Opinion
No. 551 C.D. 2011
03-28-2012
Theresa A. Drumheller, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Theresa A. Drumheller (Claimant) petitions for review of the March 18, 2011, order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision and held that Claimant is 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). Section 402(b) of the Law provides that an employee shall be ineligible for compensation for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant worked as a registered nurse at the State Correctional Institution at Graterford (Employer); her last day of work was October 15, 2010. The local job center denied Claimant's application for benefits after determining that Claimant quit her job and did not show a necessitous and compelling reason for doing so. (Reproduced Record (R.R.) at 14a.) Claimant appealed, alleging that she was forced to resign or be terminated.
At a hearing before the referee, Claimant testified that she was interviewed by Lt. William Radle on October 14, 2010, and told that she was under investigation for having an inappropriate relationship with a former inmate. Claimant said she denied having a relationship with the inmate while he was in prison but acknowledged having a relationship with him following his release in March 2010. According to Claimant, Lt. Radle told her that if she did not quit she would be charged with fraternization and terminated for violating Employer's code of ethics. Claimant testified that she resigned before the investigation was completed because she believed she would be terminated prior to the outcome of the investigation based on Lt. Radle's statements. (R.R. at 32a-41a, 59a.)
Lt. Radle testified that, during the course of a different investigation, he received information indicating that Claimant was having a relationship with an inmate. He said that Claimant was suspended pending an investigation but that his investigation into Claimant's conduct was closed once she resigned. Lt. Radle specifically denied telling Claimant that she must quit or be fired. Instead, he stated that he informed Claimant, in the presence of her union representative, that she would not be given all the information that had been gathered during the investigation until it was presented at a pre-disciplinary conference, at which time she could possibly be disciplined and possibly be terminated. (R.R. 43a-50a, 57a.)
Employer also submitted Claimant's letter of resignation into evidence. (R.R. at 63a.)
The referee specifically relied on Lt. Radle's testimony to find that Claimant voluntarily quit her position after being told that a pre-disciplinary conference would be conducted regarding whether Claimant had an inappropriate relationship with an inmate and that the result of the conference may or may not result in discipline up to and including termination. (Findings of Fact Nos. 2-7.) The referee also concluded that Claimant's belief that she could be terminated was not sufficient to establish necessitous and compelling cause for quitting. Accordingly, the referee affirmed the job center's determination that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed to the Board, which affirmed the referee's decision, adopting the referee's findings and conclusions of law. Claimant now appeals to this Court.
Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). "Substantial evidence" is evidence that a reasonable mind might accept as adequate to support a conclusion. Wheelock Hatchery v. Unemployment Compensation Board of Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994).
Claimant first argues that the Board erred in determining that she voluntarily quit her job. In support of this argument, Claimant cites her testimony that she was forced to quit, as well as a document submitted by Employer stating that Claimant "was about to be terminated as the result of an internal investigation." Claimant also contends that the Board erred in concluding that she did not have necessitous and compelling reason for resigning from her employment where she stood to lose all of her pension and all of her earned vacation and sick time. Claimant cites the "Claimant Questionnaire" she submitted, which includes the statement, "I was told that if I did not resign that I would [lose] my pensions and all my vacation and sick time that I earned," (R.R. at 4a), and the appeal form she submitted to the Board, which repeats that assertion, (R.R. at 72a), and she complains that neither the referee nor the Board addressed this evidence. Finally, Claimant specifically challenges Findings of Fact No. 2 (Claimant voluntarily quit her position), No. 6 (Employer informed Claimant that the conference may not result in discipline), and No. 9 (continuing work was available), as unsupported by substantial evidence.
Employer Questionnaire, (R.R. at 9a.) --------
Where a claimant resigns to avoid the possibility of being fired, the separation will be considered to be voluntary; however where a claimant resigns to avoid imminent dismissal, the separation will be considered involuntary. See Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124 (Pa. Cmwlth. 1994); Goffi v. Unemployment Compensation Board of Review, 427 A.2d 1273 (Pa. Cmwlth. 1981); and Small v. Unemployment Compensation Board of Review, 417 A.2d 1301 (Pa. Cmwlth. 1980).
In order to establish entitlement to benefits, a claimant who voluntarily quits her employment bears the burden of proving that she had cause of a necessitous and compelling nature to do so. Carter v. Unemployment Compensation Board of Review, 629 A.2d 212, 215 (Pa. Cmwlth. 1993). To meet that burden, a claimant must demonstrate circumstances that produced real and substantial pressure to terminate her employment which would compel a reasonable person to do the same. Id. The claimant also must establish that she acted with ordinary common sense in quitting and made a reasonable effort to preserve her employment. Id.
It is well settled that, in unemployment compensation proceedings, the Board is the ultimate fact finder, empowered to make all determinations concerning witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The Board's findings are conclusive on appeal where they are supported by substantial evidence. Curran v. Unemployment Compensation Board of Review, 752 A.2d 938 (Pa. Cmwlth. 2000).
Here, the Board properly exercised its prerogative, resolved the conflicts in the witnesses' testimony, and found that Claimant voluntarily quit her employment after being informed that a pre-disciplinary conference might or might not result in discipline. Lt. Radle's credible testimony constitutes substantial evidence that supports the Board's findings, and those findings, in turn, support the Board's conclusion that Claimant is ineligible for benefits pursuant to section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of March, 2012, the March 18, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge