Opinion
No. 340 C.D. 2014
11-10-2014
Marsha Gauntlett-Kirby, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Marsha Gauntlett-Kirby (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) affirming and adopting the Decision of an UC Referee (Referee) that found Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law because she voluntarily quit her position with FMC Corporation (Employer) without cause of a necessitous and compelling nature. On appeal, Claimant argues that she did not voluntarily quit her employment, but was discharged, and the Board erred in finding her ineligible for UC benefits. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that "[a]n employe shall be 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.
Claimant worked as an Administrative Assistant for Employer and, pursuant to a separation agreement, her last day of work was July 31, 2013. (Referee Decision, Findings of Fact (FOF) ¶¶ 1, 9.) Claimant applied for UC benefits. Employer's questionnaire indicated that Claimant's separation was by "mutual agreement." (Employer's Questionnaire, R. Item 3.) The UC Service Center found Claimant ineligible for UC benefits, concluding that Claimant had voluntarily quit her employment, but had not provided sufficient information to determine whether she had cause of a necessitous and compelling nature for doing so. (Notice of Determination, R. Item 4.) The UC Service Center also found that Claimant had received a fault overpayment of $568.00 because she did not advise the Department of Labor and Industry that she had voluntarily left her position. (Notice of Determination Overpayment of Benefit (Fault or NonFault), R. Item 4.) Claimant appealed, asserting that she did not voluntarily quit her employment. (Claimant's Petition for Appeal, R. Item 5.) The matter was assigned to a Referee for a hearing, at which only Claimant appeared.
Employer notified the Referee's office that it would not be participating. (Employer's Notice of Hearing Non-participation, R. Item 8.)
Claimant offered the following testimony. Claimant began working for Employer on November 7, 2010 and, in June 2012, she received a new supervisor (Supervisor). (Hr'g Tr. at 4-5, R. Item 9.) A few weeks before Claimant began her maternity leave scheduled to begin in August 2012, she received an email from Supervisor stating that Claimant did not know how to do her job. (Hr'g Tr. at 5.) Claimant was surprised by the email because she had not encountered any performance issues with her former supervisor, and she expressed to Supervisor that she wanted to discuss any issues regarding her work performance. (Hr'g Tr. at 5.) However, Claimant went on maternity leave before any discussion could occur. (Hr'g Tr. at 5.) When she returned in January 2013, she and Supervisor met with Employer's Human Resources Department (HR Department) to establish Claimant's work roles. (Hr'g Tr. at 5.)
Claimant went out on short-term disability in May 2013 to have surgery. (Hr'g Tr. at 5.) When she returned, she arranged a meeting with Supervisor, who, unbeknownst to Claimant, asked a representative from the HR Department to be present. (Hr'g Tr. at 5.) At this July 3, 2013 meeting, Claimant received an unsatisfactory performance review and a performance improvement plan, and she was advised that if her performance did not improve she would be fired. (Hr'g Tr. at 5-6.) Claimant responded to the allegations and indicated that she and Supervisor "need[ed] to find a way to work better together." (Hr'g Tr. at 5.) About two weeks before Claimant resigned, Claimant met with the HR Department to discuss her situation and was told by a HR Department representative that "we do not see things getting better for you," "[w]e do feel that you will be - you probably will be fired," and "[l]ooks like you're on your way to being fired." (Hr'g Tr. at 6-7.) The HR Department representative then offered Claimant "a mutual separation" and separation package. (Hr'g Tr. at 7.) Claimant agreed that the HR Department representative did not say that she would be fired if she did not accept the separation package, but indicated again that "it wasn't looking good." (Hr'g Tr. at 7.) Claimant accepted the separation package, which included a statement that Employer would not contest a UC claim, because she did not want a firing on her employment record. (Hr'g Tr. at 5, 7, 11.) However, Claimant stated that she could not afford to quit her job because she had a one-year-old baby and her husband's commute from Philadelphia to New York City to work was very expensive. (Hr'g Tr. at 8.)
Based on Claimant's testimony, the Referee made the following findings of fact:
1. The Claimant was last employed as a full-time Administrative Assistant with [Employer] earning approximately $27.00 per hour. The Claimant began employment on November 7, 2010, and [her] last day worked [was] on July 31, 2013.
2. Approximately one year prior to her last day of work, a new individual took over as the Claimant's supervisor and said individual began having issues with the Claimant's work performance.
3. Said issues continued and the Claimant was placed on a performance improvement plan on July 3, 2013.
4. The Claimant had discussed her concerns with her supervisor with the Employer previously.
5. Approximately two to three weeks prior to the Claimant's last day at work, the Claimant discussed her concerns regarding her supervisor's criticism with the human resources department.
6. An individual with the human resources department replied with statements such as, "Things are not looking good[,]" and "You are probably going to get fired."
7. The Claimant did not wish to have a termination on her record.(FOF ¶¶ 1-13.)
8. The human resources department offered the Claimant a financial package as part of a separation agreement.
9. On July 23, 2013, the Claimant signed the separation agreement agreeing that her employment would end on July 31, 2013.
10. There is no indication in the hearing record that the Claimant was facing an imminent discharge at the time of her accepting the separation agreement.
11. Following her separation[,] the Claimant established an application for Unemployment Compensation (UC) benefits effective August 4, 2013.
12. Upon establishing her application[,] the Claimant provided information to the UC Service Center that her separation was due to lack of work as she was unsure of how to classify her separation.
13. The Claimant filed for and received $568.00 in UC benefits for the compensable week ending August 17, 2013.
The Referee reviewed the circumstances surrounding Claimant's separation, noting that "an employee [who] resigns to avoid certain discharge" will be treated as having been discharged, but that "an employee who resigns in order to avoid the chance of being fired" is treated as having voluntarily quit. (Referee Decision at 2 (internal quotation marks omitted).) The Referee concluded that, when Claimant entered into the separation agreement to end her employment, her concerns about her position with Employer were "merely speculative" because "the [HR Department's] representative's language did not have the immediacy and finality of a firing but merely raised the possible or probable likelihood of the Claimant being fired." (Referee Decision at 3 (internal quotation marks omitted).) Therefore, the Referee held that Claimant's separation had to be treated as voluntary and that a claimant's "uncertainty and speculation about the future existence of a job does not create necessitous and compelling cause for the voluntary termination of employment." (Referee Decision at 2 (internal quotation marks omitted).) Accordingly, the Referee found that Claimant did not have a necessitous and compelling reason for resigning from her position with Employer and was ineligible for UC benefits pursuant to Section 402(b) of the UC Law. (Referee Decision at 3.) Claimant appealed to the Board. The Board found that the Referee's Decision was proper, adopted and incorporated that Decision into its Order, and affirmed the Referee's order. (Board Order.) Claimant now petitions this Court for review.
The Referee also concluded that, given the circumstances surrounding her departure, Claimant could have been confused regarding how to classify her separation and, therefore, Claimant was not at fault for her receipt of one week's worth of UC benefits. (Referee Decision at 3.) Thus, the Referee modified the Notice of Determination Overpayment of Benefits to provide that the amount was recoupable under the non-fault provisions of Section 804(b)(1) of the UC Law, 43 P.S. § 874(b)(1). (Referee Decision at 3; Referee Order.)
Our review of the Board's decision "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
On appeal, Claimant argues that she did not voluntarily resign from her position with Employer, but resigned because Employer had begun to take unreasonable steps to discharge her. Claimant asserts that she signed the separation agreement only after attempting to address and rectify the situation with the HR Department and being told that she would be fired.
Section 402(b) provides that "[a]n employe shall be 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." 43 P.S. § 802(b). The claimant has the burden of proving either that her "separation from employment was involuntary" or that her "separation was voluntary but [s]he had cause of a necessitous and compelling nature that led [her] to discontinue the relationship." Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). "Whether [a claimant's] conduct constitutes a voluntary termination is a question of law to be determined by reviewing the findings of fact made by the Board." Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, 772 (Pa. Cmwlth. 1996).
A claimant who "resigns to avoid imminent discharge" will be treated as having been discharged. Id. at 773 n.2 (emphasis in original). In order "to be interpreted as a discharge, the employer's language must possess the immediacy and finality of a firing." Watkins, 65 A.3d at 1004. On the other hand, a claimant who resigns "to avoid the chance of being fired . . . is deemed to have voluntarily quit" and must establish that he or she had cause of a necessitous and compelling nature for doing so in order to be eligible for benefits. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989) (emphasis added). It is "'[t]he degree of certainty in an employer's language resulting in a [separation that] has often been the difference between those cases in which the Courts have found that an employee's [separation] was voluntary and those in which the employer's . . . act was deemed to effect the [separation].'" Fishel, 674 A.2d at 772 (quoting Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 561, 563 (Pa. Cmwlth. 1979)) (omission in original).
To qualify as a discharge, an employer does not have to use the terms "fired" or "discharged." Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 (Pa. Cmwlth. 2002). We have held that phrases such as "pick up your pay," "turn in your key," "there's the door," and "turn in your uniform" possessed the immediacy and finality of a firing. Rizzitano v. Unemployment Compensation Board of Review, 377 A.2d 1060, 1061 (Pa. Cmwlth. 1977) (citation omitted). In contrast, language suggesting that: the claimant may be discharged following an investigation, Scott v. Unemployment Compensation Board of Review, 437 A.2d 1304, 1305 (Pa. Cmwlth. 1981); discharge was a possibility if the claimant's performance did not improve, Rizzitano, 377 A.2d at 1061; or it was recommended that the claimant be discharged, Fishel, 674 A.2d at 772, did not constitute discharges, and the claimants in those cases were deemed to have voluntarily quit.
Reviewing the record, particularly the testimony regarding the HR Department's representative's statements, we conclude that such statements did not have the immediacy and finality of a firing. According to Claimant, she was told that "there was a good chance" that she would be fired, she "probably will be fired," and she was "on [her] way to being fired." (Hr'g Tr. at 5-7.) Claimant indicated that she was not told that she was fired if she did not accept the separation agreement. (Hr'g Tr. at 7.) There is nothing in the record establishing that Claimant absolutely was going to be fired or that her discharge was imminent. The performance improvement plan Claimant signed on July 3, 2013 did not indicate that she would be discharged if her performance did not improve, but provided that "further job action up to and including termination" was possible and that Supervisor "look[ed] forward to a successful conclusion to this matter." (Claimant's Ex. 1 at 2, R. Item 9.) Moreover, the separation agreement did not contain any statement that it was entered into in lieu of Claimant's discharge. (Claimant's Ex. 3, R. Item 9.) In fact, the separation agreement provided that Claimant had the right to revoke the agreement within seven days of the date it was signed. (Claimant's Ex. 3 at 5.) Although we sympathize with Claimant, we conclude that, under these circumstances, Employer's representations did not have the immediacy and finality of a firing and, therefore, Claimant's separation from her employment was voluntary.
Because Claimant voluntarily resigned from her position, she must establish that she had cause of a necessitous and compelling nature for doing so in order to be eligible for UC benefits. Claimant asserts that, prior to leaving, she attempted to rectify the situation by telling the HR Department about her issues with Supervisor and seeking a transfer to another position, but nothing was available. Claimant argues that she accepted the separation agreement only after she was told she would be fired and, therefore, she is eligible for UC benefits.
To show cause of a necessitous and compelling nature, a 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 and Conference Center v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006) (citing Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998)). We have consistently held that "an employee who quits work to avoid the possibility of being fired is not entitled to compensation." Fishel, 674 A.2d at 772-73. Moreover, "uncertainty and speculation about the future existence of a job does not create necessitous and compelling cause." Department of Navy v. Unemployment Compensation Board of Review, 650 A.2d 1138, 1140 (Pa. Cmwlth. 1994).
Although Claimant made some efforts to resolve her differences with Supervisor or find a different position with Employer, Claimant indicates that she accepted the separation agreement when she was told she would be fired. Claimant further testified that she had never been fired and was concerned about having a firing on her permanent record. (Hr'g Tr. at 5, 11.) As discussed above, however, the language utilized by the HR Department representative did not contain the immediacy and finality of a firing. Claimant's attempts at resolution do not alter the conclusion that Claimant voluntarily left her job "to avoid the possibility of being fired," Fishel, 674 A.2d at 772, and/or due to her concern and speculation "about the future existence of [her] job," Department of Navy, 650 A.2d at 1140. These reasons do not constitute necessitous and compelling reasons for voluntarily quitting one's position and, therefore, Claimant is ineligible for UC benefits under Section 402(b) of the UC Law.
Claimant also argues that we should consider the fact that Employer has not contested her receipt of UC benefits. However, an employer's decision to not contest UC benefits does not make the claimant eligible for benefits because eligibility is a matter for the Board to determine based on the facts of the case and the UC Law. Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). --------
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 10, 2014, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge