Opinion
No. 1775 C.D. 2014
04-17-2015
Rudolph J. Maier, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Rudolph Joseph Maier (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's determination that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law). The Board modified the referee's determination of a fraud overpayment of federal additional compensation benefits under Section 4005(a), (b), and (c) of the Emergency Unemployment Compensation Act of 2008 (EUC Act), 26 U.S.C. §3304 note and determined that there was a non-fraud overpayment.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Sections 4005(a), 4005(b), and 4005(c) of the EUC Act of 2008, 26 U.S.C. §3304 note, provide:
(a) In general.- If an individual knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such false statement or representation or of such nondisclosure such individual has received an amount of emergency unemployment compensation under this title to which such individual was not entitled, such individual-
(1) shall be ineligible for further emergency unemployment compensation under this title in accordance with the provisions of the applicable State unemployment compensation law relating to fraud in connection with a claim for unemployment compensation; and
(2) shall be subject to prosecution under section 1001 of title 18, United State Code.
(b) Repayment.- In the case of individuals who have received amounts of emergency unemployment compensation under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such emergency unemployment compensation to the State agency, except that the State agency may waive such repayment if it determines that-
(1) the payment of such emergency unemployment compensation was without fault on the part of any such individual; and
(2) such repayment would be contrary to equity and good conscience.
(c) Recovery by state agency.-
(1) In general.- The State agency may recover the amount to be repaid, or any part thereof, by deductions from any emergency unemployment compensation payable to such individual under this title or from any unemployment compensation payable to such individual under this title or from any unemployment compensation payable to such individual under any State or Federal unemployment compensation law administered by the State agency or under any other State or Federal law administered by the State agency which provides for the payment of any assistance or allowance with respect to any week of unemployment, during the 3-year period after the date such individuals received the payment of the emergency unemployment compensation to which they were not entitled, except that no single deduction may exceed 50 percent of the weekly benefit amount from which such deduction is made.
(2) Opportunity for hearing.- No repayment shall be required, and no deduction shall be made, until a determination has been made, notice thereof and an opportunity for a fair hearing has been given to the individual, and the determination has become final.
The facts, as found by the Board, are as follows:
1. The claimant was last employed by Prime Engineering as a full-time coating inspector, earning approximately $31 per hour from late January 2013, through his last day of work on October 28, 2013.
2. The claimant was notified by the employer that the job would take a year and a half to complete.
3. The claimant signed a lease agreement that would expire on October 31, 2013.
4. The claimant paid his mother-in-law to watch his children since January 2013.
5. The claimant's spouse could not watch his children because she worked as a nurse on the swing shift.
6. The claimant was notified by a job site supervisor that the location was switching over, and the trailers will be gone.
7. The supervisor did not notify the claimant of any time frame.
8. The claimant's apartment lease ended on October 31, 2013.
9. The claimant decided to not use his per diem to pay for a hotel room.
10. The claimant also decided not to commute to Maryland.Board Opinion, August 13, 2014, (Opinion), Findings of Fact Nos. 1-14 at 1-2.
11. The claimant and the employer had subsequent discussions, and the claimant decided to voluntarily quit on October 31, 2013.
12. Continuing work was available to the claimant at the time of his resignation until December 31, 2013.
13. The claimant was aware that he voluntarily quit from his employment, but notified the unemployment authorities that he was separated due to a lack of work because work was not available to the claimant after December 31, 2013.
14. The claimant received EUC benefits for the weeks at issue.
The Board determined:
In the present case, the claimant should have been aware of the work conditions in his line of work when he accepted the position. While the Board commends the claimant's decision to care for his children, this is solely a personal decision in this case. The Board specifically finds that the claimant voluntarily resigned because his lease agreement was ending on October 31, 2013, along with his speculation that no further work would be available. There was no testimony from the claimant that the employer ever specifically informed him of an end date. The claimant's reasons for voluntarily resigning do not rise to the level of necessitous and compelling under the Law. Therefore, the claimant is ineligible for benefits under Section 402(b) of the Law until December 31, 2013, because his employment was scheduled to end on that date. After December 31, 2013, continuing work was not available to the claimant.
. . . .
Since the Board has found that the Claimant is ineligible for the EUC benefits that he received, an overpayment must be established. A non-fraud overpayment is established under the provisions of the EUC Act of 2008.Opinion at 3-4.
Claimant contends that he did not voluntarily quit, that even if he did voluntarily quit, he was entitled to benefits, and that he did not receive a non-fraud overpayment that was subject to recoupment.
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 findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Initially, Claimant contends that he did not voluntarily quit his job because the contract had run out of funds to support his position. He asserts that there was no work for him to do because the contractor completed the work he was hired to inspect.
In an oral interview, Dave Beaulieu (Beaulieu) of Prime Engineering (Employer) was asked by the Unemployment Compensation Office Representative "Was Rudolph [Claimant] laid off or did he voluntarily quit?" Record of Oral Interview, February 20, 2014, (Interview) at 1. Beaulieu responded, "He voluntarily quit. With that said, the budget that we had for him was almost expired. It had about 2 months left on it. After that the job would have ended." Interview at 1. At the hearing, the referee submitted into evidence the Interview without any objection by Claimant.
When the referee asked Claimant whether he was discharged, quit, or left employment for some other reason, Claimant answered:
I was well aware that the funds for my side of the project had run just about out. The contractor that I was scheduled to look after was gone, and there was nothing for me to currently do, and it came down to a matter of time, and whether that day my supervisors were going to walk in the office and say, we no longer need you, and you can leave, or somebody else was going to make the decision at some point very shortly. So, due to the multitude of circumstances that led to that being the final day of employment, everybody was pleased with the work that I had provided, and was happy to see me go, and wished me the best of luck, as I was no longer needed.Notes of Testimony, April 4, 2014, (N.T.) at 5-6.
In an exchange of emails with Beaulieu that Claimant submitted into evidence, Claimant stated:
Work here is starting to lighten up on my end. The contract I was hired for is coming to a close by the end of October; also there has been an influx of inspectors that are more than capable or [sic] handling the work load for the upcoming winter season. It has come to my attention that my services would not be fully required over the winter season. My last day of employment here will be Oct 31 and I believe I leave this place in good standing.Email from Claimant to David Beaulieu, October 14, 2014 at 1.
Claimant further admitted that he quit his employment though it was due to "lack of work." N.T. at 14.
At a subsequent hearing, Claimant testified that there was no work available for him as a coating inspector at the job site when he left his employment. Notes of Testimony, June 18, 2014, at 3.
While Claimant asserts in his brief that he did not voluntarily quit his job, the statement by Beaulieu and Claimant's own testimony provide substantial evidence for the Board's determination that Claimant voluntarily quit his job with Employer.
Claimant next contends that, assuming he did voluntarily quit his job, he had a necessitous and compelling reason for doing so.
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). Where an employee resigns, leaves, or quits without action by the employer, the action amounts to a voluntary termination. Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 561 (Pa. Cmwlth. 1979). 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). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982). A claimant must make a reasonable effort to preserve his employment. Platz v. Unemployment Compensation Board of Review, 709 A.2d 450 (Pa. Cmwlth. 1998).
Claimant argues that he quit his job because the task for which he was hired as a coating inspector for the bridge was complete. He acknowledged that he was not told by Employer or anyone on-site at the bridge project that he should leave. The Board found that he did have at least one conversation with a supervisor for the contractor at the job site that the trailer where he worked would be moved to a different location but that the supervisor did not provide him with a definite time frame.
A claimant who seeks unemployment compensation benefits on the basis of having a necessitous and compelling reason for quitting his job must take reasonable steps to preserve his employment. The fact that Claimant quit without knowing when either his Employer or the contractor for whom he worked at the job site no longer required his services does not support a determination that he attempted to preserve his employment. The Board specifically found that Claimant quit before Employer informed him of an end date for his job. Claimant's testimony supported that determination, and he does not attempt to refute it in his brief.
Further, the Board specifically found that Claimant quit because his lease agreement on the apartment he rented near the job site expired on October 31, 2013, along with his speculation that his job would soon come to an end. Claimant argues that he had to leave by October 31, 2013, and return home because of child care considerations. Claimant's wife was pregnant at the time and worked as a registered nurse in the Holy Spirit Hospital Intensive Care Unit. Claimant asserts that because of her irregular schedule which involved some work in the day, some at night, and some on weekends as well as holidays, traditional day care was impossible. As a result, his mother-in-law came from Bulgaria to help care for the children. She was originally supposed to return to Bulgaria in January 2013 and then return in April. However, Claimant began work in January 2013, and he paid his mother-in-law to stay and care for the children. Claimant argues that when his mother-in-law returned to Bulgaria, he had to come home to care for the children. Also, because it would take approximately two and one-half hours to commute from his residence to the job site, commuting was not an option.
In Cedeno v. Unemployment Compensation Board of Review, 524 A.2d 1075 (Pa. Cmwlth. 1987), Lisa Cedeno (Cedeno) was employed as a bank teller as a summer replacement. Cedeno had four children ages two, four, six, and nine. The three older children attended various summer camps and returned home at approximately 4:30 p.m. The youngest child was under the care of the sitter. Because of a new teller system, Cedeno's work day ended at 5:00 or 5:30 p.m. rather than 4:30. As a result, Cedeno's children arrived home before she did. Cedeno discussed the situation with her employer who informed her that as her settlement time improved her work hours would be shorter. Cedeno quit her job with Dauphin Deposit Bank without exploring any alternative arrangements for the care of her children. The Board denied Cedeno benefits. This Court affirmed on the basis that Cedeno did not have a necessitous and compelling reason for quitting her job because she made no effort to make alternative child care arrangements. Cedeno, 524 A.2d at 1076-1077.
As in Cedeno, Claimant failed to explore any alternative child care options. The Board did not err when it determined that Claimant did not have a necessitous and compelling reason for quitting his job.
Finally, Claimant contends that he did not receive a non-fraud overpayment that was subject to recoupment. Though he listed this issue in the Statement of Questions in his brief, the Board argues that he failed to contest the non-fraud overpayment.
This Court disagrees with the Board. Though the argument section of Claimant's brief is not well organized, he does state that the Board could not determine that Claimant had exactly two months left of work based on Beaulieu's comment that "the budget that we had for him was almost expired. It had about 2 months left on it. After that the job would have ended." Interview at 1. The Board determined based on that statement that Claimant would have had two more months of work for which he received a non-fraud overpayment of unemployment benefits subject to recoupment. While the statement is not precise, this Court determines that it provides substantial evidence for the Board's determination.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 17th day of April, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge