Opinion
No. 687 C.D. 2012
11-07-2012
Joan Craig, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Joan Craig (Claimant) petitions pro se for review of the February 17, 2012 adjudication of the Unemployment Compensation Board of Review (Board), which held that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). In relevant part, section 402(b) provides that an employee who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation. 43 P.S. §802(b).
Claimant worked for Yellow Book of PA (Employer) from December 18, 2000, until she resigned on August 21, 2011. From October 2010 until her resignation she worked as a senior claims representative. As a senior claims representative, Claimant was responsible for managing the claim inbox, handling all customer complaints and inquiries, and having "a complete working knowledge and understanding of the Customer Service and Operations Department." (Certified Record (C.R.), Item 7, Notes of Testimony (N.T), Exhibit 1 - Senior Customer Service Representative Job Description.)
In June 2011, Claimant was asked to take on additional job responsibilities while a coworker was on a leave of absence. (Finding of Fact No. 3.) Specifically, Claimant was asked to handle "signature disputes," which involve the review of sales representatives' alleged falsification of customer signatures. Claimant agreed and was given two weeks' training. Soon after Claimant completed her training, her coworker returned to work but was not reassigned the signature dispute cases.
On July 18, 2011, Claimant began working on signature disputes, in addition to her normal job duties. One week later, Claimant met with her associate manager and Employer's customer service manager and said that she was overwhelmed with the additional job responsibilities. Claimant informed them that she felt the signature dispute work was having an adverse effect on her normal work duties. In response, Claimant was told to keep working on the signature disputes and that she would get more comfortable with them over time. Claimant continued working on signature disputes but did not feel that her performance was improving, so she scheduled another meeting with her associate manager on July 27, 2011. Once again, Claimant expressed her displeasure with the signature dispute work and stated she was falling behind in her work. But, Claimant again was told to keep working on signature disputes.
One week later, on August 5, 2011, Claimant met with a senior manager and complained about having to work on signature disputes. As a result, the senior manager reassigned ten of Claimant's signature dispute cases. However, Claimant continued to fall behind in her work. On August 16, 2011, Claimant's associate manager told her that she would be demoted if her performance did not improve.
On August 17, 2011, Claimant met with Elizabeth Anderer, Employer's human resources representative, to discuss her situation. Claimant complained about being assigned signature disputes and described the prior conversations with her managers. She also noted that she believed signature disputes were not part of her job description. Claimant stated that she had been told that she would only have to work on them temporarily because Employer had a backlog. Anderer made a note of Claimant's concerns but referred Claimant back to her senior manager.
Claimant was sick and called off work on August 18th and 19th. On the 19th, Claimant called the senior manager, who told Claimant that Employer would try to reassign the signature disputes, but that it could take up to three weeks and, in the meantime, Claimant would need to keep working on them. (N.T. at 17.) The senior manager also offered to meet with Claimant and her associate manager to discuss the situation the following Monday, August 22, 2011. However, Claimant did not report to work on Monday. Instead, Claimant sent Employer an e-mail stating that she had resigned. Employer's human resources representative called Claimant and asked her to rethink her decision, but Claimant refused. (N.T. at 18-19.)
Claimant filed for unemployment compensation benefits on August 26, 2011. The local service center determined that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed, and a referee held a hearing at which Claimant and Anderer testified.
Claimant testified regarding the circumstances surrounding her resignation. She noted that she was an exemplary employee and had always received high marks on her performance reviews. Claimant stated that she was told the signature dispute assignments would be temporary while her coworker was out on a leave of absence. Claimant testified that she continued to receive signature dispute cases even after that coworker returned to work and was told they would not be reassigned and were to take priority over her normal job responsibilities.
Claimant described how unhappy she was with the signature dispute assignments and stated that she did not believe it was possible to review twelve a day, as her associate manager was requiring. Claimant also explained that she was upset with her associate manager for threatening to demote her while failing to provide her with specific suggestions on how to improve her performance with respect to signature dispute cases. Claimant admitted that she was aware Employer was trying to set up a meeting on Monday, August 22nd to discuss a possible resolution to her situation. However, she believed that this meeting would be fruitless and that Employer would not immediately reassign the signature disputes. Claimant said that she formulated this belief based upon a conversation she had the morning of the 22nd, prior to submitting her resignation, with the coworker to whom the cases would allegedly be reassigned. That coworker stated that Employer had not informed her she would be reassigned any signature dispute cases. (N.T. at 17-18.)
Anderer testified that, although Employer's job description for the position of senior claims representative does not specifically require employees to perform signature dispute reviews, it does state that they are to have a working knowledge and complete understanding of the customer service and operations department. Anderer explained that after she first met with Claimant she contacted Claimant's senior manager who indicated that the signature disputes may be reassigned to an entirely different department. (N.T. at 24.) The senior manager believed that this would resolve Claimant's problem. The senior manager also stated that Claimant's workload had been reduced to accommodate her, since she volunteered to take on the signature disputes. (Id.)
Finally, Anderer testified that Claimant's associate manager and senior manager were planning to meet with Claimant on August 22nd to discuss her displeasure, explain that the signature dispute assignments were likely to go away, and try to find a resolution to her situation. However, Claimant did not come to work that day and chose to resign. Anderer stated that after receiving Claimant's resignation she contacted Claimant, informed her of the meeting, and expressed Employer's willingness to remedy the situation, but Claimant refused to reconsider her resignation.
The referee found that Claimant was advised that the signature dispute review duties would be reassigned but she resigned because she did not believe that. (Findings of Fact, Nos. 16, 22.) The referee concluded that Claimant did not prove she made reasonable efforts to preserve her employment because she did not attend the planned meeting on August 22, 2011, which was to be held specifically for the purpose of resolving Claimant's concerns. Accordingly, the referee determined that Claimant was ineligible for benefits under section 402(b) of the Law because she failed to carry her burden of proving she quit for cause of a necessitous and compelling reason. Claimant appealed to the Board, which affirmed the referee and adopted and incorporated his findings of fact and conclusions of law. Claimant now petitions for this Court's review.
The referee also concluded that Claimant did not try to preserve her employment because she did not pursue the option of meeting with the Employer's owner to address her problems and seek assistance. (Referee's decision at 3.) This conclusion is not supported by the record. There is no evidence of record that Employer's owner was accessible to Claimant or even handled such issues. However, we find this to be harmless error as it was not the sole reason upon which the referee concluded that Claimant was ineligible for benefits.
Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). We review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 354, 378 A.2d 829, 831 (1977).
On appeal, Claimant contends that the Board erred in concluding that she did not make reasonable efforts to preserve her employment. Claimant argues that Employer's requirement that she focus solely on signature disputes was not a reasonable modification of her work responsibilities. She also contends that she obliged and worked on the signature disputes for a six-week period, while speaking to individuals at three levels of management and human resources to voice her displeasure and have her previous work duties reinstated. Moreover, Claimant argues that the possibility of a meeting on August 22, 2011, was discussed but no meeting was actually scheduled. Therefore, she asserts that she acted reasonably in quitting her employment. We disagree.
The Board is the ultimate finder of fact and its findings are conclusive on appeal if supported by substantial evidence. Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 266 n.4, 676 A.2d 194, 197 n.4 (1996). In this case, Claimant does not specifically dispute any of the Board's factual findings. Accordingly, they are binding on appeal. Beddis, 6 A.3d at 1055. --------
In order to be entitled to unemployment benefits, an employee who voluntarily terminates her employment bears the burden of proving that she had cause of a necessitous and compelling nature. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 692 (Pa. Cmwlth. 2003). Necessitous and compelling cause occurs when there is real and substantial pressure to terminate one's employment that would compel a reasonable person to do so under similar circumstances. Id. at 691-92. Generally, a claimant must show that she acted with ordinary common sense in quitting, made a reasonable effort to preserve her employment, and had no real choice but to leave her employment. Cowls v. Unemployment Compensation Board of Review, 427 A.2d 722, 723 (Pa. Cmwlth. 1981). See also Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995) (noting that the claimant refused to attend a second meeting the employer offered to set up). Whether a claimant has necessitous and compelling cause to quit is a question of law subject to appellate review. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977).
A substantial unilateral change in job duties that renders a job unsuitable may give rise to a necessitous and compelling reason to quit. Accu-Weather, Inc. v. Unemployment Compensation Board of Review, 634 A.2d 818, 820 (Pa. Cmwlth. 1993). However, this only occurs if the job modification is unreasonable. Id. Employers are entitled to modify the employment specifications with regard to time, place and manner of employment, i.e., tasks assigned to an employee, so long as the employer acts reasonably and in good faith. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 46, 565 A.2d 127, 129 (1989). See also Mosebauer v. Unemployment Compensation Board of Review, 433 A.2d 599, 600 (Pa. Cmwlth. 1981). An employee's mere dissatisfaction with a change in job duties does not constitute a necessitous and compelling reason to quit. Monaco, 523 Pa. at 48, 565 A.2d at 130. Rather, working conditions must substantially change, to the point that voluntary termination is necessary, in order for a claimant to have necessitous and compelling reason to quit. Id.
In this case, Employer sought to reassign the signature dispute cases to Claimant because it had a backlog and the employee that generally handled those matters was on a leave of absence. As a senior claims representative, Claimant was required to have a working knowledge of all subjects handled by the Customer Service and Operations Department, including signature disputes. Therefore, Employer could reasonably have reassigned those matters to Claimant unilaterally. However, Employer asked Claimant if she would take on the signature disputes temporarily, and Claimant agreed. Thus, the record reflects that, at least initially, Employer's modification of Claimant's job duties was mutual and reasonable.
Over time, Claimant became dissatisfied with reviewing signature disputes, particularly after her coworker returned. Claimant also complained that Employer made unreasonable demands and harassed and threatened her when she was unable to meet them. However, even if Claimant established a substantial change in her working conditions, she failed to make made a reasonable effort to preserve her employment.
Claimant did bring her concerns to Employer's attention, and she met with different managers on at least three occasions between July 25th, the day she started the new assignments, and August 17th, when Claimant contacted Anderer, Employer's human resources representative. Anderer told Claimant that the signature disputes might be reassigned. However, when Employer subsequently offered to set up a meeting with Claimant's associate and senior managers on August 22nd to address Claimant's situation, Claimant chose to resign instead.
We addressed similar facts in Gioia. The claimant in Gioia worked as a door builder for a cabinet building plant. After working there for some time, he voluntarily bid on a new job position and received it. After five months at the new job the claimant was told that his work was unsatisfactory. He was upset and demoralized because his prior performance reviews were above average. The claimant complained to human resources and requested a transfer, but his request was denied. He was then assigned a sanding job, which was part of the normal duty rotation of his new position. However, the claimant felt that the sanding job was menial and, therefore, he resigned. The employer contacted the claimant and offered to work with him to resolve his problems, but he declined.
The local job center determined that the claimant quit because he was dissatisfied with his employer's management style and denied his application for benefits. On appeal, a referee affirmed, concluding that, in quitting, the claimant overreacted to what he perceived was unjust criticism. On further appeal, the Board found that the claimant in Gioia refused the further effort of his employer to correct the situation, and thus failed to establish necessitous and compelling cause to quit. This Court agreed, noting that a claimant's dissatisfaction with his working conditions does not provide necessitous and compelling cause to quit and concluding that the Board's decision was supported by substantial evidence.
Similarly, here, Claimant met with Anderer on August 17th and was told her assignments might change, but after calling off work on the 18th and 19th she refused Employer's offer to meet with managers on the 22nd to try and resolve her problems. Under these circumstances, we agree that Claimant failed to make a reasonable effort to maintain her employment. Therefore, the Board properly concluded that Claimant is ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of November, 2012, the order of the Unemployment Compensation Board of Review, dated February 17, 2012, in the above-captioned matter is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge