Davis v. UN. COMP. BD. OF REV.

524 A.2d 1033, 105 Pa. Commw. 377, 1987 Pa. Commw. LEXIS 2087

• Court: Commonwealth Court of Pennsylvania
• Decided: April 22, 1987
• Docket: Appeal, 1469 C.D. 1985
• Status: Published

Opinions

Opinion by

Judge Palladino,

Patricia Davis (Petitioner) appeals¹ from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s decision denying benefits to Petitioner for a voluntary quit without cause of a necessary and compelling nature.²

Petitioner was employed by Pennsylvania Manufacturers’ Association Insurance Co. (Employer) as a customer representative. She terminated her employment on September 28, 1984 alleging harassment and retaliation for a discrimination lawsuit she had filed in December of 1982 against the Employer.

The referee made a finding that Petitioner had received three probations preceding her termination, the first probation for six months for unacceptable attendance, the second for 60 days for unsatisfactory production, and the third for six months for unacceptable attendance. She quit five days after the imposition of the last probation.

Our scope of review for appeals from Board orders is limited to a determination of whether constitutional rights were violated, errors of law were committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. Commonwealth Ct. 377, 517 A.2d 523 (1986).

In a voluntary quit case, the claimant has the burden of proving that the termination was based on a necessitous and compelling reason in order to receive unemployment compensation benefits. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982). A claimant who willingly resigns from her position must demonstrate that she had no real choice but to leave her employment. Stiffler v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 44, 438 A.2d 1058 (1982).

In the case at bar, the referee found, and Petitioner does not dispute, that the Employer imposed three probationary periods during the final year of her employment. Petitioner alleges that this amounted to retaliatory harassment in response to a discrimination suit that she had filed against the Employer two years earlier.

While we agree with Petitioners contention that unjustified retaliatory harassment may constitute reason of a necessitous and compelling nature, it is also well established that neither a disagreement with an employers policies, nor dissatisfaction with working conditions centering around differences with the employer, is a compelling cause for the voluntary cessation of employment. Sofis v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 366, 449 A.2d 110 (1982).

The referee found that the first and third periods of probation were assessed for Petitioners unacceptable attendance and that the second probation was imposed for unsatisfactory production. At the hearing, the Employer testified that Petitioner had been late 18 times during a 12 month period before December of 1983 and that as a result, she received a six month probation with strict attendance requirements. The Employer also testified that on July 9, 1984, Petitioners immediate supervisor conducted an evaluation and determined that she was not meeting established Employer standards in relation to her production. The Performance Evaluation, issued on June 25, 1984, stated that Petitioner had been producing almost 33% less than the required standard for written file production, and that Petitioners coworkers were producing above that standard. As a result, she was placed on 60-day probation subject to Employer performance standards and required to attend a course of instruction in writing fundamentals. Finally, the referee accepted Employers testimony that Petitioner in 1984 was late on July 20, August 22 and September 7 and that, consequently, she was placed on a second six-month probation for unacceptable attendance. Credibility determinations are for the fact-finder and not for the reviewing court. Lozaro v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 428, 497 A.2d 680 (1985).

An examination of the record reveals that there is substantial evidence to support the referees findings that Petitioners probationary periods were imposed for unacceptable levels of attendance and performance and were not retaliatory.

Accordingly, the order of the Board is affirmed.

Order

And Now, April 22, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

1 This case was reassigned to the author on February 24, 1987.

2 Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b) denies unemployment compensation benefits to an individual if his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.