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Procyson v. Unemployment Compensation Board of Review

September 22, 2010

AUDREY J. PROCYSON, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: January 29, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Audrey Procyson (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation benefits. In doing so, the Board agreed with the Referee that Claimant was not eligible for benefits under Section 402(b) of the Unemployment Compensation Law*fn1 (Law) because she voluntarily left her job without a necessitous and compelling reason. In this appeal, we consider whether the Board erred in concluding that Claimant's sudden departure from work after an upsetting conversation with her supervisor constituted a voluntary quit.

Claimant was employed by Jonico, Inc. (Employer) as a pharmacy technician beginning in November 2007, and her last day of work was January 9, 2009. Claimant applied for unemployment compensation benefits, and the Altoona UC Service Center denied the application. It found that Claimant had voluntarily quit her job and, thus, was ineligible for benefits.

Claimant appealed, and a hearing was held before the Referee at which Claimant appeared and gave testimony. Employer also appeared and presented testimony from its president, Jonathan Jacobs, and Claimant's co-worker, Michele Ralston.*fn2

Claimant testified that she worked full-time for Employer from November 2007 until November 2008, when she was injured in a biking accident, which caused her to miss five weeks of work. She then returned part-time, working ten to thirteen hours a week, with medical restrictions. During Claimant's absence and reduced hours, the general manager, Aimee Jacobs, hired her brother to fill in for Claimant. In early January 2009, Claimant's doctor approved her return to full-time work. While at work on Friday, January 9, 2009, Claimant telephoned Aimee Jacobs and requested a return to a full-time work schedule. Jacobs responded that she would have to talk to the pharmacist, Michele Ralston, and to Employer's president, Jonathan Jacobs, about Claimant's return to full-time employment. Jacobs then told Claimant that both she and Michele Ralston agreed that Jacobs' brother was able to do the job faster than Claimant.

Claimant became very upset and started to cry. She then gathered her things; called Ralston two-faced; and left.*fn3 Claimant testified that Ralston followed Claimant through the building and out into the parking lot, imploring "don't leave like this." Notes of Testimony, May 20, 2009, at 9. Claimant shouted back "no, leave me alone" and left. Id.

Claimant acknowledged that she walked out without completing her shift, but denied that she had quit. She explained that she went home because she did not want the customers to see her upset and crying. Claimant testified that she loved her job and would never quit.

Claimant reported for her next scheduled shift on Tuesday, January 13th. Upon doing so, Claimant was called to the office of the president, Jonathan Jacobs. According to Claimant, the president accused her, in what she called a loud voice, of yelling and screaming in the store the previous Friday. He then told Claimant that she was fired, should leave and never come back.

Ralston testified on behalf of Employer. She saw Claimant become upset after her telephone conversation with Aimee Jacobs on January 9th. Ralston followed Claimant to the parking lot in an effort to persuade her not to leave. Because Claimant did not call or return to work later that day, Ralston assumed she had quit. However, Ralston acknowledged that Claimant never said she was quitting.

Jonathan Jacobs testified that he did not fire Claimant. As far as he was concerned, Claimant abandoned her position when she walked out on Friday, January 9th, without explaining her intentions. When Jacobs did not hear from Claimant, he changed the schedule on Sunday, January 11th to strike Claimant from the work schedule. When Claimant returned to work on January 13th, he told her to leave.

The Referee determined that Claimant was ineligible for benefits under Section 402(b) of the Law because she had abandoned her position and did not take reasonable steps to preserve her employment. The Referee found the conversation between Claimant and Jonathan Jacobs on January 13th to be immaterial, because Claimant had already quit when it took place.

Claimant appealed to the Board, which made its own findings. The Board found that Claimant voluntarily terminated her employment on January 9, 2009, by her conduct, i.e., by walking out of work and giving Employer no "inkling that she intended to return." Board's Decision at 2; Finding of Fact 8. The Board rejected, as not credible, Claimant's testimony that she intended to return to work. The Board determined that Claimant walked out of work because she became upset at Aimee Jacobs' comments about Claimant's job performance, which is not a necessitous and compelling reason to quit. Based on the foregoing, the Board ...


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