IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle, : : Petitioner :

: v. : No. 1446 C.D. 2016

: Submitted: February 10, 2017 Unemployment Compensation : Board of Review, : : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: June 5, 2017

James Lyle (Claimant), proceeding pro se , petitions for review fro m the order of the Unemployment Compensation Board of Review (Board) that
determined that he was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) 1 (relating to voluntary terminatio n). Claimant contends the Board disregarded
evidence and erred in determining he quit without a necessitous and compelling

reason . Discerning no error, we affirm.

Claimant worked for Family Dollar Stores (Employer) as a full

- time store manager from Fe bruary 1, 2016 , until April 20, 2016. A fter his separation

1 Act of December 5, 1936, Second Ex. Sess ., P.L. (1937) 2897, as amended , 43 P.S. §802(b).2

from employment, Claimant applied for UC benefits. The local service center
den ied benefits under Section 402(b) of the Law. Certified Record (C.R.), No. 6 (Notice of Determination). Claimant a ppealed, and a referee he ld a hearing, at which neither Claimant nor Employer appeared. C.R. , No s . 11 (Hearing Transcript , 5/26/16 ) and 12 (Referee ’ s Decision, 5/27/16). The referee affirmed
the denial of benefits.

Claimant appealed to the Board, and asserted he never received notice
of the referee ’ s hearing. The Board remanded the matter to the referee to serve as
the Board ’ s hearing officer to receive testimony and evidence on Claimant ’ s reasons for his nonappearance at the initial hearing as well a s on the merits.
Claimant appeared and testified at the remand hearing. Employer did not appear.

Based on the testimony and evidence presented, the Board found that Claimant did not attend the initial referee hearing because he did not receive notice of the hearing. Claimant testified that : he was having issues with his mail , which

were unrelated to his UC claim ; the issues began prior to working for Employer ; and he notified the U.S. Postal Service of the problem. Board Remand Hearing, 7/12/16, Note s of Testimony (N.T.) at 3. Claimant also presented evidence in support. C.R., No. 20 (Claimant ’ s Remand Exhibits Nos. 1 and 2). The Board
credited Claimant ’ s testimony in this regard and determined he established good cause for his nonappearance at the initial hearing.

As to the merits, the Board found that, when problems arose at
Claimant ’ s store, his supervisor often threaten ed to fire him. Claimant became upset with supervisor ’ s behavior. To remedy the situation, Claimant contacted Employer ’ s ethi cs department. The ethics department began investigating the supervisor ’ s behavior. On April 20, 2016, Claimant voluntarily terminated his3

employment because of a personality conflict with his supervisor. Claimant did not allow Employer ’ s ethics departm ent to complete its investigation prior to voluntarily terminating his employment. Board Opinion, 8/8/16, Findings of Fact (F.F.) Nos. 3

- 7.

Ultimately, the Board concluded that Claimant voluntarily terminated his employment based on a personality conflict with his supervisor. Claimant did not allow the ethics department to conclude its investigation prior to voluntarily terminating his employ ment. Claimant did not assert that the ethics investigation would be futile or provide sufficient explanation to justify his actions. The Board determined Claimant did not act in the manner a reasonable person would under
the same circumstances as he did not exhaust all remedies prior to quitting his employment. Thus, the Board concluded Claimant was ineligible for benefits under Section 402(b) having voluntarily quit his employment without a necessitous and compelling reason. Claimant requested reconsi deration based on new
information that Employer never followed through with the investigation after he quit, thereby making the investigation a futile act. C.R. , No. 22 (Request for Reconsideration). The Board denied the request. Claimant now petitions for
review. 2 Claimant argues that the Board erred in determining he quit h is employment without cause of a necessitous and compelling nature

. He contends
the Board disregarded the threatening text message s that his supervisor sent to him.

2 Our review is limited to determining whether necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Johns v. Unemployment Compensation Board of Review , 87 A.3d 1006 , 1009 n.2 (Pa. Cmwlth.), appeal denied , 97 A.3d 746 (Pa. 2014).4

He claims the Board ignored other evidence showing his repeated contacts with the corporate headquarters to resolve the situation went unanswered

. In addition,
Claimant asserts that t he Board erred in denyi ng his request to produce newly

discovered evidence showing Emp loyer never completed the investigation after he quit

. He advances that he was prejudiced by Employer ’ s nonappearance at the
remand hearing to explain why the investigation was not completed.

To begin, a review for capricious disregard of material, competent evidence is an appropriate component of appellate review in any case in which the question is properly raised before a court. Leon E. Wintermyer, Inc. v. Workers ’ Comp ensation Appeal B oard (Marlowe) , 812 A.2d 478, 487 (Pa. 2002); see Diehl v. Unemployment Comp ensation Board of Review , 4 A.3d 816, 824 (Pa. Cmwlth. 2010), reversed on other grounds , 57 A.3d 1029 (Pa. 2012)

. A capricious disregard of evidence occurs where the “ findings reflect a delibera te disregard of competent evidence that logically could not have been avoided in reaching the
decision

. . . . ” Pryor v. Workers ’ Compensation Appeal Board (Colin Service Systems) , 923 A .2d 1197, 1205 (Pa. Cmwlth. 2007). Where substantial evidence
suppor ts the findings, and those findings in turn support the conclusions, it should remain a rare instance where an appellate court disturbs an adjudication based on capricious disregard. Wintermyer , 812 A.2d at 487.

Further, the Board is the ultimate fac t

- finder in UC matters and is empowered to resolve all conflicts in the evidence, witness credibility, and weight
accorded to the evidence. Ductmate Indus tries , Inc. v. Unemployment Compensation Board of Review , 949 A.2d 338 (Pa. Cmwlth. 2008). It is irr elevant whether the record contains evidence to support findings other than those made by
the fact

- finder; the critical inquiry is whether there is evidence to support the5

findings actually made. Id

. Where substantial evidence supports the Board ’ s findin gs, they are conclusive on appeal. Id

. In addition, we must examine the testimony in the light most favorable to the party in whose favor the fact

- finder ruled, giving that party the benefit of all logical and reasonable inferences from the testimony. Id

.

Section 402(b) of the Law provides that an employee shall be ineligible for compensation for any week “ [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature

. . . . ” 43 P.S. §802(b). The q uestion of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this
Court. Middletown T

ownship v. Unemployment Compensation Board of Review , 40 A.3d 217 , 227 (Pa. Cmwlth. 2012).

An employe e who claims to have left employment for a necessitous and compelling reason bears the burden of proof. Middletown Township, 40 A.3d

at 227

- 28

. To prove a necessitous and compelling reason for leaving employment, a claimant must demonstrate the following : “ (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 ma de a reasonable effort to preserve her employment. ” Solar Innovations, Inc. v. Unemployment Compensation Board of Review , 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012) (quoting Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review , 906 A.2d 657, 660 (Pa. Cmwlth. 2006)). An employer has no burden of proof in a voluntary quit case. Earnest v. Unemployment Compensation Board of Review , 30 A.3d 1249, 1256 (Pa. Cmwlth.6

2011) (citing Johnson v. Unemployment Compensation Board of Review , 869 A.2d
1095 , 1104 (Pa. Cmwlth. 2005) )

.

Here, Claimant does not challenge any of the Board ’ s actual findings.

“ Unchallenged findings are conclusive on appeal .

. . . ” Munski v. Unemployment Comp. Bd. of Review , 29 A.3d 133, 137 (Pa. Cmwlth. 2011). Rather, Claimant
contends that the Board failed to consider evidence demonstrating a necessitous and compelling reason to terminate his employment based on the threat s of his supervisor and Employer ’ s in action. Claimant testified that he was new to the jo b , he was not adequately trained in certain areas, and that shortly after he started
issues arose at the store that he managed

. N.T. 4

- 5

. Claimant testified and presented text messages that his supervisor threatened to fire him on April 3, 2016,
for not meeting payroll. N.T. at 5; C.R., No. 20 ( Claimant ’ s Remand Exhibit No.
3 )

. His supervisor threatened him again on April 17, 2016 , when Claimant was not available to close the store personally. N.T. at 7; C.R., No. 20 ( Claimant ’ s Remand Exhibit No. 3 )

. Contrary to Claimant ’ s assertions that the Board disregarded this evidence, the Board considered this evidence and specifically
found that his “ supervisor would often threaten to fire ” him. F.F. No. 3.

As for Claimant ’ s claim that the evidence showe d that Employer did not take action, Claimant testified that, a fter the first incident, Claimant left two
voicemail messages for his supervisor ’ s boss , but she did not return his call. N.T.
at 7. He also unsuccessfully attempted to contact Employer ’ s cor porate headquarters via Facebook

. N.T. at 7.

Then, on A pril 15, 2016, he contacted Employer ’ s third

- party ethics department, and filed a complaint . N.T. at 7. The call taker advised that Employer would contact him within 14 days regarding his complai nt

. N.T. at 7. On April7

18, 2016, Employer notified Claimant that the matter was assigned to an investigator in his region. N.T. at 8. Two days later, o n April 20, 2016, the regional investigator contacted Claimant. N.T. at 8. The investigator asked Claimant details about the working conditions, what transpired , and his complaints.
N.T. at 8

- 9. She asked Claimant to forward the text messages as well a s any voicemail messages from his supervisor . N.T. at 9.

Later that same day, Claimant quit his employment . N.T. at 9. When the hearing officer asked Claimant why he did not wait for the investigation to move forward, Claimant responded that he was a fraid he would lose his job. N.T.
at 9. Claimant repeatedly testified that he quit because he thought he might be
fired. N.T. at 5, 7, 9 , 11

. Claimant admitted that he quit while Employer was

“ trying to investigate ” and “ figure it out. ” N.T. at 9.

Based on this evidence, the Board found that Claimant did not allow Employer’s ethics department to complete its investigation prior to voluntarily terminating his employment. F.F. No. 7. Although Claimant may not have received a response from his superv isor ’ s boss or corporate headquarters, upon contacting the ethics department, an investigation into Claimant ’ s complaint was opened immediately and the matter was assigned to an investigator. W ithin five days of contacting the ethics department, a regiona l investigator contacted
Claimant. However, Claimant quit the very day the regional investigator contacted
him. Claimant admitted he did not allow the ethics department to conclude its investigation prior to quitting. N.T. at 9.

B y not giving Employer an opportunity to complete the investigat ion
and re ctify the situation prior to quitting , Claimant did not make a reasonable effort to preserve his employment. See St. Barnabas, Inc. v. Unemployment8

Compensation Board of Review , 525 A.2d 885, 888 (Pa. Cmwlth. 1987) ( a claimant was ineligible where the claimant “ submit[ t ed] her resignation without giving the [e]mployer the opportunity to solve the problem ” ) ; see also Wester n and Southern Life Insurance v. Unemployment Compensation Boar d of Review , 913 A.2d 331, 337 (Pa. Cmwlth. 2006) (noting that where a claimant voluntarily terminates employment after receiving notice that the employer is committed to resolving the work problems does not evidence a good faith effort to preserve employm ent). Moreover, Claimant ’ s testimony that he quit out of fear that he would be fired does not constitute real and substantial pressure to terminate employment. See Department of Corrections v. Unemployment Compensation Board of Review , 547 A.2d 470, 474 (Pa. Cmwlth. 1988) (general fear of losing job did not rise to a cause of a necessitous and compelling nature to quit employment);
see also Johnson , 869 A.2d at 1107 (fear about future employment was speculative). Upon review, we conclude that the Board did not err or disregard the
evidence presented at the hearing in determining that Claimant is ineligible for benefits under Section 402(b).

Notwithstanding , Claimant contends that the Board erred in denying his request for reconsideration based on alle ged after

- d iscovered evidence , which

was not available at the time of hearing, that Employer never followed through with the investigation after Claimant quit. He asserts that this evidence proves that Employer ’ s investigation was futile. See Martin v. U nemployment Compensation Board of Review , 749 A.2d 541, 544 (Pa. Cmwlth. 2000) (an employee may be excused from reporting sexual harassment to the employer if the employee reasonably believed that reporting would have been futile).9 However, Claimant did not appeal the Board’s order denying
reconsideration. See Pa. R.A.P. 1512(a)(1) (petitions for review must be filed within 30 days of the entry of an order from which an appeal is taken). Therefore, our review is limited to Claimant’s appeal of the meri ts decision. Nevertheless, even if properly before us, we would discern no abuse of discretion in the Board's denial of Claimant's request for reconsideration.

The Board ’ s regulations provide that reconsideration will be granted

“ only for good cause in the interest of justice without prejudice to any party. ”
34 Pa. Code §101.111(b). “ In determining whether ‘ good cause ’ exists, the [Board] must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether [the Board] failed to consider
relevant law. ” Laster v. Unemployment Compensation Board of Review , 80 A.3d 831, 834 (Pa. Cmwlth. 2013) (quoting Ensle v. Unemployment Compensation Board of Review , 740 A.2d 775, 779 (Pa. Cmwlth. 1999)).

Claimant requested reconsideration to introduce evidence that Employer discontinued the investigation after he quit. Such evidenc e is irrelevant
because it would not establish the futility of Employer ’ s efforts before he quit. Thus, the Board did not err or abuse its discretion in denying Claimant ’ s request for reconsideration.

Insofar as Claimant complains that Employer did not appear at the remand hearing, where a claimant voluntarily terminates his employment, an employer bears no burden of proof. Earnest , 30 A.3d at 1256 . Rather, it is the
claimant ’ s burden to prove entitle ment to benefits. Id . Thus, Employer ’ s appearance was not necessary. If Claimant believe d Employer ’ s appearance was
necessary for him to carry his burden, Claimant could have subpoenaed10

Employer ’ s witnesses. However, Claimant neither made such a request nor expressed any desire to obtain evidence from Employer at the hearing

. Cf. Coates v. Unemployment Compensation Board of Review , 676 A.2d 742 , 744 n.3 (Pa. Cmwlth. 1996) ( where the claimant expressed the need for evidence from the employer that was solely within the employer ’ s possession , we noted that a referee has a responsibility to assist a pro se claimant so that facts necessary for the decision may be adequately developed ). Again, any evidence showing that Employer discontinued the investi gation after Claimant quit would not prove the futility of the investigation at the time that he did quit.

Accordingly, we affirm.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle, : : Petitioner :

: v. : No. 1446 C.D. 2016

: Unemployment Compensation : Board of Review, : : Respondent :

O R D E R

AND NOW, this 5 th day of June , 201 7 , the order of the Unemployment Compensation Board of Review, dated August 8, 2016, is
AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge