Opinion
No. 1930 C.D. 2012
06-26-2013
Ursula M. Blazer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Ursula M. Blazer (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) holding her ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit). Claimant asserts the Board erred in determining she did not have a necessitous and compelling reason to separate herself from employment when her employer would not allow her to attend a meeting with her attorney present. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(b).
Claimant worked for Community Services Group (Employer), a mental health services provider, as a full-time support staffer for six years until her last day of employment on October 11, 2011. Claimant applied for unemployment compensation benefits, which the service center approved. Employer appealed. A referee held a hearing at which Claimant, her direct supervisor, and the program director testified. The referee reversed the service center's decision and denied benefits under Section 402(b) of the Law.
Claimant was represented by counsel at the proceedings before the referee and Board.
Claimant appealed to the Board. The Board made the following relevant findings of fact. Beginning October 13, 2011, Employer suspended Claimant pending an investigation into allegations of abuse and neglect. In November 2011, Employer's program director attempted to schedule a meeting with Claimant to discuss returning to work on November 22, 2011. Claimant requested counsel to accompany her to the meeting because she feared she would continue to work in an understaffed worksite and have conflicts with her supervisor. The intended focus of the meeting was to return Claimant to her position for a probationary period at a different worksite, with a different supervisor, with more assistance, for a nearly identical shift. The program director refused Claimant's request to have counsel present at the meeting. Claimant declined to return to work after her suspension because she could not have her attorney at the meeting with the program director.
Based on these findings, the Board concluded Claimant was involuntarily unemployed for the claims weeks beginning October 13, 2011 and ending November 17, 2011, during which Claimant was suspended. Employer did not sustain its burden of establishing the suspension was for willful misconduct in connection with her work pursuant to Section 402(e) of the Law, 43 P.S. §802(e). Thus, the Board awarded Claimant unemployment compensation benefits for these closed weeks. However, the Board determined Claimant was voluntarily unemployed the week ending November 26, 2011, and after, because she refused to meet with the program director without counsel. The Board concluded Claimant did not have good cause for her refusal to attend that meeting and denied benefits under Section 402(b) of the Law on this basis.
On appeal, Claimant contends the Board erred in concluding she is ineligible for benefits pursuant to Section 402(b) of the Law when it found that she did not have a necessitous and compelling reason for wanting her attorney present at the meeting with the program director.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
The Board contends Claimant's brief should be stricken for failure to properly argue any of the issues in the argument section of her brief. In addition to the issue set forth above, Claimant identified four additional issues for consideration, but she did not develop them in her brief. Arguments not properly developed will be deemed waived. Pa. R.A.P. 2119(a); Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998). Although Claimant's brief is lacking in some respects, Claimant sufficiently developed one issue for appellate review. Therefore, we decline the Board's invitation to strike Claimant's brief.
As fact-finder, the Board is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Korpics v. Unemployment Comp. Bd. of Review, 833 A.2d 1217 (Pa. Cmwlth. 2003). The Board's findings are conclusive on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Lee.
Section 402(b) of the Law provides that an employee 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 ...." 43 P.S. §802(b). The issue of what constitutes a necessitous and compelling reason or "good cause" for a voluntary quit under Section 402(b) is a legal question subject to appellate review. Craighead-Jenkins v. Unemployment Comp. Bd. of Review, 796 A.2d 1031 (Pa. Cmwlth. 2002).
An employee who claims necessitous and compelling reasons for quitting must show "(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve her employment." Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).
Further, "[m]ere dissatisfaction with working conditions or resentment of supervisory criticism or a mere personality conflict absent an intolerable work atmosphere ... does not constitute necessitous and compelling reasons for a voluntary quit." Gioia v. Unemployment Comp. Bd. of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995). In short, a claimant must establish she had no other real choice than to leave employment. Malloy v. Unemployment Comp. Bd. of Review, 523 A.2d 834 (Pa. Cmwlth. 1987).
Here, Claimant argues the Board erred in concluding she failed to show good cause for refusing to attend the meeting. Claimant asserts her refusal to attend the meeting without her attorney was justified because she distrusted Employer. The distrust was the result of the Employer's alleged previous targeting of Claimant and suspension for willful misconduct. Additionally, Claimant doubted Employer's sincerity because it did not address her past concerns. These concerns involved work at an understaffed worksite and conflict with her supervisor.
However, the Board accepted as credible the testimony of Employer's program director that the intended focus of the meeting was to discuss the options regarding her return to work. Bd. Op., 8/17/12, at 2; see Referee's Hrg., Notes of Testimony (N.T.), 2/21/12, at 26. The program director testified Employer customarily holds a return to work conference with a suspended employee. N.T. at 25. The program director intended to return Claimant to her position for a probationary period at a different worksite, with a different supervisor, with more assistance, and a nearly identical shift with the same pay and benefits. N.T. at 27-28. The program director and Claimant spoke briefly over the telephone about the purpose of the meeting. N.T. at 27. Claimant was aware a position was available for her, but she did not pursue it once Employer advised her she could not have her attorney present at the meeting. N.T. at 17.
In support of her position, Claimant cites Gettig Engineering v. Unemployment Compensation Board of Review, 473 A.2d 749 (Pa. Cmwlth. 1984). There, the claimant was absent from work due to her allergic reaction to epoxy fumes at her work site. The employer discharged her for excessive absenteeism. At the time of her discharge, the claimant was under her doctor's care and was not released to return to work. The employer offered the claimant another job, but the claimant refused the offer because she received no assurance she would not be exposed to epoxy in the new position and doubted the sincerity of the employer's offer in light of her prior discharge. The Board credited the claimant's testimony. This Court determined the Board did not err in concluding the claimant established good cause for refusing to accept an offer of work.
Claimant's reliance on Gettig is misplaced. Here, the Board credited the program director's testimony that she fully intended to return Claimant to work with her concerns addressed. Moreover, "[C]laimant declined to return to work after her suspension because she could not have counsel at her meeting with the program director." Bd. Op., Finding of Fact No. 8.
The Board asserts the facts of this case are similar to those in Kress v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 634 C.D. 2008, filed Dec. 23, 2008). In Kress, the claimant refused to attend a disciplinary meeting with the employer without having his attorney present, which, combined with other factors, led to his ultimate discharge. The claimant argued his refusal to attend the meeting without having his attorney present was justified because the purpose of the meeting was disciplinary, the employer's counsel would be present, the claimant disputed the allegations against him, and the employer's handbook did not preclude an employee from having counsel at this type of meeting. We rejected this argument, explaining an employee does not have a right to have an attorney present at a disciplinary meeting unless representation is part of a collective bargaining agreement.
A party may "cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent." Section 414 of the Commonwealth Court Internal Operating Procedures. --------
We agree that Kress is persuasive. Here, like in Kress, there is no evidence, and Claimant does not argue, that she was working under an employment contract or a collective bargaining agreement that gave her the right to have legal representation at the meeting. In fact, Claimant acknowledged Employer's policy does not allow third parties into meetings to discuss employment matters. N.T. at 17. Moreover, the meeting was a personnel matter to discuss employment options. There was no threat of disciplinary action or criminal charges. Under the circumstances, Claimant's refusal to meet with Employer was unreasonable and without good cause.
Accordingly, we affirm the decision of the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 26th day of June, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge