Opinion
No. 225 C.D. 2012
02-20-2013
Clover Hill Enterprises, Inc., d/b/a Clover Hill Vineyards & Winery, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Factual Background
Clover Hill Enterprises, Inc., d/b/a Clover Hill Vineyards & Winery (Employer) petitions for review of the January 17, 2012 order of the Unemployment Compensation Board of Review (Board), which reversed a referee's determination and held that Melissa Ripper (Claimant) was not ineligible for benefits pursuant to 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). In relevant part, section 402(b) provides that an employee who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation.
Claimant last worked for Employer as a full-time office manager from September 2007 to March 22, 2011. On March 22, 2011, Claimant began an Employer-approved maternity leave. Before beginning her maternity leave, Claimant told Employer that she intended to return to her position six to eight weeks after the birth of her baby. At the time, John Skrip requested assurances from Claimant that she would return to her job duties and perform them as she did previously. Employer also wanted to know how long she planned to continue working for it after the baby was born. (Board's Findings of Fact, Nos. 1-5.)
The record reveals that Employer has multiple owners with the same last name, including Patricia Skrip, Kari Skrip, and John Skrip. However, their relationship is not entirely clear in the record.
In a February 2, 2011 email to Claimant, John Skrip asked for answers to the following four questions:
1. When will the delivery date be?(Reproduced Record (R.R.) at 69a.)
2. Can you return to work afterwards and handle what you have been doing and what is and was expected of you as far as your job duties?
3. Specifically how long will you be off?
4. Is it your wish to continue working at [Employer] after delivery of the baby? If so, for how long?
Claimant responded to Employer's specific questions by email dated February 8, 2011, which stated in pertinent part as follows:
1. I can only tell you when my due date is, my due date is May 1st....
2. My plan is to return to the same capacity I am working now.(R.R. at 70a.) (Emphasis added). Claimant did not receive a response to this email.
3. ... I plan on being out a total of 8 weeks.
4. Again, my plan is to return to work here.
Claimant's son was born on April 26, 2011. On May 31, 2011, Claimant sent another email to Employer advising that she would like to return to work in the same capacity as before her maternity leave. Specifically, Claimant directed this email to Patricia Skrip. In this email, Claimant noted the conversation she had with Patricia before maternity leave about returning to "work in the capacitly [sic] I was working before I went on leave" and asked if Employer wanted her back. (R.R. at 71a.)
In an email to Claimant dated June 1, 2011, Patricia Skrip acknowledged receipt of Claimant's May 31, 2011 email and asked for more information regarding her situation. (R.R. at 72a.) Claimant responded the next day stating that the situation "remains the same" and that, as they discussed prior to her leave, her "first priority will be [her son] and if he is ill, [she] will be home with him...." Id. On June 11, 2011, after receiving no response from Employer to her June 2, 2011 email, Claimant sent an email to both John and Patricia Skrip noting that she was aware that the schedules had gone out, that she did not receive a schedule, and that she assumed that Employer had made a decision to not have her return. (R.R. at 73a.) If she was incorrect, she asked that Employer respond to her by the following Monday (June 11, 2011, was a Saturday). Id.
Employer replied the next day with a specific offer for Claimant to return to a probationary, part-time hourly sales position, at the rate of $13.00 per hour, 30 hours per week, with performance reviews conducted after three and six months. (Board's Findings of Fact Nos. 8-9.) In such a position, Claimant would no longer be able to participate in Employer's retirement plan or be eligible for paid vacation, because such participation requires working 2,184 hours per year, or approximately 42 hours each week. (Board's Finding of Fact, No. 10.) Employer stated in its email that it is understood "now that you are a mom, that your situation has changed and as you stated in your email, your first priority is your child. With that in mind I am presenting the following regarding return to work at Clover Hill...." (R.R. at 74a.) (Emphasis added.) Employer then outlined the duties of the aforementioned part-time position. Employer did not offer Claimant the option of returning to her prior position in this email.
Claimant responded by email dated June 18, 2011, indicating that her return should be to the same position and that Employer's offer amounted to discrimination because she had a child. Specifically, Claimant's email stated as follows:
I believe that my return to Clover Hill should be exactly what it was before I went on maternity leave. The email you sent to me with the list of stipulations including: my title change, wage change, hour changes and putting me [sic] a probational [sic] period is like you are punishing me for having a child. With all that being said, I believe it falls under [sic] discrimination.(R.R. at 75a.)
By email dated June 20, 2011, Employer denied discriminating against Claimant and alleged that it was simply being "realistic." Employer stated that it "hired [Claimant] ... not ... [Claimant] and her son ...." (R.R. at 59a.) Thereafter, Claimant contacted an attorney, filed a complaint with the Equal Employment Opportunity Commission (EEOC) and, upon the advice of her attorney, had no further contact with Employer. (R.R. at 53a.) Claimant was demoted and essentially quit her job because of the changes in her employment status after her maternity leave. (Board's Findings of Fact, Nos. 11-15.)
Claimant applied for unemployment compensation, and on August 25, 2011, the local job center determined that Claimant was ineligible for benefits pursuant to section 402(b) of the Law. Claimant appealed, and the matter was assigned to a referee.
At the referee's hearing, Claimant appeared pro se and testified to the facts set forth above. Claimant stated she should be allowed to come back to her regular position and denied ever informing Employer that she could not perform her full-time duties as she did before her maternity leave. Instead, Claimant testified that she simply stated in emails to Employer that her son was her first priority and acknowledged that if he was ill, she might miss work "just like ... any mother...." (N.T. at 5, R.R. at 54a.)
Patricia Skrip testified that, prior to her maternity leave, Claimant never mentioned any restraints on her returning to work full-time after the birth of her baby and had informed Employer that she had made child-care arrangements. Ms. Skrip claimed that in emails after her son was born, Claimant for the first time indicated that her child was her first priority and that she would miss work if he became ill, so Employer offered Claimant an hourly position intended as an accommodation for Claimant to allow her "to be able to adjust [sic] this mom period...." (N.T. at 7, R.R. at 56a.)
Claimant asked Ms. Skrip why having a son meant she could not perform her job. More specifically, Claimant asked Ms. Skrip whether she thought "if Claimant didn't have a son it would be okay but because she does and might have to stay home because he is sick, that she cannot do her job to her capacity." Employer replied, "That's correct." (N.T. at 8, R.R. at 57a.) When asked by the referee how the current situation was any different from Claimant herself calling off sick, Ms. Skrip responded that having a child was a "permanent thing." (N.T. at 9, R.R. at 58a.)
John Skrip testified that Employer had hired Claimant, "not [Claimant] and her son ...." (N.T. at 10, R.R. at 59a.) Mr. Skrip stated that Employer would have allowed Claimant to return to her original job but that Claimant altered her own return plans by indicating in emails that she would have to stay home if her son was sick. (N.T. at 10-11, R.R. at 59a-60a.)
When the referee asked Mr. Skrip if Claimant was terminated for having a son because his testimony certainly sounded "like you're telling the Claimant there's now a bar as to [her] continuing in this employment," Mr. Skrip responded "No that's not true. Absolutely not true," but he added that "[n]ow there's a string attached ... if her son is ill." (N.T. at 10, R.R. at 59a.)
By decision and order dated October 26, 2011, the referee affirmed the determination of the local job center that Claimant was ineligible for benefits under section 402(b) of the Law. The referee determined that Claimant voluntarily quit because she was upset with Employer for making suggestions for an accommodation that were unacceptable to her and concluded that Claimant had failed to establish necessitous and compelling cause for quitting her employment.
Claimant appealed to the Board, which reversed the referee's decision and made the following findings:
1. The claimant was last employed as a full-time office manager by Clover Hill Vineyards & Winery from
September 2007 at a final rate of $ 615.38 per week and her last day of work was March 22, 2011.
2. On March 22, 2011, the claimant began an employer-approved maternity leave.
3. Before beginning maternity leave, the claimant expressed her intent to return to her position 6-8 weeks following the birth of her baby.
4. The employer wanted assurances from the claimant that she could return to her job duties and perform them as she did before the baby.
5. The employer wanted to know if the claimant returned to work after the baby was born how long did she plan to continue working for the employer.
6. On or about May 31, 2011, the claimant contacted the employer, advising that she would like to return to work in the same capacity as before her leave.
7. The claimant indicated that she had established child care for her baby, but that if he was very ill, she planned to be home with him.
8. The employer countered by offering the claimant a part-time hourly sales position, at the rate of $13.00 per hour, 30 hours per week.
9. The claimant would be on a probationary period and be reviewed after 3 months and then 6 months.
10. The claimant would not be able to continue her participation in the employer's retirement plan or paid vacation until she was working 2,184 hours each year (approximately 42 hours per week).
11. The claimant responded that the employer's offer amounted to discrimination because she had a child.
12. The employer stated that it was not discriminating against the claimant, but was being "realistic."
13. The employer stated that it hired the claimant, not the claimant and her son, and it could not manage its business operations if the claimant was absent due to her son's illness.(Board's Findings of Fact, Nos. 1-15.) (Emphasis added.)
14. The claimant contacted an attorney and filed a complaint with the Equal Employment Opportunity Commission (EEOC) and was instructed by the attorney to have no further contact with the employer.
15. The claimant did not accept the employer's demotion and quit her job due to the changes in her employment status after maternity leave.
The Board noted that a claimant has necessitous reasons to quit a job where the employer has made substantial and unilateral changes in the terms and conditions of employment. In the present case, the Board described the job offer made by Employer following Claimant's maternity leave as "substantially inferior to her prior position" and an unreasonable modification of her job. (Board's decision at 3.) The Board concluded that transferring Claimant from a full-time position to a part-time, hourly position without the ability to continue to participate in paid vacation and retirement benefits amounted to a demotion and a substantial and unilateral change in employment. Accordingly, the Board concluded that Claimant was not ineligible for benefits under section 402(b).
Discussion
On appeal to this Court, Employer argues that the Board's findings are not supported by substantial evidence. Employer also contends that the Board erred in concluding that Claimant had necessitous and compelling cause to quit, asserting that Claimant failed to exhaust all of her alternatives and failed to make a good faith effort to preserve her employment. Because the Board, as factfinder, is entitled to assess the credibility of witnesses, determine the weight to be accorded evidence and to consider all reasonable inferences deducible therefrom, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), and because an unjustified demotion constitutes necessitous and compelling cause to quit, Allegheny Valley School v. Unemployment Compensation Board of Review, 548 Pa. 355, 697 A.2d 243 (1997), we affirm the Board.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
The mere fact that a claimant voluntarily terminates her employment does not alone act as an absolute bar to receiving unemployment compensation benefits. Allegheny Valley School. In order to be entitled to unemployment benefits, an employee who voluntarily terminates her employment bears the burden of proving that she had cause of a necessitous and compelling nature. Wert v. Unemployment Compensation Board of Review, 41 A.3d 937 (Pa. Cmwlth. 2012). Generally, necessitous and compelling cause exists when there is real and substantial pressure to terminate one's employment that would compel a reasonable person to do so under similar circumstances, Wert, and a claimant must show that she acted with ordinary common sense in quitting, made a reasonable effort to preserve her employment, and had no real choice but to leave her employment. Cowls v. Unemployment Compensation Board of Review, 427 A.2d 722, 723 (Pa. Cmwlth. 1981).
Whether a claimant has necessitous and compelling cause to quit is a question of law subject to appellate review. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977).
A substantial, unilateral change in job duties that renders a job unsuitable may give rise to a necessitous and compelling reason to quit, but only if the job modification is unreasonable. Accu-Weather, Inc. v. Unemployment Compensation Board of Review, 634 A.2d 818 (Pa. Cmwlth. 1993). Moreover, a determination of necessitous and compelling cause in the case of a voluntary termination after a demotion focuses solely on the justification for the demotion and does not consider the general factors set forth above. Allegheny Valley School. Indeed, a demotion premised on an employee's inability to perform his job responsibilities is justified and does not constitute a necessitous and compelling reason to quit. Id.
Employers are entitled to modify the employment specifications with regard to time and place and manner of employment, including tasks assigned to an employee, so long as the employer acts reasonably and in good faith. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 565 A.2d 127 (1989). An employee's mere dissatisfaction with a change in job duties does not constitute a necessitous and compelling reason to quit. Id. Rather, working conditions must substantially change, to the point that voluntary termination is necessary, in order for a claimant to have necessitous and compelling reason to quit. Id.
In the present case, Employer first argues that the Board's findings are not supported by substantial evidence. Employer attempts to contest the chronology of statements by Claimant in emails as warranting a different decision by the Board. Employer asserts that if the Board had properly referenced these emails, it would have correctly viewed Employer's subsequent actions as an attempt to accommodate Claimant's continued employment. However, we cannot agree.
Employer notes that Claimant commented before her maternity leave that she had made arrangements to care for her child but would stay at home if her child became very ill, whereas the Board found these comments were made later, in a May 31, 2011 email from Claimant. Additionally, Employer contends that Claimant's June 2, 2011 email signaled a change in her employment relationship by stating that she will stay home with her child if he is ill, omitting the term "very."
Contrary to Employer's contentions, the Board's findings do not state that Claimant made the "very ill" statement in a May 31, 2011 email. With regard to this email, the Board found that Claimant reiterated her desire to return to the same job she had before her maternity leave. This finding is supported by the record. While the Board does errantly attribute this statement to the May 31, 2011 email in the discussion section of its opinion, we conclude that such error was harmless. We reject Employer's assertion that Claimant's omission of the word "very" in her subsequent email signifies a change in her employment relationship. Rather, in her June 2, 2011 email, a copy of which is included in the record, Claimant indicated that the situation regarding her work remained the same, i.e., she wanted to return to her original job, and, as discussed prior to her maternity leave, she will remain at home if her child is ill. See R.R. at 72a. Hence, Claimant consistently communicated her desire to return to full-time work.
Employer next argues that the Board erred in concluding that Claimant met her burden of establishing necessitous and compelling cause to quit. More specifically, Employer contends that Claimant did not act with ordinary common sense and did not make a reasonable or good faith effort to preserve her employment. We disagree.
Employer again cites Claimant's June 2, 2011 email, contending that it raised concerns regarding Claimant's ability to perform her original job duties to which Employer responded by subsequently offering Claimant what it believed to be a reasonable accommodation. However, a review of the record reveals that Employer manifested concerns for Claimant's work abilities well before the birth of her child, as evidenced in John Skrip's February 2, 2011 email to Claimant. See R.R. at 69a.
Additionally, Employer's assertion that it gave Claimant the option to remain in the full-time position she had prior to taking maternity leave or elect the lower paying part-time, probationary employment is without merit. Significantly, neither the referee nor the Board made any finding that Employer gave Claimant the option to return to her regular position, and the absence of such a finding is consistent with the record. As the email exchanges between the parties demonstrate, despite Claimant's statements that she intended to return to work in the same capacity as before, Employer never gave her any indication that this option would be available to her. Employer only made the offer of probationary part-time employment to Claimant after she prompted it for some kind of response after not having received a work schedule. Moreover, any reference to Claimant having the "option" to resume her former full-time position or to "elect" the clearly inferior terms of the part-time employment are conspicuously absent from Employer's June 12, 2011 email to Claimant, which set forth the terms of the part-time position. Instead, that email makes it clear that Claimant's ability to return to work was conditioned upon her acceptance of those terms.
In an email to John and Patricia Skrip dated June 11, 2011, Claimant stated, in pertinent part:
I know that the schedules would have gone out this past week and since I did not receive one via email, I can only assume that you have made your decision to not have me come back to Clover Hill. If I am incorrect, please get back to me by this Monday.(R.R. at 94a.)
Clearly, the record supports the Board's finding that Claimant had necessitous and compelling cause to leave her employment due to the unreasonableness of Employer's substantial unilateral changes to her position and duties following the birth of her child. Moreover, Claimant's repeated efforts in communicating her desire to return to her job, although to no avail, were reasonable efforts to preserve her employment.
More importantly, in Allegheny Valley School, our Supreme Court expressly adopted what it identified as the "Tune line of cases," citing Unemployment Compensation Board of Review v. Tune, 350 A.2d 876 (Pa. Cmwlth. 1976), and others, and held that the sole consideration for determining whether necessitous and compelling reasons exist for a claimant to voluntarily terminate his employment after receiving a demotion is whether the demotion is justified. In so holding, the court stated that a claimant does not have necessitous and compelling reasons to voluntarily terminate his employment if the demotion was justified, e.g., was the result of the claimant's fault or his inability to perform his job, but that a claimant will have necessitous and compelling reasons to voluntarily terminate employment if the demotion was not justified. Thus, pursuant to Allegheny Valley School and Tune, a claimant who demonstrates an unjustified demotion satisfies her burden to prove necessitous and compelling reason to terminate her employment, and Employer's reliance upon such cases as Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006), is misplaced.
In the present case, the Board found that Employer's accommodation, which included a change in title from office manager to office work and sales, a change in wages from salaried to an hourly rate, a change in hours from full-time to part-time, a probationary period which included work reviews at three and six months, and the loss of her ability to participate in paid vacations and retirement benefits, amounted to a demotion. This demotion was not premised on Claimant's job performance, but rather on the possibility of some future disruptions to Claimant's performance following the birth of her child. The record contains no evidence to support a conclusion that the demotion was justified. Thus, the Board did not err in concluding that Claimant had the requisite necessitous and compelling reason to voluntarily terminate her employment.
Accordingly, the order of the Board is affirmed.
We note that the Board's decision relies primarily on the "substantial and unilateral changes in the terms and conditions" of Claimant's employment, rather than her unjustified demotion. However, the Board's findings equally support the latter, and we affirm the Board's decision on that ground. See Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 669, 916 A.2d 636 (2007) (an appellate court may affirm an agency's decision on other grounds where grounds for affirmance exist). --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 20th day of February, 2013, the order of the Unemployment Compensation Board of Review, dated January 17, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge