction with one’s job does not constitute
cause of a necessitous and compelling nature for leaving work where the employer
was satisfied with the claimant’s job performance. Brunswick Hotel & Conference
Center, LLC, 906 A.2d at 660; Clark v. Unemployment Compensation Board of
Review, 411 A.2d 879, 880 (Pa. Cmwlth. 1980). Here, there is no evidence that
Employer was not satisfied with Claimant’s performance after three weeks.
In any case, Claimant did not prove that she made a reasonable effort
to preserve her employment. A claimant’s acceptance of a job raises a
presumption of the suitability of the job. National Aluminum Corp. v.
Unemployment Compensation Board of Review, 429 A.2d 1259, 1260 (Pa.
Cmwlth. 1981). Claimant informed her Employer of her dissatisfaction with the
training, and it responded that it was too busy to provide her the kind of training
she wanted.6 Claimant left Employer after three weeks, dissatisfied with
6
The Board argues that Claimant failed to specify how her training was inadequate, suggesting
that had she been more specific, she would have met her burden of proving that she tried to
preserve her employment. It is not clear how she could have been more specific. Even so,
employers determine how to train employees. Unless an employee accepts a job with the
condition that the employer will include a specific training regimen, it is irrelevant. The degree
of training will be different for every job. Claimant was dissatisfied with Employer’s approach
to training. She may have also been dissatisfied with the hours, the salary or the color of the
walls. Simply complaining about an aspect of a job causing dissatisfaction does not constitute a
good faith effort to preserve employment. Claimant had 90 days to learn the job under
Employer’s “learn from your mistakes” approach. Had she given the job 90 days, that would
constitute a reasonable effort to preserve employment.
6
Employer’s expectation that she learn the job by doing it. Although close, we
agree with the Board that Claimant’s separation from employment was caused by
job dissatisfaction, not compelling and necessitous circumstances.
For these reasons, we affirm the Board’s adjudication.
______________________________
MARY HANNAH LEAVITT, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karen A. West, :
Petitioner :
:
v. : No. 1426 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 31st day of March, 2016, the order of the
Unemployment Compensation Board of Review dated July 2, 2015, in the above-
captioned matter is hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge