Opinion
No. 937 C.D. 2012
10-26-2012
Jody L. Becker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Jody L. Becker (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) finding her 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). Section 402(b) of the Law provides that "[a]n employe shall be 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, irrespective of whether or not such work is in 'employment' as defined in this act...."
Claimant was employed as a full-time office associate with Wal-Mart (Employer). On June 27, 2011, Claimant's job was downsized and she was given 60 days to find another job within Wal-Mart. From July 23, 2011, to October 1, 2011, Claimant took a medical leave of absence from her position because her "significant other" had cancer. After Claimant's "significant other" had passed away on November 13, 2011, Employer sent Claimant a letter on November 22, 2011, informing her that her employment may end if she did not contact management within three days. On November 23, 2011 Claimant received a letter from Employer regarding her insurance coverage. On December 2, 2011, Claimant filed an application for benefits. On December 7, 2011, Claimant signed for Employer's November 22nd letter regarding her return to work. Claimant did not contact Employer and she was terminated effective December 14, 2011.
Claimant submitted a claim for benefits alleging that she had been discharged due to downsizing, and the Service Center determined that she was not ineligible under Section 402(e) of the Law because Employer had failed to show that she was involved in the incident that caused her separation from employment. Employer appealed to the Referee, alleging that Claimant had voluntarily quit her employment after failing to return from an approved leave of absence.
43 P.S. §802(e). Section 402(e) of the Law states that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work...."
Before the Referee, Employer's store manager, Nick Cellucci, (Cellucci), testified that he told Claimant that the office jobs were consolidated and that they would try to place her in another position in the store, but that they had to place her within 60 days and that she would be terminated if she wasn't placed after 60 days. Cellucci stated that shortly thereafter, on June 26, 2011, Claimant took a leave of absence until July 25, 2011, and then extended the leave of absence until October 1, 2011. Cellucci testified that when Claimant applied for the leave of absence, Employer's marketing and human resources director told Claimant that they would extend the 60-day period so that Claimant would have an additional 30 days after returning from the leave of absence to find a position. Cellucci testified that, accordingly, he sent Claimant a certified letter on November 22, 2011, explaining that her employment would be terminated if she did not return to work or contact Employer within three days following its receipt. Cellucci testified that Employer also sent Claimant a letter on November 23, 2011, regarding her insurance coverage. Cellucci stated that after Claimant's receipt of the certified letter was confirmed, and because Claimant did not contact Employer following the expiration of her leave of absence or her receipt of the certified letter, Claimant's employment was terminated on December 14, 2011.
The letter was admitted without objection as Service Center Exhibit 4 and states, in pertinent part:
According to our records, your Leave of Absence expired on 10/01/2011. Under the Leave of Absence Policy, the maximum length of a Personal Leave of Absence is one year.(Certified Record (C.R.) Item No. 5 at 3.)
* * *
If you do not return to work or contact a salaried member of management within three (3) days of receipt of this letter, your employment may end. If your employment ends, all associated company benefits will cease. However, you have up to 60 calendar days after your employment ends to elect COBRA coverage and up to 31 calendar days to convert your life insurance. Please feel free to contact me if you have any benefit questions.
Employer's policy regarding returning from a personal leave of absence was admitted without objection as Exhibit E-6 and states, in pertinent part:
Notice of intent to return to work(C.R. Item No. 8 at 23.) Claimant signed a checklist indicating that she received Employer's leave of absence policy and that it was explained to her. (Exhibit E-5; C.R. Item No. 8 at 22.)
* * *
If you are returning to work from personal leave based on reasons other than you own serious health condition you must contact your HR representative one week before you intend to return to work.
Position upon return from personal leave
Except in very limited circumstances when you return from any leave you take under this policy, you are not guaranteed any position including your previous position.
If your position is not available, [Employer] will make reasonable efforts to assist you in applying for open positions that you are qualified to perform based on the facility's needs at the time you return. Your schedule and pay rate will be appropriate to the position offered.
If no positions for which you are qualified are open, you will be granted an extension of your personal leave for up to 30 days to find another position. If you have not obtained another position at the end of that 30 day extension your employment will be terminated. You may reapply for employment at any time.
Bridget Seidler (Seidler), Employer's shift manager, confirmed that Employer's marketing and human resources director had extended the 60-day period to an additional 30 days following Claimant's return from her leave of absence, and that Claimant had not contacted Employer regarding her continued employment. Seidler also testified that Claimant could have applied at her store or at some other store for any position in which Claimant was interested, and that there's always some position open with Employer. However, Seidler acknowledged that Claimant may have been required to accept a new position at a lower pay grade.
Claimant testified that she was paid by Employer during her leave of absence from June until November 2011, based on accrued vacation, sick and personal time, but that she was never told that the 60-day period in which she was required to find another position had been extended to 30 days after her leave of absence expired. Claimant stated that she had tried to talk to management several times after October 1, 2011, but they were either busy or couldn't talk to her and didn't return her calls. Claimant explained that she thought that Employer's insurance letter of November 23, 2011, indicated that she had been terminated. She stated that she did not respond to Employer's November 22, 2011, letter regarding her continued employment because she had already filed a claim for benefits by the time she received the letter on December 7, 2011.
At the conclusion of the hearing, the Referee asked permission of both parties to consider Section 402(b), the provision dealing with voluntary quits and the basis upon which the Employer appealed. (N.T. 2/7/12 at 14.) When Claimant stated that she didn't understand, the Referee explained that he wasn't sure that she had been discharged, whether she may have been laid off, or whether she may have technically quit. (Id.) The Referee also explained that because the Service Center didn't decide her claim under Section 402(b), the case would be remanded for a voluntary quit determination if he wasn't granted permission to resolve the issue in the appeal. (Id. at 15.) When Claimant stated that she would lose her benefits, the Referee explained that there was no guarantee that she would lose under a 402(b) determination because there were a lot of things to be considered based on her testimony and Employer's testimony. (Id.) The Referee stated that he "want[ed] the freedom to consider ... everything from all different angles. Okay?" (Id.) He then asked Cellucci "you have a problem with that," and Cellucci stated "No." (Id.) Claimant offered no objection.
"N.T. 2/7/12" refers to the transcript of the Referee's hearing.
The Referee reversed the Service Center's determination, crediting Employer's evidence that Claimant had voluntarily abandoned her employment and finding Claimant ineligible for benefits under Section 402(b). On appeal, the Board adopted and incorporated the Referee's findings and conclusions and affirmed the Referee's decision, finding Employer's evidence credible. Claimant then filed the instant petition for review.
Specifically, the Referee stated:
In this case, both the claimant and employer testified that her position was downsized. Claimant was offered employment for 60 days and given the opportunity to apply for other positions within Wal-Mart. Claimant instead opted to take leave beginning July 25, 2011 because her "significant other" was suffering from cancer. Claimant's leave of absence ended October 1, 2011. Claimant testified that she tried to contact the employer but was unsuccessful. The employer testified that there was no record of the claimant attempting to contact them. The Referee assigns credibility to the employer. On November 19, 2011, claimant's significant other was buried. On November 23, 2011, the claimant was sent insurance information from the employer. Claimant understood this to be Cobra-related information and therefore felt she was discharged. However, a review of the exhibits signifies to the Referee that the claimant was still considered an employee and covered by the employer's insurance. On November 22, 2011, the claimant was sent a letter informing her that if she did not return to work or contact a salaried member of management within three days of receipt of this letter, her employment may end. Claimant received this letter on December 7, 2011. Claimant did not contact the employer.(Referee's Decision at 2.)
[C]laimant failed to offer a satisfactory reason on why she did not contact the employer by December 12, 2011, after receiving the letter on December 7, 2011. The record also shows that the claimant was actually given to December 14, 2011, in which to appear and to make an effort to return to work. The Referee cannot conclude that the claimant behaved in a reasonable manner. The Referee also acknowledges that the claimant was grieving due to the loss of her significant other. Still, the Claimant has not shown good cause for failure to contact the employer after December 7, 2011.
The Board stated:
[T]he Board credits the testimony of employer that, although it had given the claimant notice of its intention to downsize her position in June of 2011, just prior to her twelve (12) week leave of absence, the employer had given the claimant an additional thirty (30) days upon the expiration of the leave to find another position with the company before eliminating her position. The claimant did not avail herself of this opportunity, nor did she contact the employer after receiving a formal communication offering her to do so. The claimant did not make a good faith, reasonable effort to maintain her employment. Therefore, pursuant to Section 402(b) of the Law, she is ineligible for unemployment compensation benefits....(Board Order.)
In this appeal, Claimant first argues that the Board erred in denying benefits because the Referee changed the issue in the case at the hearing without Claimant's consent. Claimant contends that her benefits should be reinstated because the Referee impermissibly changed the issue from whether Claimant was entitled to benefits due to her discharge for willful misconduct under 43 P.S. §802(e) to whether she terminated her employment for cause of a necessitous and compelling nature under 43 P.S. §802(b).
Our review of the Board's decision is limited to determining whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
34 Pa. Code §101.87 states:
When an appeal is taken from a decision of the Department [of Labor and Industry], the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties , be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby. (Emphasis added).
Here, Employer appealed the Service Center's determination to the Referee on the basis that Claimant had voluntarily terminated her employment, and the notice of hearing issued by the Referee states that both Sections 402(e) and 402(b) would be considered at the hearing. While there was not specific verbal assent on the record, Claimant's failure to object after being asked a second time by the Referee as to whether it was "okay" to consider the provision was sufficient to provide the required approval under this regulation. Additionally, Claimant was afforded every opportunity at the hearing to present evidence regarding the cause of her separation from employment, and she has not alleged any prejudice by the Referee's consideration of Section 402(b) or that she was precluded from offering any other evidence on this issue based on her surprise.
In Sharp Equipment Company v. Unemployment Compensation Board of Review, 808 A.2d 1019, 1025 (Pa. Cmwlth. 2002), this Court seems to suggest that approval is not required for a referee to consider issues not decided in the Service Center's determination, stating that the above regulation "[a]llows the Referee to consider 'an issue,' not just those expressly ruled upon by the [Department]." Additionally, we stated that "[t]he regulation has been interpreted to allow the Referee to consider other issues so long as the claimant is not surprised or prejudiced." Id. We did not rely on that interpretation in arriving at our decision.
Claimant next argues that the Board erred in denying benefits because the Referee did not properly advise her while she was acting pro se at the hearing. Claimant asserts that her benefits should be reinstated because the Referee failed to provide meaningful assistance when he requested permission to consider Section 402(b) in disposing of her claim and that he provided incorrect information regarding the addition of that issue to the proceedings.
With respect to the Referee's actions in this case, the essential elements of due process in an administrative hearing are notice and an opportunity to be heard. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). When presented with an unrepresented claimant, due process requires that the referee be more than usually cautious to insure all relevant issues are examined and the parties have an opportunity to fully present their case. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73, 77 (Pa. Cmwlth. 1985). Moreover, 34 Pa. Code §101.21(a) states that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." (emphasis added). See also Brennan. However, the referee is not required to become nor should he assume the role of a claimant's advocate. McFadden, 806 A.2d at 958. The referee is not required to advise an uncounseled claimant on evidentiary questions or points of law or to show any greater deference to an unrepresented claimant than that afforded to one that is represented by counsel. Brennan, 487 A.2d at 77; Lauffer v. Unemployment Compensation Board of Review, 434 A.2d 249, 251 (Pa. Cmwlth. 1981). Rather, the referee has the responsibility to assist a pro se claimant "[s]o that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits." Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982) (citation omitted and emphasis in original).
The transcript of the hearing shows that the Referee advised Claimant of her rights, allowed her to cross-examine the witnesses and to object to the admission of evidence, and permitted her to present evidence on the issues and to give a closing argument or statement. Contrary to Claimant's assertion, the transcript demonstrates that when the Referee requested permission to consider Section 402(b), he outlined the change in the burden of proof, the elements applicable thereto, and he explained the remand process that would take place if he were denied permission to consider the issue in that appeal. The Referee permitted the facts of the case necessary for a decision to be adequately developed on the record. Moreover, the remedy for a violation of 34 Pa. Code §101.21(a) is remand for a new full and fair hearing and not the award or reinstatement of benefits as Claimant requests. Bennett, 445 A.2d at 260. In short, the Referee conducted the hearing in this matter in a fair and impartial manner as required by 34 Pa. Code §101.21(a).
Claimant next argues that the Referee's Findings of Fact Nos. 3, 10 and 11, which were adopted by the Board, are not supported by substantial evidence. Finding of Fact No. 3 states, "Claimant had an additional sixty days to stay in the office and find another job at Wal-Mart." Cellucci testified that he explained to Claimant that her job was eliminated due to downsizing, but that they were going to try to place her in another position within 60 days, and that if she wasn't placed at the end of the 60 days, her employment would be terminated. (N.T. 2/7/12 at 7.) Cellucci stated that shortly thereafter, on June 26, 2011, Claimant started her leave of absence. (Id.) Additionally, Finding of Fact No. 10 states, "Claimant did not contact the employer." Cellucci testified that Claimant never contacted Employer regarding her return to work. (Id. at 9, 14.) Finally, Finding of Fact No. 11 states, "Claimant was terminated effective December 14, 2011." Cellucci testified that Claimant was terminated effective December 14, 2011. (Id. at 9.) Thus, contrary to Claimant's assertion, all of the foregoing findings of fact are supported by substantial evidence.
"Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is irrelevant whether the record contains evidence to support findings other than those made by the factfinder; the critical inquiry is whether there is evidence to support the findings actually made." Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 404 (Pa. Cmwlth. 2003) (citations omitted). See also Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-1109 (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.").
Finally, Claimant argues that the Board erred in denying benefits under Section 402(b) because she attempted to maintain her employment relationship by repeatedly contacting Employer regarding her return to work. She also asserts that she had necessitous and compelling cause to terminate her employment because her continued employment with Employer would result in a reduction in pay, an unjust demotion, and a transfer to a less-skilled position.
In cases where a claimant is said to have voluntarily quit, this Court must determine 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). This is a question of law subject to our review. Id. It is the claimant's burden to prove that she was discharged as opposed to voluntarily resigning. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). When a claimant voluntarily terminates her employment, that claimant is ineligible for benefits unless she left the employment for necessitous and compelling cause. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). A claimant has failed to meet the burden of demonstrating necessitous and compelling cause where she has failed to take all necessary and reasonable steps to preserve the employment relationship, and a claim for benefits upon the voluntary termination of that employment must be rejected. Id. at 1046-47.
There is substantial evidence supporting the Board's determination that Claimant voluntarily abandoned her employment. There is also substantial evidence to support the Board's determination that Claimant did not have necessitous and compelling cause to terminate that employment because she did not attempt to maintain the employment relationship by contacting Employer at the end of her leave of absence on October 1, 2011. While Claimant testified that she did contact Employer in an attempt to preserve her employment, the Board rejected this evidence as not credible. Likewise, Claimant's assertion that she had necessitous and compelling cause because her continued employment would result in a reduction in pay, an unjust demotion and a transfer to a less-skilled position is entirely speculative because she foreclosed the possibility of continued employment by not timely responding to Employer's letter of November 22, 2011, informing her that her employment may end if she did not contact management within three days. In short, we will not accede to Claimant's request to reweigh the evidence she presented to support her burden of proof that was specifically rejected by the Board as not credible, and the mere fact that it presents a different version of events does not compel reversal of the Board's order.
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1389 (1985); Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). 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. Id. Findings of fact are conclusive on appeal if the record contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). As noted above, the fact that a witness has presented a version of the facts different from that accepted by the Board is not a basis for reversal if substantial evidence supports the Board's findings. Tapco, Inc., 650 A.2d at 1108-09. As the burdened party with respect to establishing necessitous and compelling cause, Claimant had to meet both her burden of production and her burden of persuasion. See Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).
Claimant also contends that there is no evidence of willful misconduct in this case. However, that issue is not relevant or material to our disposition of this appeal because the Board only denied benefits under Section 402(b). --------
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 26th day of October, 2012, the order of the Unemployment Compensation Board of Review, dated April 24, 2012, at No. B-534419, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge