Opinion
No. 866 C.D. 2012
11-16-2012
Lillian Spurgeon, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Lillian Spurgeon (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which reversed the decision of the referee and determined that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a Base Communications Officer by the Department of Navy from November 5, 1979, at a final rate of $30.72 per hour and her last day of work was July 29, 2011.
2. In November of 2005, it was announced that Congress had voted to close the Naval Air Station Joint Reserve Base Willow Grove (Willow Grove), where the
claimant's position was located, under the Base Realignment and Closure (BRAC) process.
3. In February 2011, the claimant received a letter advising her that she had been approved to accept her full retirement plus a $25,000 incentive in an effort to avoid a reduction in workforce.
4. Although the claimant's position at Willow Grove may eventually have been eliminated, the employer had an obligation through its Priority Placement Program (PPP) to place the claimant in another position within her community area, or elsewhere within the United States at the claimant's discretion.
5. The claimant chose not to participate in the PPP; rather, she opted to accept the voluntary separation incentive and chose to retire as of July 31, 2011.
6. Continuing work was available to the claimant in her position at Willow Grove at the time she chose to retire.
7. Further, the claimant was guaranteed a position elsewhere within her community area even if her position was eliminated at some later date.
8. The Willow Grove base was not closed until sometime in September or October 2011.Board Opinion, March 14, 2012, (Opinion), Findings of Fact Nos. 1-8 at 1-2; R.R. at 123-a - 124-a.
At hearing before the referee, Lori Blann, head of the civilian personnel division of the Department of the Navy (Employer) testified regarding the Priority Placement Program (PPP):
There was no continuing work available there however she had an opportunity to go on Priority Placement Program which the federal government offers to relocate displaced employees.
. . . .
Well, they have to find them one valid job offer. They stay PPP until employment is found. If they turn down the one validated offer then they're not obligated to find them a job elsewhere. But, yes, they do continue to pursue it and they also continue to open the areas of consideration the longer time goes and they're not getting a job. So the PPP is very aggressive in finding displaced employees positions.
The Board determined:
Where a claimant quits in order to accept an early separation incentive, the relevant inquiry is whether the decision to accept the incentive was based upon more than mere speculation that the claimant would no longer have continuing employment. Here, the claimant agreed that, prior to accepting the incentive, she was never told her position was being eliminated. Further, the employer's witness credibly testified that, even if the claimant's position was being eliminated, the employer had an obligation to place the claimant in another position within her community area through its PPP if the claimant opted to participate. The claimant chose not to even consider the employer's PPP and, instead, chose to accept the incentive and retire. Under the circumstances, the claimant has not established necessitous and compelling cause to quit.Opinion at 2-3; R.R. at 124-a - 125-a.
Claimant contends that the Board erred when it reversed the referee and determined that Claimant was ineligible for benefits. Claimant argues that she clearly had a necessitous and compelling reason for accepting the retirement package and quitting her employment.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). A claimant who alleges that she did not quit but was terminated bears the burden of proof. Malloy v. Unemployment Compensation Board of Review, 523 A.2d 834 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Here, the focus was on whether Claimant established, to the satisfaction of the Board, that the circumstances surrounding her voluntary quit indicated a likelihood that her fears of job security would materialize, that serious impending threats to her job would be realized and that her belief that her job was imminently threatened was well founded. Staub v. Unemployment Compensation Board of Review, 673 A.2d 434 (Pa. Cmwlth. 1996).
I. Mere Speculation Regarding Continuing Employment.
The Board made its determination that Claimant was ineligible for benefits based on two factors. The first factor was that Claimant's decision to accept the early retirement incentive was based upon mere speculation that she would no longer have continuing employment.
Claimant argues that she had no option to return to work at Willow Grove Naval Air Station Joint Reserve Base (Willow Grove) because it was going to, and, ultimately did, close and only one position was available with Employer in Norfolk. Consequently, while she was willing to stay at her position, she was unable to do so. She asserts that she was required to resign and voluntarily quit in order to accept the settlement package. Had she not quit, she asserts she would not have been able to receive the settlement package and could not have obtained another job with Employer.
Claimant's version of the facts does not completely square with the facts found by the Board. In unemployment compensation proceedings the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
According to the facts found by the Board, Employer did not inform Claimant that work would not be available to her. Further, nothing in the record indicates that Employer ever provided Claimant with a date when her job would be terminated. The Board also found that Employer agreed to place Claimant in its PPP. Claimant testified that she had the choice to go on the PPP or to retire. N.T. at 16; R.R. at 93-a.
In Mansberger v. Unemployment Compensation Board of Review, 785 A.2d 126 (Pa. Cmwlth. 2001), this Court faced a similar issue. Mary A. Mansberger (Mansberger) worked as a material handler and identifier for the Defense Distribution Center (DDC). In October 1999, DDC advised employees, including Mansberger, that it was downsizing and offered a Voluntary Separation Incentive Pay/Voluntary Early Retirement Authority, during which eligible employees could retire and receive $25,000 in addition to their retirement. Mansberger's supervisor indicated that eleven of twenty-three people would remain in her department after downsizing. However, Mansberger was advised that the lost jobs in her department would probably be filtered to other sections. Mansberger, 785 A.2d at 127.
The Board determined that Mansberger voluntarily terminated her employment without a necessitous and compelling reason and found her ineligible for benefits. Mansberger, 785 A.2d at 127. Mansberger petitioned for review with this Court.
This Court affirmed:
The Board found that Claimant speculated that Employer [DDC] would eliminate her job. Claimant did not know whether there would be another opportunity to take the $25,000 bonus payment because the VSIP/VERA plan might only be offered once. . . .There is nothing in the record to indicate that continuing work would not be available to Claimant [Mansberger] or that her employment was imminently threatened. The Board applied the correct standard and found Claimant [Mansberger] did not meet her burden. (Footnotes omitted).Mansberger, 785 A.2d at 129.
Here, as in Mansberger, continuing work was available to Claimant. Her position would have remained available at Willow Grove for at least another two or three months. Further, had Claimant participated in the PPP she would have found a job through that program. While Claimant may have thought she would not have a job, "[s]peculation pertaining to an employer's financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause" to quit one's employment. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 (Pa. Cmwlth. 2003). This Court agrees with the Board's conclusion that Claimant's decision to retire was based upon mere speculation that she would no longer have a job.
II. Option to Participate in PPP- Lack of Necessitous and Compelling Reason.
The Board also determined that Claimant failed to meet her burden of proving that she had a necessitous and compelling reason to quit her job when she had the opportunity to preserve employment through participation in the PPP.
Claimant asserts that she had no option of continuing employment.
Chris Martin (Martin), supervisory human resources specialist for Employer, explained that under the PPP Claimant would have been paid at the same rate of pay when she was in the PPP as she was when she worked for Employer. Martin explained that "she would have been eligible for placement opportunity in the community area of her current Employer or possibly to another location throughout the continental United States at her discretion if she decided that she wanted to continue her employment with the federal government." N.T. at 24; R.R. at 101-a.
Claimant declined to participate in the PPP. Had she done so, she would have continued to receive her regular pay until a job was found for her. While the position in which Claimant worked was ultimately eliminated, she was guaranteed another position. When Claimant elected not to participate in the PPP, she eliminated the possibility that she could remain employed and failed to take all reasonable and necessary steps to preserve her employment. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042 (Pa. Cmwlth. 2002). Claimant retired because she was eligible to retire and to receive the $25,000 payment. She did not retire because she had a necessitous and compelling reason to quit. This Court concludes that the Board's decision was supported by substantial evidence.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 16th day of November, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
Notes of Testimony, November 10, 2011, (N.T.) at 23; Reproduced Record (R.R.) at 100-a.