Opinion
No. 783 C.D. 2012
02-08-2013
Elsie Maldonado, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Elsie Maldonado (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was not eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), because she voluntarily quit her job without a necessitous and compelling reason. Claimant argues that the Board erred in characterizing Claimant's separation from employment as voluntary because she resigned only after being informed that her discharge had been recommended. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It 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." 43 P.S. §802(b).
Claimant was employed by the School District of Philadelphia (Employer) as a full-time teacher from September 2008 until October 2011. Claimant resigned her employment on October 19, 2011, after Employer's human resources officer told her she was being recommended for discharge for violating Employer's sick leave policy.
Claimant applied for unemployment benefits, and the Allentown UC Service Center awarded benefits. The Service Center found that Employer discharged Claimant for violating its sick leave policy, but that Claimant's actions did not constitute willful misconduct. Employer appealed. The matter was assigned to a Referee, who held a hearing. Claimant appeared and presented evidence. Employer did not appear.
Claimant testified in support of her claim. Claimant suffered a minor stroke at work on October 11, 2011, and went to the hospital for treatment. Claimant was medically cleared to return to work without restrictions on October 13th, but she did not report for work. Instead, Claimant saw her primary care doctor on October 14th, and her podiatrist on October 15th for an Achilles tendon problem. On October 15th, Claimant received a letter from Employer stating that she had violated Employer's sick leave policy. The letter instructed Claimant to attend a hearing about her violation of the sick leave policy before Employer's human resources hearing officer on October 19, 2011.
Claimant attended the hearing with a union representative. Claimant was informed that she had violated the sick leave policy by not calling Employer about her illness, which the hearing officer considered to be "cause for dismissal." Notes of Testimony, January 25, 2012, at 9. The hearing officer announced an intention to recommend that Claimant be dismissed. That recommendation is not self-executing. Under Section 508 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-508, a majority vote of the board of school directors is needed to dismiss a teacher. In addition, under Section 514, the board of school directors must, upon request, afford a teacher facing dismissal a hearing before the board. 24 P.S. §5-514.
Claimant explained to the Referee that she believed she had complied with the rules on absences and that she knew that she could challenge the dismissal recommendation. Specifically, she could receive a hearing before the School Reform Commission or pursue a grievance under the collective bargaining agreement between the union and school district. At the hearing before the human resources officer, Claimant's union representative informed her that she could resign in lieu of being dismissed and gave her a form entitled "Election of Resignation in Lieu of Dismissal" explaining the option. Claimant submitted a written letter of resignation dated October 19, 2011.
Section 696 of the Public School Code, added by the Act of April 27, 1998, P.L. 270, as amended, provides for the establishment of a School Reform Commission in a distressed school district of the first class and grants the School Reform Commission "[a]ll powers and duties granted heretofore to the board of school directors." 24 P.S. §6-696(e)(1). The School Reform Commission has been Employer's governing body since December 2001. School District of Philadelphia v. Department of Education, 41 A.3d 222, 224 n.3 (Pa. Cmwlth. 2012). Therefore, in this case, the School Reform Commission is the entity that would have to vote to discharge Claimant and would have to give Claimant a hearing at her request before taking action on any dismissal recommendation.
Claimant testified before the Referee that she opted to resign for two reasons. First, Claimant did not believe she would be successful in any challenge. Second, Claimant did not want a blemish on her employment record, and Employer agreed to discontinue any disciplinary action and remove any negative documents from Claimant's official personnel file in exchange for her resignation.
The Referee found that human resources intended to recommend that Claimant be discharged for violating the sick leave policy. The Referee also found that Claimant knew that she could challenge the recommendation. The Referee found that Claimant voluntarily resigned in lieu of discharge because she did not want to go through the hearings and did not want negative documents in her personnel file. Based on these findings, the Referee concluded that Claimant voluntarily resigned without cause of a necessitous and compelling nature because there was no evidence that termination of her employment was imminent, given her opportunity for a grievance or hearing before the School Reform Commission. Accordingly, the Referee denied the UC claim under Section 402(b) of the Law.
Claimant appealed. The Board amended the Referee's findings of fact to make it clear that Claimant "resigned in lieu of potential, rather than certain, discharge." The Board otherwise adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's decision. The Board explained that Claimant is not entitled to unemployment compensation because facing a potential discharge does not constitute a necessitous and compelling reason to quit. Claimant now petitions this Court for review.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987).
On appeal, Claimant asserts that the Board erred in denying benefits for two reasons. First, Claimant argues that the Board erred in concluding that her separation from employment was voluntary. Claimant contends that she did not resign to avoid a possible discharge but an imminent discharge. Second, Claimant argues that she is entitled to benefits because she prevailed before the UC Service Center and Employer did not appear at the Referee's hearing.
If a claimant resigns her employment to avoid a possible discharge, the resignation is considered voluntary and the claimant is not eligible for benefits. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). On the other hand, where the claimant resigns to avoid an imminent discharge, the separation from employment is treated as a termination entitling the claimant to benefits so long as there was no willful misconduct. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). Whether a claimant voluntarily resigned or was discharged is a question of law for this Court to determine based on the facts found by the Board. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). It is the claimant's burden to prove that the separation was a discharge and not a voluntary resignation. Id.
According to Claimant, the evidence shows she was facing an imminent discharge when she resigned on October 19, 2011. Claimant argues that the formality of the hearing on that day, coupled with the Election of Resignation in Lieu of Dismissal Form being handed to her, gave Claimant the "strong impression" that her discharge was "virtually certain." Claimant's Brief at 11. Claimant acknowledges that she could have requested a hearing before the School Reform Commission or filed a grievance, but contends that it is common knowledge that fighting a termination is usually futile.
In support, Claimant cites to Pennsylvania Liquor Control Board, 648 A.2d 124. There, the claimant had been suspended twice under the employer's progressive discipline policy for excessive absenteeism. The claimant continued to miss time from work, prompting her manager to advise the claimant that he was recommending disciplinary action, up to and including dismissal. In response, the claimant resigned. The employer argued that the claimant was facing possible, but not necessarily imminent, termination because the employer had not yet made a final decision on the manager's recommendation when the claimant resigned. This Court disagreed, holding that the claimant was facing imminent dismissal because her employer had previously warned her that any further absences would result in termination. Thus, the claimant's separation from employment was a discharge entitling her to benefits, not a voluntary quit.
The Board responds that the findings in this case show that Claimant decided to quit in order to avoid a potential, not imminent, discharge. The hearing officer was recommending dismissal, but Claimant's options of going before the School Reform Commission or filing a grievance made the outcome of Employer's recommendation uncertain. We agree.
The evidence supports the Board's finding that Claimant's dismissal was not imminent. At the October 19, 2011, hearing, the hearing officer told Claimant that he would recommend her dismissal, not that she would definitely be dismissed, which could only be done by the School Reform Commission. According to Claimant's testimony, it was her union representative, not Employer, who gave her the Election of Resignation in Lieu of Dismissal Form and explained that option to her. Further, unlike the claimant in Pennsylvania Liquor Control Board, Claimant had not received any prior warning that a violation of the attendance policy was going to result in her discharge from employment.
This case is akin to Goffi v. Unemployment Compensation Board of Review, 427 A.2d 1273 (Pa. Cmwlth. 1981), in which a college professor resigned upon being told that the dean of the college was recommending the professor be discharged for unsatisfactory performance. This Court found the professor ineligible for benefits, holding that the resignation "was premature because there had not been any definitive determination of his status by those with authority to hire and fire," i.e., the board of trustees. Id. at 1275. Likewise, here there was only a recommendation that Claimant be dismissed; no decision had been made by the School Reform Commission.
Claimant knew that she had the right to challenge Employer's recommendation in a hearing before the School Reform Commission or in a grievance proceeding. In Hill v. Unemployment Compensation Board of Review, 385 A.2d 1032 (Pa. Cmwlth. 1978), the claimant resigned because he believed his employer was going to discharge him for absenteeism, but he admitted that he had the right to appeal the employer's decision. This Court held that "the existence of a right to appeal the threatened discharge render[s] the prospect of discharge less than a certainty," making the claimant ineligible for benefits because he resigned "merely to avoid the chance of being fired." Id. at 1033.
Although Claimant claims that she would not have been successful had she challenged a dismissal recommendation, she offers nothing but her subjective belief that her challenge would have been futile. In Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), a teacher resigned upon being informed that the school district was recommending her dismissal for unsatisfactory performance. She chose not to exercise her right to a formal hearing before the school board. This Court held that because a teacher can only be dismissed through majority vote of a school board or school reform commission, the outcome of the school district's recommendation was "far from certain." Id. at 773. Likewise here, Claimant voluntarily resigned even though it was "far from certain" that a majority of the School Reform Commission would have voted to discharge Claimant or that a grievance would not have produced a favorable outcome.
Next, Claimant argues that the Board erred in affirming the Referee's conclusion that Claimant did not have a necessitous and compelling reason to resign when Claimant prevailed before the UC Service Center and Employer failed to appear before the Referee to present any evidence in support of its appeal. In support of this argument, Claimant discusses the procedure in criminal and civil cases, but cites no unemployment or administrative law.
The referee is authorized to hold a hearing despite a party's absence. See 34 Pa. Code §101.51. Even if the party appealing the UC Service Center's determination fails to appear for a hearing, the referee is to render a decision on the merits rather than dismissing the appeal. Gadsden v. Unemployment Compensation Board of Review, 479 A.2d 74, 76 (Pa. Cmwlth. 1984). Claimant attended the Referee's hearing represented by counsel, and did not object to proceeding with the hearing in Employer's absence. Claimant had the burden of proving that her separation from employment was a discharge, not a voluntary quit. Key, 687 A.2d at 412. Claimant's evidence showed that she voluntarily resigned because she was facing a possible discharge, which is not a necessitous and compelling reason to quit. Therefore, the Board did not err in denying her claim for benefits.
It states as follows:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge President Judge Pellegrini dissents.
ORDER
AND NOW, this 8th day of February, 2013, the order of the Unemployment Compensation Board of Review dated March 27, 2012, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge