CALHOUN JEWELERS LLC v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
Calhoun Jewelers LLC, Petitioner,
v.
Unemployment Compensation Board of Review, Respondent.
No. 2081 C.D. 2009.
Commonwealth Court of Pennsylvania.
Submitted: February 26, 2010.
Filed: April 20, 2010.
Before: McGINLEY, Judge; BROBSON, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Calhoun Jewelers, LLC (Employer) petitions for review from the order of the Unemployment Compensation Board of Review (Board) which reversed the referee's denial of benefits under Section 402(b) of the Unemployment Compensation Law (Law) [ 1 ] and granted benefits to Trista Reichman (Claimant).
The facts as found by the Board are as follows:
1. The claimant was last employed with Calhoun Jeweler's as a part-time sales associate, thirty hours per week, at a pay rate of $12.00 per hour. The claimant was employed from July 5, 2006 and her last day of work was April 11, 2008.
2. The claimant is a Jehovah's Witness and so advised the employer at the time she was hired.
3. It is against the religious beliefs of Jehovah Witnesses to celebrate Christmas, holidays or birthdays.
4. The claimant's religious beliefs prohibited the claimant from celebrating or having an active involvement in Christmas, holidays or birthdays.
5. The claimant did type out a birthday list for the employer and did list her birthday on the list.
6. Jehovah Witnesses acknowledge that there are legitimate business reasons to share their birthdays with their employers.
7. The claimant did not sing when the employer celebrated birthdays for employees at work.
8. The claimant did eat food that was brought into the workplace for employees to eat for their birthdays.
9. However, the claimant did not eat birthday cake.
. . . .
12. The employer asked the claimant to make a word template for the employer to send birthday cards and anniversary cards to clients, advertising the employer's business; the claimant complied with the employer's instructions.
13. The employer asked the claimant to write out a personal message on the anniversary cards and the birthday cards.
14. The employer did not ask the claimant to sign her name to the cards.
15. The claimant told the employer she would write the anniversary cards, but would not write out the birthday cards.
16. The employer asked the claimant to explain why she would not write out the birthday cards; the claimant said she could not do it because it violated her religious beliefs.
17. The employer told the claimant she needed to make a choice; the employer did not discharge the claimant.
18. The claimant shook hands with the employer, said I've enjoyed working for you, and voluntarily left the job.
19. Continuing work was available.
Board Decision, September 23, 2009, (Decision), Findings of Fact Nos. 1-9 and 12-19 at 1-2; Reproduced Record (R.R.) at 43a-44a.
The Board determined that Claimant established that she had cause of a necessitous and compelling nature for voluntarily quitting her employment:
The claimant is a Jehovah's Witness. The claimant's sincere religious beliefs prohibited her from celebrating birthdays. The claimant did not want to write personal notes in birthday cards to clients because of her religious beliefs. The Board concludes that the claimant had good cause for her refusal to write personal notes in birthday cards[:] her religious beliefs. Therefore, the claimant had good cause to quit her employment pursuant to Section 402(b) of the Law.
Opinion at 3; R.R. at 45a.
Employer contends [ 2 ] that the Board erred when it determined that Claimant had shouldered her burden of proving that she had a necessitous and compelling reason for terminating her employment. [ 3 ]
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
In Monroe v. Unemployment Compensation Board of Review, 535 A.2d 1222 (Pa. Cmwlth. 1988), this Court addressed the framework for a determination as to whether sincerely held religious beliefs conflict with job duties:
The First Amendment right to the free exercise of religion applies to a sincerely held religious belief, and we do not believe that this right is limited only to beliefs held by members of established religions. . . . Accordingly, an actual conflict between one's sincerely held religious beliefs and his or her employment conditions may constitute cause of a necessitous and compelling nature for voluntarily terminating employment. . . . .
. . . .
If it is determined that beliefs are sincerely held, then it must also be established that those beliefs are religious in nature. . . . (Emphasis in original) (Citations omitted).
Monroe, 535 A.2d at 1224-1225.
Here, it is undisputed that Claimant was a Jehovah's Witness. Claimant explained at the hearing before the referee that she believed that "many of the origins of birthdays are linked with false worship, even such things as birthday greetings, as happy birthday are linked with false worship of gods." Notes of Testimony, September 18, 2008, (N.T.) at 11; R.R. at 12a. Further, John Schankweiler (Schankweiler), an elder in the Jehovah's Witness faith, testified regarding the tenets of this religion concerning birthdays. This Court finds no error in the determination that Claimant was a Jehovah's Witness and, as a Jehovah's Witness, she had sincerely held beliefs concerning the celebration of birthdays.
The Court must then focus on whether these sincerely held religious beliefs were in conflict with Claimant's employment conditions.
At the hearing before the referee, Claimant testified regarding the birthday cards:
It started that they had a new policy that they were going to start sending birthday cards and anniversary cards to clients. About a month before my employment ended I was asked to make a Word Template out of Microsoft Word for the cards, for both anniversary and birthday cards. It involved switching around margins on a Microsoft Word document, and I just typed in a general statement for both the anniversary and the birthday cards, and then I printed them out onto . . . the Calhoun Jewelers stationery. And then I was told by Patrick Young, the goldsmith, that when the cards were to be written, to keep an eye on who the clients were so personal messages could be written inside to personalize the cards.
. . . .
I didn't mind — I understood that the cards were for a general advertisement for the company, but when it came to personally writing the cards, that's when it was putting my own thoughts and my . . . own handwriting inside the cards, and that's where my conscience drew the line. I knew that because I don't celebrate birthdays as one of Jehovah's Witnesses, that it would be displeasing to my god if I were to do that.
N.T. at 7; R.R. at 8a.
Claimant also testified that she talked to Michael Lamiaux (Lamiaux), Employer's sales manager, and explained why she would not write the cards:
He asked me why I wouldn't write the birthday cards as well as the anniversary, and I said that I don't celebrate birthdays, so I wouldn't be comfortable writing them. And then he said that it was ridiculous because I wasn't signing my name to them, they were for the store, and they weren't from me. And I said still that I would not feel comfortable writing them. And he pushed it further, and I said but I still will not write those cards.
N.T. at 9; R.R. at 10a.
On cross-examination, Claimant denied that she was told to write "stop in for a jewelry cleaning." N.T. at 14; R.R. at 15a. Also, on cross-examination, Claimant admitted that she sold people jewelry for birthdays and Christmas and that on certain occasions she wrapped the presents. N.T. at 22; R.R. at 23a. She further admitted that the card [ 4 ] was an advertising card. N.T. at 15; R.R. at 16a.
On cross-examination, Schankweiler reviewed an example of the birthday card and was asked whether he considered it a birthday card or a solicitation to come in to Employer's store, he replied, "Well to me it would obviously be both. They are saying happy birthday, Calhoun Jewelers." N.T. at 25; R.R. at 26.
Lamiaux testified that cards were not personal, because I understand where her beliefs were, because we've discussed that. I said you're not signing your name. I'm not asking you to sign it, Love Trista or to their name personally, Mr. John or whoever it [sic] they're sending it to; all I'm asking is to write on that come in and clean your jewelry.
N.T. at 35; R.R. at 36a.
Employer asserts that Claimant failed to establish what kind of message Employer wanted her to write on the card and whether she was required to put her own thoughts on the message. Employer also asserts that Claimant did not explain how writing a "canned message" would be offensive to her religious beliefs and that she failed to act with common sense and make reasonable efforts to preserve her employment.
While this Court is cognizant of Claimant's religious beliefs, this Court does not agree with the Board. It is Claimant's burden to demonstrate that she had a necessitous and compelling reason for quitting her employment based on her sincerely held religious beliefs. Claimant established that she had sincerely held religious beliefs. However, the Board erred when it determined that the writing of a "personal message" on the card violated Claimant's religious beliefs when Claimant failed to describe the "personal message." Claimant had the opportunity to articulate what the message was that she was instructed to write and to establish how that violated her religion, but she failed to do so. Further, although Claimant testified that Patrick Young (Young), the goldsmith, instructed her to write personal messages on the cards, she did not establish whether Young had supervisory authority over her or was just making a suggestion. Claimant admitted that she prepared the card on the Microsoft Word template and that she sold jewelry for birthday gifts and wrapped the gifts. With regards to the birthday cards, even Claimant and Schwankweiler admitted that they were used for advertising. Claimant failed to establish how her job duties conflicted with her sincerely held religious beliefs. Consequently, she failed to establish a necessitous and compelling reason for quitting her employment. [ 5 ]
Accordingly, this Court reverses.
ORDER
AND NOW, this 20th day of April, 2010, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed.
1. Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). 2. This Court has foregone the sequence of Employer's arguments. 3. This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact are not supportedby substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). 4. A sample of a birthday card was introduced into the record. The card contained the printed words, "Wishing you a Happy Birthday from Calhoun Jewelers." Handwritten beneath that were the words, "stop in and have us clean and polish your jewelry." The parties stipulated that Claimant did not write that. 5. This Court need not address Employer's remaining argument that Finding of Fact No. 13: "The employer asked her to write out a personal message on the anniversary cards and birthday cards" was unsupported by substantial evidence. source: http://www.leagle.com/unsecure/page.htm?shortname=inpaco20100420485#js-CommentsAnchor