Opinion
No. 1395 C.D. 2014
05-29-2015
Sharon M. Saunders, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Sharon M. Saunders, petitions pro se for review of an order of the Unemployment Compensation Board of Review that affirmed the referee's decision denying her unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (the Law), which provides that an employee is ineligible for benefits during any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." In addition, Claimant seeks review of the Board's determination that, due to her failure to disclose the circumstances of her separation to the Department of Labor and Industry, there was a fault overpayment in the amount of $4212 warranting an assessment of twenty penalty weeks under Section 804(a) of the Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
43 P.S. § 874(a).
The facts as found by the Board are as follows. Claimant worked as a live-in caregiver for Employer Delaware Valley Comfort at Home from July 11, 2012 to December 21, 2012, and earned $120 per day. Scheduled to stay with her client over the holidays, she informed Employer that she had plans to spend that time with her family and that Employer would have to find a replacement. When Employer advised her that she had to stay with her client until it found a replacement, Claimant "responded that she was leaving that afternoon regardless of whether she had a replacement . . . ." Board's June 27, 2014 Decision, Finding of Fact (F.F.) No. 5. Consequently, when Claimant contacted Employer on January 2, 2013, it advised her that "she was no longer on the schedule because she had resigned." Id., F.F. No. 6. Claimant applied for unemployment compensation benefits on January 6, representing that her separation from employment was due to lack of work. Accordingly, she received benefits in the amount of $4212 for compensable weeks ending May 4 through August 31, 2013.
As the ultimate finder of fact, it is within the Board's purview to resolve all conflicts in evidence and to determine witness credibility and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
In September 2013, the Allentown UC Service Center issued two notices of determination. In the first notice, it determined that Claimant was ineligible for benefits under Section 402(b) of the Law, concluding that she failed to establish necessitous and compelling reasons for leaving her job. In the second notice, it determined that she had received $4212 to which she was not entitled, based on her failure to report that she voluntarily quit, and assessed twenty penalty weeks. Claimant appealed from both determinations and the referee held a hearing at which Claimant and two witnesses for Employer, with a tax representative, appeared and testified. The referee affirmed the UC Service Center's determinations and Claimant filed a late appeal from the referee's decision. After a hearing at which Claimant appeared and testified, the Board deemed her late appeal to be timely filed. It also affirmed the referee's decision on the merits and, subsequently, denied Claimant's request for reconsideration. Her petition for review to this Court followed.
Section 801(b) of the Law, 43 P.S. § 871(b).
A claimant in a voluntary quit case bears the burden of proving that his or her separation from employment was involuntary. Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). An employee has voluntarily quit for unemployment compensation benefit purposes when he or she resigns, leaves, or quits without action by the employer. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717, 721 (Pa. Cmwlth. 2011). When determining whether an employee quit voluntarily, this Court considers the totality of circumstances. Id. A determination of whether an employee has quit voluntarily or has been discharged is a question of law, subject to plenary review by this Court. Id.
Where, as here, the Board resolved credibility conflicts in favor of Employer, we are bound to view the evidence, and every reasonable inference deducible therefrom, in the light most favorable to Employer as the prevailing party. Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 437 A.2d 1213, 1218 (Pa. 1981). It is well established that, "[q]uestions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review." Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). Further, "[i]t is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made." Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
On appeal, Claimant seeks to substitute her version of the facts to support the proposition that this case involved a discharge and not a voluntary quit. Claimant's position is without merit. The Board accepted the testimony of Employer's witness, area manager Lauren Everett, that Claimant was scheduled to work in the client's home through the holidays. November 26, 2013 Hearing, Notes of Testimony (N.T.) at 15. In addition, it accepted Ms. Everett's testimony that she received a phone call from Claimant on December 21, "stating that she was leaving that afternoon, . . . that we needed to find a replacement for her, [and that] she wasn't doing this anymore because she had already made plans with her family." Id. When Ms. Everett advised Claimant that Employer needed her to stay because she was scheduled to work through the holidays and it did not have a replacement available, Claimant responded that Employer "needed to find a replacement immediately, she was leaving either way that afternoon." Id. at 16. Accordingly, based on the credible evidence, the Board determined that Claimant's actions constituted a voluntary quit. We agree.
When Claimant indicated her intention to bypass the schedule and Employer directed her to stay with her client until it found a replacement, she replied that she was leaving regardless. Clearly, Claimant neither secured Employer's permission for an extended absence nor did Employer implicitly acquiesce in her leaving work. Compare Novotny v. Unemployment Comp. Bd. of Review, 469 A.2d 718, 719 (Pa. Cmwlth. 1984) (claimant's failure to request a formal leave of absence was not indicative of her abandonment of the employer-employee relationship where she informed the employer of her ill health and employer implicitly acquiesced in her leaving work.). Accordingly, even absent a formal or express resignation, Claimant's conscious intent to abandon her client and, therefore, her employment relationship, was tantamount to a voluntary quit. G.C. Murphy Co. v. Unemployment Comp. Bd. of Review, 471 A.2d 1295, 1297 (Pa. Cmwlth. 1984) (holding that "a voluntary quit is not limited to an express, formal resignation; conduct tantamount to a voluntary termination is sufficient.") (emphasis in original). The burden, therefore, rested on Claimant to show cause of a necessitous and compelling nature for her voluntary quit.
Claimant makes much of the fact that Employer never gave her a verbal warning and/or written notice of discharge. Employer, however, treated her refusal to adhere to the schedule and to stay with her client as a resignation. --------
In order to show such cause, the claimant must establish that circumstances existed which produced real and substantial pressure to terminate his or her employment, which 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. Brunswick Hotel & Conf. Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). The issue of whether necessitous and compelling reasons for voluntarily leaving employment exist "is a legal conclusion always subject to appellate review." Fekos Enters. v. Unemployment Comp. Bd. of Review, 776 A.2d 1018, 1020 n.3 (Pa. Cmwlth. 2001). As the Board determined in the present case, Claimant's "desire to spend the holidays with her family does not constitute cause of a necessitous and compelling nature to quit her employment." Board's June 27, 2014 Decision at 2. We agree.
Claimant also argues that the referee did not give her the opportunity to explain her case properly. In unemployment compensation cases, the referee's role is to preside over the development of the record and to rule on the issues expressly ruled upon by the UC Service Center. 34 Pa. Code § 101.87. In that capacity, the referee affords the parties the opportunity to present argument, to produce evidence and witnesses and to offer evidence in explanation or rebuttal. 34 Pa. Code § 101.21(a). Claimant has cited no specific instances where the referee failed to afford her due process. To the contrary, the record reflects the referee's initial questioning of Claimant in an effort to solicit responses from her pertinent to the reasons that she gave for her separation. In fact, there is ample evidence throughout the hearing of his attempts to keep her focused on those reasons. In addition, the record reflects his numerous attempts to guide Claimant into asking questions of Employer's witnesses instead of testifying. Accordingly, we reject Claimant's argument.
Claimant additionally maintains that the Board erred in relying upon the referee's decision, classifying it as hearsay. Contrary to Claimant's suggestion, the referee's decision does not constitute hearsay. Instead, it comprises fact-findings and conclusions of law. 34 Pa. Code § 101.88. Subsequently, in its decision, "[t]he Board may affirm, modify, or reverse the findings of fact and the decision of the referee as shall appear just and proper on the basis of all the evidence submitted in the case." 34 Pa. Code § 101.109. Credibility and evidentiary weight are determined by the Board and its findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence to support those findings. Guthrie. v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). There is no indication here that either the referee or the Board did not perform their respective functions.
In conclusion, by virtue of the testimony of Employer's director of human resources, Patti Soisson, the record reflects that, had Claimant not resigned, continuing work was available to her. November 26, 2013 Hearing, N.T. at 23. Further, the record supports the Board's determination that Claimant failed to disclose the circumstances of her separation to the Department. See Certified Record, Item No. 3, Claimant's Separation Information.
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 29th day of May, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge