Opinion
No. 1198 C.D. 2013
04-08-2014
Jean M. Quinn, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Jean M. Quinn (Claimant) petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (Board) denying her unemployment compensation benefits under 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 provides in pertinent part that an employee shall be ineligible for compensation for any week "[i]n which his [or her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature
Claimant was employed by the Schuylkill Medical Center (Employer) as a part-time secretary for 26 years. The UC Service Center denied her application for unemployment benefits, determining that she voluntarily quit her employment on November 14, 2012 and was ineligible for benefits under Section 402(b) of the Law. After the referee scheduled a hearing on appeal, Claimant asked the referee to issue a subpoena to compel Employer to produce records of her attendance and performance evaluations. The referee denied the request, stating that those records were not relevant to the scheduled hearing. The referee held a hearing to determine whether Claimant's separation from employment was due to a discharge or a voluntary quit and whether she had a necessitous and compelling reason to terminate employment.
Claimant testified that she applied for a transfer to a part-time secretary position at Employer's newly opened Schuylkill Sports and Orthopedics and began working in that position in October 2011. According to Claimant, Employer promised her that her new position would become full-time. Claimant conceded that she actually worked 30 to 32 hours a week although the new position was for 22 to 23 hours a week. Claimant testified that the office coordinator, Nancy Miske, announced on November 14, 2012, that Employer had hired a new part-time employee and that Claimant would be required to come in at 9:00 a.m., instead of 8:00 a.m. Claimant became upset because she thought that the new work schedule would decrease her work hours. She left work before the end of her shift, stating that she "was done." Notes of Testimony (N.T.) at 4; Certified Record (C.R.), Item No. 9.
After she left the office, Claimant called Employer's human resources manager, Tom McPhillips, from the parking lot. McPhillips told her to come in the next morning "to work things out." Id. at 5. The next morning, she met with the vice-president, the office manager and McPhillips for 15 minutes. Claimant testified that the office manager "want[ed] [her] resignation" at the meeting, to which she did not respond. Id. Claimant left the meeting, stating that she "was going to call [her] lawyer." Id. She further testified:
I didn't go back to work because I assumed that they were firing me because they didn't offer me anything else and they asked for my resignation. So I did call for my paycheck ... I guess, it was that week. I'm not sure what day approximately, and they requested my keys and to pick up my things.Id. at 11.
Employer's witnesses contradicted Claimant's testimony. The office coordinator, Miske, who interviewed Claimant for the new position, denied that Employer promised Claimant that her new position would become full-time. Miske testified that every applicant was asked if he or she would be interested in working full-time if the position later became a full-time position. Miske further testified that on November 14, 2012, the office manager, Laura Mulqueen, told her to discuss the new starting time with Claimant. Miske met with Claimant and told her that she could start work at 8:30 a.m. to check-in patients or at 9:00 a.m. to check-out patients. When Claimant responded that her work hours would be reduced, Miske tried to explain that starting work at 9:00 a.m. would not reduce her work hours because she would work longer until the last patient checks out. Miske testified: "She just sat down ... throughout the whole discussion and she got up and she just said I had enough. You're using me, I quit, and out the door she went." Id. at 24. Miske tried to stop her by yelling her name and telling her to come back.
Employer's director of clinic practices, Dorothy Sweet, who interviewed Claimant in 2011, denied that Claimant was told that her position would become full-time. Sweet testified that she could not make such a promise because of the uncertainty of staffing needs at the newly opened facility where Claimant worked. Pamela Klitsch, a registered nurse, who observed the November 14 incident at the office, testified: "All of a sudden [Claimant] stood up, took her purse out of the drawer, slammed the drawer and said I'm done, I quit[,] I'm going home. At that point, Nancy [the office coordinator] said, Jeannie, hold on, and Jean left the office." Id. at 34. McPhillips testified that Claimant had no attendance or performance issue during her employment.
The referee made five findings of fact, including the following findings which are set forth below verbatim:
2. The employer never promised the claimant full-time hours and a new part-time position that she took as the claimant alleges.Referee's Findings of Fact Nos. 2-5. The referee concluded that Claimant voluntarily quit her employment without a necessitous and compelling reason and was ineligible for benefits under Section 402(b) of the Law.
3. There was a discussion that the claimant and the employer representatives present when it was indicated that a new person was going to be hired.
4. The claimant became upset with the claimant misapprehending that the hiring of this new person would affect the amount of hours that she would be working when it would not. The claimant then voluntarily quit her work with the employer and left the premises prior to the end of her scheduled shift.
5. The claimant alleges that she was discharged rather than voluntarily left work with the employer.
The Board concluded that the referee did not abuse his discretion in denying Claimant's request for issuance of a subpoena. The Board affirmed, adopting and incorporating the referee's decision and making an additional finding that Claimant "failed to make an earnest effort to maintain the employment relationship before quitting." C.R., Item No. 12. Claimant's appeal to this Court followed.
Claimant argues that the Board erred in concluding that her separation from employment was due to her voluntary termination of employment. She maintains that she was discharged for leaving work early on November 14 and that the referee should have subpoenaed her attendance and performance records, which would have proved that "behavior of leaving work or causing issues to supervisors' [sic] would not be a part of [her] behavior." Claimant's Brief at 9.
Claimant's challenge to the referee's refusal to issue a subpoena lacks merit. Generally, issuance of subpoenas is within discretion of the referee or the Board. 34 Pa. Code § 101.31; Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66, 76 (Pa. Cmwlth. 1996). A subpoena must be issued if it will lead to relevant and probative testimony. York v. Unemployment Comp. Bd. of Review, 56 A.3d 26, 31 (Pa. Cmwlth. 2012), appeal denied, ___ Pa. ___, 64 A.3d 633 (2013). Claimant applied for benefits, indicating that she "quit" her employment for a "personal" reason. Internet Initial Claims; C.R., Item No. 2. In the Employer Questionnaire, Employer stated that Claimant voluntarily quit on November 14. C.R., Item No. 3. In asking the referee to issue a subpoena, Claimant failed to state a reason for seeking her attendance and performance records. Nor did she explain the relevancy of those documents to her appeal from the UC Service Center's determination. We conclude, therefore, that the referee did not abuse his discretion in refusing to issue a subpoena.
It is well established that a claimant has the burden of proving that his or her separation from employment was due to a discharge, rather than a voluntary quit. Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). A claimant is considered to have voluntarily left employment when he or she exhibited a conscious intention to leave employment. Procyson v. Unemployment Comp. Bd. of Review, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2010). An employee who leaves employment without informing an employer when or if she is planning to return may be held to have voluntarily quit after "a reasonable period of time in which [the] employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-versa." Iaconelli v. Unemployment Comp. Bd. of Review, 892 A.2d 894, 896 (Pa. Cmwlth. 2006). If the language used by an employer possessed the immediacy and finality of a firing, an employee has been discharged; "if it does not and, the offended employee leaves, the case is one of voluntary quit." Keast v. Unemployment Comp. Bd. of Review, 503 A.2d 507, 509 (Pa. Cmwlth. 1986). A determination of whether the claimant's separation was a voluntary quit or a discharge is a question of law to be determined by examining the facts surrounding the claimant's separation from employment, as found by the Board. Pa. Liquor Control Bd., 648 A.2d at 126.
The testimony of Employer's witnesses, accepted by the Board, supports the Board's conclusion that Claimant was separated from employment due to a voluntary quit, rather than a discharge. On November 14, Claimant mistakenly believed that Employer was trying to reduce her work hours. She left work stating that she was quitting. She did not recant her statement and did not return to work after she met with Employer's representatives the next day. The office manager's alleged statement that she wanted her to resign, even if it had been credited by the Board, lacked the immediacy and finality of a firing. Employer did not take any action to discharge her after the November 14 meeting. At best, Employer's statement indicates only a possibility of discharge, not an imminent discharge. Where, as here, a claimant resigns under a mere possibility of a discharge, the claimant is considered to have voluntarily resigned. Pa. Liquor Control Bd., 648 A.2d at 126. Only where the claimant resigns to avoid an imminent discharge, may the claimant's separation be treated as a discharge. Id. The evidence in this matter does not demonstrate that Claimant left employment under circumstances indicating that she was in an imminent danger of being fired.
In an unemployment compensation case, the Board is the ultimate fact-finder and is empowered to make credibility determinations. Elser v. Unemployment Comp. Bd. of Review, 967 A.2d 1064, 1069 n.8 (Pa. Cmwlth. 2009). In reviewing the Board's decision, this Court must examine the evidence in the light most favorable to the prevailing party, Employer in this case, giving that party the benefit of inferences that can logically and reasonably be drawn from the evidence. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012).
Neither the referee nor the Board made any specific finding in this regard. However, the Board found both a voluntary quit and Claimant's failure to make an earnest effort to maintain her employment. --------
Where, as here, the claimant's separation from employment was due to a voluntary quit, the claimant must prove that he or she had a necessitous and compelling reason to terminate employment, in order to be eligible for benefits under Section 402(b) of the Law. To meet that burden, the claimant must establish circumstances which placed a real and substantial pressure upon the claimant to terminate employment, which would compel a reasonable person to act in the same manner. Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027, 1030 (Pa. Cmwlth. 2010). The claimant must also demonstrate that he or she acted with ordinary common sense and made a reasonable effort to preserve employment but had no real choice other than to leave employment. Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). Whether the claimant's termination of employment was for a necessitous and compelling reason is a question of law subject to this Court's plenary review. Mansberger v. Unemployment Comp. Bd. of Review, 785 A.3d 126, 128 (Pa. Cmwlth. 2001).
Claimant argues that she terminated her employment because of, inter alia, Employer's failure to give her "an opportunity to complete her grievance" regarding "the change or reduction of hours." Claimant's Brief at 9. Her mere dissatisfaction with the working conditions, based, apparently, on her assumption that her hours might be reduced, cannot constitute a necessitous and compelling reason to voluntarily terminate employment. Griffith Chevrolet-Olds, Inc. v. Unemployment Comp. Bd. of Review, 597 A.2d 215, 218 (Pa. Cmwlth. 1991). Claimant failed to take any step to maintain her employment relationship and decided not to return to work after the November 14 meeting.
Accordingly, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 8th day of April, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge