Quinn, Gent, Buseck and Leemhuis, Inc. v. Unemployment Compensation Bd. of Review

• Decision Date: 08 April 1992
• Citation: 606 A.2d 1300,147 Pa.Cmwlth. 141
• Parties: QUINN, GENT, BUSECK AND LEEMHUIS, INC., a Pennsylvania corporation, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1300

606 A.2d 1300

147 Pa.Cmwlth. 141

QUINN, GENT, BUSECK AND LEEMHUIS, INC., a Pennsylvania corporation, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued Oct. 9, 1991.

Decided April 8, 1992.

Frank L. Kroto, Jr., for petitioner.

John Herzog, for respondent.

Before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, McGINLEY, SMITH and PELLEGRINI, JJ.

SMITH, Judge.

The question presented in this case is whether an employer's total ban on smoking within the workplace constitutes cause of a necessitous and compelling nature to voluntarily terminate employment, thereby qualifying an employee for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937), 2897, as amended, 43 P.S. § 802(b). ¹ The Unemployment Compensation Board of Review (Board) entered its decision on January 24, 1990 affirming the referee's decision to grant benefits to Margaret L. Sinclair (Claimant). ²

I

Claimant was employed by the law firm of Quinn, Gent, Buseck and Leemhuis, Inc. (Employer) as a paralegal for approximately five years, and her last day of work was August 22, 1989. The referee found that Claimant, age 65, had been an habitual smoker throughout her adult life and that on her last day of work she confirmed a rumor that Employer would not permit smoking within the new building where the firm was to relocate its offices effective August 28, 1989. Employees would be permitted, however, to smoke on Employer's premises outside of the building. Claimant resigned immediately upon confirmation of the smoking ban.

On September 10, 1989, Claimant filed for unemployment compensation benefits which were denied by the Bureau of Employment Compensation Benefits and Allowances (Bureau) on the basis of Section 402(b) of the Law. In her summary of interview before the Bureau, Claimant stated that her voluntary separation was due to Employer's new smoking policy and that had she known of the policy earlier, she would have given notice and resigned. On appeal to the referee, Claimant stated that Employer's new smoking policy was "discriminatory" and that all she requested was a designated area. The referee reversed the Bureau's denial of benefits, and on further appeal by Employer, the Board affirmed the referee and allowed benefits under Section 402(b). In its decision, the Board acknowledged a decline in the social and cultural acceptability of smoking and that more and more employers are placing restrictions on employees' rights to smoke. The Board concluded, however, that since Employer totally banned smoking on its premises and failed to make reasonable accommodations within the building for smoking employees, the smoking ban constituted a substantial unilateral change in working conditions which presented Claimant with cause of a necessitous and compelling nature to terminate her employment.

II

Employer contends that the Board erred in affirming the referee who ruled on an issue not raised by Claimant in her appeal. Employer asserts that Claimant never mentioned that the ability to smoke within the workplace was a term and condition of her employment, and consequently, Claimant is bound by the discrimination theory upon which she originally submitted her claim, citing Solomon v. Presbyterian University Hospital, 365 Pa.Superior Ct. 447, 530 A.2d 95 (1987), appeal denied, 517 Pa. 618, 538 A.2d 500 (1988). The Board, to the contrary, argues that Claimant sustained her burden of proof and that the record as a whole contains substantial evidence to prove that Claimant's ability to smoke was a term and condition of her employment at the time of hire.

In ruling under Section 402(b) of the Law, it is clear that the burden of proof rests upon the claimant. In such case, the claimant must prove that a voluntary termination was for cause of a necessitous and compelling nature. Chamoun v. Unemployment Compensation Board of Review, 116 Pa.Commonwealth Ct. 499, 542 A.2d 207 (1988); Kligge v. Unemployment Compensation Board of Review, 89 Pa.Commonwealth Ct. 30, 491 A.2d 325 (1985). To meet that burden, a claimant must show that cause of a necessitous and compelling nature results from circumstances which produce pressure, both real and substantial, to terminate one's employment and which would compel a reasonable person under the circumstances to act in the same manner. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977); Uniontown Newspapers, Inc. v. Unemployment Compensation Board of Review, 126 Pa.Commonwealth Ct. 102, 558 A.2d 627 (1989); Iaconelli v. Unemployment Compensation Board of Review, 55 Pa.Commonwealth Ct. 117, 423 A.2d 754 (1980). Whether an employee had cause of a necessitous and compelling nature is a legal conclusion drawn from a review of the findings of fact and is one subject to appellate review. Taylor. Further, this Court must also evaluate Claimant's behavior to decide whether she acted reasonably under the circumstances. Iaconelli.

The record fails to demonstrate any substantial evidence to satisfy Claimant's burden of proof. Conceding that the smoking ban produced neither real nor substantial pressure to terminate her employment, Claimant's testimony on this issue is instructive.

QR: Why is a smoking band [sic] cause for you to leave your job?

AC: Because at my age, I sure as hell am not going to go outside and smoke in the winter time in Erie.... Whether I smoked at my desk or not, it was irrelevant, because I would of, you know, smoked on my breaks or I can go outside and do it.

....

QEL: In response ... in response to his [Employer's witness] confirming that there was no smoking permitted in the new building, did you render your resignation orally immediately?

AC: Yes, I did. I said, 'and I quit.' And he said, 'when do you want it effective?' And I said, 'right now.'

....

QR: Any other questions, Ms. Sinclair?

AC: And I think it would be terrific if some of these heavy smokers would get behind some of the rest of us and help us in this thing. You know, wherever you go, there is discrimination now against smokers. This band [sic] on airlines and all this and it's getting to the point where it's disgusting. And at my age, it isn't that I couldn't quit, it's that I just absolutely refuse to. Why should I? (Emphasis added.)

N.T., pp. 3-4, 9. This Court cannot conclude from the testimony that Claimant suffered any pressure whatsoever to terminate her employment; nor is there evidence that a reasonable person would be compelled to act similarly under the circumstances. In fact, unrefuted testimony indicated that Claimant was the only employee in the firm who quit because of the new smoking policy. ³ Claimant admittedly could have quit smoking, accepted accommodations offered to the employees to smoke outside on Employer's premises, or remained on the job and attempted to seek alternatives to the policy. She chose to pursue none of these options.

The law is quite clear that an employee is obligated to take all reasonable and necessary steps to preserve his or her employment and that failing to do so, a claim for unemployment compensation benefits upon voluntary termination of that employment must be rejected. Chamoun; Evasovich v. Unemployment Compensation Board of Review, 80 Pa.Commonwealth Ct. 395, 471 A.2d 921 (1984). Also, an employee may not voluntarily terminate employment merely because of disagreement with an employer's policy or dissatisfaction with working conditions. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 565 A.2d 127 (1989); Sofis v. Unemployment Compensation Board of Review, 68 Pa.Commonwealth Ct. 366, 449 A.2d 110 (1982).

An examination of the testimony in this case shows a mere dissatisfaction with Employer's new smoking ban and an attempt by Claimant to elevate the cause of smokers within the workplace and to advocate on their behalf. ⁴ Thus, cause of a necessitous and compelling nature to terminate her employment cannot be substantiated on this record.

It is axiomatic that Claimant is bound by the theory upon which she presents her claim for benefits, and since neither her appeal nor testimony at hearing claimed that the ability to smoke was a term and condition of her employment, the Board further erred in affirming the referee on this theory. See Solomon; Manzulich v. Unemployment Compensation Board of Review, 32 Pa.Commonwealth Ct. 56, 377 A.2d 1066 (1977) (claimant limited to reason given in the initial application for benefits as cause for voluntary termination). Nevertheless, a clear reading of the record demonstrates that the testimony is insufficient to show that the ability to smoke was a term and condition of Claimant's employment. In National Freight, Inc. v. Unemployment Compensation Board of Review, 34 Pa.Commonwealth Ct. 161, 382 A.2d 1288 (1978), this Court stated that an employee may terminate employment and remain eligible for benefits where wages and working conditions have changed since the initial employment or an employee was originally deceived as to the complained-of conditions. Employer's office administrator testified that the offer and acceptance of employment was not conditioned upon the right to smoke. The only reference to this matter at the time of hire was Claimant's inquiry as to whether she would be allowed to smoke on the job, and the administrator replied that Claimant would be permitted to smoke. The record consequently falls far short of proving that Claimant conditioned her employment upon the ability to smoke on the job and that Employer accepted that condition.

Assuming, however, that the testimony as a whole supports the Board's position, the claim must still be denied. Employers are always entitled to modify employment specifications with regard to time, place and manner, and the only restriction placed upon that...