K. L. Corcoran v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen L. Corcoran, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : : : No. 62 C.D. 2008 Submitted: May 16, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 24, 2008 Kathleen L. Corcoran (Claimant) petitions for review an order of the Unemployment Compensation Board of Review (Board), which affirmed the Referee s decision denying her benefits under Section 402(b) of the Unemployment Compensation Law (Law).1 Claimant argues that the Board erred in denying her benefits because she had a necessitous and compelling cause for quitting her 1 § 802(b). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. employment with Northampton Valley Country Club (Employer). For the reasons discussed below, we affirm. Claimant applied for unemployment compensation benefits on July 7, 2007. The Scranton Unemployment Compensation Service Center (Service Center) issued a notice that Claimant was eligible for benefits. Employer appealed the Service Center s determination, and an evidentiary hearing was held before the Referee at which Claimant and Sabatino Tomeo, Employer s general manager, appeared and testified. Following the hearing, the Referee issued a decision finding Claimant ineligible for benefits under Section 402(b) of the Law. In doing so, the Referee made the following findings of fact: 1. The claimant last worked for Northampton Valley Golf Club, as a director of catering, for approximately two months, with the last day of work of 07/17/2007, at the final rate of pay of $40,000 per year plus commissions. 2. Prior to her last day of work, the claimant had refused to do work as a maitre d [sic], because it was not within her job description. 3. On the last two days of her employment, the owner had chastised the claimant, in his office, regarding the claimant s performance. 4. The claimant assumed that she had been chastised because of her refusal to perform the duties as a maitre d [sic], but did not question the employer regarding this issue. 5. The claimant did not speak to the employer regarding the problem, on 07/20/2007 she simply told the employer she was leaving the employment. 6. Continuing work was available. 2 (Referee Decision, Findings of Fact (FOF) ¶¶ 1-6.) Based on these findings, the Referee determined that Claimant failed to show a necessitous and compelling reason to quit and denied her benefits under Section 402(b) of the Law. Claimant appealed the Referee s decision to the Board, and the Board issued an order affirming the Referee s decision. In its order, the Board adopted the Referee s findings of fact and conclusions of law. Additionally, the Board noted that the claimant acted precipitously in leaving in the manner and time she left, that the claimant . . . never allowed her supervisor to remedy the situation by speaking to the owner, and that the claimant was rebuked . . . in the owner s office[, but the owner] didn t scream [in] pointing out the claimant s performance. (Board Order, November 14, 2007.) Furthermore, the Board found the testimony provided by Employer s witness credible. Claimant now petitions this Court for review.2 On appeal, Claimant argues that she did have cause of a necessitous and compelling nature to quit her employment and that, therefore, the Board erred in denying her benefits. Section 402(b) of the Law provides that a claimant shall be ineligible for benefits for a period [i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. § 802(b). A claimant who quits her employment bears the burden of proving that she quit for a necessitous and compelling reason. Fitzgerald v. Unemployment Compensation 2 This Court s review of an order of the Board is limited to determining whether Claimant s constitutional rights have been violated, whether findings of fact are supported by substantial evidence, or whether an error of law was committed. Finfinger v. Unemployment Compensation Board of Review, 854 A.2d 636, 637 (Pa. Cmwlth. 2004). 3 Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998). In order to establish cause of a necessitous and compelling nature for quitting, a claimant must prove that: 1) circumstances existed which 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. Id. Claimant, in her brief, first contends that she had cause of a necessitous and compelling nature to quit her employment because she was deceived about being required to work as a maitre d . We disagree. Although Claimant provided testimony at the Referee s hearing indicating that she was dissatisfied with being required to work as a maitre d because it was not in her job description, such dissatisfaction did not, by itself, cause Claimant to quit. Claimant testified that she went to Employer s general manager on July 20, 2007, and explained to him that she was quitting because she was berated by the owner on the last two days of her employment. (Referee Hr g Tr. at 3-4.) While Claimant asserts that the Employer s owner reprimanded her because of her refusal to work as a maitre d , Claimant admitted that she had not questioned Employer s owner about this when she had the chance to do so and that she was merely making an assumption. (Referee Hr g Tr. at 5-6.) Employer s general manager provided testimony, which was accepted as credible by the Board, that Claimant was reprimanded by the owner because she had completed paperwork in a sloppy manner. (Referee Hr g Tr. at 10.) Moreover, Claimant, through her own testimony, admits that she was being reprimanded for sloppy work. (Referee Hr g Tr. at 4.) The Board s factual findings 4 accurately reflect this testimony. It is well-settled that the Board is the ultimate finder of fact and that the Board s findings will not be overturned if they are supported by substantial evidence.3 Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276-79, 501 A.2d 1383, 1388-89 (1985). As the Board s findings are supported by substantial evidence, we will not overturn those findings. Claimant s decision to quit was based on her dissatisfaction with being reprimanded by Employer s owner. Resentment of a reprimand, absent unjust accusations, abusive conduct or profane language, does not constitute a necessitous and compelling reason for [quitting]. Krieger v. Unemployment Compensation Board of Review, 415 A.2d 160, 161 (Pa. Cmwlth. 1980). Here, as previously stated above, Claimant was reprimanded for performing her work in a sloppy manner. Claimant did not prove that she was unjustly accused of performing her work in a sloppy manner. Moreover, Claimant did not prove that Employer s owner engaged in abusive conduct or that he used profane language toward her. In fact, Claimant admitted that Employer s owner brought her into an office to tell her about her job performance and did not scream at her. (Referee Hr g Tr. at 4-5.) Additionally, Claimant only notified Employer s general manager of her concerns about being reprimanded by Employer s owner at the time she quit. (Referee Hr g Tr. at 3-4.) In fact, when the general manager requested that Claimant give several weeks notice, she refused. (Referee Hr g Tr. at 8-9.) By only notifying 3 Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 275, 501 A.2d 1383, 1387 (1985) (quoting Murphy v. Department of Public Welfare, 480 A.2d 382, 386 (Pa. Cmwlth. 1984)). 5 Employer s general manager of her concerns at the time she quit, and failing to give any advance notice, Claimant did not provide Employer s general manager with a reasonable opportunity to accommodate her concerns. See Blackwell v. Unemployment Compensation Board of Review, 555 A.2d 279, 282 n.6 (Pa. Cmwlth. 1989) (providing notice of the reasons for quitting at the time of the quit did not give the employer a reasonable opportunity to make accommodations.). Therefore, we conclude that Claimant did not have necessitous and compelling reason to quit as a result of being reprimanded by Employer s owner. Claimant also contends that she had necessitous and compelling cause to quit because of health problems that she developed as a result of her working conditions. Again, we disagree. In order to establish that health reasons constituted a necessitous and compelling reason for quitting, a claimant must communicate her health problems to her employer so that the employer can attempt to accommodate the problem. Lee Hosp. v. Unemployment Compensation Board of Review, 637 A.2d 695, 699 (Pa. Cmwlth. 1994.) Here, although Claimant alleges that she developed health problems as a result of her working conditions, she failed to inform Employer of her health problems prior to quitting, and Employer was never given an opportunity to make an accommodation. Therefore, Claimant failed to show that her health problems gave her necessitous and compelling reason to quit her employment. 6 Accordingly, the Board s order is affirmed. _______________________________ RENÃ E COHN JUBELIRER, Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen L. Corcoran, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : : : No. 62 C.D. 2008 ORDER NOW, July 24, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. _______________________________ RENÃ E COHN JUBELIRER, Judge

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