Tewell v. Unemployment Comp. Bd. of Review

• Docket Number: 691 C.D. 2021
• Decision Date: 08 July 2022
• Parties: Thomas TEWELL, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent
• Court: Pennsylvania Commonwealth Court

279 A.3d 644

Thomas TEWELL, Petitioner

v.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent

No. 691 C.D. 2021

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 30, 2021

Decided July 8, 2022

Thomas Tewell, pro se.

Paul R. Jordan, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE WOJCIK

Thomas Tewell (Claimant), pro se , petitions for review of the decision of the Unemployment Compensation Board of Review (Board) dated April 22, 2021, which affirmed the decision of the Board's referee (Referee) denying unemployment compensation (UC) benefits to Claimant under Section 402(b) of the Unemployment Compensation Law (Law).¹ After careful review, we affirm.

The procedural history of this matter is as follows. The Office of UC Benefits determined that Claimant was ineligible for UC benefits because he voluntarily separated from employment without necessitous and compelling cause. Certified Record (C.R.) at 13-15.² Claimant appealed the denial, alleging that Pennsylvania Transformer Technology, Inc. (Employer) failed to provide viable personal protective equipment (PPE) per COVID-19 guidelines and created an unsafe working environment. Id. at 17-22. The Referee provided notice of a hearing scheduled for January 4, 2021, to consider whether Claimant voluntarily separated from employment without necessitous and compelling cause in violation of Section 402(b) of the Law, or whether Claimant was discharged from employment for willful misconduct in violation of Section 402(e) of the Law.³ Id. at 28-31. The Referee provided notice that the January 4, 2021 hearing was continued and rescheduled for January 25, 2021, and would be conducted by telephone. Id. at 28-38. Employer submitted various documents regarding its COVID-19 policies to be considered at the hearing. Id. at 40-75. A telephone hearing was held before the Referee on January 25, 2021, at which Claimant appeared and testified, and where Employer appeared and offered the testimony of four witnesses. Id. at 77-98. The Referee confirmed that Claimant received the documents submitted by Employer. Id. at 80-81. The Referee reviewed that the parties had the right to have an attorney or nonlegal advisor present if they chose, present testimony and evidence, question witnesses, and request an in-person hearing. Both parties testified that they understood their rights. Id. at 81-82.

The Referee explained that under Section 402(b) of the Law, Claimant had the burden to prove that his resignation was for necessitous and compelling reasons. C.R. at 82. The Referee then identified the documents in the file, which were admitted into the record without objection. Id. at 82-85. The Referee explained how the hearing would proceed, with each party having the opportunity to question the other party's witnesses. Id. at 86. Claimant testified that Employer failed to provide appropriate PPE, and that the lack of appropriate PPE caused him to be "sick all the time and it just got to be too much." Id. at 88. Claimant testified that he had a "compromised respiratory system." Id. at 89. When the Referee asked Claimant to provide more specific information about his respiratory issue, Claimant responded "[t]hat's none of your concern. That's between me and my doctor." Id. The Referee responded that "if you're raising it as a reason for why you quit, sir, it would be relevant for me to know. But, if you don't want to tell me that's fine. That's up to you." Id. Claimant testified that he did not inform Employer about the lack of PPE or about his concerns, stating he "no longer had any talk[s] with the management." Id. at 89-90. He further testified that on June 1, 2020, the day he was to return to work after vacation, he texted Employer's Production Supervisor, Bob Cook (Supervisor), that "I probably wouldn't be back. I was tired of being sick all the time, and it's just—it's not worth the stress." Id. at 90.

Employer presented testimony from Nick Smith, Employer's Health and Safety Manager (Safety Manager), about its efforts to comply with COVID-19 requirements. C.R. at 91-95. Safety Manager testified that as a critical infrastructure business permitted to remain open, Employer provided masks for employees, face shields for employees who had difficulty working with masks, hand sanitizer, enhanced cleaning, and social distancing. Id. at 91-92. The Referee asked Safety Manager if he was aware of PPE shortages leading up to Claimant's separation from employment, as Claimant alleged, to which Safety Manager replied, "[n]o." Id. at 93. Claimant asked Safety Manager questions about the availability of disinfectant spray and cleaning practices, to which Safety Manager responded. Id. at 94-95. Claimant and the Referee asked Safety Manager about Employer's efforts to enforce employee mask requirements. Safety Manager testified that during the first few months of the COVID-19 emergency, requirements were a "continuous moving target" and that Employer "adapted as we learned more information." Id. at 95. Safety Manager testified that when employees failed to wear masks as required, Employer's Human Resources Manager talked to employees, warned them to comply, and eventually issued disciplinary suspensions to employees who failed to comply. Id. at 65-69, 95.

Employer then presented testimony from its Supervisor about the text message that Claimant sent on June 1, 2020, and Supervisor's reply on the same date. C.R. at 96-97. Supervisor testified that Claimant was a good employee and that Supervisor never had any problems with Claimant's work. Id. at 96. He testified that he received a text from Claimant early in the morning on June 1, 2020, and Claimant agreed that Supervisor could read the text messages at the hearing. Id. Supervisor testified as follows:

[Claimant] said, "I think I'm about done, Bob. Throughout this whole ordeal, I have had three masks. I am tired of being sick. I'm tired of my nose running off my face. I am tired of asking for a clean mask. I am just tired." And then I [(Supervisor)] answered him [(Claimant)], just to sum it up, that, you know, look me up when I get into the plant and we'll talk about it then.

Id. at 97. Supervisor then read his reply to Claimant which stated, "I'll [(Supervisor)] look you [(Claimant)] up when I get in so you can tell me what's going on. I'm not sure who you've been asking for a new mask, but there is always a box out for anyone who wants to use it." Id. Employer asked Supervisor if Claimant's text message was the first time that he knew that Claimant did not have a mask or was asking for a mask, to which he replied, "[t]o my recollection, yes." Id. The Referee asked Claimant if he had any questions for Supervisor, and Claimant did not. Id. The Referee then asked if Claimant wished to add anything else, and Claimant replied, "[no], not at this time." Id. Employer gave a closing statement, Claimant did not, and the Referee adjourned the hearing. Id. at 97-98.

The Referee then issued a decision dated January 28, 2021, denying Claimant's UC benefits. C.R. at 100-04. The Referee made the following findings. Claimant was last employed by Employer as a full-time electronic finisher from May 29, 2019, to May 28, 2020, Claimant's last day of work. Id. at 100. Claimant was off work for a scheduled vacation on May 29, 2020, and was scheduled to return to work on June 1, 2020. Id. "On the morning of June 1, 2020, [ ] Claimant sent a text message to his manager stating, ‘I think I'm about done.’ " Id. Claimant's text message continued and referenced a lack of masks being provided by Employer and that Claimant was ill. Id. at 101. Prior to resigning, Claimant had not notified Employer of any purported lack of PPE equipment or supplies related to COVID-19. Id. As of Claimant's last day of work, Employer had masks on hand for employees, placed hand sanitizer near the time clock, enforced social distancing and mask wearing for employees, had face shields available for employees who had difficulties wearing a mask, and had implemented a cleaning protocol at least once a day. Id. The Referee found that Claimant "voluntarily resigned his employment on June 1, 2020," by way of text message, purportedly due to concerns with exposure to COVID-19 in the workplace, and the lack of PPE. Id. Claimant "did not raise any such concerns with [ ] Employer prior to submitting his resignation." Id.

The Referee concluded that Claimant failed to sustain his burden to prove he had necessitous and compelling cause for leaving his employment. C.R. at 101. The Referee acknowledged that unreasonable or dangerous work conditions that could jeopardize an employee's health can constitute good cause for leaving employment, but the employee "must have communicated [his] concerns to the Employer prior to quitting." Id. (emphasis omitted). The Referee found that, although Claimant contended he had a compromised respiratory system,

[n]otwithstanding the vague nature of [ ] Claimant's testimony regarding any health condition which may have caused [ ] Claimant to have elevated concerns regarding contracting the C[OVID]-19 virus, the Referee credits [ ] Employer's testimony that [it] had provided, or made available, PPE to employees including masks, face shields, [and] hand sanitizer, and was enforcing social distancing and the wearing of masks, as well as having implemented a cleaning protocol to disinfect surfaces.

Id. The Referee further concluded that, "by Claimant's own admissions[,]" Claimant "failed to notify [ ] Employer of any such concerns prior to resigning. As such, even finding [ ] Claimant's concerns legitimate, [ ] Claimant failed to communicate these concerns to [ ] Employer prior to resigning in order to allow [it] a reasonable opportunity to respond." Id.

Claimant timely appealed the Referee's denial to the Board alleging several errors in how the Referee...