Opinion
No. 860 C.D. 2011
01-05-2012
Regina P. Neels, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Regina P. Neels (Claimant) appeals pro se from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying her unemployment compensation benefits pursuant to Section 402(a) of the Unemployment Compensation Law (Law) for refusing to accept a new job assignment because she did not want to travel to the new work site which was approximately 40 minutes away. Finding no fault with the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802(a). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment officer or by any employer, irrespective of whether or not such work is in "employment" as defined in this act.
Claimant was last employed by Aramark Schools, Inc. (Employer) as a food prep worker with her last day of work on May 18, 2010. She had worked at North Catholic High School in Philadelphia, Pennsylvania, for 14 years, which closed permanently on June 15, 2010. In July 2010, Employer offered Claimant the same position of food prep worker at Archbishop Ryan in Northeast Philadelphia at Academy Road where Claimant would work 30 hours per week at the same rate of pay. The position would begin in September when the school year began. Claimant refused the position and filed for unemployment compensation benefits.
The Scranton Unemployment Compensation Service Center denied her benefits under Section 402(b) of the Law, 43 P.S. §802(b), for voluntarily terminating her employment because she quit her job for personal reasons. The UC Service Center noted that if there were alternatives to resolving the situation that caused the separation, Claimant had to show that she exhausted all alternatives prior to voluntarily leaving the job, but, in this case, there was not enough information to indicate whether Claimant had a necessitous and compelling reason for doing so. Claimant filed an appeal requesting a hearing and arguing that she had worked for 15 years at North Catholic High School which was in walking distance of her home. Employer did not appear at the hearing.
Section 402(b) of the Law provides:
An employe shall be ineligible for compensation for any week -
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature irrespective of whether or not such work is in "employment" as defined in this act.
Specifically, on the Claimant Questionnaire, Claimant was asked, "Prior to your separation, did you discuss the situation with your employer or make any other attempts to resolve the situation that caused you to quit your job or take a leave of absence?" Claimant responded, "Yes. I spoke to Brian Morris, the food service director in a meeting in May. Brian told us that the school cafeteria we were working in was going to close. We were told that we did not have to take other positions that were too far for us to travel, and that we could collect our unemployment." (Original Record, Exhibit 15.) On Employer's Questionnaire, Employer was asked whether "Prior to the separation did the claimant discuss the situation with you or make any other attempts to resolve the situation which caused him/her to voluntarily quit or take a leave of absence," and Employer responded, "No." (Original Record, Exhibit 17.)
Claimant testified that after North Catholic High School closed permanently on June 15, 2010, Employer offered her another position identical to the one she had at North Catholic High School at the same rate of pay at Archbishop Ryan High School in Northeast Philadelphia. She explained:
In July we had to call in and in August. I did both. I followed up with both and they said the only job is - we didn't have to take the jobs that were far away from us. So, they offered me one that's up far away and I said no and they said okay, you don't have to do that.(February 8, 2011 Hearing Transcript at 7.) Claimant stated that she refused the position at Archbishop Ryan High School "[b]ecause it was too far to travel." (February 8, 2011 Hearing Transcript at 8.) Claimant admitted that she drove, but Archbishop Ryan High School was "very far" from her home. Id. When asked how far the school was from her home, she responded, "I don't know. It's about a - I don't know how many miles. It's pretty far. It's a half hour ride I guess you would say." Id. When the Referee stated, "And 40 minutes. Half hour, 40 minutes. And you didn't want it because it's too far to travel?", Claimant responded, "Yes." Id. Claimant stated that she was not offered any other job. Claimant admitted that she did not try the commute out to see what would happen. Claimant added that she did everything she was told to do and Employer told her she did not have to take the job. She did not understand that she would be considered a voluntary quit and not receive unemployment compensation benefits if she did not take the job.
Finding Claimant's testimony credible, the Referee determined that this case should have been decided under Section 402(a) of the Law related to a failing to apply for suitable work rather than Section 402(b) of the Law regarding a voluntary termination. She found that in July 2010, Claimant was offered the same position that she previously held at North Catholic High School to begin at Archbishop Ryan High School in Northeast Philadelphia beginning in September when the school year began; that Claimant drove but felt it was too far to travel with a 40-minute commute as she was accustomed to walking to work; and that Claimant did not accept the assignment. Concluding that Claimant failed to show good cause for not accepting the assignment, the Referee affirmed and modified the UC Center's decision and disapproved unemployment compensation benefits under Section 402(a) of the Law.
Claimant appealed to the Board arguing that the job opening at Archbishop Ryan High School was only a possibility and was not guaranteed just for her. "It was opened to 35 other employees. I would have to be interviewed over again. You also had to call back in August when they would be filling the position. I did call back in August and the position had been filled. There were no more positions open at that time." (See Original Record, Claimant's February 17, 2011 letter, Attachment to Petition for Appeal.)
The Board affirmed the Referee's decision stating:
Case law is clear that a commute of even fifty to sixty miles, without more and without the claimant investigating minimizing the cost of travel, is not good cause to refuse available employment. On appeal, the claimant asserts that she was not offered the position and that the position was eventually given to another worker. However, this was not the claimant's testimony at the hearing. The claimant testified no less than four times that she was offered the position and she said no. (N.T. 7-10.)(Board's March 31, 2011 order.) This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated or findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).
On appeal, Claimant contends that she did not refuse the position because in July 2010, she called Employer and was told of an opening at Archbishop Ryan High School but was told to wait until August and call back because there might be other school openings that were more feasible and desirable for her regarding commuting issues. She stated that she was on a list along with 35 other laid-off employees that were all applying for their desired schools. Claimant explains that she did not give this detailed of an answer regarding being offered a position before the Referee and only answered "yes" when asked if she was offered the same position at Archbishop Ryan High School because she "misunderstood what the Referee was asking and neglected to further explain the procedures of how positions were filled. The answers for the Referee's questions should not have been 'yes' or 'no' answers." (Claimant's brief at 9.) Claimant alleges that she was nervous and when Employer failed to appear at the hearing, she was confused and uneasy. She also alleges that she was not prepared for what the hearing entailed because she had never experienced a hearing before. She also did not think she needed to explain the details because she assumed the Referee would follow up with Employer because it was not at the hearing, and Employer would have told her that she did not refuse work. In further support of this argument, she argues that she received an email from Employer which she offered on appeal to the Board stating the following:
No work was available for this employee. The school closed and we were unable to place her in another location. We will not proceed with attending the hearing as we do not want to challenge this claim.
Claimant alleges that her co-workers who were in the exact situation as she was have been collecting unemployment benefits since September 30, 2010.
Our review of the hearing transcript indicates that Claimant was asked multiple times whether she had been offered a new job by Employer, and each time Claimant responded that she had been offered a new job but only at Archbishop Ryan High School. At the time of the hearing, Claimant did not testify that Employer told her that there was an opening at Archbishop Ryan High School and there might be other openings, only that she was definitively offered a job opening at Archbishop Ryan High School. She also testified that the job required travel of 40 minutes and that she did not want to commute that far.
While Claimant offered the email from Employer into evidence stating that no work was available for her and that it was not going to challenge her claim, the Board did not consider it because it was not submitted at the hearing before the Referee and it could not consider documents attached to Claimant's appeal. See Lock Haven University of Pennsylvania v. Unemployment Compensation Board of Review, 559 A.2d 1015 (Pa. Cmwlth. 1985). Even if the Board had considered the email, it constituted hearsay which was uncorroborated by any competent evidence of record because Claimant testified numerous times that she was offered another position and turned it down as it was too far to travel.
If Claimant was unclear on the questions being asked, Claimant had the opportunity to ask the Referee to clarify the questions. If an actual job was not offered, Claimant could have explained what Employer actually offered. Claimant appeared pro se at the hearing, and she did so at her own risk. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053 (Pa. Cmwlth. 2010) (lay person representing herself must to some extent assume risk that lack of expertise and training will prove her undoing). The record reflects that Claimant was apprised by the Referee that she was entitled to be represented by legal counsel, and Claimant stated that she understood her rights. Nonetheless, Claimant proceeded pro se. Consequently, based upon the evidence of record, the Board properly determined that Claimant was offered a job and refused that job due to the 40-minute commute.
The dissent states that Claimant "essentially argues that the Referee asked her leading questions and misunderstood her because Claimant did not elaborate when she became confused and uneasy before this Referee." (Dissenting opinion at 1.) However, nowhere in her brief does Claimant argue that the Referee asked her leading questions. The dissent also states that there was a "chilled tone for the hearing" which supports Claimant's argument. (Dissenting opinion at 2.) It does so because "Claimant was cut off when she tried to object, elaborate and/or explain" answers. Id. However, what the dissenting opinion ignores is that the Referee was merely asking Claimant straightforward questions and she could not answer those questions. She also attempted to testify when she was only asked if she had an objection to the exhibits being entered into the record. Moreover, even though the dissent alleges that Claimant was not given a proper opportunity to explain relevant details at the hearing or was essentially forced to answer that she was offered a job when she was actually not, Claimant testified that the reason that she did not take the job was because it was too far to travel. The dissent reasons that "Claimant could have explained that she was not offered an actual job, but did not." However, Claimant was not forced to testify that she was offered a job when she was not. She testified numerous times that she was offered a job and she stated that she turned it down because of the distance she had to travel. There is no evidence in the transcript that the Referee did not allow Claimant to present her case, and, in fact, at the end of the hearing, the Referee asked Claimant if there was anything else she wanted to add that she had not already stated. (See February 8, 2011 Hearing Transcript at 11.)
Section 4(t) of the Law, 43 P.S. §753(t), requires that in determining whether any work is suitable for an individual, we must consider, inter alia, the distance of the available work from his or her residence. The burden is on the claimant to show that the work available was not suitable and that he or she had good cause for the refusal. This Court has defined "good cause" as "a 'good faith' effort consistent with the genuine desire to work and includes overcoming, as far as is reasonably possible, any obstacles to the acceptance of an offer of work." Jurkiewicz v. Unemployment Compensation Board of Review, 477 A.2d 583, 585 (Pa. Cmwlth. 1984).
Other factors to be considered are risks to the claimant's health, safety and morals, his or her physical fitness and prior training and experience.
In Shaffer v. Unemployment Compensation Board of Review, 531 A.2d 533 (Pa. Cmwlth. 1987), a claimant was offered a position 40 miles from his home at the same rate of pay as his previous job which had been destroyed by a tornado and was only 11 miles from his home. The claimant refused the position arguing that he had good cause to refuse because there was no public transportation available and the distance of the commute was too far to drive, despite the fact that his employer suggested that he carpool with two other employees and offered the driver $10 to defray costs. Using a two-prong test to determine first whether the proffered work was suitable, and second, whether the failure to accept such work was without good cause, we held that the work was suitable because we had previously determined that a 60-mile commute to work involving three hours of travel time did not constitute a necessitous and compelling reason to terminate employment under Section 402(b) of the Law, 43 P.S. §802(b). Therefore, we could not hold that a 40-mile commute was excessive. We also noted that the claimant failed to attempt to find alternative transportation arrangements and did not submit any evidence on the actual cost of transportation to the new location.
See Musguire v. Unemployment Compensation Board of Review, 415 A.2d 708 (Pa. Cmwlth. 1980). While this case was decided under Section 402(b) of the Law, 43 P.S. §802(b), which deals with voluntary termination of employment, we held that a commute of 60 miles between the claimant's home and his job was not a necessitous and compelling reason to quit his job. In Musguire, the claimant worked as a truck driver and was initially assigned to make runs originating in West Middlesex, Pennsylvania. His employer transferred him to the Oil City terminal because of a business slowdown. The claimant quit because the commute would have been 60 miles between his home and the terminal each day, and the job itself required 10 to 12 hours of driving each day. The claimant stated that an additional three-hour commute to work and back would create a potential safety hazard to him and others on the highway. We stated that "[t]ransportation inconveniences may provide a necessitous and compelling cause for leaving employment only where they are 'so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.'" Id., 415 A.2d at 709. Although we gave serious consideration to the claimant's safety hypothesis, we concluded that it was only a hypothesis, and the claimant did not even try commuting to the new terminal location for even one day. He also did not indicate alternative commuting methods. --------
In this case, Claimant was unable to testify regarding the actual distance the commute was to the new job, only estimating a commute of 40 minutes, which is not excessive under Schaffer and Musguire's 40-60 mile radius. Claimant also did not testify regarding alternatives, i.e., carpooling or public transportation or supply the cost of commuting. In fact, Claimant did not provide any reasons why she could not commute to the new position. She merely testified that she did not want to commute 40 minutes to the new job, a reasonable distance, which did not constitute "good cause" for refusing the position.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 5th day of January, 2012, the order of the Unemployment Compensation Board of Review, dated March 31, 2011, at No. B-515550, is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COHN JUBELIRER
I must respectfully dissent because I would remand this case for a new hearing.
The issue is whether Claimant, pro se, actually refused a guaranteed offer of employment after the school at which she worked closed. Claimant argues that she was not offered another job, but merely the opportunity to apply for a job along with the other thirty-five employees who similarly lost their jobs when the school closed. Claimant essentially argues that the Referee asked her leading questions and misunderstood her because Claimant did not elaborate when she became confused and uneasy before this Referee. She further explains that, when the Referee asked her if she was offered the same position at another school, she understood that to question whether she was being asked to apply for the same position along with the other laid off employees, not that she was actually offered the same position, which she was not. She maintains that she did not have the opportunity to explain any details. Claimant further argues that, in addition to the Referee's impatience with Claimant, Employer's absence at the hearing must be considered and viewed in conjunction with the manner in which Claimant was cut off, and her active participation in the hearing was chilled by the Referee's interruptions and impatience.
After reviewing the transcript, I agree with Claimant's assertions because the initial exchanges between the Referee and Claimant reveal that the Referee set a chilled tone for the hearing, which supports Claimant's arguments. For example, Claimant was cut off when she tried to object, elaborate, and/or explain:
Referee (R) Are these the answers that you provided?
Claimant (C) No.
R You disagree with which number? Just the number of the question.
C One - - well, I have four numbers.
R Number one, you disagree with the name of the Employer?
C No, April 10th - - the date, the first question.
. . . .
R Are those the answers on that document?
C Yes, these were my answers . . .
R Okay.
C . . . here.(Referee Hr'g Tr. at 3-4.) A review of the transcript, however, reveals that the promised opportunity never occurred. Another problematic exchange is as follows:
R Let's continue please.
C Oh, there was one I didn't understand. This . . .
R Not the time . . .
C . . . number five. . .
R . . . for that, ma'am. Not the time for that. If you answered the question and you agree that this is your answer, then that's all I'm interested in at this point. You will get an opportunity to give your testimony at the appropriate time.
R Do you have any objection to the Service Center or the Referee's exhibits being entered into the record?
C Do I have an objection?
R Yes, I reviewed all paperwork.
C Yes, there's that one paper. There's three things wrong I saw.
R What paper are you talking about? This is not the time for you to give . . .
C Oh.
R . . . your testimony.
C Oh.
R I reviewed all the paperwork. Do you have an objection to this paperwork being entered into the record and don't look to your son to answer your questions. If his presence is going to be
disruptive to the hearing, then he will have to leave the hearing room.(Referee Hr'g Tr. at 4-5 (emphasis added).) As the transcript reveals, Claimant finally changed her "yes" to a "no" after the Referee told her it was not the time to explain, warned her not to look to her son, and threatened to remove her son from the hearing. Claimant argues that she was not given a proper opportunity to explain relevant details. The Board counters that: Claimant was asked several times whether a position was offered to her, to which Claimant responded "yes"; Claimant could have explained that she was not offered an actual job, but did not; and "[a] lay person choosing to represent herself in a legal proceeding must, to some extent, assume the risk that her lack of expertise and training will prove her undoing," citing Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1060 (Pa. Cmwlth. 2010). (Board's Br. at 8.)
C Okay.
R Okay, ma'am. Now, I have reviewed the paperwork, explained all of the paperwork to you. Do you have any objection to the paperwork being entered into the record?
C No.
R The exhibits are entered.
We note that in the case of a pro se claimant, the Board's regulation provides as follows:
Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise [her] as to [her] rights, aid [her] in examining and cross-examining witnesses, and give [her] every assistance compatible with the impartial discharge of its official duties.34 Pa. Code § 101.21(a). "In interpreting this regulation, the courts have held that, in addition to advising pro se parties of their rights and aiding them in questioning witnesses, referees should reasonably assist pro se parties to elicit facts that are probative for their case." Hackler v. Unemployment Compensation Board of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011) (citing Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982)). In Bennett, this Court stated that:
The referee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.Bennett, 445 A.2d at 259 (internal citation omitted) (emphasis in original). Although the Referee "need not advise a party on evidentiary questions or on specific points of law," the Referee "must act reasonably in assisting in the development of the necessary facts." Id. at 260 (emphasis in original). "[A] claimant appearing at [a] referee's hearing without counsel is entitled to assistance from the referee in [her] development of the case and advice as to [her] basic rights." Groch v. Unemployment Compensation Board of Review, 472 A.2d 286, 288 (Pa. Cmwlth. 1984).
To determine whether the referee has complied with the regulation at 34 Pa. Code § 101.21(a), our Supreme Court has held that a Referee's interruptions of a claimant when attempting to object is conduct that may fall short of protecting the rights of the unrepresented claimant. Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 613-14, 427 A.2d 631, 644 (1981). Just as the claimant in Ceja was rebuffed when attempting to object, Claimant here was similarly rebuffed when the Referee "replied in a manner designed to abbreviate claimant's reply," which further led to "a confused . . . account" from Claimant. Id. at 613, 427 A.2d at 644.
Because the hearing transcript does not engender confidence in the Referee's compliance with 34 Pa. Code § 101.21(a) and reveals that the Referee did not reasonably assist Claimant in eliciting facts that were probative for her case, as evidenced by the Referee's interrupting her several times in a manner inconsistent with providing her assistance in developing her case as is required under that regulation, I would reverse the Order of the Board and remand for a new hearing consistent with this regulation.
/s/ _________
RENÉE COHN JUBELIRER, Judge