Opinion
No. 998 C.D. 2014
02-27-2015
Nicole Snyder, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Nicole Snyder (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) affirming a UC Referee's (Referee) Decision finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law). On appeal, Claimant argues that the Board erred in concluding that she voluntarily quit her employment when there was substantial, competent evidence showing that she was discharged. In the alternative, Claimant argues if this Court holds that she did voluntarily quit her position, it was for a necessitous and compelling reason. Discerning no error, we affirm.
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 is ineligible for compensation for any week "[i]n which h[er] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was last employed by The Children's Garden (Employer) as a Group Supervisor on September 10, 2013. (Hr'g Tr. at 8-9, R. Item 9.) On September 11, 2013 Claimant filed for UC benefits, stating she was discharged without notice. (Claimant Questionnaire at 1, R. Item 2.) In the questionnaire, Claimant stated she was told to "get out" of a meeting and when she asked Employer if she was being asked to leave, Employer told her to "get [her] stuff and get out and never come back." (Claimant Questionnaire at 2.) Employer responded that Claimant voluntarily quit her position when she walked out of a meeting. (Employer Questionnaire at 1, R. Item 3.) Employer explained that Claimant was given a choice to remain in the meeting and was informed that if she chose to leave she would be voluntarily terminating her position. (Employer Questionnaire at 2.)
Because there was conflict regarding the nature of Claimant's separation from her employment, the UC Service Center considered Claimant's eligibility for UC benefits under both Sections 402(b) and 402(e) of the Law. (Notice of Determination at 1, R. Item 5.) Upon review, the UC Service Center concluded that Claimant voluntarily separated from her employment; therefore, Claimant's eligibility was considered pursuant to Section 402(b) of the Law. (Notice of Determination at 1.) The UC Service Center determined that Claimant initiated the separation, that she did not show sufficient proof that she had a necessitous and compelling reason to quit, or that she exhausted all alternatives prior to voluntarily leaving her job. (Notice of Determination at 1.) Thus, the UC Service Center issued a Notice of Determination finding Claimant ineligible for UC benefits under Section 402(b) of the Law. (Notice of Determination at 1.)
43 P.S. § 802(e). Section 402(e) of the Law provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which h[er] unemployment is due to h[er] discharge or temporary suspension from work for willful misconduct connected with h[er] work." Id.
Claimant appealed the Notice of Determination and a hearing followed before the Referee. Claimant was represented by counsel and testified on her own behalf. Employer presented the testimony of its Director, Assistant Director, and an Assistant Group Supervisor who worked with Claimant. Based on the testimony presented, the Referee made the following findings of fact:
1. The claimant was working full-time as a group supervisor for The Children's Garden since February 7, 2013, ear[n]ing $14.75 per hour.
2. The employer is a child care facility.
3. The claimant along with a co-worker brought concerns they had with a new male employee.
4. The claimant and co-worker were concerned with how the male employee was interacting with the children such as "spooning" with the children as they napped, eager to take the children to the restroom, and "adjusting" himself on the playground as the children were playing.
5. The claimant and co-worker met with the director and assistant director to discuss their concerns.(Referee Decision, Findings of Fact (FOF) ¶¶ 1-17.) Recognizing the conflict in the testimony between Claimant and Employer's witnesses, the Referee resolved the conflict, in relevant part, in favor of Employer. (Referee Decision at 2.) Based on the totality of the situation as set forth in the findings, the Referee determined that the words found "to have been spoken support a legal conclusion that the employer gave the claimant a choice." (Referee Decision at 3.) Thus, the Referee concluded that Claimant voluntarily chose to leave the meeting, and therefore her employment, without making a reasonable attempt to resolve the issues that caused her to quit. (Referee Decision at 3.) Consequently, the Referee ruled Claimant did not terminate her employment for a necessitous and compelling reason; accordingly, Claimant was ineligible for UC benefits under Section 402(b) of the Law.
6. The co-worker spoke of [her] concerns and the director asked the claimant if she was on the same page as her co-worker.
7. The claimant responded to her director that she felt uncomfortable.
8. The director raised her voice to the claimant because of the serious nature of the accusations as the claimant continued to repeat she felt uncomfortable.
9. The claimant stood up and advised her director that she would not be spoken to in that way and proceeded to leave the meeting.
10. The director advised that if the claimant chose to leave the meeting, to gather her belongings and leave.
11. The claimant continued to walk out of the meeting.
12. The claimant went to gather her belongings and as she was leaving the building, the claimant asked for a letter stating the reason for her separation.
13. The claimant was asked to return to the room where the meeting was being held. The director asked the claimant to document her observations regarding the male co-worker.
14. The claimant stated to her director that she had been terminated and the employer advised the claimant that she had made a choice.
15. The claimant once again walked away from the meeting and subsequently left the premises.
16. There is a conflict between the claimant and the employer as to whether the claimant voluntarily left her position or was terminated from her position.
17. The employer paid the claimant for unused vacation time which is not permitted when an individual is terminated.
Claimant appealed to the Board, which adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's Decision and Order. (Board Order.) Claimant now petitions this Court for review of the Board's Order.
Our review "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014). On review, this Court must examine the record as a whole and consider the testimony "in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence." Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). If substantial evidence exists to support the Board's findings, then this Court must accept the findings as conclusive, even if there is conflicting testimony or evidence of a contrary conclusion. Id.; Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008).
In support of this appeal, Claimant argues the Board erred in finding that she voluntarily quit. Claimant asserts that the Board should have found that she was discharged based on the language of Employer and her lack of intent. If, however, this Court holds that she voluntarily quit, Claimant argues it was for a necessitous and compelling reason in regard to her role as a mandated reporter of child abuse and Employer's unprofessional disregard of her concerns.
Claimant first argues that the language used by Director, instructing Claimant that if she left the meeting that she could "collect her belongings and leave," was comparable to a firing because of its immediacy and finality. (Claimant's Br. at 15.) "In a voluntary quit case, it is the claimant's burden to prove that [her] separation from employment is involuntary." Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). "[T]he issue concerning whether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings of fact in the record." Torsky v. Unemployment Compensation Board of Review, 474 A.2d 1207, 1209 (Pa. Cmwlth. 1984).
"An employee may assume that [she] has been discharged even though the employer has not specifically used words such as 'fired' or 'discharged.'" Id. "The inference may be made from other language of equal immediacy and finality." Id. This Court has determined that language is immediate and final when phrases such as, "there's the door," "turn in your key," and similar comments are used. Id. (citations omitted). Our Supreme Court has recognized, however, that employees offered a "real choice between alternatives," who still chose to leave, voluntarily quit. Monaco v. Unemployment Compensation Board of Review, 565 A.2d 127, 130 (Pa. 1989). The employer's language cannot rise to the level of a discharge if the employer allows the employee "an opportunity to remain employed" within reasonable employment expectations. Id.
In this case there is not the requisite finality in the language used by Employer to support a finding that Claimant was discharged. All three witnesses for Employer were found to have credibly testified that the language used approximated, if Claimant left the meeting she could collect her things and go. (Hr'g Tr. at 14, 18, 23.) Based on this credited testimony, the Board affirmed the Referee's finding that Director advised that if Claimant "chose to leave the meeting, to gather her belongings and leave." (FOF ¶ 10.) The conditional nature of Director's language does not rise to the level of an immediate and final discharge. We find the Supreme Court's analysis of similar facts in Monaco supports this conclusion.
In Monaco, a manager and two workers got into a "heated dispute" regarding the employees' pay scale. Monaco, 565 A.2d at 128. The manager told the workers to go back to work and, if they did not, "'there's the door,'" but explained, "'as soon as you walk out from that door, out of my place, you quit the job.'" Id. at 129. The Supreme Court held that the language the employer used was not immediate or final because the employees were given a reasonable choice of staying and continuing to work or leaving without permission and terminating their employment. Id. at 130. Similar to the choice offered in Monaco, Claimant was given a reasonable choice to remain employed by staying in the meeting; therefore, the language used by Director did not rise to the level of a discharge.
Claimant argues next that her words and actions establish that she did not have a conscious intention to leave her employment. Claimant asserts that she was only following Director's instruction to collect her belongings when she exited the meeting and that, when she returned to the meeting, Director did not dispel Claimant's belief that she had been fired. Claimant contends further that she repeatedly requested a letter explaining the reason for her separation and that she remained on Employer's premises for approximately thirty minutes waiting for a termination letter before she decided to leave.
It is well-settled that "'a finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave [her] employment.'" Monaco, 565 A.2d at 129 (quoting Roberts v. Unemployment Compensation Board of Review, 432 A.2d 646, 648 (Pa. Cmwlth. 1981)). Leaving the employer's premises is insufficient to determine an intent to voluntarily quit employment. Id. "[T]he totality of the circumstances surrounding the incident must be considered when determining the intent to quit." Id.
In this case, the totality of the circumstances, as found by the Referee and affirmed by the Board, show Claimant understood the consequences of her actions and chose to leave. After Claimant chose to leave the meeting the first time, she gathered her belongings, and asked for a letter setting forth the reason for her separation. (FOF ¶ 12.) Claimant was then asked to return to the meeting and she complied with this request. (FOF ¶ 13.) Director then requested that Claimant document her observations regarding the male co-worker; however, Claimant stated she had been terminated. (FOF ¶¶ 13-14.) Director responded that Claimant had made a choice. (FOF ¶ 14.) At this point, instead of attempting to preserve her employment by remaining in the meeting and complying with Director's request to document her observations, Claimant again chose to leave the meeting and, ultimately, left Employer's premises. (FOF ¶¶ 14-15.) These facts support the conclusion that Claimant had a conscious intent to leave her employment. Although Claimant testified that she repeatedly requested a termination letter and waited an extended amount of time before deciding to leave Employer's premises, the fact remains that she did not take advantage of the opportunity to preserve her employment when Director asked her to return to the meeting and document her observations. Our Supreme Court has previously concluded that when an employee does not attempt to preserve her employment, "the characterization by the manager, that the act of walking out the door would be an act of quitting, must be accepted." Monaco, 565 A.2d at 130. Thus, based on the credited facts, the Board did not err by concluding that Claimant voluntarily quit her employment.
Claimant further argues that, if this Court holds that she did voluntarily quit, there was a necessitous and compelling cause for her separation under Section 402(b) of the Law. The claimant bears the burden of proving a necessitous and compelling reason for quitting. Stugart v. Unemployment Compensation Board of Review, 85 A.3d 606, 614 (Pa. Cmwlth. 2014); Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). To be successful, the claimant must show: "1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment." Stugart, 85 A.3d at 614 (emphasis omitted).
The Board argues that Claimant waived this argument because it was not previously raised, but Claimant's attorney did address whether Claimant had a necessitous and compelling reason to terminate her employment during the hearing before the Referee. (Hr'g Tr. at 28.) Thus, we will address Claimant's argument. --------
Here, Claimant initially argued before the Referee that the work environment created a necessitous and compelling reason for Claimant to voluntarily quit her job. (Hr'g Tr. at 28.) The findings, however, do not support this assertion. The Board affirmed the Referee's finding that, although Director raised her voice, it was due to the seriousness of the allegations involved. (FOF ¶ 8.) Claimant argues further, for the first time on appeal to this Court, that she took her role as a mandated reporter of child abuse seriously and her treatment when raising these concerns to Director was unprofessional, which created a necessitous and compelling cause to quit. There is no substantial evidence in the record, however, to support this argument because Claimant only mentioned her role as a mandated reporter when questioned about her employment background and training. (Hr'g Tr. at 12.) Claimant did not offer any further testimony that would support her claim that there was real or substantial pressure to quit or that a reasonable person acting with ordinary common sense would take similar action. Accordingly, Claimant did not overcome her burden to show a necessitous and compelling reason to leave her employment based on the work environment or her role as a mandated reporter.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 27, 2015, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge