Opinion
No. 1609 C.D. 2011
05-31-2012
Danielle L. Vivas, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Danielle L. Vivas (Claimant) challenges the order of the Unemployment Compensation Board of Review which affirmed the referee's denial of benefits beginning with the compensable week ending February 19, 2011, under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
The Board also affirmed the referee's determination that Claimant was eligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e), for the waiting week ending February 5, 2011, and the compensable week ending February 12, 2011. This award is not before this Court.
1. The claimant was employed as a full-time director of admissions with Mirmont Treatment Center earning
$55,600 per year. The claimant began employment June 7, 2010, and was last employed on January 27, 2011.Referee's Decision, April 8, 2011, (Decision), Findings of Fact Nos. 1-7 at 1.
2. Prior to the claimant's last day of work, the claimant met with the employer several times to discuss her dissatisfaction with objectives and directives.
3. On January 27, 2011, the claimant was informed she was being placed on a restrictive action plan which would prevent the claimant transferring else where [sic] within the health system.
4. The claimant was informed by her manager the restrictive plan would go into effect immediately if the claimant chose to remain employed, however if the claimant left her employment her unemployment would not be contested.
5. The claimant voluntarily left her employment.
6. On January 27, 2011, the employer informed the claimant that January 27, 2011 would be her last day, although the claimant offered to remain for a few weeks to complete projects.
7. The employer did not permit the claimant to stay and let the claimant go on January 27, 2011.
The referee determined:
In the present case, the Referee wishes to note a conflict in the testimony presented by the claimant at the hearing in the matter, and what the claimant indicated on the claim questionnaire and employment separation questionnaire, which were completed by the claimant on February 11, 2011. Specifically, the claimant indicated on the questionnaires that she voluntarily left her employment for personal reasons. Although the claimant contended at the hearing when filing her initial claim for benefits she indicated that she voluntarily left because
she was only given that or discharge as an option, that does not adequately explain why the claimant continued to assert that she voluntarily left employment on hand written statements that she had the opportunity to put whatever she felt was the nature of her separation. Of particular import is also the claimant's admission on the claimant questionnaire that the employer did not tell her she would be discharged if she did not resign, but specifically wrote that she was told she would be placed on a restrictive action plan which would prevent her from transferring to another facility. As such, the Referee rejects the argument made by the claimant and her counsel at the UC hearing that she was discharged from her employment or otherwise did not voluntarily leave.Decision at 2.
Despite the Referee's conclusion above, the Referee does wish to note that it is clear from statements made by the claimant that she was told on January 27, 2011 that that would be her last day, which was contrary to the claimant's statement that she indicated she would stay for a few weeks and complete projects for the department. Therefore, with respect to waiting week ending February 5, 2011 and compensable week ending February 12, 2011, the Referee finds because the claimant has consistently held she wished to remain for a few weeks, which the employer did not permit, those weeks represent a constructive discharge as defined in the court holding above, therefore benefits are granted for those weeks. However, since the claimant did in fact voluntarily leave her employment as this Referee concludes, and as the claimant failed to establish any necessitous and compelling reason for doing so, beginning with compensable week ending February 19, 2011, benefits are denied under Section 402(b) of the Law.
The Board affirmed.
Claimant contends that she should not be denied benefits after a constructive discharge. Claimant asserts that she quit her job because it was clear that she would be fired if she did not resign.
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).
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). A claimant who alleges that she did not quit but was terminated bears the burden of proof. Malloy v. Unemployment Compensation Board of Review, 523 A.2d 834 (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). Here, the focus was on whether Claimant established, to the satisfaction of the Board, that the circumstances surrounding her voluntary quit indicated a likelihood that her fears of job security would materialize, that serious impending threats to her job would be realized and that her belief that her job was imminently threatened was well founded. Staub v. Unemployment Compensation Board of Review, 673 A.2d 434 (Pa. Cmwlth. 1996).
Although Claimant testified that she was asked to leave and would have stayed at her job had it been her choice, Claimant's answers on the Claimant Questionnaire and the Employment Separation Questionnaire told a different story. On the Claimant Questionnaire, Claimant stated that she quit for "Personal Reasons; Unclear objectives and directives constantly changing (Follow this action today, but its [sic] wrong tomorrow) mounting tension & stress from manager causing physical illness. I had no choice due to options listed by my manager." Claimant Questionnaire, February 11, 2011, (Questionnaire) at 1. She checked a box for "No" to the question, "Did your employer tell you that you would be discharged if you did not resign?" She followed that by stating, "He [her manager] told me that I would be placed on a Restrictive action plan which would prevent me from transfer to another facility." Questionnaire at 1.
On the Employment Separation Questionnaire, Claimant stated:
I voluntarily quit due to personal reasons. . . . I was told I was being placed on a restrictive action plan which would prevent my transfer elsewhere in the health system (2 days prior, I had inquired about going to another facility). It would also remain on my record. . . . My manager said this would go into effect immediately 'if you chose [sic] to stay, but if you leave, I will not contest your unemployment.Employment Separation Questionnaire, February 11, 2011, at 1.
The Board accepted this evidence from the questionnaires. The words of a party constitute an admission and may always be used against the party. Evans v. Unemployment Compensation Board of Review, 484 A.2d 822 (Pa. Cmwlth. 1984). The Board accepted the admissions and did not credit Claimant's live testimony. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
The Board did not err when it determined that Claimant voluntarily quit her employment and did not have a necessitous and compelling reason for doing so.
Claimant also asserts that the Board erred because it failed to weigh the evidence properly because her employer, Mirmont Treatment Center (Employer) did not appear. Claimant argues that because Employer did not present any evidence or counter the arguments of Claimant that the Board did not properly weigh the evidence. This argument makes no sense. If anything, having no opposition to her evidence and arguments should have bolstered Claimant's case and not weakened it. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 31st day of May, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge