Opinion
No. 1670 C.D. 2014
06-10-2015
Ryan Mistovich, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ryan Mistovich (Claimant) petitions for review of the August 29, 2014 decision of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law).
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 was last employed as a full-time art teacher by the Pittsburgh Public Schools (Employer) from December 17, 2012, until January 22, 2014. Claimant resigned on January 22, 2014. The local job center denied his claim for unemployment compensation benefits, concluding that Claimant quit without cause of a necessitous and compelling nature and, therefore, was ineligible for benefits under section 402(b). Claimant appealed, and a referee held a hearing on March 20, 2014. However, neither Claimant nor Employer appeared for the hearing. The referee proceeded with the hearing, stating that notice of the hearing was mailed to Claimant on March 6, 2014, and that he would rely on the record to write a decision. The referee issued a decision that same day, concluding that Claimant failed to establish a necessitous and compelling reason for voluntarily quitting his employment and was ineligible for benefits under section 402(b) of the Law.
Employer had sent a notice to the referee informing him that it would not appear.
Claimant appealed to the Board, alleging that the referee's hearing notice was lost or delayed in the mail and not received until after the hearing date. The Board remanded the matter to the referee to conduct another hearing to receive testimony and evidence regarding Claimant's failure to appear, as well as new or additional testimony and evidence regarding the merits. The referee held a remand hearing on June 23, 2014. Employer was not present for this hearing.
Claimant testified that he did not receive notice of the first hearing until March 25, 2014, after the hearing had occurred. Claimant presented the original envelope containing the hearing notice, which included a postmark date of March 6, 2014, when it was originally sent, and a scanned date by the postal service of March 24, 2014, four days after the first scheduled hearing.
Regarding the merits, Claimant testified that he began working for Employer on December 17, 2012, and was assigned to work as an art teacher at two different schools beginning with the 2013-14 school year. Claimant stated that in late 2013 he learned that he was being evaluated and that an unsatisfactory rating would result in his termination at the end of the semester. Claimant discussed the matter with Jodi Geib, Employer's arts supervisor, and William Hileman, vice-president of the Pittsburgh Federation of Teachers (Union). Claimant said he was concerned that if his employment was terminated, he would be unable to obtain new employment at another school, which would have access to this information. Claimant testified that he received an unsatisfactory rating in early January 2014, despite the benefit of an intensive support plan and his numerous efforts to improve his work, all of which he documented and made part of his original appeal.
Claimant's documentation reflects that he was placed on an intensive support plan as of November 14, 2013.
Claimant testified that, following notice of his unsatisfactory performance rating, he again contacted Hileman and they discussed filing a challenge or grievance. At that time, Hileman suggested that it would be in his best interest to resign instead of challenging the unsatisfactory performance rating given that most challenges were unsuccessful. Claimant explained that he relied on Hileman's assessment that a challenge would not likely succeed and opted to resign in order to improve his chances of future employment.
Hileman testified that he and Claimant had discussed the implications of an unsatisfactory performance rating. Hileman explained that Claimant was a pre-tenured teacher, meaning that it was easier for Employer to terminate him than a tenured teacher. Hileman stated that he reviewed the options with Claimant, which were to resign for personal reasons or challenge the unsatisfactory rating, which Hileman did not believe would be successful. Hileman noted that Claimant was a young teacher and new to the profession, and he believed that, in order to improve Claimant's opportunities for future employment, it would be better to resign than be discharged.
The referee then forwarded the record to the Board for a new decision. By decision and order dated August 29, 2014, the Board made the following findings based upon the record created by the referee. Claimant did not appear for the referee's March 20, 2014 hearing because he did not receive the hearing notice until March 25, 2014. In early January 2014, Claimant received an unsatisfactory work performance rating and was provided a performance improvement plan. Claimant was informed that if he received an overall unsatisfactory rating at the end of the semester, he would be discharged. Claimant consulted a union representative, who advised him that it would be in his best interest to resign rather than to wait for an unsatisfactory rating and attempt to challenge it. On January 22, 2014, Claimant resigned from his employment due to his fear of being discharged at the end of the semester. (Board's Findings of Fact Nos. 1-7.)
The Board concluded that Claimant's desire to avoid the possibility of having a discharge on his employment record was not a necessitous and compelling reason to voluntarily quit and held that Claimant was ineligible for benefits under section 402(b) of the Law. The Board stated that "[w]hile the claimant testified that he would have been discharged had he received an overall unsatisfactory rating at the end of the semester, the claimant has not credibly established that his discharge was imminent." (Board's Decision at 2.)
On appeal to this Court, Claimant argues that the Board erred in concluding that he failed to establish a necessitous and compelling reason to resign from his employment where he received an unsatisfactory evaluation after being advised that an unsatisfactory evaluation would result in his termination.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
Under section 402(b) of the Law, a claimant who voluntarily terminates his employment has the burden to demonstrate that he did so due to cause of a necessitous and compelling nature. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008). Whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). In order to show necessitous and compelling cause, the claimant must establish that: circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Id.
Claimant acknowledges that in Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), we held that a decision to resign in order to avoid termination for non-satisfactory performance is without cause of a necessitous and compelling nature. In Fishel, the claimant worked as a long-term substitute teacher for the Central Dauphin School District. After receiving a second unsatisfactory performance evaluation, the claimant was placed on leave without pay and advised by a school official that he would recommend to the school board that the claimant be terminated. The claimant resigned in order to avoid having the discharge appear on her employment record and applied for unemployment compensation benefits.
The referee awarded benefits to the claimant, concluding that she resigned under real and substantial pressure. However, the Board reversed, concluding that the claimant had not established a necessitous and compelling reason to quit and was ineligible for benefits under section 402(b) of the Law. The Board noted that the school official merely advised the claimant that he would recommend her termination to the school board and that the school board could have voted either to reinstate or to discharge her.
This Court affirmed the Board's decision, citing previous cases holding that an employee who quits work to avoid the possibility of being fired is not entitled to compensation. See, e.g., Smith v. Unemployment Compensation Board of Review, 398 A.2d 256 (Pa. Cmwlth. 1979) (employee resigned after her supervisor said he would recommend termination); Hill v. Unemployment Compensation Board of Review, 385 A.2d 1032 (Pa. Cmwlth. 1978) (employee alleged that the employer sent him a letter advising that he would be discharged).
In Fishel, we emphasized that a teacher may only be dismissed after a hearing and by majority vote of the school board members consistent with the Public School Code of 1949. Given that the language of the school official did not constitute an imminent discharge, as well as the uncertainty regarding the outcome of the school board's hearing, we held that the claimant's resignation "was a voluntary termination without cause of a necessitous and compelling nature that would qualify her for benefits." Fishel, 674 A.2d at 773.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 - 27-2702.
Claimant asserts that his situation was different from the claimant's circumstances in Fishel because his termination was certain to follow his unsatisfactory performance rating. However, the Board's findings do not reflect such certainty. These findings state that Claimant was placed on a performance improvement plan in early January 2014 and that he would be discharged upon a second unsatisfactory performance rating at the end of the semester. These findings also reflect that while Claimant had the ability to challenge such a rating, he opted to resign instead. Indeed, Claimant testified that he had the option to file a challenge or grievance to his unsatisfactory performance rating, but opted to resign in order to improve his chances of future employment. Hileman confirmed these facts during his testimony.
Upon review of the record, we note that the Board's findings appear to conflict with the evidence regarding the relevant dates in this matter. For example, Claimant testified, and presented documentation, establishing that he was placed on a performance improvement plan in November 2013 and was advised at that time that he would be discharged at the end of the semester if he were to receive an unsatisfactory performance rating. See Notes of Testimony, Referees Hearing, June 23, 2014, p. 3; Supplemental Reproduced Record at 2. Claimant received his unsatisfactory performance rating the first week of January 2014, which would suggest that his termination was imminent. Id. Such facts, if found by the Board, may have resulted in a different outcome here. However, Claimant did not challenge the Board's findings of fact on appeal and, hence, they are binding upon this Court. Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 797 (Pa. Cmwlth. 2000) ("Findings of fact which are not challenged by a petitioner are binding upon the reviewing court on appeal.").
Because the facts of this case as found by the Board essentially mirror those in Fishel, i.e., Claimant's resignation was voluntary and his termination was not certain, we likewise conclude that Claimant's reasons for quitting did not constitute cause of a necessitous and compelling nature.
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 10th day of June, 2015, the order of the Unemployment Compensation Board of Review, dated August 29, 2014, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge