Opinion
No. 2482 C.D. 2011
09-19-2012
Heather A. Halldin, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Heather A. Halldin (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Unemployment Compensation Referee's (Referee) determination that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. § 402(b). Claimant argues, inter alia, that the Board erred in finding her ineligible for UC benefits because she did not voluntarily quit her employment but, instead, involuntarily resigned in lieu of being discharged. Because the Board erred in applying the law to its findings of fact, we reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(b) of the Law provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving employment without cause of a necessitous and compelling nature.
Claimant last worked for TEK Systems Global Services (Employer) on May 6, 2011, the day Employer provided her with a Separation Agreement in which she agreed to terminate her employment. Claimant applied for UC benefits, which the Altoona Service Center (Service Center) denied based on Section 402(b) of the Law. Claimant appealed and the matter was assigned to the Referee for a hearing. Only Claimant appeared at the Referee's hearing and testified.
Based only on the Claimant's testimony and evidence, the Referee made the following findings of fact:
1. For the purposes of this appeal, [C]laimant was last employed with [Employer] as a Proposal Manager from February 3, 2006 until May 6, 2011 at a final bi-weekly salary of $1,460.35.
2. On May 5, 2011, [C]laimant met with management to discuss an involuntary separation of employment.
3. [E]mployer offered [C]laimant a Separation Agreement Package, which she signed on May 6, 2011.
4. The letter of agreement for separation from employment offered [C]laimant the following:
a) Last day of work on Friday, May 6, 2011;
b) Severance Pay of sixteen (16) weeks of regular base pay;
c) Health Insurance coverage for three (3) months through August 31, 2011, or until she obtained other employment that offered health insurance coverage.
5. [C]laimant signed the Separation Agreement Package because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement Package.(Findings of Fact (FOF) ¶¶ 1-5.) The Referee concluded that Claimant did not prove that she had a necessitous and compelling reason for quitting her employment because she "failed to show that there was a lack of suitable continuing work available to her when she signed the Separation Agreement Package or anytime thereafter." (Referee Op. at 2.) According to the Referee, the evidence established that there would be continuing work available to Claimant for at least one month, if not longer, and there was no indication in the Separation Agreement that Claimant's employment would be terminated if she did not sign it. Therefore, the Referee held that Claimant was ineligible for benefits under Section 402(b).
Claimant appealed to the Board. Employer also appealed the Referee's decision stating, in a letter to the Board, that Claimant's discharge was involuntary, continuing work was not available to her, and Employer allowed Claimant to sign the Separation Agreement to avoid having a discharge on her employment record. (Employer's Letter to the Board (August 22, 2011), R. Item 9.) The Board held that Employer was not aggrieved by the Referee's decision and, therefore, could not appeal that determination. Additionally, the Board stated that, because Employer failed to appear at the hearing, it would disregard the allegations Employer made in its appeal letter. The Board then affirmed the Referee's decision and adopted and incorporated the Referee's findings of fact and conclusions of law as its own. In doing so, the Board also stated that it did not credit Claimant's
testimony that she accepted the [S]eparation [A]greement because she was told that her employment would end if she did not. [C]laimant was
not forthcoming in her testimony. In addition, at one point she indicated that she would be laid off if she did not resign, yet at another point she indicated that [E]mployer would create cause and fire her and she would be "persona non grata" if she did not resign. [C]laimant had no evidence to support her assertions.(Board Order.) Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant argues that the Board erred in finding her ineligible for UC benefits because she did not voluntarily quit her employment but, instead, involuntarily resigned in lieu of being discharged. According to Claimant, there was no evidence in the record to contradict her testimony that had she not signed the Separation Agreement, Employer would have discharged her within one month without the benefits offered in the Separation Agreement. Finally, Claimant asserts that being called into her manager's office to discuss her involuntary separation from Employer and Employer presenting her with the Separation Agreement to sign is similar to the facts in Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1208 (Pa. Cmwlth. 2011), wherein we held that the claimant had necessitous and compelling cause to accept a voluntary early retirement package where the employer led the claimant to believe that her position was going to be eliminated.
Claimant further contends that Employer does not contest the UC benefit claim, and the Board should have considered Employer's statements regarding Claimant's separation from employment. However, because of our disposition, we need not address this argument.
The Board acknowledges that a claimant who resigns in order to avoid imminent discharge is considered to be involuntarily separated from her employment, but points out that a claimant who resigns where there is only a possibility of discharge is considered to have voluntarily resigned her employment. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). The Board argues that Claimant could not satisfy her burden of proving either that her discharge was imminent and, therefore, her separation from employment was involuntary or that she had necessitous and compelling cause for voluntarily leaving her employment because the Board did not credit Claimant's testimony, a determination this Court cannot review on appeal.
Section 402(b) provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). "[W]hether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings" of fact made by the Board. Wise v. Unemployment Compensation Board of Review, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). Likewise, the question of whether a claimant had cause of a necessitous and compelling nature for leaving work is one of law and is subject to this Court's review. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012). The claimant bears the burden of showing that she had cause of a necessitous and compelling nature to voluntarily terminate her employment. Latzy v. Unemployment Compensation Board of Review, 487 A.2d 121, 122 (Pa. Cmwlth. 1985). As noted by the Board, a claimant who resigns in order to avoid imminent discharge is considered to be involuntarily separated from her employment, but a claimant who resigns where there is only a possibility of discharge is considered to have voluntarily resigned her employment. Pennsylvania Liquor Control Board, 648 A.2d at 126. The relevant inquiry, under Section 402(b), is whether "'the circumstances surrounding the claimant's voluntary quit indicated a likelihood that fear about the employee's employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well-founded.'" Wright-Swygert, 16 A.3d at 1207 (quoting Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 692 (Pa. Cmwlth. 2003)).
In Wright-Swygert, the claimant became aware that her employer was restructuring and downsizing, was offered a voluntary early retirement package (VERP), and was given 45 days to consider the VERP. Two weeks before the deadline, the claimant was called into her manager's office to discuss whether she would accept the VERP. Although the claimant said she was not going to accept the offer, her manager told her that she should consider taking the VERP and, when the claimant asked if her job was in jeopardy, the manager indicated that her division was being reorganized and he was not sure about his or her job. The manager called the claimant into his office a week later and, again, asked if she was going to take the VERP; claimant indicated that the manager "did not tell her directly, but 'in general' that her job was going to be eliminated." Wright-Swygert, 16 A.3d at 1206. The claimant accepted the VERP, and applied for UC benefits. The Board denied benefits on the grounds that she was not specifically told that she would be laid-off and, therefore, did not establish that her fears about her job being terminated would materialize such that she had a necessitous and compelling reason to quit her employment. Id. at 1207. On appeal we reversed, concluding that the circumstances surrounding the claimant leaving her employment gave her a reasonable belief that she was going to be laid off, particularly being singled out to twice speak alone with her manager about the impending down-sizing in the weeks before the VERP offer expired and being told by her manager that she should seriously consider accepting the VERP and that the situation did not look good. Id. at 1208.
There is no question that the Board's credibility determinations are binding on this Court. City of Pittsburgh, Department of Public Safety v. Unemployment Compensation Board of Review, 927 A.2d 675, 679 (Pa. Cmwlth. 2007). However, as the Board points out in its brief, because the Claimant did not challenge the Board's findings of fact, those findings are conclusive on appeal. (Board's Br. at 5 n.2 (citing Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997)). As noted, in considering whether the Board erred in finding Claimant ineligible for benefits under 402(b), we must determine whether the Board misapplied the Law to the findings of fact. Pennsylvania Gaming Control Board, 47 A.3d at 1265; Wise, 700 A.2d at 1073.
The findings of fact, which must be based on portions of Claimant's testimony that the Board did credit, provide that, "[o]n May 5, 2011, [C]laimant met with management to discuss an involuntary separation of employment." (FOF ¶ 2 (emphasis added).) It was the day after this meeting discussing Claimant's involuntary separation that Employer presented Claimant with the Separation Agreement, in which Employer agreed to pay Claimant severance pay and health insurance for a period of time in exchange for Claimant signing the Separation Agreement and leaving her employment on May 6, 2011. (FOF ¶¶ 3-4.) Finally, finding of fact 5 states that "[C]laimant signed the Separation Agreement . . . because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement." (FOF ¶ 5 (emphasis added).) Notwithstanding these findings of fact, the Board concluded that there was no indication that there would not be continuing work for Claimant had she not signed the Separation Agreement or that Employer would discharge Claimant. Based on these conclusions, the Board found Claimant ineligible for UC benefits.
Otherwise, there would be no evidence in the record to support the findings because Claimant was the only witness who testified before the Referee.
"Severance pay" is defined as "Money (apart from back wages or salary) paid by an employer to a dismissed employee." Black's Law Dictionary 1498 (9th ed.) --------
However, the findings of fact do not support the Board's conclusions of law but, rather, support the contrary conclusion that Claimant's signing of the Separation Agreement and voluntarily leaving her employment on May 6, 2011, was done in anticipation of her imminent involuntary discharge. Like the claimant in Wright-Swygert, Claimant was singled out from her co-workers and called into a meeting with her manager. During that meeting, Claimant and her manager discussed Claimant's involuntary separation from her employment and, the day after, Employer gave her a Separation Agreement to sign. (FOF ¶¶ 2-3.) The Board also found that Claimant signed the Separation Agreement with the belief that, if she did not, she would be discharged within the month without the benefits promised in the Separation Agreement. (FOF ¶ 5.) These findings of fact support the conclusion, as in Wright-Swygert, that Claimant was justified in believing that her discharge from her employment was likely to materialize and that her job was imminently threatened. These circumstances are at least as compelling as those in Wright-Swygert, where the claimant was only warned generally that her division was facing layoffs and that it did not look good. Therefore, we conclude that the Board erred in finding Claimant ineligible for benefits under Section 402(b) of the Law.
Accordingly, the Board's Order is reversed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 19, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge