Opinion
No. 275 C.D. 2012
03-08-2013
David E. Moffett, 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
David E. Moffett (Claimant) petitions for review of the February 10, 2012 order of the Unemployment Compensation Board of Review (Board), which held that he 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 states that an employee who voluntarily terminates his employment without a necessitous and compelling reason is ineligible for benefits.
Claimant was employed by Lancaster Preferred Partners (Employer) as a general assembler from July 11, 1994, to April 30, 2011. In 2008, Claimant suffered three work-related injuries to his knee and shoulder. Claimant continued working, subject to restrictions, which Employer accommodated. Claimant was involved in a non-work-related automobile accident in February 2010 and injured his back. Claimant returned to work after the accident without any additional medical restrictions. (Findings of Fact Nos. 1-3.)
On March 21, 2011, Claimant underwent back surgery, and he did not return to work for Employer. Instead, on or about April 13, 2011, Claimant executed a compromise and release agreement settling his 2008 workers' compensation claims. The terms of the compromise and release agreement provided that Claimant would receive a lump sum of $75,000 and that he would resign from his employment effective April 30, 2011. (Finding of Fact No. 5.)
Claimant applied for unemployment compensation benefits on September 8, 2011. In his application, Claimant stated that he was discharged from employment because he was unable to return to normal duty due to a work injury. (Reproduced Record (R.R.) at 21a.) The local service center determined that Claimant voluntarily quit work for medical reasons and was eligible for benefits. Employer appealed, and a hearing was held before a referee.
Claimant testified about his work injuries and the circumstances surrounding his resignation. Claimant stated that he was forced to resign in order to accept Employer's settlement offer. (R.R. at 57a.) Claimant believed that the settlement offer was "more or less [a] final offer" and stated that he would not have received any compensation if he did not accept it. (R.R. at 66a.) According to Claimant, Employer never presented him with an opportunity to remain employed. (Id.) Claimant did not personally discuss the matter with Employer but let his attorney handle the negotiations. (R.R. at 66a-67a.)
Claimant testified that he fractured his spine in a non-work-related automobile accident and was required to have two sections of his spine fused together. (R.R. at 58a-59a.) Claimant stated that he anticipated being out of work for several months after his back surgery. About a month before the surgery, Claimant met with Employer's human relations director, Karen Grove. Claimant testified that Grove told him he would need to take time off for his surgery under the Family and Medical Leave Act (FMLA) and that, because the injury was not work-related, his employment would be terminated if he was unable to return to work after twelve weeks. (R.R. at 59a, 62a.)
Claimant stated that, at that time, he did not believe he would be able to perform the duties required of his position after he had the surgery or that he would be able to return to work in twelve weeks' time. Thus, he believed Employer would terminate him. Under the circumstances, Claimant said, he felt he had no choice but to accept Employer's April 13th settlement offer. Claimant testified that he was released to work on July 26, 2011. (R.R. at 59a-63a.)
Tracy Fisher testified that she had been Employer's acting human relations director since February 11, 2011. Fisher acknowledged that she was not the human relations director when Claimant left work in March and could not testify as to what Grove told Claimant at that time. However, Fisher stated that following her review of Claimant's personnel file and her conversations with Claimant, she was unaware of any human relations representative giving Claimant an ultimatum to return to work at the end of twelve weeks or face termination. (R.R. at 68a.) Fisher added that Claimant came to Employer's offices several times after his resignation and never expressed an interest in reemployment. (Id.) Jessica Ayala also testified that Claimant visited Employer's offices several times after his resignation but never expressed an interest in returning to work. (R.R. at 70a.)
After acknowledging that Employer had no obligation to hold Claimant's job after 12 weeks, Fisher referenced an employee handbook: "[U]nder federal law there's no obligation I guess . . . but we also have an employee handbook that [Claimant] had that discussed this family leave that was for 12 weeks." (R.R. at 70a.)
The referee issued a decision on November 10, 2011, setting forth the following relevant findings of fact:
4. Before the claimant left work because of the restrictions the employer informed the claimant that he was eligible for FMLA leave, and additionally, in the employer's handbook, the claimant could have applied for disability payments which could have expanded the time during which the claimant could be off work from the employer.(R.R. 72a.) The referee found that Claimant chose to voluntarily resign in order to settle his workers' compensation claims rather than return to work. The referee concluded that Claimant failed to exhaust all reasonable alternatives and, therefore, did not meet his burden of proof under section 402(b) of the Law. Claimant appealed to the Board, which affirmed the referee's decision and adopted the referee's findings and conclusions. Claimant then petitioned this Court for review of the Board's order.
5. Instead of pursuing the option of staying with the employer, the claimant signed a Worker's [sic] Compensation agreement on or about April 13, 2011, under which the claimant agreed to resign from his job and receive a lump sum of $75,000.
6. The claimant never discussed the possibility of staying on with the employer, but he let his Worker's [sic] Compensation attorney handle all negotiations with counsel for the employer.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrate Agency Law, 2 Pa.C.S. §704.
Initially, we note that in order to establish eligibility for benefits under section 402(b) of the Law, a claimant who has voluntarily quit his employment bears the burden of proving that he did so for necessitous and compelling reasons. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). In order to establish necessitous and compelling cause, a claimant must demonstrate that: circumstances existed which produced pressure to terminate employment that was both real and substantial; such 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 maintain his employment. Comitalo v. Unemployment Compensation Board of Review, 737 A.2d 342 (Pa. Cmwlth. 1999). Whether an employee has cause of a necessitous and compelling nature to terminate his employment is a legal conclusion subject to appellate review. Id.
Claimant first argues that the Board erred in adopting Findings of Fact Nos. 4, 5, and 6 because they are not supported by substantial evidence. With respect to Finding of Fact No. 4, Claimant asserts that Employer presented no evidence concerning the provisions of Employer's handbook or Claimant's ability to apply for additional disability benefits after his FMLA leave expired. The Board concedes this point. However, because we conclude that Findings of Fact Nos. 5 and 6 are supported by substantial evidence, we conclude that this error does not constitute grounds for reversal.
Regarding Findings of Fact Nos. 5 and 6, Claimant contends that he did discuss the possibility of remaining with Employer but was told that if he did not return to work in 12 weeks he would be terminated. Claimant further asserts that Employer never offered him the option of returning to work. However, the Board specifically accepted the contrary testimony of Employer's witnesses as credible, and the Board's credibility determinations are binding on appeal where, as here, they are supported by substantial evidence. Moreover, Claimant admitted that his attorney handled all of the negotiations regarding his workers' compensation settlement and that he accepted Employer's settlement offer without inquiring whether other alternatives were available to him that would allow him to maintain his employment.
The Board is the ultimate fact-finder and the sole arbiter of the credibility and weight of the evidence. Therefore, if the facts as found by the Board are supported by substantial evidence, they may not be disturbed. Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1164 (Pa. Cmwlth. 2012). Substantial evidence is defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). In determining whether substantial evidence exists, we must view the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced therefrom. Id.
In Lee v. Unemployment Compensation Board of Review, 33 A.3d 717 (Pa. Cmwlth. 2011), we concluded that a desire to settle a workers' compensation claim does not constitute necessitous and compelling cause to terminate employment. In Lee, the claimant entered into an agreement with her employer to settle her workers' compensation claim. In consideration for the settlement, the claimant agreed to resign from her position. The local job center granted the claimant's application for benefits and, after a hearing, a referee affirmed the local job center's determination. On further appeal, however, the Board reversed, concluding that the claimant was ineligible for benefits under section 402(b) of the Law because she voluntarily terminated her employment without necessitous and compelling cause. We affirmed the Board's decision and specifically held that the claimant's decision to resign in order to settle a workers' compensation claim did not demonstrate the necessitous and compelling cause required to receive benefits under the Law. We explained in Lee that the claimant was not forced by the employer to sign the settlement agreement and, therefore, her resignation was voluntary. In addition, we concluded that because the claimant could have seen her workers' compensation claim to its conclusion, she did not have necessitous and compelling cause to quit.
Here, as in Lee, Claimant agreed to resign from his position in order to settle a legal dispute. Claimant had the option of refusing to resign and to continue pursuing his workers' compensation claims, but he voluntarily chose to terminate his employment in order to reach a settlement agreement with Employer. Consistent with our holding in Lee, we conclude that the Board correctly determined that Claimant's desire to settle his workers' compensation claims did not constitute a necessitous and compelling reason to terminate his employment.
Citing Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982), Claimant next contends that his medical condition provided necessitous and compelling cause for him to quit his employment. Specifically, Claimant argues that his back injury would prevent him from returning to his normal job and, when made aware of that fact, Employer told him that if he did not return to work after the expiration of his FMLA time he would be terminated. Alternatively, Claimant argues that his circumstances are distinguishable from those in Lee because here Employer threatened to terminate his employment if he did not return to work in twelve weeks. These arguments are without merit, however, because they depend entirely upon Claimant's version of the events, which, critically, was not adopted by the Board.
In Genetin, the court held that medical problems can provide cause of a necessitous and compelling nature to terminate employment if the claimant establishes the following: the claimant has a certifiable medical condition that precludes him from performing his regular job duties; the claimant advised his employer about his medical condition and his inability to perform his regularly assigned duties; and the claimant is able to work and available for suitable work within his restrictions. Genetin, 499 Pa. at 130-31, 451 A.2d at 1356.
Fear of discharge will constitute a necessitous and compelling reason to accept a voluntary severance agreement where the claimant shows that his job was imminently threatened. Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1207-08 (Pa. Cmwlth. 2011). However, fear of discharge and the mere possibility of discharge, without a showing that the claimant's employment is likely to be imminently terminated, do not constitute necessitous and compelling grounds for resigning. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 8th day of March, 2013, the order of the Unemployment Compensation Board of Review, dated February 10, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge