Barnicle v. Unemployment Comp. Bd. of Review

• Decision Date: 06 February 2015
• Docket Number: No. 1108 C.D. 2014,1108 C.D. 2014
• Court: Pennsylvania Commonwealth Court
• Parties: Lorraine Barnicle, Petitioner v. Unemployment Compensation Board of Review, Respondent

Lorraine Barnicle, Petitioner v. Unemployment Compensation Board of Review, Respondent

No. 1108 C.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: November 14, 2014

February 6, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT

Lorraine Barnicle (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under Section 402(b) of the Unemployment Compensation Law¹ (Law). In doing so, the Board affirmed the decision of the Referee that Claimant lacked necessitous and compelling cause to resign from her job because she anticipated not being able to meet a monthly sales quota. We affirm.

The facts are undisputed. Claimant was employed by Davison Design and Development (Employer) as a full-time director of new products from May 12, 2008, to October 3, 2013. Claimant was paid monthly, and her salary was drawn against future commissions. Claimant's receipt of the monthly draw was conditioned on her maintaining a minimum sales rate. Claimant understood that if her monthly sales fell below $10,000 for three straight months, her compensation could be changed to straight commission.

During August and September 2013, Claimant's sales fell below $10,000 per month. At the beginning of October 2013, Claimant decided that she would be unable to generate $10,000 in sales during that month, which would revert her compensation to straight commission at the end of October. Claimant was concerned that she would be unable to support herself on straight commission.² Additionally, Claimant was unable to seek alternative employment while employed by Employer because she had exhausted her vacation and sick time due to an unexpected surgery. As a result, Claimant quit her job on October 3, 2013.

Claimant filed for unemployment compensation benefits, which the Duquesne UC Service Center denied after finding that Claimant did not quit for a necessitous and compelling reason. Claimant appealed, and a hearing was held before a Referee on December 9, 2013.

At the hearing, Claimant testified on her own behalf, and Employer was represented by its general counsel. The Referee determined that Claimant hadnot satisfied her burden under Section 402(b) of the Law because she did not show that there was "a substantial, unilateral change in the employment agreement, that there [were] conditions of employment that she was not aware of which proved onerous over time, or that she was deceived as to the conditions of employment." Referee's Decision at 2. The Referee concluded that Claimant's complaints amounted to "mere job dissatisfaction" and denied benefits. Claimant appealed to the Board, which affirmed the Referee's decision, noting that Claimant's reason for quitting was to seek more lucrative employment. Claimant now petitions for this Court's review.³

On appeal, Claimant argues that the Board erred in holding that she is ineligible for benefits under Section 402(b) of the Law.⁴ Specifically, Claimant contends that the Board erred in finding that she failed to prove a necessitous and compelling reason for quitting her job.⁵

We begin with a review of the relevant law. A claimant who voluntarily resigns from her employment bears the burden of showing that she resigned for a necessitous and compelling reason. Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987). A claimant can meet this burden by showing

that circumstances existed which produced real and substantial pressure to terminate employment; such circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve her employment.

Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). Mere dissatisfaction with working conditions does not provide necessitous and compelling cause to quit employment. Kellenbenz v. Unemployment Compensation Board of Review, 454 A.2d 1202, 1203 (Pa. Cmwlth. 1982). Additionally, an employee's acceptance of a job indicates her agreement to the wages and conditions of employment. Stiffler v. Unemployment Compensation Board of Review, 438 A.2d 1058, 1060 (Pa. Cmwlth. 1982). Only when an employer deceives an employee as to her working conditions or substantially changes those conditions subsequent to hiring will the employee have a necessitous and compelling reason to voluntarily quit. Id.

Claimant argues that she had a necessitous and compelling reason for quitting because of "the inevitable, unavoidable demotion to straight commission at the end of the month of October [2013]." Claimant's Brief at 9. Claimant presented evidence that other employees had been fired for failing to meet the sales quota. Claimant further contends that she needed to seek employment elsewhere in order to support herself, but she would have no time to do so because she hadexhausted her paid time leave.⁶ The Board counters that Claimant did not prove that Employer deceived Claimant in any way or substantially altered the terms and conditions of her employment. Additionally, the Board notes that Claimant quit weeks before Employer could have exercised its option to begin paying her on a straight commission basis. Claimant did not make a good faith effort to preserve her employment.

Claimant may have been justifiably concerned about a change in her compensation. However, Claimant admitted that she knew about the sales quota when she started working for Employer. Claimant may have believed she could not reach the $10,000 sales threshold for October 2013, but she made no effort, let alone a reasonable effort, to preserve her employment by attempting to meet this quota. Accordingly, we hold that the Board correctly determined that Claimant was ineligible for unemployment benefits under Section 402(b).

For these reasons, we affirm the Board's decision.

/s/_________

MARY HANNAH LEAVITT, Judge

ORDER

AND NOW, this 6^th day of February, 2015, the order of the Unemployment Compensation Board of Review dated May...