Opinion
No. 2126 C.D. 2011
07-13-2012
David Carr, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
David Carr (Claimant) petitions for review from the order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision to deny Claimant unemployment compensation (UC) benefits under Section 402(b) of the Unemployment Compensation Law (Law). Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant worked as a housing director for Community Youth and Women's Alliance (Employer) until his separation from employment. Following his separation, Claimant applied for benefits, which were initially denied by the local UC Service Center. Claimant appealed to a referee.
The referee held a hearing at which Claimant and two Employer witnesses testified. The referee made the following findings.
Claimant was in charge of a project involving federal stimulus funds where Employer purchased five homes in Chester County, renovated them, and sold the renovated homes to individuals who would otherwise not be able to purchase a home. Bd. Op., 10/19/11, Finding of Fact (F.F.) No. 2. The closing of two of the properties was scheduled for September 30, 2010. F.F. No. 4.
Claimant scheduled vacation for September 27, 28, 29 and 30, 2010. He first requested leave from Employer's Executive Director on September 21, 2010. She denied the request. Claimant then wrote a letter regarding his interaction with the Executive Director about his request. In the letter, Claimant represented the Executive Director advised him that if he took vacation, his employment would be terminated, or he could submit his resignation. Claimant also requested a formal verification in writing of his employment status and stated he had no reason to submit his resignation.
In a written response, Employer informed Claimant that it could not approve his request for time off because Claimant did not have sufficient vacation time remaining for 2010. In addition, Employer explained Claimant's attendance at work was critical at that time because he was running the housing project. F.F. No. 6. Employer advised "[C]laimant that he had several choices ... come to work as scheduled, resign or be terminated if he took the time off." F.F. No. 7.
Claimant met with Employer regarding his vacation request again on September 23, 2010. Employer reiterated its denial of Claimant's vacation request. Claimant did not report for work on September 27, 28, 29 and 30, 2010 because he went on his cruise. He booked the cruise approximately four months before requesting leave. Based on these findings, the referee determined Claimant voluntarily terminated his employment. F.F. No. 14. The referee denied benefits pursuant to Section 402(b) of the Law. Claimant appealed.
The referee also found a no-fault overpayment in the amount of $1,500. As the overpayment is not here at issue, we shall not address it.
Claimant filed his appeal of the referee's decision late, alleging he did not receive it before the 15-day appeal period lapsed. Initially, the Board dismissed the appeal as untimely. However, the Board reconsidered its dismissal and remanded for a hearing on timeliness. At the timeliness hearing, Claimant and his wife testified regarding non-receipt of the referee's decision. Based on the testimony, the Board allowed the appeal and considered the merits.
The Board affirmed the decision and adopted the facts found by the referee. The Board found the testimony presented by Employer credible.
Claimant filed a petition for review to this Court. Claimant contends he did not quit; rather, he was fired for requesting time off for his pre-paid vacation.
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 responds that its findings regarding Claimant's voluntary quit are supported by substantial evidence; thus, they are binding on appeal. In the alternative, the Board argues Employer could have terminated Claimant for willful misconduct based on his insubordinate insistence on taking a cruise without pre-approval.
Claimant bears the burden of proving his separation was involuntary. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855 (Pa. Cmwlth. 2004). An employee's failure to take all reasonable steps to preserve employment results in a voluntary termination. Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051 (Pa. Cmwlth. 2012). When a claimant's conduct is not consistent with a desire to remain employed, we hold that he has in effect voluntarily quit. Id.; Check v. Unemployment Comp. Bd. of Review, 423 A.2d 1140 (Pa. Cmwlth. 1981).
An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. Petrill v. Unemployment Comp. Bd. of Review, 883 A.2d 714 (Pa. Cmwlth. 2005). Good cause for voluntarily leaving one's employment results from circumstances that produce pressure to terminate employment that is both real and substantial and that would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Auth. v. Unemployment Comp. Bd. of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
Claimant contends he lacked the requisite intent to quit because he refused to resign. He argues that Employer told him he could resign, or have his employment terminated, or he could work the four days at issue. As he did not resign or work during that time, he asserts Employer essentially terminated his employment. Claimant's view is not consistent with the record evidence which supports the Board's determination.
While Claimant contends he had no intent to quit his job, the circumstances contradict him. Claimant was fully aware that Employer did not approve his leave. Referee's Hearing, Notes of Testimony (N.T.), 12/15/10, at 5. He was also aware that he provided short notice and did not have sufficient leave time to take the trip. Id. at 6-7. Claimant knew that Employer deemed critical his participation in the closings planned for projects he oversaw, and that two closings were supposed to be held on September 30, 2010, the last day of his unapproved vacation. Id. at 6. Based on the totality of these circumstances we must hold Claimant "neglected to take the precautions which a reasonably prudent person would have taken to preserve [his] job." Check, 423 A.2d at 1141.
It cannot be said here that Claimant made any reasonable effort to preserve his employment. Claimant's decision to take four days of leave, which were not approved by Employer and at a time Employer considered critical, was in effect a decision to leave his job. Thus, under these circumstances his actions manifest the requisite intent. Id.; Porter v. Unemployment Comp. Bd. of Review, 434 A.2d 245 (Pa. Cmwlth. 1981) (conduct tantamount to voluntary termination is sufficient; an express resignation is unnecessary).
Moreover, Claimant bears the burden of showing that he voluntarily quit for a necessitous and compelling reason. Spadaro. A pre-paid vacation does not constitute a necessitous and compelling reason for leaving employment. See Wing v. Unemployment Comp. Bd. of Review, 426 A.2d 198, 200 (Pa. Cmwlth. 1981) (where requested vacations are denied and a claimant is notified that taking time off will result in discharge, the resulting separation is voluntary); see also Schwarzenbach v. Unemployment Comp. Bd. of Review, 387 A.2d 519 (Pa. Cmwlth. 1978) (taking unauthorized leave indicates voluntary termination).
In sum, the Board properly concluded Claimant voluntarily quit without a necessitous and compelling reason to do so. As such, Claimant is not eligible for benefits. Therefore, we affirm.
The Board argued, in the alternative, that Claimant's employment was properly terminated for willful misconduct. As we affirm the Board's decision on voluntary quit, we do not address this issue. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of July, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge