Opinion
No. 997 C.D. 2014
04-08-2015
Zamara Richelle Sheehan-Kohler, 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
Zamara Richelle Sheehan-Kohler (Claimant) petitions for review of an 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 (the Law), because she voluntarily quit her job with Youth Advocate Programs (Employer) without a necessitous and compelling reason. For the reasons that follow, 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 by Employer as a Behavioral Specialist Consultant/Mobile Therapist (BSC/MT) from December 26, 2008 through November 12, 2013. (Record Item (R. Item) 14, Referee Decision and Order, Finding of Fact (F.F.) ¶1; R. Item 13, Notes of Testimony (N.T.) at 5-6.) During the summer of 2013, Patti Lesh, who at the time was the Director of Youth Advocate and Adult Services (Director) for Employer and Claimant's supervisor, informed the staff of a new policy requiring BSC/MTs to perform the duties of Therapeutic Staff Support (TSS) if a TSS was not available. (R. Item 14, Referee Decision, F.F. ¶2; R. Item 13, N.T. at 12, 20.) The rate of pay for a TSS was $15 per hour, while a BSC/MT was paid at $30 per billable hour and $13 per non-billable hour. (R. Item 14, F.F. ¶¶1, 2.) Claimant was upset at the change in policy and felt that it was unfair and illegal for her to be asked to fill in for a TSS at the lower rate of pay. (Id., F.F. ¶7.) Claimant was asked to sign a new hire letter on August 28, 2013 incorporating the new policy and refused to sign the letter. (Id., F.F. ¶¶5, 6.) Claimant submitted a letter of resignation to Lesh on September 10, 2013, indicating that her last day of work was November 10, 2013. (Id., F.F. ¶8.) While this letter stated that her resignation was "unexpected," she did not give a reason for her decision to resign. (Id.; R. Item 13, Employer Ex. 16.) Lesh's last day with Employer was on September 15, 2013, and she was replaced as Director by Regina Scarmack on September 17, 2013. (R. Item 14, Referee Decision, F.F. ¶¶9, 10.)
Following her departure, Claimant filed her initial claim for unemployment compensation benefits on December 3, 2013. (R. Item 1, Claim Record.) On December 19, 2013, the Unemployment Compensation Service Center issued a determination finding Claimant not ineligible for benefits under the Law because Claimant had a necessitous and compelling reason to quit her job with Employer and that she had exhausted all alternatives prior to quitting. (R. Item 5, Notice of Determination.) Employer appealed the determination and a hearing was held before the Referee on February 19, 2014. At the hearing, Claimant testified, Lesh testified after being subpoenaed by Claimant, and Scarmack testified on behalf of Employer. Claimant also sought to introduce an email exchange between her and Kurt Faye, the Provider Field Coordinator of Value Behavioral Health, in which Faye stated that, according to Medical Assistance Bulletins issued by the Department of Public Welfare (Bulletins), a BSC/MT could not act in place of a TSS because a TSS must be supervised by a BSC/MT and anyone acting as a TSS must be properly trained in that capacity; Employer objected to the email as hearsay and the Referee sustained the objection. (R. Item 13, N.T. at 17-19.)
In a February 25, 2014 decision and order, the Referee reversed the Service Center's determination and concluded that Claimant was ineligible for benefits under Section 402(b) of the Law because she had not demonstrated cause of a necessitous and compelling nature to justify the voluntary termination of her employment. (R. Item 14.) Claimant, now represented by counsel, appealed to the Board and requested a remand hearing so that she could submit the Bulletins or subpoena the testimony of Faye to substantiate her claim that Employer's policy was illegal. (R. Item 15.) On May 16, 2014, the Board issued an opinion and order affirming the Referee's decision and order and adopting and incorporating the Referee's conclusions and findings of fact. (R. Item 17.) The Board also denied Claimant's request for a remand hearing, concluding that the email with Faye was properly objected to as hearsay and that Claimant could have subpoenaed Faye or put copies of the Bulletins in the record at the original hearing but chose not to do so. (Id.)
Claimant filed a timely petition for review of the Board's opinion and order with this Court, attaching two Bulletins and a compliance spreadsheet from Value Behavioral Health as exhibits to the petition. The Board filed an application to strike the three exhibits to the petition for review; following argument, this Court entered an order granting the Board's order and striking the exhibits as extra-record evidence in contravention of Rule of Appellate Procedure 1951(a).
Claimant raises three arguments on appeal. First, Claimant argues that the Referee violated her due process rights and contravened Board regulations by not allowing Claimant a brief recess to look up information regarding the Bulletins and by not advising Claimant that she could request a continuance in order to subpoena Faye or obtain the Bulletins. In support of this argument, Claimant cites our decision in Coates v. Unemployment Compensation Board of Review, 676 A.2d 742 (Pa. Cmwlth. 1996), wherein we stated that a referee may violate its responsibilities to unrepresented claimants under 34 Pa. Code § 101.21(a) where the Referee does not advise the claimant that she may request a continuance to obtain evidence necessary to the determination at issue. Coates, 676 A.2d at 744 n.3. Claimant also contends that the Board violated her due process rights by not allowing her a reasonable period after the hearing to supplement the record with the Bulletins and other related evidence.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Dike v. Unemployment Compensation Board of Review, 68 A.3d 398, 400 n.2 (Pa. Cmwlth. 2013).
This regulation provides that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." 34 Pa. Code § 101.21(a). Pursuant to this regulation, referees are required to reasonably assist a pro se claimant in adequately developing the record necessary to render a decision but should not assume the role of the claimant's advocate or provide advice on specific evidentiary issues or points of law. Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081, 1085-86 (Pa. 1985); Hackler v. Unemployment Compensation Board of Review, 24 A.3d 1112, 1115-16 (Pa. Cmwlth. 2011). --------
Second, Claimant argues that the email from Faye to Claimant was improperly excluded as hearsay evidence because Employer stated that she had no objection when the email was initially entered into the record, (R. Item 13, N.T. at 4), and only objected to it later when Claimant cited the email in testimony as evidence to support her contention that Employer's policy requiring BSC/MTs to fill in for TSSs was illegal. (Id. at 17.) Claimant argues that the hearsay objection was also deficient because Employer did not sufficiently explain the basis for the hearsay objection.
Finally, Claimant argues that she satisfied her burden of proof at the hearing in demonstrating that she left Employer for a necessitous and compelling reason. Claimant contends that she presented evidence through her own and Lesh's testimony that the policy requiring BSC/MTs to fulfill the duties of TSSs was contrary to law and that she raised this issue with Lesh on several occasions while Lesh was her supervisor. Claimant asserts that Employer did not present sufficient evidence to contradict this contention.
While Claimant presents colorable arguments that Employer made an untimely hearsay objection to the Faye email and that the Referee did not adequately advise Claimant that she could seek a continuance to obtain additional evidence, we conclude that, even if the contested evidence were in the record before the Board, it would not have affected the Board's determination that Claimant was ineligible for benefits under Section 402(b). Therefore, any error with respect to the Referee's decision not to allow such evidence into the record would be harmless.
In order to show cause of a necessitous and compelling nature to voluntarily terminate employment, a claimant must show not only that circumstances existed that produced a real and substantial pressure to terminate employment but also that she made a reasonable effort to preserve her employment. Solar Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012); Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 662 (Pa. Cmwlth. 2006). The claimant must also demonstrate that she acted with ordinary common sense in quitting. Solar Innovations, 38 A.3d at 1056; Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002).
Here, the Board found that Claimant was not disciplined for refusing to sign the August 28, 2013 new hire letter and was allowed to continue in her position and was not required to perform the duties of a TSS. (R. Item 17, Board Opinion and Order (adopting and incorporating R. Item 14, Referee Decision, F.F. ¶¶6, 14-15).) The Board further found that Claimant did not state in her September 10, 2013 resignation letter that she was leaving because she had been asked to engage in unethical or illegal conduct and that Claimant never raised this issue during her conversations with Scarmack, who served as Claimant's supervisor from September 17, 2013 until Claimant's last day, November 10, 2013. (Id. (adopting and incorporating R. Item 14, Referee Decision, F.F. ¶¶8, 10-13).) Thus, because Claimant had never actually been asked to perform the work of a TSS or accept TSS rates and because she never raised her concerns with Scarmack, the Board concluded that "[C]laimant did not make a reasonable effort to preserve her employment and, therefore, [C]laimant did not have necessitous and compelling reasons for quitting." (Id. (adopting and incorporating R. Item 14, Referee Decision, Reasoning at 2).)
The findings underlying the conclusion that Claimant did not make a reasonable effort to preserve her employment are supported by substantial evidence. See Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 n.4 (Pa. 1996) (holding that findings of fact that are supported by substantial evidence are conclusive on appeal). Scarmack testified that she was not aware of the August 28, 2013 new hire letter and consequently had never asked Claimant to sign the letter and never disciplined her for not signing it. (R. Item 13, N.T. at 14-15.) Scarmack testified that she had never asked Claimant or any other BSC/MT to work as TSS and Claimant had never raised the issue of being asked to work as a TSS or any other illegal or unethical conduct to Scarmack as reason for her departure. (Id. at 15-16.) According to Scarmack, Claimant informed her that she was resigning because she wanted a job with more traditional hours. (Id. at 15.)
Claimant's own testimony also supports these findings. See Sargent v. Unemployment Compensation Board of Review, 630 A.2d 534, 536 (Pa. Cmwlth. 1993) (holding that a claimant's admissions alone can be the basis for denying benefits). On cross-examination, Claimant testified that she did not sign the letter through her last day of work and that no one asked her to sign it or told her to do so. (R. Item 13, N.T. at 9.) Claimant also testified that though she gave Scarmack "a list" of issues that related to her resignation, Claimant did not include her concerns over the legality of assigning BSC/MTs to perform TSS work at TSS pay. (Id. at 10.) When asked why, Claimant said it was because "[s]he never asked." (Id.)
Accordingly, the record below provides substantial evidence for the Board's conclusion that Claimant did not attempt to preserve her employment and was thus ineligible for benefits under Section 402(b) of the Law. The order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of April, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge