T.J. Gallo v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Theodore J. Gallo, :
Petitioner :
:
v. : No. 2203 C.D. 2013
: Submitted: June 6, 2014
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: July 18, 2014
Petitioner Theodore J. Gallo (Claimant) petitions, pro se, for review
of an order of the Unemployment Compensation Board of Review (Board). The
Board affirmed the Unemployment Compensation Referee’s decision, which
denied Claimant unemployment compensation benefits pursuant to Section 402(b)
of the Unemployment Compensation Law (Law),1 relating to voluntary separation
without cause of a necessitous and compelling nature. For the reasons set forth
below, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
Claimant filed for unemployment compensation benefits after
voluntarily quitting his position as a part-time utility worker with Robert Morris
University (Employer). The Indiana UC Service Center (Service Center) issued a
Notice of Determination, finding Claimant ineligible for benefits under
Section 402(b) of the Law. (Certified Record (C.R.), Item No. 5.) The Service
Center reasoned that Claimant did not satisfy his burden of proof by showing a
necessitous and compelling reason for quitting, and, therefore, Claimant was
ineligible for benefits. (Id.) Claimant appealed the determination, and a Referee
conducted an evidentiary hearing.
Claimant testified that he called off from work from May 6, 2013,
through May 15, 2013, due to a non-work-related injury. (C.R., Item No. 9 at 8-9.)
He testified that on May 15, 2013, he was feeling better and was going to go back
to work until he received a text from his supervisor, informing him that he must
provide more advanced notice prior to calling off work. (Id. at 9.) Claimant
testified that he was already upset because Employer promised him that he would
be scheduled to work 20 hours per week, but Employer was only scheduling him to
work 16 hours. (Id. at 7-9.) He testified that he was also upset because he applied
for a full-time job position but lost it to his supervisor, who also applied for the
job. (Id. at 7.) Claimant testified that when he received the text message from his
supervisor he got mad, “just gave up on it[,]” and said “find some
other . . . a**hole to work your 16 hours a week.” (Id. at 6, 9.) Following the
hearing, the Referee issued a decision and order, affirming the determination of the
Service Center, thereby resulting in Claimant’s ineligibility for benefits under
Section 402(b) of the Law. (C.R., Item No. 10.)
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Claimant appealed to the Board, and the Board affirmed the Referee’s
decision and order. In so doing, the Board issued the following findings of fact:
1. The claimant was last employed as a part-time utility
worker by Robert Morris University, from
November 17, 2011, at a final rate of $13.00 per hour,
and his last day of work was May 6, 2013.
2. When the claimant was initially hired, he was a
part-time grounds crew employee.
3. In November of 2012, the claimant was laid off.
4. In January of 2013, the claimant returned to work but
accepted the position of a part-time utility worker.
5. The claimant was frustrated that he only received 16
hour of work per week.
6. The claimant was off work for health reasons from
May 6, 2013, to May 15, 2013, due to an off-duty
injury.
7. The claimant’s supervisor texted the claimant a
message and advised him that he had to give more
notice when calling off.
8. The claimant got angry about his supervisor’s
message and sent a text message to her stating, find
some other “a**hole” to work 16 hours.
9. The claimant quit his employment because he was
angry about his supervisor’s text message.
(C.R., Item No. 14.) The Board reasoned:
Here, the claimant testified that he quit his employment
because he was angry about a text message sent by his
supervisor. However, the supervisor’s text message was
not abusive conduct or profanity and did not demonstrate
that the claimant was working in an intolerable work
environment. The claimant’s resentment of his
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supervisor’s criticism was insufficient to show a
necessitous and compelling reason for quitting.
(Id.) Based upon its factual findings and the reason set forth above, the Board
concluded that Claimant was ineligible for benefits pursuant to Section 402(b) of
the Law.
Claimant then filed the subject petition for review with this Court. On
appeal,2 Claimant essentially argues that the Board committed an error of law by
concluding that Claimant did not prove a necessitous and compelling reason for
voluntarily terminating his employment.3
Section 402(b) of the Law provides, in part, that a claimant shall be
ineligible for compensation for any week in which the claimant’s “unemployment
is due to voluntarily leaving work without cause of a necessitous and compelling
nature.” Whether a claimant had cause of a necessitous and compelling nature for
leaving work is a question of law subject to this Court’s review. Brunswick Hotel
& Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657,
661 (Pa. Cmwlth. 2006). A claimant who voluntarily terminates his employment
“bears the burden of proving that necessitous and compelling reasons motivated
2
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
3
In his Petition for Review, Claimant appears to challenge the Board’s finding of fact
number nine; however, in his brief, Claimant formulates the issue as only whether or not the
Board committed an error of law. Thus, the issue for review by this Court will be whether or not
the Board committed an error of law. We note, however, that substantial evidence, specifically
Claimant’s own testimony, exists to support the Board’s finding that Claimant “quit his
employment because he was angry about his supervisor’s text message.” (C.R., Item No. 9 at 6,
9.)
4
that decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126,
1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish
cause of a necessitous and compelling nature, a claimant must establish that
(1) circumstances existed that produced real and substantial pressure to terminate
employment, (2) like circumstances would compel a reasonable person to act in the
same manner, (3) the claimant acted with ordinary common sense, and (4) the
claimant made a reasonable effort to preserve her employment. Procito v.
Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
“Resentment of a reprimand, absent unjust accusations, profane
language or abusive conduct,” does not amount to a necessitous and compelling
cause. Lynn v. Unemployment Comp. Bd. of Review, 427 A.2d 736, 737 (Pa.
Cmwlth. 1981). Also, “[d]iscontent with one’s job,” wages, workload, or chances
of advancement do not constitute causes of a necessitous and compelling nature.
Hostovich v. Pennsylvania, 414 A.2d 733, 735 (Pa. Cmwlth. 1980). Additionally,
“multiple causes, none compelling or necessitous, do not in combination become
one qualifying cause.” Id.
Here, the Board found and Claimant admitted that his reason for
terminating his employment was because he was angry about the text message that
he received from his supervisor. (C.R., Item No. 14; C.R., Item No. 9 at 6.) In the
text message, Claimant’s supervisor told him that he needs to give more than a
day’s notice prior to calling off. (C.R., Item No. 9 at 9.) At most, this text
message amounts to a reprimand by Claimant’s supervisor, and, therefore, does not
amount to necessitous and compelling cause for the purposes of the Law.
Notwithstanding the Board’s finding, Claimant argues that his reason
for terminating his employment was because he did not receive the hours or the
5
full-time position that he was promised. (Petitioner’s Brief at 7.) Even if
Claimant’s reason for terminating his employment was because he did not receive
the hours and full-time position that he was promised, as opposed to him being
angry about the text message, it still does not constitute a necessitous and
compelling cause under the Law, because Claimant did not present any evidence to
show that he made a reasonable effort to preserve his employment prior to quitting.
See Stiffler v. Unemployment Comp. Bd. of Review, 438 A.2d 1058, 1060 (Pa.
Cmwlth. 1982).
For the reasons set forth above, the Board’s decision is affirmed.
P. KEVIN BROBSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Theodore J. Gallo, :
Petitioner :
:
v. : No. 2203 C.D. 2013
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2014, the order of Unemployment
Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge