Opinion
No. 831 C.D. 2014
01-09-2015
Christy L. Bolton, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Christy L. Bolton (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that she is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law because she voluntarily quit her job without a necessitous and compelling reason. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. § 802(b). Section 402(b) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ...." Id.
Claimant was employed full time by York County (Employer) as a social worker from January 2010 to October 24, 2013. (Record Item (R. Item) 9, Referee's Decision and Order, Finding of Fact (F.F.) ¶1; R. Item 8, Referee's Hearing Transcript (H.T.) at 3; R. Item 2, Initial Internet Claims Application at 4.) On October 24, 2013, Claimant resigned from this job and filed for unemployment benefits. The Unemployment Compensation Service Center found Claimant ineligible under Section 402(b) and denied benefits. Claimant appealed and the referee conducted a hearing at which Claimant testified and Employer did not appear. After the hearing, the referee made the following findings of fact:
1. For the purposes of this appeal, the claimant was last employed full-time as a CASSP Coordinator, earning $41,715 per year from January, 2010 to October 24, 2013.(R. Item 9, F.F. ¶¶1-7.)
2. On October 24, 2013, the claimant severed the employment relationship in anticipation of a possible termination.
3. In February, 2013, the claimant was advised that at some point due to budget cuts, she would be terminated.
4. The claimant was not given a specific date or time that the termination would go into effect.
5. There is no indication that the claimant explored other options prior to severing the employment relationship in anticipation of a termination that would occur sometime in the future.
6. There is no indication that claimant was to be terminated on October 24, 2013.
7. There is no indication that claimant was advised that she would be terminated if she did not resign on October 24, 2013.
Claimant appealed the referee's decision to the Board. The Board adopted the referee's findings and conclusions and affirmed the referee's decision denying benefits. (R. Item 11, Board Order.) The Board also noted that although it
believe[d] the claimant that her discharge was certain, there is no evidence that it was imminent. The claimant acted imprudently by resigning before knowing when she would be discharged because she could have continued to work and earn wages until she was discharged, or resigned in lieu of imminent and certain discharge ....(Id.) Claimant filed the instant petition for review appealing the Board's order to this Court.
Our review of the Board's decision is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 n.3 (Pa. Cmwlth. 2007). --------
A claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate that she had a necessitous and compelling reason for doing so. Solar Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012); Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 (Pa. Cmwlth. 2007); PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 60 (Pa. Cmwlth. 1996). To prove a necessitous and compelling reason for leaving employment, the claimant must show circumstances that produced real and substantial pressure to terminate employment and would compel a reasonable person to act in the same manner, and must also show that she acted with ordinary common sense and made a reasonable effort to preserve her employment. Solar Innovations, Inc., 38 A.3d at 1056; Davila, 926 A.2d at 1289 n.4. Whether or not a claimant had a necessitous and compelling reason for leaving employment is a question of law subject to this Court's plenary review. Solar Innovations, Inc., 38 A.3d at 1056; Davila, 926 A.2d at 1289; PECO Energy Co., 682 A.2d at 61.
An impending layoff can constitute a necessitous and compelling reason for voluntarily leaving employment where the claimant shows that her employer was eliminating her job and offered her a financial incentive to resign. Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1207-08 (Pa. Cmwlth. 2011); PECO Energy Co., 682 A.2d at 61, 63; Staub v. Unemployment Compensation Board of Review, 673 A.2d 434, 437 (Pa. Cmwlth. 1996) ("[t]he very fact that an employer is inducing employees - even those who would rather continue working - to leave is itself a powerful, relevant consideration" that can support necessitous and compelling circumstances for resignation where there is a likelihood of layoff). However, the mere likelihood of discharge in the future does not constitute necessitous and compelling grounds for leaving employment where there is no evidence that the employer has offered the claimant any financial incentive to resign at that time, unless the claimant shows that her loss of employment was imminent. Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, 772-73 & n.2 (Pa. Cmwlth. 1996) (claimant who quits job simply to avoid discharge is eligible for unemployment benefits "[o]nly when the claimant resigns to avoid an imminent discharge") (emphasis in original); Gackenbach v. Unemployment Compensation Board of Review, 414 A.2d 770, 771 (Pa. Cmwlth. 1980) (resignation because of "unsatisfactory" job performance rating was not for necessitous and compelling cause where discharge would not occur for three to four months).
The Board found that Claimant resigned her employment because she was going to be laid off in the future and that Claimant did not show that the termination of her employment was imminent. (R. Item 11, Board Order; R. Item 9, F.F. ¶¶2-7.) Those determinations are amply supported by the record. Claimant testified:
R[eferee]: ... Now on 10/24/13 did there come a time when you and the employer parted company?
C[laimant]: Yes.
R[eferee]: On that date did you resign?
C[laimant]: Yes.
* * *
R[eferee]: ... [W]hat was the specific concrete reason you gave the employer for resigning?
C[laimant]: That would be due to basically stress and knowing that I was going to be laid off anyway.
R[eferee]: Were you directly told that by the employer?
C[laimant]: Not in - well I was back in February, yes.
R[eferee]: You were told by the employer that in February you would be, in February, 2013 you would be laid off?
C[laimant]: At some point, yes.
R[eferee]: At some point?
C[laimant]: Um-hum. I was not ...
R[eferee]: I need ...
C[laimant]: ... given a date.
* * *
R[eferee]: But you were not given a specific date?
C[laimant]: No, sir.
R[eferee]: So the best of your knowledge or belief you weren't going to be terminated effective 10/24/13, is that what you're telling me?(R. Item 8, H.T. at 4.) Claimant introduced no evidence that Employer offered her any incentive to induce her to resign at that time or that anything occurred in October 2013 that precipitated her resignation. The Board therefore properly concluded that Claimant did not satisfy her burden to show a necessitous and compelling reason for her resignation.
C[laimant]: Right.
Claimant argues in her brief that Employer told her that October 24, 2013 was her last day of work and that it would not oppose unemployment compensation benefits if she resigned. These factual assertions are not supported by any testimony or document in the record. Accordingly, the Court cannot consider them in this appeal. Umedman v. Unemployment Compensation Board of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012); Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974-75 (Pa. Cmwlth. 2009). Moreover, Claimant's contention that she was told that she was being discharged on October 24, 2013 is not only unsupported by anything in the record, it is directly contrary to her testimony at the referee's hearing.
Claimant also argues that the referee did not give her an opportunity at the hearing to show the circumstances surrounding her resignation. We do not agree. The transcript of the referee's hearing shows not only that the referee asked Claimant questions designed to bring out the facts concerning her resignation and what she was told by Employer about whether and when she would be laid off, but that the referee also specifically asked Claimant several times if there was any other information that she wished to add. (R. Item 8, H.T. at 4-5.) Claimant, in response, repeatedly told the referee that there was nothing else that she wished to say. (Id. at 5.) The record thus shows that Claimant received a fair hearing and a full and adequate opportunity to explain the reasons that she left her employment. See Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d at 1208-09 n.5.
Furthermore, the fact that Employer did not appear at the referee's hearing or contest Claimant's claim for unemployment benefits does not constitute grounds for reversing the Board's denial of benefits. An employer's failure to contest an application for unemployment benefits does not make the claimant eligible. DeFelice v. Unemployment Compensation Board of Review, 649 A.2d 485, 487-88 (Pa. Cmwlth. 1994); Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). "It is for the referee and Board to determine a claimant's eligibility for benefits in unemployment compensation cases by determining the facts and applying the law. It is not for an employee and employer to determine eligibility for benefits by agreement." Turner, 381 A.2d at 224.
Because the burden of proving necessitous and compelling cause for leaving employment was on Claimant and Claimant failed to satisfy that burden, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 9th day of January, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge