Opinion
No. 1365 C.D. 2012
05-15-2013
Michelle O'Flynn, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
This matter was reassigned to the authoring judge on April 12, 2013.
Michelle O'Flynn (Claimant) petitions for review, pro se, of the May 22, 2012, Order of the Unemployment Compensation Board of Review (Board) that reversed the determination of an Unemployment Compensation Referee (Referee) and found Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(a) of the Unemployment Compensation Law (Law). Because the credited testimony supports the Board's finding that Claimant failed to take any steps to apply for or accept suitable, available work, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L., (1937) 2897, as amended, 43 P.S. § 802(a). Section 402(a) provides that a claimant is ineligible for UC benefits if his unemployment is due to his failure, without good cause, to apply for or accept suitable work when offered by any employer. Id.
Claimant does not appeal the Board's additional determination that she had a fault overpayment of $7,068.00 subject to recoupment.
Claimant was employed by Edens Corporation (Employer) as a paratransit driver from June 14, 2006 through July 29, 2011. (Board Op., Findings of Fact (FOF) ¶ 1.) Employer provided paratransit services through a contract with the Southeastern Pennsylvania Transportation Authority (SEPTA). (FOF ¶ 2.) In May 2011, Claimant and other employees received notice that Employer's contract with SEPTA would end on July 29, 2011. (FOF ¶ 3.) MV Paratransit (MV), SEPTA's new provider of paratransit services, was accepting applications from all of Employer's active drivers, only requiring the drivers to fill out an application and complete one day of retraining. (FOF ¶¶ 4-5.) Flyers (MV Flyers) posted in Employer's drivers' room and operations department advised the drivers that MV had won the SEPTA contract and was hiring drivers. (FOF ¶ 5.) The MV Flyers provided MV's contact information for Employer's drivers to complete an application and advised the drivers to do so as soon as possible. (FOF ¶ 6.) Employer's human resources representative (Representative) could not confirm that Claimant saw or received a copy of the MV Flyer. (FOF ¶ 10.) However, Representative testified that when Claimant reported for an exit interview on August 5, 2011, Claimant refused to sign the exit interview form that stated, "'SEPTA paratransit Contract with Edens ends on Friday, July 29, 2011. Contract work is continuing on Saturday, July 30, [20]11 with MV - 2625 Wheatsheaf Lane, Philadelphia, PA 19137. Therefore, suitable work is available with new contractor, MV.'" (FOF ¶ 14 (quoting Employer's Exit Interview Form, Ex. 19).)
Employer's human resources representative testified at the Referee's hearing that Employer's five-year contract with SEPTA ended on July 29, 2011 and that the five-year contract between MV and SEPTA would begin on July 30, 2011. (Hr'g Tr. at 11.)
On December 20, 2011, the Scranton UC Service Center (Service Center) found Claimant ineligible for benefits pursuant to Section 402(a) of the Law. Claimant appealed to the Referee. The Referee held a hearing and reversed the Service Center's determination of ineligibility, reasoning that Employer did not make an offer of employment to Claimant and did not provide any evidence that Claimant failed to apply for a position. (Referee Decision at 2.) Employer appealed to the Board. The Board reversed the Referee's determination after making new findings of fact and resolving all conflicts in the relevant testimony in favor of Employer. (Board Op. at 3-4.) Claimant now petitions this Court for review.
"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).
Claimant argues that the Board erred as a matter of law in finding her ineligible for benefits under Section 402(a) of the Law because she never received a referral to MV and substantial evidence does not support the Board's finding that Claimant knew that suitable work was available. Claimant points to her testimony that she did not have an exit interview but that, on August 5, 2011, she just picked up her final paycheck, signed for it, and walked out. Claimant argues that Employer did not attach a letter to her final paycheck with information about suitable work being available at MV, contending that had this information been made known to her, she would have completed an application.
Under Section 402(a) of the Law, an employee is ineligible for compensation for any week "in which h[er] unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to h[er] by the employment officer or by any employer." 43 P.S. § 802(a). "Whether offered work [wa]s suitable, and whether a claimant ha[d] good cause for rejecting an offer are two distinct concepts under Section 402(a)." Big Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492, 495 (Pa. Cmwlth. 2012) (citation omitted). Section 4(t) of the Law defines suitable employment as "all work which the employe is capable of performing" and considers such factors as the degree of risk involved to health, safety, morals, physical fitness, prior training and experience, and distance of the work from the residence. 43 P.S. § 753(t). "Good cause" is not specifically defined, but our Supreme Court has held that "good faith, as used in this context, includes positive conduct on the part of the claimant which is consistent with a genuine desire to work and to be self-supporting." Lattanzio v. Unemployment Compensation Board of Review, 461 Pa. 392, 398, 336 A.2d 595, 598 (1975) (citation omitted). "Good cause exists where a claimant maintains a real and substantial reason for refusing suitable work." Big Mountain Imaging, 48 A.3d at 495. A claimant bears the burden on both the suitability of the work and whether there is good cause not to accept suitable work when offered. Rising v. Unemployment Compensation Board of Review, 621 A.2d 1152, 1154 (Pa. Cmwlth. 1993).
A review of the record before us reveals that an MV Flyer was entered into evidence without Claimant's objection. (Hr'g Tr. at 7-8; MV Flyer, Ex. 17.) Representative testified that: Employer had lost the SEPTA contract and MV, the new contractor, would be taking and absorbing all of Employer's active paratransit drivers, (Hr'g Tr. at 11); Employer distributed MV Flyers to the operations department and the drivers' room where the drivers reported daily for their schedules, (Hr'g Tr. at 12-13); MV Flyers were posted in the drivers' room at the beginning of May and remained posted in the drivers' and operations rooms through July 29, 2011, when Employer's contract with SEPTA ended, (Hr'g Tr. at 13-14); MV was taking all of Employer's drivers and "[a]ll they had to do [wa]s fill out an application and complete one day of retraining," (Hr'g Tr. at 15); Employer had 139 active drivers and that, as of July 25, 2011, MV had hired 100 drivers and was still looking for 39 other drivers, (Hr'g Tr. at 16); and, most drivers made the transition to MV, but some wanted to take other opportunities, (Hr'g Tr. at 16).
The record further reveals that Claimant's exit interview form was entered into evidence without Claimant's objection. (Hr'g Tr. at 7-8; Employer's Exit Interview Form, Ex. 19.) Representative testified that when an employee will not sign an exit interview form, "refused to sign" is noted on the form and that after Claimant came in for the exit interview and refused to sign her exit interview form, Representative inserted "August 5, 2011" and "refused to sign" on Claimant's form. (Hr'g Tr. at 16-17.)
Claimant testified that she never saw the MV Flyers, drivers were not allowed in the operations room, and she personally did not go into that room. (Hr'g Tr. at 18-19.) Claimant first stated that she never went into the drivers' room. However, upon further questioning, she agreed that she had been in the drivers' room on July 29, 2011, but did not see an MV Flyer there. (Hr'g Tr. at 21.) Claimant indicated that she did not recall having an exit interview and that she only ran in, got her check, and signed to acknowledge receipt of her check. (Hr'g Tr. at 19-20.) Claimant had no recollection of any conversation with Representative. (Hr'g Tr. at 20.) Claimant stated that she never received the MV Flyer from Employer, but that she received other notices with her paychecks. (Hr'g Tr. at 20.) Claimant testified that she did not know what was going on with MV, she just did her work, was in and out, and barely spoke to Representative. (Hr'g Tr. at 21, 24.)
The Board resolved all conflicts in the relevant testimony in favor of Employer, including that Claimant reported for an exit interview on August 5, 2011, but refused to sign the exit interview form that included the notice about suitable work being available with MV. (Board Op. at 3-4.) The Board discredited "[C]laimant's conflicting testimony that she did not recall having a conversation or exit interview with the human resources representative on August 5, 2011" or that Claimant did not "receive[] any offer of employment from MV." (Board Op. at 3-4.) Thus, the Board determined that Claimant knew that an offer of suitable work with MV was available to her. (Board Op. at 3.)
The Board is the ultimate finder of fact; the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That Claimant might believe a different version of the events took place does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). "Thi[s] Court is not allowed to reweigh the evidence and may only reverse if it determines that the Board's decision was unsupported by the evidence." Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 639 (Pa. Cmwlth. 1998).
"Substantial evidence is defined as such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995).
The credited evidence in this matter, including the credited testimony of Representative, the MV Flyer, and the exit interview form with MV's contact information, constitutes substantial evidence that supports the Board's determination that suitable work was available with MV had Claimant filled out an application and completed one day of retraining. Because the Board credited the testimony of Employer's Representative, and not the testimony of Claimant, the Board determined that Claimant did not meet her burden to show that her unemployment was not due to Claimant's lack of good faith in accepting the available suitable work with MV.
In crediting Representative's testimony that MV was absorbing Employer's drivers, the Board determined that MV's invitation for Employer's drivers simply to submit an application and complete one day of retraining constituted an offer of suitable employment available to Claimant. (Board Op. at 3.) We note that Claimant presents no argument that this was not an offer, but rather argues that she did not know about MV's offer.
Accordingly, the Order of the Board is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 15, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. I cannot agree with the majority's conclusion that Michelle O'Flynn (Claimant) is ineligible for unemployment compensation benefits pursuant to section 402(a) of the Unemployment Compensation Law (Law). Because the evidence established that Edens Corporation (Employer) merely posted a flyer that MV Paratransit (MV) was accepting applications and provided the same information on an exit interview form, I would find that Claimant did not have an offer of employment and would reverse the order of the Unemployment Compensation Board of Review (Board).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(a).
Here, the only question is whether Claimant failed to accept suitable work offered to her by any employer pursuant to section 402(a) of the Law, 43 P.S. §802(a). The majority focuses on whether the work with MV was suitable. (Majority Op. at 4-6.) However, suitable work must actually be offered to a claimant.
Assuming all facts in favor of Employer, I conclude that Claimant did not receive a job offer. A job offer is "a manifestation of willingness to enter into a bargain, which would justify another person in understanding that his assent to that bargain is invited and will conclude it. An offer creates a power of acceptance in a specified offeree to transform the offeror's promise into a contractual obligation." Philadelphia Newspapers, Inc. v. Unemployment Compensation Board of Review, 426 A.2d 1289, 1290 n.3 (Pa. Cmwlth. 1981) (citing the Restatement (Second) of Contracts §24).
Employer admitted on its Employer's Questionnaire that it did not offer Claimant a specific job. (Employer's Questionnaire at 1.) Employer was closing its business and posted flyers notifying employees of available job opportunities with MV, the paratransit company that was taking over Employer's contract with the Southeastern Pennsylvania Transportation Authority. The flyers directed candidates to fill out an application with MV and provided contact information. The flyers also indicated that candidates would be required to complete a day of retraining. Posting a notice of job openings is merely a solicitation for applications and does not amount to a job offer. McKeesport Hospital v. Unemployment Compensation Board of Review, 619 A.2d 813, 816 (Pa. Cmwlth. 1992).
Moreover, it was not Employer that had the job openings, it was MV. Thus, Employer could not actually offer Claimant a position with MV. Employer's posting of the flyer from MV and advising employees of job opportunities with MV and First Transit on its exit interview form was merely a solicitation and did not amount to an offer of employment that could be accepted by Claimant. Because MV reserved the right to evaluate Claimant's qualifications before proffering any position, Claimant was not offered a job. See McKeesport Hospital, 619 A.2d at 816.
Employer notified its employees of available job opportunities with MV and First Transit on its exit interview form. (Exit Interview Form at 1.) --------
I believe the UCBR erred in determining that Claimant was ineligible for benefits pursuant to section 402(a) of the Law because the evidence established that MV did not offer Claimant employment. Accordingly, I would reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge