Opinion
No. 405 C.D. 2012
11-28-2012
Monica Wasser, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Monica Wasser (Claimant), petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that affirmed the Referee's denial of benefits to Claimant under Sections 402(b) and 401(f) of the Unemployment Compensation Law (Law). Claimant also challenges the Board's imposition of a fault overpayment of $4,368 and a fraud overpayment of $200 which were subject to recoupment in accordance with Section 804(a) of the Law, 43 P.S. §404(a), and Section 4005 of the Emergency Unemployment Compensation Act of 2008 (EUC Act), 26 U.S.C. §3304 note, in accordance with Section 2002(f) of the American Recovery and Reinvestment Act of 2009.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b) and §801(f).
Section 2002(f) of Division B, Title II (Assistance for Unemployed Workers and Struggling Families Act) of the American Recovery and Reinvestment Act of 2009, P.L. No. 111-5, 123 Stat. 115 (2009) (ARRA) provides for an additional $25 per week in compensation to individuals otherwise entitled to compensation under state law. ARRA also provides that overpayments under ARRA shall be recovered in the same manner as Emergency Unemployment Compensation benefits.
The Board made the following relevant findings of fact:
1. The claimant was employed as a per diem RN for Blue Mountain Health System with a rate of pay of $29.65 per hour plus a shift differential having begun her employment on April 15, 2009 (Exhibit 14, Exhibit 15).
2. The claimant's last day of work was May 17, 2010 (Exhibit 14).
3. The claimant resigned her employment with Blue Mountain Health System on May 28, 2010 because the claimant was experiencing personal problems (Exhibit 12).
4. The claimant did not specify any other reason for quitting her employment. At the hearing the claimant contended she quit because she had complained to her supervisor about alleged racial discrimination.
5. The claimant did not report any alleged discrimination to the HR Department of Blue Mountain Health System.
6. The claimant admitted never going to the HR Department to express any concerns.
7. The claimant failed to inform the UC Service Center that she quit her per diem job with Blue Mountain Health System at the time she opened her claim.
8. The claimant received $4,368 in unemployment compensation benefits to which she was not entitled.Board's Decision and Order, January 13, 2012, Findings of Fact Nos. 1-10 and Discussion at 1-4.
9. The claimant received $200 in Federal Additional Compensation (FAC) to which she was not entitled.
10. The claimant did not earn six times her weekly benefit rate of $564 or $3,384 in subsequent employment.
DISCUSSION:....
....
The claimant contends that she quit this employment because of racial discrimination. The claimant did not testify as to any specific incidents. Nor did she show that anything occurred that caused her to resign her employment as of May 28, [2010]. The claimant also failed to show that she exhausted all reasonable alternatives to maintain her employment. She admits that she never reported any issues to HR. The claimant has not met her burden to show cause of a necessitous and compelling nature for quitting this employment. Benefits are denied under Section 402(b) of the Law.
....
As the claimant did not earn six times her weekly benefit rate of $564 ($3,384) in subsequent employment, she is ineligible for benefits under Section 401(f) of the Law.
....
There is nothing in the record to indicate that the claimant informed the Department that she quit this employment at the time of the separation. The claimant could not testify as to what she told the Department. Under these circumstances, the overpayment of unemployment compensation benefits will be recouped as a fault overpayment. The [Federal Additional Compensation] overpayment will be recouped as a fraud overpayment.
....
The Board finds no reason to disturb the Referee's assessment of ten penalty weeks against the claimant.
On appeal, Claimant raises two issues. First, Claimant contends the Board erred when it determined that Claimant was ineligible for benefits. Second, Claimant argues the Board's determination that Claimant was subject to the fault overpayment provisions of the state and federal unemployment laws was in error.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). This Court will review the case in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences from the testimony in order to determine if substantial evidence exists. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
Claimant contends the Board erred when it determined that Claimant was ineligible for benefits under Section 402(b) and 401(f) of the Law.
Initially, Claimant challenges the Board's determination that she was ineligible for benefits because she was terminated from her full-time employment and resigned from her concurrent part-time job.
Section 402(b) of the Law, 43 P.S. §802(b), provides that a claimant shall be ineligible for compensation in any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Where an unemployment compensation claimant alleges that he or she terminated employment for necessitous and compelling reasons, claimant has the burden of establishing the existence of such reasons.
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). Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
Claimant did not specifically challenge her ineligibility under Section 402(b) in the argument section of her brief. As a result, she waived any challenge to that determination. Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived).
Section 401(f), 43 P.S. §801(f), of the Law states:
Compensation shall be payable to any employe who is or becomes unemployed, and who - -
****
(f) Has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e), 402(e.1) and 402(h) of this act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate irrespective of whether or not such services
were in "employment" as defined in this act. The provisions of this subsection shall not apply to a suspension of work by an individual pursuant to a leave of absence granted by his last employer, provided such individual has made a reasonable effort to return to work with such employer upon the expiration of his leave of absence.
In the present case, Claimant had concurrent employment with two employers. She did not obtain successive employment. This Court has determined that Section 401(f) applies only to situations where a claimant has held successive rather than concurrent employment. Earnest v. Unemployment Compensation Board of Review, 30 A.3d 1249, 1255-1256 (Pa. Cmwlth. 2011). However, it is immaterial because Claimant is not eligible under 402(b).
Claimant argues that even though her separation from Employer is disqualifying, the disqualification should only be to the extent that her part-time wages with Employer exceeded her partial benefit credit. Claimant failed to raise this issue before the Board and therefore it has is waived. Goodwill Industries v. Unemployment Compensation Board of Review, 634 A.2d 738 (Pa. Cmwlth. 1993). --------
Claimant also contests the Board's determination that she was liable for a fault overpayment under Section 804(a) of the Law, 43 P.S. §874(a), and a fraud overpayment under ARRA. Claimant contends that the Board did not have sufficient evidence to support a finding of fault.
Section 804(a) of the Law, provides:
Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation
Account a sum equal to the amount so received by him and interest at the rate determined by the Secretary of Revenue.
Section 4005 of the EUC Act of 2008, 26 U.S.C. §3304 note, provides:
(a) In general.- If an individual knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such false statement or representation or of such nondisclosure such individual has received an amount of emergency unemployment compensation under this title to which such individual was not entitled, such individual-
(1) shall be ineligible for further emergency unemployment compensation under this title in accordance with the provisions of the applicable State unemployment compensation law relating to fraud in connection with a claim for unemployment compensation; and
(2) shall be subject to prosecution under section 1001 of title 18, United State Code.
(b) Repayment.- In the case of individuals who have received amounts of emergency unemployment compensation under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such emergency unemployment compensation to the State agency, except that the State agency may waive such repayment if it determines that-
(1) the payment of such emergency unemployment compensation was without fault on the part of any such individual; and
(2) such repayment would be contrary to equity and good conscience.
(c) Recovery by state agency.-
(1) In general.- The State agency may recover the amount to be repaid, or any part thereof, by deductions
from any emergency unemployment compensation payable to such individual under this title or from any unemployment compensation payable to such individual under this title or from any unemployment compensation payable to such individual under any State or Federal unemployment compensation law administered by the State agency or under any other State or Federal law administered by the State agency which provides for the payment of any assistance or allowance with respect to any week of unemployment, during the 3-year period after the date such individuals received the payment of the emergency unemployment compensation to which they were not entitled, except that no single deduction may exceed 50 percent of the weekly benefit amount from which such deduction is made.
(2) Opportunity for hearing.- No repayment shall be required, and no deduction shall be made, until a determination has been made, notice thereof and an opportunity for a fair hearing has been given to the individual, and the determination has become final.
The word "fault" within the meaning of Section 804(a) of the Law, 43 P.S. §874(a), connotes an act to which blame, censure, impropriety, shortcoming, or culpability attaches. To find "fault" under Section 804(a), there must be a finding concerning the claimant's state of mind. Maiorana v. Unemployment Compensation Board of Review, 453 A.2d 747 (Pa. Cmwlth. 1982). "Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. . . . For example, an intentional misstatement on an application for benefits can support a finding of fault. . . . To find fault, the Board must make some findings with regard to a claimant's state of mind." Chishko v. Unemployment Compensation Board of Review, 934 A.2d 172, 177 (Pa. Cmwlth. 2007). (Citations omitted).
In Carter v. Unemployment Compensation Board of Review, 442 A.2d 1245 (Pa. Cmwlth. 1982), the Board determined that Jimmie Lee Carter (Carter) was subject to a fault overpayment of $2,897 because he deliberately withheld information from the Office of Employment Security concerning his eligibility for benefits where he first refused suitable work and then became disabled and was unavailable for suitable work. Carter, 442 A.2d at 1246-1247.
Carter petitioned for review with this Court which affirmed:
We think the record before the Board clearly establishes the fault of the claimant. A fair reading of the record establishes that the claimant withheld information from the Office of Employment Security that was material to his eligibility for unemployment benefits. We held in Kissinger v. Unemployment Compensation Board of Review . . . 413 A.2d 753 ([Pa. Cmwlth.] 1980), that, where the claimant withheld information which surely would have resulted in a denial of benefits, the Board's finding of 'fault,' rendering claimant liable for overpayments, could not be held to be an error of law. We find this rule dispositive of the fault-overpayment question in this case.Carter, 442 A.2d at 1248.
Here, Claimant argues that the Board failed to provide any meaningful reference to Claimant's state of mind to establish that she was subject to a fault overpayment. The Board found Claimant "failed to inform the UC Service Center that she quit her per diem job with Blue Mountain Health System at the time she opened her claim." Board's Decision and Order, Finding of Fact No. 7 at 2. The record established that Claimant did not inform the UC Center of the circumstances surrounding her separation from Employer, specifically that she quit. Additionally, Claimant would not testify as to what she told the UC Center.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 28th 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