Opinion
No. 551 C.D. 2013
10-31-2013
Cuthbert L. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Cuthbert L. Johnson (Claimant), pro se, petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that he is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (the Law) because he voluntarily quit his job without a necessitous and compelling reason. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. § 802(b). Section 402(b) provides, in relevant part, that "[a]n employe 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 ...." Id.
The facts found by the referee and adopted by the Board concerning Claimant's employment with Youth Advocate Programs, Inc. (Employer) and his separation from that employment are as follows:
1. The Claimant was last employed by Youth Advocate Programs as a part-time therapeutic support staff person working between 20 and 25 hours per week and earning $14 per billable hour, and $7.25 per hour for any other issue, with his first day of work September 12, 2011, through his last day of work on June 7, 2012.
2. The Claimant was aware when he was hired that the program in general ran during the school year, and the Claimant was assigned two particular clients during the school year.
3. The Employer had discussions with and sent written notice to the Claimant that he should contact Human Resources if he wanted to have additional hours during the summer.
4. The Claimant was notified that the school year was ending effective June 7, 2012, and the two clients he was responsible for did not require support during the summer.
5. The Claimant did not contact anyone in HR to request additional hours beyond his two assigned clients.
6. The Claimant notified his supervisor that he was moving back to Ohio, and his final paycheck should be sent to an Ohio address.
7. The Claimant did not subsequently contact the Employer until August 2012, to request hours were available for the following school year.
8. The Employer notified the Claimant at that time that they considered him to have voluntarily quit because he left the area during the summer, and had not requested any further hours since June 2012.
9. The Employer has a policy which provides that an employee is considered to have voluntarily left if they are inactive for a total of 30 days without requesting a leave of absence.(Record Item (R. Item) 14, Referee's Decision and Order, Findings of Fact (F.F.) ¶¶1-10; R. Item 16, Board Decision and Order.)
10. The Claimant did not request a leave of absence and did not contact the Employer between June 7, 2012, and August 2012.
Claimant applied for benefits on July 1, 2012, stating that he was laid off for lack of work. (R. Item 3, Claimant Questionnaire; R. Item 14, F.F. ¶11.) Between July 14 and October 6, 2012, Claimant received a total of $2,197 in benefits. (R. Item 14, F.F. ¶12; R. Item 9, Notice of Determination of Overpayment of Benefits.) On October 12, 2012, the Unemployment Compensation Service Center issued a determination that Claimant was ineligible for benefits because he had voluntarily quit his employment without a necessitous and compelling reason and found a fault overpayment and assessed penalty weeks pursuant to Sections 801(b) and 804(a) of the Law. (R. Item 9, Notice of Determination, Notice of Determination of Overpayment of Benefits, Notice of Penalty Weeks Determination.)
43 P.S. §§ 871(b), 874(a).
Claimant appealed, and the referee conducted a hearing at which Claimant and Employer's assistant director testified. (R. Item 13, Referee's Hearing Transcript (H.T.) at 1-2.) On December 5, 2012, the referee issued a decision affirming the Service Center's determinations. The referee concluded that Claimant was ineligible for benefits because he had voluntarily left his job without attempting to request work assignments for the summer. (R. Item 14, Referee's Decision at 2-3 & F.F. ¶¶3-10.)
Claimant appealed the referee's decision to the Board. On February 22, 2013, the Board issued a decision and order affirming the referee's denial of benefits, but modifying the fault and penalty week determinations. The Board adopted and incorporated the referee's factual findings in their entirety and affirmed the referee's decision that Claimant was ineligible for benefits under Section 402(b) of the Law because he had voluntarily quit his job without a necessitous and compelling reason. (R. Item 16, Board Decision and Order.) The Board, however, concluded that the overpayment of benefits to Claimant was a non-fault overpayment under Section 804(b) of the Law, and modified the referee's decision to a non-fault overpayment with no penalty weeks. (Id.)
Claimant filed the instant petition for review appealing the Board's order to this Court. Claimant argues that the Board erred in concluding that he voluntarily left his job with Employer. Contrary to Claimant's assertions, the Board's ruling is both factually supported and legally correct.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 297 n.6 (Pa. Cmwlth. 2013).
In determining whether a separation from employment is a voluntary quit or an involuntary termination of employment, it is the claimant's burden to prove that he was discharged. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013); Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). Leaving work without informing the employer of an intent to return and without communicating with the employer for a period of weeks constitutes a voluntary quit. Smith v. Unemployment Compensation Board of Review, 413 A.2d 49, 50 (Pa. Cmwlth. 1980) (absence of three weeks without communicating with employer was voluntary quit); Simpson v. Unemployment Compensation Board of Review, 395 A.2d 309, 310-11 (Pa. Cmwlth. 1978) (absence of eleven work days was voluntary quit where claimant did not tell employer when he would return to work). "An employee who leaves [his] employment without informing [his] employer when or if [he] is planning to return, may be held to have voluntarily quit." Iaconelli v. Unemployment Compensation Board of Review, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).
Here, Claimant left and did not tell Employer for two months that he had any intent to continue working for Employer. The Board found that although work was available to Claimant over the summer, after being told that his two school year clients did not need his services during the summer, Claimant left work at the end of school year without inquiring about work assignments with other clients. (R. Item 14, Referee Decision at 2 & F.F. ¶¶3-6; R. Item 16, Board Decision and Order.) The Board further found that in early June 2012, Claimant moved to Ohio and told Employer that he was moving to Ohio and to send his paycheck there, and that Claimant did not communicate with Employer between June 7, 2012 and August 2012. (R. Item 14, F.F. ¶¶6-10; R. Item 16, Board Decision and Order.) All of these findings are supported by testimony at the referee's hearing. (R. Item 13, H.T. at 7-10, 17-24.) There is therefore no error in the Board's determination that Claimant voluntarily quit his employment. Iaconelli, 892 A.2d at 896; Smith, 413 A.2d at 50; Simpson, 395 A.2d at 310-11.
Claimant asserts that the Board erred because Employer's records allegedly show he was involuntarily terminated from his employment. (Petitioner's Br. at 7, 9, 11-15; Petitioner's Reply Br. at 1-2.) There is no such evidence in the record. The only basis that Claimant puts forth for this contention consists of two unauthenticated documents that he attached to his briefs that list his employment status as "[t]erminated." (Petitioner's Br. Appendices C and G; Petitioner's Reply Br. at 3.) These documents, which bear print-out dates of March 26, 2013, subsequent to the Board's decision, were never submitted to the referee or Board and are not in the certified record. These documents therefore are not properly before us and cannot be considered by the Court. Bennett v. Unemployment Compensation Board of Review, 33 A.3d 133, 134 n.1 (Pa. Cmwlth. 2011) (en banc); Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009); Staub v. Unemployment Compensation Board of Review, 673 A.2d 434, 439 (Pa. Cmwlth. 1996); Cruz v. Unemployment Compensation Board of Review, 531 A.2d 1178, 1179 (Pa. Cmwlth. 1987). It is well established that "[t]his Court may not consider any evidence that is not part of the certified record on appeal." Pennsylvania Turnpike Commission, 991 A.2d at 974.
Claimant has not made any showing that he could not have found these documents and submitted them at the time of the referee hearing or his appeal to the Board. Moreover, even if these documents were in the record and it were established that they are what they purport to be, the mere fact that Employer listed Claimant's employment status as "terminated" would not show error in the Board's determination. The meaning of the word "terminate" is not limited to discharge from employment or involuntary ending of an activity or relationship, but also includes other endings of an activity or relationship. See, e.g., Webster's Third New International Dictionary Unabridged 2359 (2002) (defining "terminate" as, inter alia, "to bring to an ending or cessation in time, sequence, or continuity" and "to end formally and definitely"). Absent evidence as to the terms that Employer uses in recording employment status (which Claimant did not introduce and does not proffer), the documents show nothing more than the undisputed fact that Claimant's employment had ended, not whether the termination was voluntary or involuntary. --------
Because Claimant voluntarily quit his job, it was his burden to demonstrate that he had a necessitous and compelling reason for doing so. Mathis, 64 A.3d at 299; Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). To prove a necessitous and compelling reason for leaving employment, the claimant must not only show circumstances that produced real and substantial pressure to terminate employment and would compel a reasonable person to act in the same manner, but must also show that he acted with ordinary common sense and made reasonable efforts to preserve his employment. Pennsylvania Gaming Control Board, 47 A.3d at 1265; Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 & n.3 (Pa. Cmwlth. 2002).
There is no error in the Board's conclusion that Claimant failed to satisfy that burden. The only justification that Claimant has asserted for his departure at the end of the school year is that he believed that there was no work for him over the summer. (Petitioner's Br. at 7, 10; R. Item 15, Claimant's Petition for Appeal to the Board at 4; R. Item 13, H.T. at 10, 12.) While lack of continuing available work can produce real and substantial pressure to terminate employment, neither a claimant's subjective belief that work will not be available nor a lack of certainty or assurance of continued work is a sufficient justification for leaving employment. Nolan, 797 A.2d at 1046; PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996); Staub, 673 A.2d at 437-39. "[U]ncertainty and speculation about the future existence of a job does not create necessitous and compelling cause." PECO Energy Co., 682 A.2d at 61 (quoting Department of the Navy v. Unemployment Compensation Board of Review, 650 A.2d 1138 (Pa. Cmwlth. 1994)).
Moreover, after he learned that his two school year clients did not require services during the summer, Claimant made no inquiries or requests for additional clients or work during the summer to anyone at Employer responsible for assigning clients. (R. Item 13, H.T. at 9, 19, 21.) This failure to take basic steps to communicate and work with Employer to address his concern about lack of work is incompatible with Claimant's obligation "to take all necessary and reasonable steps to preserve the employment relationship." Nolan, 797 A.2d at 1046-47 (claimant did not show necessitous and compelling circumstance for quitting because she failed to take reasonable steps to preserve employment when she did not apply for alternative positions, even though she believed that there were no jobs available); see also PECO Energy Co., 682 A.2d at 62 (claimant's foreclosing of the possibility of continued employment by failing to take required test precluded finding of necessitous and compelling circumstance, even though claimant believed that she would not have qualified for continued employment). Because Claimant did not make reasonable efforts to preserve his employment, the Board correctly concluded that Claimant failed to meet his burden of demonstrating necessitous and compelling cause for leaving his employment and that he is ineligible for benefits under Section 402(b) of the Law. Nolan, 797 A.2d at 1046-47; PECO Energy Co., 682 A.2d at 62.
Claimant also argues that the Board's findings of fact are invalid because they conflict with his testimony or characterization of the facts. (Petitioner's Br. at 10-12.) That contention is without merit. The Board is the ultimate fact finder and its credibility determinations and findings of fact are binding on this Court where they are supported by substantial evidence, even if there is other contrary evidence. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008); Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728, 731-32 (Pa. Cmwlth. 2000). "That Claimant may have given 'a different version of the events, or ... might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Bruce, 2 A.3d at 671-72 (quoting Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994)). All of the Board's findings that Claimant attacks are supported by testimony of Employer's assistant director, by testimony and admissions of Claimant, or by both (see R. Item 13, H.T. at 6-9, 19-22; R. Item 3, Claimant Questionnaire), and are therefore supported by substantial evidence.
For the foregoing reasons, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 31st day of October, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge