Opinion
No. 1245 C.D. 2011
03-07-2012
Michael D. Baxter, Sr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Michael D. Baxter, Sr. (Claimant) petitions, pro se, for review of the May 9, 2011, order of the Unemployment Compensation Board of Review (Board) affirming in part and reversing in part the decision of a referee that Claimant is ineligible for unemployment compensation benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended 43 P.S. §802(b). Pursuant to section 402(b) of the Law, an employee who voluntarily terminates his employment without a necessitous and compelling reason is ineligible for benefits.
Claimant was employed as a full-time writer for provider communications with Keystone Mercy Health Plan (Employer) from September 2, 1998, to February 24, 2010. (Finding of Fact No. 1.) On February 24, 2010, Claimant was notified that a bench warrant had been issued for his arrest. (Finding of Fact No. 2.) That same day, Claimant contacted Employer and requested a leave for a few days for personal reasons. (Finding of Fact No. 3.) On February 25, 2010, Claimant turned himself in to the authorities and he was incarcerated. (Finding of Fact No. 2.) Claimant contacted Employer on February 28, 2010, and March 1, 2010, to inform Employer that he had been imprisoned and that he was not sure how long he would be incarcerated. (Finding of Fact No. 4.) In March of 2010, Claimant submitted a letter of resignation to Employer and voluntarily quit his job. (Finding of Fact No. 5.) Claimant ultimately was sentenced to a minimum term of 11-1/2 months of imprisonment which began on February 25, 2010, and ended on his release date of January 14, 2011. (Finding of Fact No. 6.)
On February 1, 2011, Claimant submitted a claim for benefits. The local service center determined that Claimant was ineligible for benefits under sections 402(b) and 402.6 of the Law for the waiting week ending February 5, 2011, because he was incarcerated as a result of a conviction and this was not a necessitous and compelling reason for quitting his job. (Certified Record (C.R.) Item No. 3 at 1.)
Added by the Act of October 30, 1996, P.L. 738, as amended 43 P.S. §802.6. Pursuant to section 402.6, an employee is ineligible for benefits for any week during which he is incarcerated after a conviction.
Claimant appealed, and a hearing was conducted before a referee on March 16, 2011. Claimant testified and presented a number of exhibits; Employer did not appear. Claimant testified that he called Employer seeking a leave of absence for personal reasons following his imprisonment because he did not know how long he would be incarcerated. (N.T. 3/16/11 at 4.) Claimant stated that he left Employer a voicemail on February 28, 2010, or March 1, 2010, to inform Employer that he was incarcerated and that he did not know how long he would be in jail. (Id. at 4-5.) Claimant also testified that he only directly contacted Employer once between then and his release from jail and that he submitted a letter of resignation to his immediate supervisor effective April 1, 2010. (Id. at 5-6, 9, 16.) Claimant testified that he submitted his resignation letter because he did not want to be fired for job abandonment. (Id. at 16.)
Claimant's Exhibit 4 shows that on July 16, 2010, he pleaded nolo contendere to one count each of endangering the welfare of children, 18 Pa.C.S. §4304(a), and indecent assault without the consent of the other, 18 Pa.C.S. §3126(a)(1), and that he was sentenced to serve two concurrent 11-1/2 to 23-month terms of imprisonment with a concurrent five-year probationary term. (Exhibit C-4 at 3.). An additional count of corruption of minors, 18 Pa.C.S. §6301(a)(1), was nolle prossed. (Id.)
"N.T. 3/16/11" refers to the transcript of the referee's hearing.
On March 23, 2011, the referee issued a decision affirming in part and reversing in part the service center's determination. (C.R. Item No. 8.) The referee determined Claimant was eligible for benefits under section 402.6, but ineligible for benefits under section 402(b), for the waiting week ending February 5, 2011. (Id. at 2.) Claimant appealed to the Board, which affirmed and adopted the referee's decision. (C.R. Item No. 13.) Claimant then filed the instant petition for review.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
In this appeal, Claimant contends that the Board erred in determining that he was ineligible for benefits under section 402(b) because he made every reasonable effort to maintain his employment with Employer and he was terminated prior to submitting his letter of resignation.
A claimant has the burden of proving entitlement to unemployment compensation benefits. Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810, 815 (Pa. Cmwlth. 1996). In a voluntary quit case, this Court must first decide whether the facts surrounding the claimant's separation from employment constitute a voluntary resignation or a discharge. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). Where a claimant resigns, leaves, or quits employment without any action by employer, that action amounts to a voluntary quit for purposes of unemployment compensation benefits. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 46, 565 A.2d 127, 129 (1989); Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, 772 (Pa. Cmwlth. 1996); Charles. An employer's language must possess the immediacy and finality of a firing to be interpreted as a discharge. Fishel; Charles. Whether a termination is a voluntary quit is a question of law subject to this Court's review. Du-Co Ceramics Company v. Unemployment Compensation Board of Review, 546 Pa. 504, 509, 686 A.2d 821, 823 (1996).
A claimant who voluntarily quits his employment also bears the burden of proving that the termination was caused by reasons of a necessitous and compelling nature. Du-Co Ceramics Company at 546 Pa. at 509, 686 A.2d at 823; Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 356, 378 A.2d 829, 831 (1977). Although the Law does not define what constitutes "cause of a necessitous and compelling nature", our Supreme Court has described it as follows:
"[G]ood cause" for voluntarily leaving one's employment (i.e. that cause which is necessitous and compelling) 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.Taylor at 474 Pa. at 358-59, 378 A.2d 832-33.
In establishing that a voluntary quit was reasonable, a claimant must establish that he acted with ordinary common sense in quitting his job, that he made a reasonable effort to preserve his employment, and that he had no other real choice than to leave his employment. PECO Energy Company v. Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996). If a claimant does not take all necessary and reasonable steps to preserve his employment, he has failed to meet the burden of demonstrating necessitous and compelling cause. Id. Thus, it is well settled that a claimant who terminates his employment to avoid the possibility of being fired has not demonstrated the requisite necessitous and compelling cause. Fishel; Charles; Scott v. Unemployment Compensation Board of Review, 437 A.2d 1304, 1305 (Pa. Cmwlth. 1981).
In Fishel, the claimant was employed by a school district as a long-term substitute teacher. After unsatisfactory performance evaluations, the school district's administrative assistant informed the claimant that she was placed on leave without pay, and that he would recommend to the school board that she be dismissed. The claimant then resigned her position. In affirming the denial of benefits under Section 402(b) of the Law, this Court stated the following, in pertinent part:
Where the employee, without action by the employer, resigns, leaves, or quits employment, that action amounts to a voluntary termination. To be interpreted as a discharge, an employer's language must possess the immediacy and finality of firing. "The degree of certainty in an employer's
language resulting in a termination has often been the difference between those cases in which the Courts have found that an employee's termination was voluntary and those in which the employer's ... act was deemed to effect the termination."Fishel, 674 A.2d at 772 (citations omitted.) This Court also acknowledged a long line of cases holding that an employee who quits work to avoid the possibility of being fired is not entitled to compensation, including instances in which an employee resigned after being informed that the termination of his employment was being "recommended." Id. at 772-73. We noted that "[o]nly when a claimant resigns to avoid an 'imminent' discharge will the separation be treated as a discharge." Id. at 773, n.2.
Moreover, the Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). Thus, issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor 474 Pa. at 355, 378 A.2d at 831. This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn therefrom. Id.
Thus, in this case, the Board was free to weigh the evidence and to credit the evidence supporting the conclusion that Claimant voluntarily quit his employment. Peak. In addition, when viewed in a light most favorable to Employer, portions of Claimant's testimony provide ample substantial evidence supporting the Board's findings in this regard. (N.T. 3/16/11 at 4-5, 5-6, 9, 16.) More specifically, Claimant testified that he submitted his resignation letter to his supervisor because he did not want to be fired for job abandonment. (Id. at 9, 16.) As a result, these findings are conclusive in the instant appeal. Taylor.
It should be noted that in affirming the referee's decision, the Board also found that "[t]he claimant submitted a letter of resignation due to his incarceration after pleading nolo contendere to charges...." (C.R. Item No. 13.) Claimant asserts that this finding is not supported by substantial evidence and the Board concedes that Claimant is correct in this regard. Claimant testified that he submitted the resignation letter effective April 1, 2010. (N.T. 3/16/11 at 9.) Claimant's exhibit indicates that he pleaded nolo contendere to two of the charges on July 16, 2010. (Exhibit C-4 at 3.) Nevertheless, the Board's finding in this regard does not alter its other finding that Claimant had submitted the resignation letter in March of 2010 or its conclusion that he did not have necessitous and compelling reason for submitting the letter. Moreover, the evidence Claimant cites to support the conclusion that he did not voluntarily abandon his employment or that he was terminated does not compel the conclusion that the Board's determination in this respect should be reversed. See, e.g., Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994) ("[T]he fact that Employer may have produced witnesses who gave a different version of events, or that Employer might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's Findings."). --------
These findings support the Board's determinations that Claimant was not fired by Employer and that he voluntarily terminated his employment in anticipation of being fired for job abandonment. Claimant's resignation of his employment for this reason does not constitute cause of a necessitous and compelling nature. Fishel; Charles; Scott. As a result, the Board did not err in concluding that Claimant is ineligible for benefits under section 402(b) of the Law.
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of March, 2012, the May 9, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge