Unemployment Compensation : Submitted: October 18, 2013 Board of Review, : : Respondent

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffery E. Eakle, Sr., : : Petitioner : : v. : No. 874 C.D. 2013 : Unemployment Compensation : Submitted: October 18, 2013 Board of Review, : : Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: December 6, 2013

Jeffrey E. Eakle, Sr. (Claimant), representing himself, petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) that affirmed the Decision of the UC Referee (Referee) finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law).1 The Board

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is 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.” Id. concluded that Claimant did not establish that he had cause of a necessitous and compelling nature for voluntarily quitting his employment. On appeal, Claimant argues that he should not have been denied UC benefits because: (1) his employer, Staffmark, did not appear at the UC Referee’s hearing to prove that his employment was temporary; and (2) continuing in his present job with Staffmark created a greater financial hardship because his wages were less than his weekly UC benefit rate. Unfortunately, although heart-wrenching, we can discern no error by the Board and, accordingly, must affirm.

After separation from employment with RM Thornton, Inc. on May 18, 2012, at which he earned $35.00 per hour, and while receiving UC benefits with a weekly benefit amount of $573.00, Claimant accepted an indefinite job assignment through Staffmark as a laborer earning $10.50 per hour. (Referee Decision, Findings of Fact (FOF) ¶¶ 1-2.) Claimant accepted the position through Staffmark, which began on November 12, 2012, (Hr’g Tr. at 6), because he wanted some extra money for the holidays and was having difficulty paying his bills while receiving UC benefits. (FOF ¶ 3.) During the first week with Staffmark, Claimant attended orientation for forty hours and worked 7.5 overtime hours voluntarily on the weekend. (FOF ¶ 5.) Claimant’s gross earnings for this first week with Staffmark totaled $538.13, with a net pay of $368.67. (FOF ¶ 6.) Claimant was scheduled to work at the laborer position the following week. (FOF 8.)

On November 19, 2012, Claimant contacted a UC Service Center representative to file his bi-weekly claim for UC benefits and to report his employment/earnings with Staffmark. (FOF ¶ 9.) At that time, Claimant

2 discovered that he was not permitted to file a claim for benefits for any week in which he was employed full-time. (FOF ¶ 10.) As a result, Claimant contacted Staffmark and quit the laborer job because it was affecting his receipt of UC benefits. (FOF ¶ 11.) Claimant then filed a claim for UC benefits in which he listed Staffmark as his last employer.

The UC Service Center determined that Claimant quit his new job because his UC benefits were greater than his income working as a laborer through Staffmark. (Notice of Determination, R. Item 5.) The UC Service Center stated that it was Claimant’s burden to show that he exhausted all alternatives prior to voluntarily quitting if there were any and, not having done so, Claimant did not show a necessitous and compelling reason to quit his job. (Notice of Determination, R. Item 5.) Claimant appealed and a hearing was held on March 1, 2013 before the UC Referee at which Claimant appeared and testified. Staffmark did not attend the hearing. Based on Claimant’s testimony, in addition to the facts stated above, the UC Referee found that Claimant “understood the job conditions when he accepted the assignment.” (FOF ¶ 4.) The UC Referee concluded that, despite Claimant’s belief that he could collect partial UC benefits based on full- time work, Claimant’s dissatisfaction with his pay did not constitute a necessitous and compelling reason to quit pursuant to Section 402(b) of the Law because Claimant was aware of the job conditions at the time he accepted employment through Staffmark. (Referee Decision at 2.)

Claimant appealed to the Board. In his appeal, Claimant argued that he: (1) believed the job with Staffmark was temporary; (2) accepted the job to fulfill his

3 obligation to seek gainful employment; (3) received $10.50 per hour, or $1,600 per month gross, even though he previously earned $35.00 per hour in the position from which he was separated and had been receiving UC benefits in the amount of approximately $2,000 monthly; and (4) resigned from the job after realizing that he would be in a worse financial position by remaining because his weekly UC benefit rate was higher than his pay with Staffmark. (Petition for Appeal, R. Item 11.) Upon review, the Board adopted and incorporated the Referee’s findings of fact and conclusions of law, and entered an Order affirming the Referee’s Decision. (Board Order at 1.) Claimant now petitions this Court for review.2

Claimant first argues that he should not have been denied UC benefits because his employer, Staffmark, did not appear at the UC Referee’s hearing when doing so would have “cleared up” whether his employment was temporary or permanent.3 (Claimant’s Br. at 6.) Claimant believes that the laborer position was

2 “The Court’s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record.” Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Because the Board is the ultimate fact finder and entitled to make its own determinations as to witness credibility and evidentiary weight, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1388 (1985), this Court will not disturb those findings if they are supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Moreover, the prevailing party below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id. at 343.

3 Staffmark intervened in this matter and has filed a brief in opposition to Claimant’s appeal. The Board has not filed a brief.

4 temporary and, when it ended, he would be entitled to a reinstatement of his UC benefits with his previous employer.4

It is the claimant, not the employer, who has the burden to prove a claimant’s eligibility for UC benefits. Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810, 815 (Pa. Cmwlth. 1996). “In other words, in order to be eligible for unemployment compensation benefits, the claimant bears the burden of proving separation from employment, whether voluntary or involuntary.” Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). In a case involving a voluntary quit, the claimant has the burden to prove that he had cause of a necessitous and compelling nature for the voluntary quit. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). As the burdened party, a claimant must meet both his burden of production and his burden of persuasion in order to prevail on his claim for UC benefits. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).

Thus, Staffmark’s absence at the Referee’s hearing did not affect Claimant’s burden. It was Claimant’s burden, not Staffmark’s burden, to show that he was eligible for UC benefits, including whether the alleged temporary nature of the laborer position had an effect on Claimant’s entitlement to UC benefits. Moreover,

4 Claimant states that he did not file this UC claim against Staffmark; rather, his UC claim was filed against RM Thornton, Inc., his previous employer from whom he was separated and had been receiving UC benefits. (Claimant’s Br. at 6.)

5 even if the Board had found that the position was temporary, Claimant would not have been eligible to receive UC benefits for the week that he was employed through Staffmark in the laborer position. Whether a claimant is eligible for UC benefits during a week in which the claimant is employed does not turn on whether the position is temporary. Instead, eligibility is determined by whether the employment is full-time or part-time.

Section 4(u)(II) of the Law provides that a claimant is eligible for UC benefits “with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.”5 43 P.S. § 753 (emphasis

5 The Board’s regulations set forth how a claimant’s full-time work for purposes of Section 4(u) is to be determined:

(a) A claimant’s full-time work for purposes of section 4(u) of the law (43 P. S. § 753(u)) shall be determined in accordance with the following:

(1) Except as provided in paragraphs (4) and (5), a claimant’s full-time work is determined by reference to the claimant’s base year, as follows:

(i) The total number of hours the claimant worked in the base year for all employers is divided by the number of weeks in the base year in which the claimant worked to determine the claimant’s full-time work.

(ii) If information for only a portion of the base year is available, the formula in subparagraph (i) is applied to the portion of the base year for which information is available to determine the claimant’s full-time work.

(iii) If the claimant’s full-time work cannot be determined in accordance with subparagraph (i) or (ii), the Department may determine the claimant’s full- time work by another method that calculates the average number of hours per week that the claimant worked during weeks in the claimant’s base year in which the claimant worked. (Continued…) 6 added). Therefore, “[f]or a claimant to be regarded as unemployed, he must have, for the weeks in question, been working less than his normal full-time work.” Baldwin-Whitehall School District v. Unemployment Compensation Board of Review, 848 A.2d 1021, 1024 (Pa. Cmwlth. 2004); see also Pennsylvania Unemployment Compensation Handbook at 4 (explaining that “[y]ou are not eligible to receive benefits for any week in which you are working full time”).6

(2) For purposes of paragraph (1), the number of hours that a claimant worked during a week in the base year for an employer in excess of the customary number of hours the claimant worked per week for that employer in the base year is excluded from the determination of the claimant’s full-time work.

(3) For purposes of paragraph (1), if a claimant’s normal work schedule in the base year consisted of multiple week cycles, and the cycle normally included one or more weeks during which the claimant did not work, all weeks in the cycle are deemed weeks in which the claimant worked.

(4) If a claimant voluntarily leaves employment to accept new employment that provides fewer hours of work, the number of hours the claimant customarily works at the new job constitutes the claimant’s full-time work.

(5) If a claimant limits the number of hours per week the claimant will work, that number of hours constitutes the claimant’s full-time work.

(b) For purposes of section 4(u) of the law, if a claimant’s normal work schedule during the benefit year consists of multiple week cycles, and the claimant normally works a different number of hours, which may include zero, during the weeks in the cycle, for each week in the cycle the claimant is deemed to be working the number of hours determined by dividing the total number of hours worked during the cycle by the number of weeks in the cycle.

34 Pa. Code § 65.73.

6 The PA Unemployment Compensation Handbook is published by the Department of Labor and Industry, Publication No. UCP-1 REV 08-13, and is also available online at http://www.unemploymentguru.com/images/stories/pennsylvania%20unemployment%20handbo ok.pdf.

Here, the Board determined, and Claimant did not contest, that he worked forty hours in his first week employed in the laborer position through Staffmark. (FOF ¶ 5.) Claimant also does not contest that his full-time employment in his previous position with RM Thornton, Inc. was forty hours. Therefore, Claimant was not eligible, regardless of whether the position was temporary, for UC benefits for the week in which he worked full-time as a laborer.

Claimant next argues that continuing in the laborer job with Staffmark created a great financial hardship because his wages were less than his weekly UC benefit rate. Therefore, it appears that Claimant is contending that he had a necessitous and compelling reason to quit the laborer position because accepting the position at $10.50 per hour was creating a greater financial burden than if he had not taken the job.

Section 402(b) of the Law provides that a claimant shall be ineligible for benefits for a period “[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .” 43 P.S. § 802(b). “Whether an employee has a necessitous and compelling reason to voluntarily quit employment is a question of law fully reviewable by this Court.” Brunswick Hotel & Conference Center, 906 A.2d at 661. An employee who claims to have left employment for a necessitous and compelling reason must prove that: (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 made a reasonable effort to preserve his employment. Id. at 660.

However, “mere dissatisfaction with one’s working conditions does not constitute cause of a necessitous and compelling nature for terminating one’s employment.” Id. at 660. Therefore, Claimant’s dissatisfaction with his pay does not provide a necessitous and compelling reason to voluntarily quit his job and be eligible for receipt of UC benefits.

Although the position he accepted paid him wages that were less than his weekly UC benefit rate, a claimant’s acceptance of a job creates a presumption that the job is suitable. Spinelli v. Unemployment Compensation Board of Review, 437 A.2d 1320, 1321 (Pa. Cmwlth. 1981). Thus, an employee’s subsequent dissatisfaction with his wages or working conditions neither rebuts the presumption of job suitability nor justifies the employee’s voluntary resignation of employment. Id. at 1321-22. However, a claimant can rebut the presumption of suitability by proving that he was deceived or reasonably unaware of the job conditions when he accepted employment. Miller v. Unemployment Compensation Board of Review, 580 A.2d 920, 921 (Pa. Cmwlth. 1990) (emphasis omitted).

Here, Claimant was aware of the hourly rate offered by Staffmark for the laborer position and he does not contend that he was deceived regarding the rate of pay when he accepted the position. It appears Claimant believed that, when he accepted the laborer position for $10.50 an hour, he would continue to receive UC benefits because the position was temporary and his wages were less than his UC benefits. Unfortunately, Claimant, in his belief, misunderstood the eligibility provisions of the UC Law and the resulting effect on his continuing eligibility by

9 accepting the laborer position through Staffmark. However, Claimant’s misunderstanding of the UC Law does not constitute a necessitous and compelling reason to quit his employment. By voluntarily quitting suitable full-time employment, Claimant is no longer eligible for UC benefits. As such, we are constrained by the Law to affirm the Board’s determination that Claimant did not have a necessitous and compelling reason to quit the laborer position.7

Accordingly, we affirm the Board’s Order.

______RENÉE COHN JUBELIRER, Judge

7 We commend Claimant for his efforts to become gainfully employed and are very sympathetic about Claimant’s unfortunate circumstances in this case and what is surely a most difficult period for him. However, in this case, before accepting the position with Staffmark, Claimant, at a minimum, needed to have sought information about how that decision would affect his UC benefits, particularly given the disparity between what his wages were with his previous employer and what he was offered for the laborer position. For instance, Claimant could have contacted a UC representative to inquire as to whether the position was considered suitable work within the meaning of the UC Law or reviewed the Pennsylvania Unemployment Compensation Handbook. In addition, Claimant should have taken the same course of action before quitting the laborer position because he may have been able to resume his UC benefits once he again became unemployed when the laborer job ended.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffery E. Eakle, Sr., : : Petitioner : : v. : No. 874 C.D. 2013 : Unemployment Compensation : Board of Review, : : Respondent :

O R D E R

NOW, December 6, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.

______RENÉE COHN JUBELIRER, Judge