Opinion
No. 743 C.D. 2013
11-26-2013
Phillip A. Frederick, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Phillip A. Frederick, Jr. (Claimant) petitions for review of the April 8, 2013 order of the Unemployment Compensation Board of Review (Board). The Board determined that Claimant was ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law), because he voluntarily left his employment with the Pennsylvania House of Representatives (Employer) without cause of a necessitous and compelling nature. For the following reasons, we affirm.
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, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant filed for unemployment compensation and received a notice of determination from the Department of Labor and Industry that concluded Claimant was ineligible for unemployment benefits, because he had failed to sustain his burden of proving that he had a necessitous and compelling reason for leaving his employment. (Record Item (R. Item) 3, July 18, 2012 Notice of Determination.) Claimant filed a timely appeal.
A hearing was held before a Referee on August 28, 2012. (R. Item 8, Hearing Transcript (H.T.).) Claimant attended the hearing with counsel and offered testimony on his own behalf; Employer did not appear. (H.T. at 1.) On September 4, 2012, the Referee issued a decision and order concluding that Claimant left his employ following repeated instances where the Employer's Chief Clerk, Anthony Barbush, accused Claimant of hiding information, humiliated and belittled Claimant in front of subordinates, and informed Claimant he no longer had the trust of the members of the House of Representative Bi-Partisan Management Committee (BMC). (R. Item 9, Referee Determination.) The Referee also concluded that Claimant had taken steps to preserve his employment, to no avail. (Id.) Based on these conclusions, the Referee determined that Claimant was eligible for unemployment compensation because he left his employ due to a necessitous and compelling reason. (Id.) Employer appealed the Referee's order to the Board.
Upon review, the Board reversed the Referee. (R. Item 15, Board Determination.) In reaching this conclusion, the Board made its own findings of fact based on the record created before the Referee. Specifically, the Board found that Claimant's decision to resign had its genesis in two major disagreements with the Chief Clerk. First, Claimant objected to the Chief Clerk's accusations that Claimant concealed the criminal history of one of his subordinate officers. The Board made no findings as to whether Claimant did in fact have knowledge of his subordinate officer's criminal record or act to conceal the existence of the officer's criminal history. Second, Claimant and the Chief Clerk came into conflict over whether the security officers should continue to carry firearms.
On April 20, 2012, the Chief Clerk confronted Claimant about the criminal background of one of the officers on Claimant's staff and accused Claimant of concealing his subordinate officer's criminal record. (R. Item 15, Board Findings of Fact (F.F.) ¶9-10.) The officer's criminal record was particularly significant, because the security officers carried firearms as a part of their employment. (F.F. ¶5.) The security officer was promptly discharged at the request of the Chief Clerk. (F.F. ¶13.) Five days later, following sparring over the discharge of this security officer, the Chief Clerk called Claimant to a meeting with two of Claimant's subordinate officers and a representative from human resources. (F.F. ¶18) At this meeting, the Chief Clerk again accused Claimant of covering up the discharged officer's criminal record, and commented that he planned on downsizing the security guards and that their future looked bleak. (F.F. ¶18-19.)
Following discovery of the security officer's criminal background, the Chief Clerk also reiterated his belief that the legislative security officers should not carry firearms. (F.F. ¶¶17, 19.) Subsequently, the Chief Clerk decided to have Claimant remove all firearms from his staff's possession, a decision with which Claimant adamantly disagreed. (F.F. ¶¶21-22.) As a result of these conflicts and the Chief Clerk's statement to Claimant that the BMC had lost confidence in Claimant and did not trust his judgment, Claimant submitted his resignation. (F.F. ¶16, 29.)
In its discussion, the Board concluded that even if it were to assume that Claimant's testimony demonstrated a hostile working environment, Claimant would still be ineligible for unemployment benefits because Claimant did not take reasonable steps to maintain his employment relationship. (R. Item 15, Board Determination at 4.) Claimant appealed to this Court for review.
Our scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606 n.3 (Pa. Cmwlth. 2011). Where the Board's findings are supported by substantial evidence, or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, they shall not be disturbed on appeal. Lausch v. Unemployment Compensation Board of Review, 679 A.2d 1385, 1393 n.12 (Pa. Cmwlth. 1996). --------
When a claimant has voluntarily terminated employment, the burden is on the claimant to prove that there was a necessitous and compelling reason that brought about the voluntary termination of employment. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 60 (Pa. Cmwlth. 1996). Whether a claimant had cause of a necessitous and compelling nature is a conclusion of law subject to plenary review. Id. Although "necessitous and compelling" is not defined in the Law, the statutory language has been interpreted by the courts to require a claimant to demonstrate 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) the claimant made a reasonable effort to preserve the employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Normal workplace strains and pressures such as dissatisfaction with working conditions, reprimands, personality conflicts, and resentment of supervisory criticism absent unjust accusations, abusive conduct or profane language do not constitute real and substantial pressure to terminate employment. Ann Kearny Astolfi DMD PC v. Unemployment Compensation Board of Review, 995 A.2d 1286 (Pa. Cmwlth. 2010).
Here, the Board concluded that Claimant did not make a reasonable effort to maintain his employment relationship. Claimant's direct supervisor was the Chief Clerk. (R. Item 15, Board Findings of Fact (F.F.) ¶3.) The Chief Clerk reported to members of the BMC, who were Claimant's ultimate supervisors. (Id.) Following a series of exchanges with the Chief Clerk, where the Chief Clerk questioned Claimant's honesty and decision-making and allegedly demeaned Claimant in front of his subordinates, Claimant delivered a letter of resignation to the BMC, human resources, and the Chief Clerk. (R. Item 15, F.F. ¶¶10, 15-19, 23.) Claimant's letter was delivered on April 27, 2012 and stated that he would be leaving effective May 15, 2012. (R. Item 15, F.F. ¶23.) On April 30, 2012, Claimant sent an email to the Speaker of the House, who is the head of the BMC, and requested that he be allowed an opportunity to explain his decision to resign at an upcoming meeting of the BMC. (R. Item 15, F.F. ¶¶3, 24-25.) No member of the BMC responded to Claimant's letter or to Claimant's email. (R. Item 15, F.F.¶ 27.) The Chief Clerk did, however, accept Claimant's resignation. (R. Item 15, F.F. ¶28.) Based on these facts, the Board determined that Claimant did not exhaust reasonable alternatives to offering his resignation, because at no time prior to his resignation did he bring his disagreements with and concerns about the Chief Clerk to the attention of the BMC.
Claimant argues that this conclusion is based on the capricious disregard of competent evidence by the Board, namely the testimony of Claimant that the Chief Clerk had previously forbidden Claimant from speaking directly with the BMC. Where, as here, only the unsuccessful party presented evidence to the fact finder, we must inquire as to whether the Board capriciously disregarded evidence by willfully and deliberately disregarding competent testimony and relevant evidence that one of ordinary intelligence could not possibly have ignored in reaching a result. Leon E. Wintermeyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 564 Pa. 435, 768 A.2d 1105 (2001); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544, 549 (Pa. Cmwlth. 1994).
We cannot agree that the Board capriciously disregarded evidence. Instead, the Board's opinion makes clear that it closely examined all of Claimant's testimony, and the documentary evidence Claimant submitted, but drew different conclusions than the Referee. The Referee found that: "In 2009, Mr. Barbush placed the [C]laimant on a 'gag order', not to discuss any issues with the BMC and any issues were required to go through Mr. Barbush." (R. Item 9, Referee Findings of Fact ¶5.) The Referee's finding was based on the following testimony by Claimant:
[Claimant]: Because I was told that I had to go through Mr. Barbush. I was given a gag order; I could not talk to any legislator or talk to any employee or any member of the BMC until I went to him.
[Claimant's Lawyer (CL)]: Did he say what would happen if you did?
[Claimant]: Yeah, I would have-- he would -- I would have hell -- I know I'd have hell to pay. I felt that if I went over him that I would be terminated for a direct violation of [sic] insubordination.
CL: And when was this, as you describe it, gag order? When was that put in place?
[Claimant]: When he first came in.(R. Item 8, H.T at 16-17.) Examining this same testimony, the Board did not ignore the testimony or disregard the Referee's finding, but made its own finding that: "In 2009, after the [C]laimant had a discussion with a House member about pending legislation, the [C]hief [C]lerk directed the [C]laimant not to discuss policy issues with any member of the General Assembly without permission from the [C]hief [C]lerk." (R. Item 5, F.F. ¶8.) Both the Referee and the Board's findings are reasonable interpretations of Claimant's testimony. The Board's interpretation led it to conclude that, regardless of the "gag order," it was unreasonable for Claimant to resign rather than attempt to discuss personnel matters, as opposed to legislative policy matters, with the BMC when the problems Claimant faced were with his direct supervisor and the BMC was next in the chain of command. (R. Item 15, Board Discussion at 4.) While both interpretations of Claimant's testimony may be reasonable, it is the Board that is the ultimate finder of fact, empowered to determine the credibility of witnesses, to resolve conflicts in the evidence, and to determine the weight that is to be accorded the evidence. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (1985).
CL: In 2009?
[Claimant]: Yes, 2009.
CL: So it's been like that for three years?
[Claimant]: Three years, yes. I could give you an incident where I talked to one of the legislat[ors] who was doing a study for the combination for a study between the House Security, Senate Security, and the Capitol Police. I went and talked to Mr. Lawrence who was a member who was proposing this legislation, I went and talked to him, I got call to the Chief Clerk's Office and I got reamed a new one. I was told in no certain terms you do not talk to any legislat[or]s or talk to anybody until you go through me.
We also cannot agree that the Board erred in concluding that Claimant's failure to bring his concerns to the BMC prior to his resignation was unreasonable. In Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003), this Court stressed that it is incumbent upon a claimant to take steps to exhaust alternatives to voluntarily terminating employment by reporting the conduct of a supervisor that produces real and substantial pressure to terminate employment to upper level management. Like Claimant alleges here, in First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008), the claimant was subjected to demeaning and abusive conduct by a direct supervisor. In opposing claimant's eligibility for benefits under the Law, the employer argued in First Federal that the claimant failed to exhaust her alternatives to voluntary termination of employment, because she did not follow the proper procedure for voicing employee complaints and instead brought her concerns to senior management. 957 A.2d at 817. The employer's procedures required employees to direct complaints to an immediate supervisor or human resources. Id. We concluded that the Board did not err in determining the claimant's course of conduct was reasonable, because the claimant's complaints were with her direct supervisor. Id; see also Fiedler v. Unemployment Compensation Board of Review, 18 A.3d 459, 461-462 (Pa. Cmwlth. 2011) (claimant discussed emotional difficulties following loss of his child with and sought assistance from employer prior to resigning); Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002) (claimant did not make good faith effort to preserve employment where claimant resigned before allowing employer a chance to deal with the problem).
Certainly the reverse is true here as well. Even if we were to assume without analysis, as the Board did, that Claimant was subjected to the kind of conduct we concluded produced real and substantial pressure to terminate employment in First Federal, Claimant took no steps beyond his conversations with the Chief Clerk to preserve his employment. Claimant's argument that his failure to do so was reasonable is belied by the fact that after a few days reflection, he did attempt to contact the BMC to discuss his resignation. Claimant failed to make a reasonable effort to preserve his employment and as a result has not carried his burden of demonstrating that his resignation was due to a necessitous and compelling reason, rendering him ineligible to receive unemployment compensation benefits under Section 402(b) of the Law.
The order of the Board is hereby affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 26th day of November, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge