IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Dornbach, Petitioner v. No C.D Unemployment Compensation Submitted May 24, 2013 Board of Review, Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED July 25, 2013 Barbara J. Dornbach (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) affirming, as modified, the decision of an Unemployment Compensation Referee (Referee), which determined that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law 1 (Law). The Board concluded that Claimant had failed to raise any specific issues 1 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 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.

2 in her appeal to the Board and the Referee s decision was in accordance with the Law. On appeal, Claimant asserts that (1) as indicated from the Referee s hearing transcript, the only issue in this case was whether Claimant s resignation was voluntary and not compelled and, therefore, the issue was not waived; and (2) the Board did not account for the fact that Claimant was constructively discharged from her employment. Discerning no error, we are constrained to affirm the Board s Order. Claimant filed a claim for UC benefits after her last day of work for Adecco (Employer). The Allentown Service Center (Service Center) denied the claim, concluding that she had voluntarily quit her employment without exhausting her alternatives for maintaining the employment relationship. (Notice of Determination, R. Item 6.) Claimant appealed the Service Center s determination, and the matter was assigned to the Referee for a hearing. Employer did not participate in the hearing, and Claimant testified in support of her claim for UC benefits. Based on that testimony, the Referee made the following findings of fact 1. The claimant worked as a full time support services manual department employee for Adecco from December 27, 2011 through June 15, 2012 earning $14.00 per hour. 2. Prior to working for Adecco, the claimant worked for Fireman s Fund Insurance for twenty seven years doing essentially the same job and earning a similar hourly rate with benefits. 3. Adecco was a temporary employment company and assigned the claimant to work for the [M]illennium Group. 4. The Millennium Group was performing work for Fireman s Fund Insurance. 2

3 5. The claimant heard rumors that Fireman s Fund Insurance was unhappy with the [M]illennium Group s work and that they were taking work back from the [M]illennium Group. 6. The claimant s work assignments gradually diminished until her only assignment was to train another employee to do the claimant s job. 7. As the claimant s work assignments diminished other employees were laid off. 8. The claimant applied twice to be hired by the [M]illennium Group but was unsuccessful. 9. The claimant did not ask her temporary employer, Adecco[,] for a new assignment. 10. The claimant voluntarily left her employment. 11. For claim week ending June 30, 2012, the claimant received $ in [UC] benefits. (Referee Decision, Findings of Fact (FOF) 1-11.) The Referee began by noting that, because Claimant voluntarily terminated her employment, the burden rested upon her to show that she had cause of a necessitous and compelling nature. (Referee Decision at 2.) The Referee held that, notwithstanding Claimant s testimony that her work assignments diminished and she heard rumors that the Millennium Group was losing assignments from Fireman s Fund Insurance, Claimant had not shown that her separation from the Millennium Group assignment was imminent or certain. (Referee Decision at 2.) The Referee reasoned that, where a claimant resigns to avoid imminent discharge, the separation would be treated as a discharge, but that Claimant did not show that she resigned to avoid such discharge. (Referee Decision at 2.) Rather, the Referee interpreted Claimant s testimony as showing that she recognized the signs 3

4 common to all temporary assignments as the assignment was slowing down and could possibly end. (Referee Decision at 2.) The Referee further referenced Claimant s testimony that she was dissatisfied with the fact that she was not receiving benefits from Employer and concluded that such reason was insufficient to qualify as a necessitous and compelling reason to voluntarily quit her job. (Referee Decision at 2.) Finally, the Referee pointed out that, although Claimant had unsuccessfully applied for a position with the Millennium Group, she had not shown that ongoing temporary work was unavailable to her with Employer. 2 (Referee Decision at 2.) Accordingly, the Referee found Claimant ineligible for UC benefits. (Referee Decision at 3.) stated Claimant filed a Petition for Appeal with the Board. The Petition for Appeal To Whom It May Concern Please be advised that I represent... Claimant in the abovecaptioned matter. I am writing to appeal from the determination issued by Referee Loren Walmer on September 12, Thank you for your anticipated cooperation regarding this matter, and if you should have any questions, please do not hesitate to contact the office. Sincerely, [/s/] [Claimant s Counsel] (Petition for Appeal, R. Item 13 (emphasis in original).) Claimant did not file a brief in support of her appeal with the Board. After considering the record, the 2 The Referee also concluded that Claimant was liable for a non-fraud overpayment. (Referee Decision at 3.) The Board modified this conclusion to reflect that Claimant s overpayment was a nonfault overpayment. (Board Order.) 4

5 Board noted that [t]he claimant fails to raise a specific issue on appeal and concluded that the Referee s decision was proper under the Law. (Board Order.) Therefore, the Board adopted and incorporated the Referee s findings and conclusions as its own and affirmed the Referee s decision. Claimant now petitions this Court for review. 3 The Board filed an Application for Summary Relief (Application), asserting that Claimant s Petition for Review should be dismissed because she did not raise any issues in her appeal to the Board and, therefore, there are no preserved issues before this Court for its consideration. (Application for Summary Relief 4, 7-8.) Claimant filed an Answer to the Application (Answer) in which she asserted that the Referee had only one issue to consider; namely, the voluntary nature of [Claimant s] resignation. (Answer 5.) By Order dated January 22, 2013, this Court directed the parties to argue the issue of whether Claimant preserved any issues for this Court to review on appeal in their briefs on the merits. The Board asserts, pursuant to Section of the Board s regulations, 34 Pa. Code , and Tri-State Scientific v. Unemployment Compensation Board of Review, 589 A.2d 305, 307 (Pa. Cmwlth. 1991), that Claimant has waived all of the issues in this matter because she did not specify what issues she was appealing in her Petition for Appeal to the Board. Claimant responds that 3 The Court s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record. Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). 5

6 there really was only one issue in the case, which was whether Claimant s resignation was voluntary and not compelled and, therefore, whether Claimant was constructively discharged was properly preserved for the Board s and this Court s consideration. Section provides that [a] party shall file an appeal from a referee s decision in accordance with and (relating to filing of appeal from determination of Department; and time for filing appeal from determination of Department) of the Board s Regulations. 34 Pa. Code Section states, in relevant part (c) An appeal... shall contain the following information... (4) The reasons for appeal. 34 Pa. Code (c)(4). In Tri-State Scientific we stated, it is well settled that issues not specified in an appeal before the Board are waived for purposes of review by this Court. Tri-State Scientific, 589 A.2d at 307. In Merida v. Unemployment Compensation Board of Review, 543 A.2d 593, 595 (Pa. Cmwlth. 1988), this Court explained that, in order to preserve an issue under Sections and , the appealing party must give some indication, however in artfully stated, of precisely what error(s) occurred and where the tribunal should focus its attention. (Emphasis in original.) Claimant s Petition for Appeal does not contain any indication... of precisely what error(s) occurred and where the [Board] should focus its attention. Merida, 543 A.2d at 595. Rather, it simply states I am writing to appeal from the determination issued by Referee Loren Walmer on September 12, (Petition for Appeal (emphasis in original).) Moreover, because Claimant did not file a brief with the Board, there was no other identification of the specific reasons 6

7 why she was appealing the Referee s decision. Finally, although Claimant asserts that the hearing transcript reveals that only one issue was before the Referee, that issue being whether her resignation was voluntary or compelled and whether she was, therefore, constructively discharged, our review of the transcript reveals multiple issues that could arise from Claimant s testimony, including those cited by the Referee in finding Claimant ineligible for benefits. Because Claimant did not specifically identify any issue in her Petition for Appeal, we are constrained to hold that Claimant has failed to preserve this issue for this Court s consideration. 4 4 We note that requiring appealing parties to specifically state the reasons for their appeal to the Board may be necessary because of the nature of the UC process, the role of the Board as the ultimate fact finder, and the unlikelihood that parties to UC proceedings would file written briefs with the Board specifying their allegations of errors. First, UC proceedings are designed to be relatively informal to ensure that funds... [are] obtained by persons unemployed through no fault of their own at the earliest point that is administratively feasible. Harkness v. Unemployment Compensation Board of Review, 591 Pa. 543, 553, 920 A.2d 162, 168 (2007). Thus, the system must operate quickly, simply, and efficiently and [t]he proceedings are by design, brief and informal in nature. Id. (quoting Rue v. K-Mart Corporation, 552 Pa. 13, 20, 713 A.2d 82, 86 (1998)). The time frames are short, requiring that appeals from a service center determination or Referee s decision be filed within fifteen days. 34 Pa. Code (a), (a), Additionally, the number of appeals the Board must decide is voluminous and to require it to sift through the Referee hearing transcripts to discern possible reasons for appeal would hinder the purpose of the Law to provide efficient resolution to UC proceedings. Second, the Board is ultimately the fact finder in UC cases with the authority to hold its own hearings and render its own findings of fact. Section 504 of the Law, 43 P.S. 824; 34 Pa. Code , ; First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008); Hart v. Unemployment Compensation Board of Review, 402 A.2d 1148, 1149 (Pa. Cmwlth. 1979). Absent specificity in the appeals from Referees decisions, the Board s ability to determine whether to hold hearings or make its own findings of fact is hindered. Third, although the Board s regulations authorize the filing of written argument with the Board s permission, 34 Pa. Code (e), given the high number of pro se parties and the informal nature of UC proceedings, parties do not, generally, file briefs with the Board. Without a brief or an appeal document that specifically identifies the reasons for the appeal, the Board would be, as discussed above, forced to sort through hearing transcripts to discern what, if any, errors the appealing party may want the Board to address. 7

8 Accordingly, the Board s Order is affirmed. 5 5 Even if Claimant had preserved the issue, the Board properly determined that she was ineligible for benefits. Citing Goss v. Exxon Office Systems, 747 F.2d 885 (3d Cir. 1984), and other federal court decisions concerning constructive discharge under various federal statutes, Claimant asserts that she was constructively discharged because the work environment she experienced at the Millennium Group was so unpleasant and difficult that a reasonable person in her shoes would resign. Claimant contends that the reduction in her work assignments and the elimination of her fringe benefits, which effectively reduced her salary, supports her claim for constructive discharge. Where a claimant voluntarily quits her employment, Section 402(b) of the Law provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving employment without cause of a necessitous and compelling nature. 43 P.S. 802(b). Where an employee resigns, leaves, or quits without action of the employer, the action amounts to a voluntary termination. Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 (Pa. Cmwlth. 2007). Whether or not a claimant s unemployment was the result of voluntarily leaving work is ultimately a question of law, and reviewable by this Court. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). The claimant bears the burden of showing that she had cause of a necessitous and compelling nature to voluntarily terminate her employment. Latzy v. Unemployment Compensation Board of Review, 487 A.2d 121, 122 (Pa. Cmwlth. 1985). To satisfy this burden, the claimant must demonstrate that (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Brunswick Hotel & Conference Center v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). In making this determination, we review the totality of the circumstances to determine whether the claimant voluntarily quit her employment. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). The term constructive discharge is not one generally used in UC proceedings as a basis for determining a claimant s eligibility for UC benefits, although it has been used in the context of Section 402(d) of the Law, 43 P.S. 802(d) (relating to eligibility for UC benefits during work stoppages), where an employer hires permanent replacement workers for its employees who are out on strike, see, e.g., Canonsburg General Hospital v. Unemployment Compensation Board of Review, 628 A.2d 503, (Pa. Cmwlth. 1993); Northern Health Facilities v. Unemployment Compensation Board of Review, 663 A.2d 276, 278, 281 (Pa. Cmwlth. 1995) (citing Canonsburg General Hospital). However, within the existing analysis under Section 402(b) of the Law is consideration of the totality of the circumstances surrounding the claimant s departure, Key, 687 A.2d at 412. This includes considering whether there was any action on the part of the employer that caused the claimant to quit, Davila, 926 A.2d at 1289, as well as whether there were real and substantial circumstances that would produce pressure to terminate (Continued ) 8

9 employment that would compel a reasonable person to act in the same manner, Brunswick Hotel & Conference Center, 906 A.2d at 660. In order to establish a constructive discharge, a plaintiff must show that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Goss, 747 F.2d at Thus, examining the conduct underlying a claim of constructive discharge, whether an employer creates a work environment that is so intolerable and/or unpleasant that a reasonable employee is forced to resign, Goss, 747 F.2d at , is a consideration in determining a claimant s eligibility under the Law. There is no dispute that Claimant resigned her position with Employer; she acknowledged that she gave Employer her two week notice that she was quitting. (Hr g Tr. at 7.) In light of the above discussion, we will consider Claimant s constructive discharge argument as an assertion that she had cause of a necessitous and compelling nature for doing so. Claimant argues that she is eligible for UC benefits because the reduction in her work assignments signaled to her that her work assignment with the Millennium Group was coming to an end. It is well-settled that a claimant who resigns to avoid the possibility of discharge has ended her employment voluntarily and is not entitled to UC benefits. Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, (Pa. Cmwlth. 1996). It is only where the claimant resigns in lieu of imminent discharge that the claimant is eligible for benefits. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). Here, we are cognizant that Claimant s employer was Adecco, a temporary staffing agency, not the Millennium Group. Claimant acknowledged that, prior to her resigning, neither Employer nor the Millennium Group told Claimant that her job with the Millennium Group or Employer would be ending. (Hr g Tr. at 13.) Moreover, Claimant did not ask Employer if it had any other assignments for her once her assignment with the Millennium Group ended. (Hr g Tr. at 10; FOF 9.) Based on these facts, the Board did not err in concluding that Claimant did not establish that her employment with Employer was ending imminently such that her resignation would render her eligible for UC benefits. We further note that, under Section 402(b), Claimant had an obligation to make a reasonable effort to preserve her employment, Brunswick Hotel & Conference Center, 906 A.2d at 660, and her admission that she did not contact Employer regarding the availability of another work assignment demonstrates that she did not do so. Claimant next argues that the fact that Employer did not provide her with fringe benefits gives her the necessary reasons for resigning her employment and retaining her eligibility for UC benefits. A claimant s initial acceptance of a proffered job raises a presumption of the suitability of the job. Spinelli v. Unemployment Compensation Board of Review, 437 A.2d 1320, 1321 (Pa. Cmwlth. 1981). [A]n employee s subsequent mere dissatisfaction with her wages or working conditions neither rebuts the presumption of job suitability nor justifies the employee s voluntary resignation of employment. Id. The claimant may rebut this presumption if she proves either that a substantial, unilateral change occurred in her employment, that she was deceived, or was unaware of the conditions of her employment when she accepted the job. Id. at The change in Claimant s receipt of fringe benefits was the result of the end of her (Continued ) 9

10 RENÉE COHN JUBELIRER, Judge twenty-plus year full-time position with Fireman s Fund Insurance and the beginning of her job with Employer. (Hr g Tr. at 9-10.) Claimant neither presented evidence that her lack of fringe benefits was a unilateral change occurring after her acceptance of the position with Employer, nor that she was deceived or was unaware that she would not be receiving such benefits from Employer when she accepted her position. Therefore, Claimant s dissatisfaction with the lack of fringe benefits does not justify her voluntary resignation from her employment. Spinelli, 437 A.2d at Finally, Claimant asserts throughout her brief that the general working conditions at the Millennium Group were so unpleasant and/or intolerable that her decision to quit was reasonable under the circumstances. Claimant testified regarding certain conduct by the Millennium Group, including moving her to a different office that made it difficult for her to obtain files needed to perform her duties, in part because before beginning her career with Fireman s Fund Insurance Claimant suffered a stroke that made it difficult for her to walk and required her to use a cart, and the reduction in her work duties as support for her contention that her working conditions were intolerable and/or unpleasant. (Hr g Tr. at 7-9.) Although we are sympathetic to Claimant s experiences, Claimant s argument must fail because the Millennium Group was not Claimant s employer. Importantly, there is no indication in the record that Claimant ever discussed the problematic working conditions with either the Millennium Group or with Employer. We have held that a claimant must take common sense action to obviate the problem so that he or she does not have to terminate employment, and this is accomplished by informing one s superiors of the [intolerable] conduct. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003). Such action is required because, under Section 402(b) of the Law, the claimant is required to make reasonable attempts to preserve her employment relationship before quitting her job. Id. at 429. Having failed to prove that she took any steps to resolve the intolerable and/or unpleasant conditions at the Millennium Group prior to quitting her position with Employer, Claimant did not meet her burden of proof under Section 402(b) of the Law. 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Dornbach, Petitioner v. No C.D Unemployment Compensation Board of Review, Respondent O R D E R NOW, July 25, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge