Opinion
No. 746 C.D. 2012
12-21-2012
Cynthia Dubbs, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Cynthia Dubbs (Claimant) petitions for review of an order of the Pennsylvania Unemployment Compensation Board of Review (Board). The Board affirmed an order of a Referee, which determined that Claimant voluntarily quit her employment without cause of a necessitous and compelling nature. On that basis, the Board concluded that Claimant was ineligible for unemployment compensation benefits. We affirm.
Claimant had been employed by the Northern Lebanon School District (Employer) as a full-time second grade teacher since August 1989. After receiving two unsatisfactory evaluations, Employer's Superintendent informed Claimant that he planned to recommend during the next school board meeting that the school board discharge Claimant based upon the evaluations. The Superintendent offered Claimant the opportunity to resign before he made the recommendation to the school board. Claimant elected to resign her position "in lieu of termination" (Certified Record (C.R.), Item no. 3 attachment (letter of resignation)), and she filed an application for unemployment compensation benefits. The local unemployment compensation service center issued a notice of determination on September 19, 2011, finding Claimant ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), based upon the conclusion that Claimant did not establish a necessitous and compelling reason to voluntarily quit her job. Claimant appealed that determination, asserting that she had cause of a necessitous and compelling nature to quit.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S § 802(b).
The matter was assigned to a Referee, who scheduled a hearing for November 4, 2011. On October 25, 2011, Claimant requested a continuance of the hearing because "one of [Claimant's] integral fact witnesses is unavailable." (C.R., Item no. 9.) In apparent response to a request from the Referee's office regarding the witness, counsel for Claimant submitted a second letter, dated October 26, 2011, in which she identified the witness as "Nathan Greenawalt, PSEA UniServ Representative." (C.R., Item no. 10.) This letter included a copy of an email from Mr. Greenawalt, indicating that he would be attending a work-related conference in New Jersey on the date of the scheduled hearing. The record indicates that the Referee informally, by telephone, denied Claimant's request for a continuance. (C.R., Item no. 11 (first document).) On October 27, 2011, Claimant sent another letter to the Referee, asking the Referee to reconsider his denial of her continuance request. (Id.) In that letter, counsel for Claimant stated that Mr. Greenawalt was "expected to testify as to his knowledge and conversations with representatives of the District regarding the termination of Claimant's employment." (Id.) The Referee denied the request to reconsider his decision. (Id. (second document).) Counsel for Claimant sent a letter the same day, October 27, 2011, indicating that the Referee's office informed her that the reason the Referee denied the request for a continuance was that Claimant "failed to provide information as to the facts upon which Mr. Greenawalt [would] testify." (Id.) Counsel then referenced the above quoted passage from her previous letter, which she asserted outlined "his anticipated testimony and relevance to the issue of this claim where [Claimant] bears the burden of proof. Please advise what additional information you deem necessary to show that Mr. Greenawalt's testimony is relevant and essential to a proper determination of this case." (Id.)
At the outset of the Referee's hearing, counsel for Claimant again indicated her desire for a continuance. The Referee stated that if it became clear during the course of the hearing that the testimony of Mr. Greenawalt was relevant, he would continue the hearing. After all the witnesses testified and counsel for Claimant and Employer completed closing statements, Claimant did not request a continuance in order to provide Mr. Greenawalt's testimony. The Referee concluded that the sole issue before him was whether Claimant had cause of a necessitous and compelling nature for voluntarily quitting her job and that Claimant failed to demonstrate such cause. Thus, the Referee affirmed the service center's determination finding Claimant ineligible for benefits.
During the course of the hearing, Employer indicated that it was not asserting that Claimant engaged in willful misconduct; rather, the only issue was whether she had necessitous and compelling reasons for quitting.
Claimant appealed to the Board, which made the following factual findings:
We note here that Claimant did not challenge any of the Referee's factual findings in her appeal to the Board. Rather, the sole basis of her appeal related to: (1) the Referee's denial of Claimant's request for a continuance; and (2) whether the Referee abused his discretion by failing "to consider evidence related to [Employer]'s actions to post, interview and fill [Claimant]'s position prior to her resignation." (C.R., Item no. 15.)
1. [Claimant] was last employed as a full-time second grade teacher by the Northern Lebanon School District from August 1989, to June 14, 2011.(C.R., Item no. 18.) The Board concluded that Claimant failed to demonstrate cause of a necessitous and compelling nature, and it affirmed the Referee's decision denying benefits.
2. [Claimant] received two unsatisfactory evaluations.
3. The Superintendent notified [Claimant] that he would be recommending discharge at the next board meeting as [a] result of the evaluations.
4. [Claimant] was offered the opportunity to resign before the board meeting.
5. If [Claimant] chose not to resign, [she] would be recommended for termination and would have received a due process hearing before the school board decided whether she should be terminated or kept on.
6. [Claimant] chose to resign on June 14, 2011, prior to the board meeting.
Claimant raises the following issues for our review: (1) whether the Board's factual findings numbers 3 through 6 are supported by substantial evidence; (2) whether the Board erred in concluding that the Referee did not abuse his discretion and/or violate Claimant's constitutional due process rights by refusing to grant her request for a continuance; and (3) whether the Board erred in concluding that the factual findings support its conclusion that Claimant did not demonstrate a necessitous and compelling reason to quit her job.
This Court's standard of review of an order of the Board is limited to considering whether substantial evidence supports necessary factual findings and whether the Board erred as a matter of law or violated a claimant's constitutional rights. 2 Pa. C.S. § 704. --------
First, we will address Claimant's argument that substantial evidence does not exist to support findings of fact numbers 3 through 6. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine 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. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Finding of fact number 3 provides: "The superintendent notified the claimant he would be recommending discharge at the next [school] board meeting as a result of the evaluations." The testimony in the record indicates that the Superintendent did not notify Claimant directly that he would be recommending to the school board that it terminate Claimant's employment. Rather, the testimony and documents in the record indicate that the Superintendent notified Claimant through her union representative, Mr. Greenawalt. (N.T. at 7, 21.) Although the notification was not directed to Claimant, but rather to her union representative, the notification was from the Superintendent and did advise that he would recommend termination to the school board. Mr. Greenawalt, in turn, notified Claimant of the Superintendent's intentions. This evidence constitutes substantial evidence supporting finding of fact number 3.
Finding of fact number 4 provides: "The claimant was offered the opportunity to resign before the [school] board meeting." The record includes correspondence from Mr. Greenawalt to Claimant in which Mr. Greenawalt discussed Claimant's options. (Claimant's Ex. 2 and 3.) Claimant testified regarding the content of the correspondence (N.T. at 7), and the correspondence specifically notes that the administration would not proceed to move for Claimant's termination before the school board if Claimant submitted a letter of resignation. This evidence supports the Board's finding of fact number 4.
Finding of fact number 5 provides that "If the claimant chose not to resign, the claimant would be recommended for termination and would have received a due process hearing before the School Board decided whether she should be terminated or kept on." The Superintendent specifically testified that, if he filed charges against Claimant, the school board would conduct a due process hearing in order to determine what action to take regarding Claimant. (N.T. at 19.) The school board could adopt the Superintendent's recommendation or elect another response to the negative evaluations. (Id.) Thus, we conclude that substantial evidence supports finding of fact number 5.
Finding of fact number 6 provides: "The claimant chose to resign on June 14, 2011, prior to the [school] board meeting." Claimant herself testified that she submitted a letter of resignation on June 14, 2011. (N.T. at 11.) Thus, substantial evidence supports finding of fact number 6. Consequently, we conclude that substantial evidence supports all of the Board's key factual findings.
Next, we will address Claimant's argument that the Referee abused his discretion and/or denied her a fair hearing or violated her constitutional due process rights by failing to grant Claimant's request for a continuance in order to present the testimony of Mr. Greenawalt. As Claimant notes, the Board's regulations governing the hearing process before a referee provide as follows with regard to requests for continuances:
§ 101.23. Continuance of hearing
(a) Continuance of a hearing will be granted only for proper cause and upon the terms as the tribunal may consider proper. The inability of a party to attend a hearing because he received less than 7 days notice will be considered proper cause for continuance of a hearing.
(b) Within the discretion of the tribunal, a continuance will not, however, be granted merely because of the
absence of a witness, unless it appears that the testimony and evidence he could give would be competent and relevant to the issues involved and that the information is essential to a proper determination of the case.34 Pa. Code § 101.23.
This Court will reverse a referee's denial of a request for a continuance only when the party that sought the continuance demonstrates clearly that the referee abused his discretion. Viglino v. Unemployment Comp. Bd. of Review, 525 A.2d 450, 452 (Pa. Cmwlth. 1987). Under 34 Pa. Code § 101.23, a referee may grant a continuance only when the party making the request establishes good cause. Id. at 453. In evaluating whether good cause exists to support a grant of a request for a continuance, a party must make a showing that the testimony sought to be produced at a later hearing is "competent, relevant, and essential to a proper determination of the case." Id.
Here, Claimant appears to argue that the purpose of Mr. Greenawalt's testimony is to demonstrate that Employer's actions turned the nature of her quit from voluntary to involuntary and that Mr. Greenawalt's testimony would not be duplicative of her testimony regarding the pressure Employer placed upon her to resign in lieu of proceedings before the school board in response to the Superintendent's recommendation to Employer to terminate Claimant's employment. Claimant's pre-hearing correspondence lacked detail regarding the nature of the proposed testimony. In her first October 27, 2011 letter, counsel for Claimant stated that Mr. Greenawalt
is an integral fact witness, who is competent and relevant to the issues involved in the appeal, and his testimony is essential to the proper determination of [Claimant]'s claim . . . Mr. Greenawalt is expected to testify as to his knowledge and conversations with representatives of
[Employer] regarding the termination of [Claimant]'s employment.(C.R., Item no. 11.)
In her brief to this Court, Claimant presses the necessity of a continuance to hear Mr. Greenawalt's testimony:
Greenawalt . . . was in the best position to discuss the "pressure to resign" being inflicted upon [Claimant] by [Employer], the nature and inevitability of [Employer]'s termination threats delivered through [Employer]'s solicitor, and the demand that if [Employer] permitted her to resign that [Claimant] would be required to withdraw her Pennsylvania Human Relations Act complaint alleging harassment and age discrimination. Additionally, Greenawalt would have also testified as to his experience as a PSEA union representative regarding the length of due process hearings, termination of professional employees in Pennsylvania, the effect of a resignation, and grievance procedures.(Petitioner's Br. at 18-19.) Thus, Claimant suggests that Mr. Greenawalt's testimony could overcome the voluntary nature of her resignation. While we believe that the Referee had sufficient information from Claimant's counsel regarding the anticipated nature of Mr. Greenawalt's testimony to warrant the grant of Claimant's continuance request, we also conclude that other grounds exist to support the Referee's ultimate decision to deny the request.
In the brief Claimant submitted to the Board, she made clear that the pressure Employer placed upon her was not to resign, but rather to make a decision whether to resign or to face termination charges. Claimant now suggests that the communications from Employer signaled not just possible termination but imminent termination, and that Mr. Greenawalt could testify regarding his communications with Employer. Claimant also argued in the brief she submitted to the Board that the Superintendent indicated that, in the past, the Board accepted his recommendations 100% of the time. With these arguments in mind, we may address together Claimant's argument regarding the Referee's refusal to grant a continuance and Claimant's final issue, because we view the law applicable to the latter issue as bearing on the significance of the Referee's decision to deny Claimant's request for a continuance.
In support of her claim that the Board erred in concluding that Claimant lacked cause of a necessitous and compelling nature to quit, Claimant argues that the alleged pressure she claims Employer placed upon her turned her voluntary quit into a termination. This case, however, is analogous to Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), in which a claimant resigned in order to avoid the termination that might follow a formal hearing before a school board. As in this case, the claimant in Fishel also received information indicating that the alternative to resignation was the offer of a recommendation by a school administrator that the school board terminate the claimant. In Fishel, we summarized our ultimate conclusion as follows: "[The school administrator]'s language . . . did not constitute an imminent discharge, and the outcome of the school board's hearing on the recommended termination was uncertain. Fishel's resignation was a voluntary termination without cause of a necessitous and compelling nature that would qualify [the claimant] for benefits." Id. at 773. Here, while the e-mail correspondence to which Claimant refers suggests that the Superintendent was anxious for Claimant to make a decision regarding whether to resign or face charges before the Board, the record makes clear that Claimant had an opportunity to challenge the charges before Employer's school board in a due process hearing, but she elected to avoid the possibility of termination, because one of the consequences of a termination was the likelihood that she would not be able to obtain another teaching position. Although Fishel may be distinguished on the basis that it does not appear that the superintendent in Fishel communicated to the claimant that his school board had accepted every termination recommendation that he had made, that circumstance alone is irrelevant here, because it does not alter the fact that the Superintendent pressured Claimant to make a decision, as compared to pressuring Claimant to resign in lieu of termination. Claimant's options were the same as those that were available to the claimant in Fishel: she could face the formal charges (and the consequences of the Board's actions) or she could avoid the possibility that the Board would accept the Superintendent's recommendation to terminate her employment if she submitted her resignation. Claimant's resignation, therefore, was voluntary because termination was not certain, and, consequently, her reasons for quitting do not constitute cause of a necessitous and compelling nature.
In light of this, the evidence Claimant sought to introduce relating to the pressure the Superintendent placed upon her to decide whether to resign or proceed to a hearing before the school board was not relevant to the analysis in this case. Thus, we conclude that the Referee did not abuse his discretion or violate Claimant's due process rights in refusing to grant Claimant's request for a continuance. Further, we conclude that, under Fishel, the findings of fact support the Board's ultimate determination that Claimant quit her job without cause of a necessitous and compelling nature.
Accordingly, the Board's order affirming the Referee's decision is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 21st day of December, 2012, the order of the Pennsylvania Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge