Opinion
No. 2369 C.D. 2013
10-17-2014
Doris A. Teti, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Doris A. Teti (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that found her ineligible for unemployment compensation (UC) benefits under Section 402(b) of the Unemployment Compensation Law (Law) (relating to voluntary quit). Claimant contends the Board erred in determining she did not make a reasonable effort to preserve her employment. Claimant also asserts the referee and the Board denied her due process in the proceedings. Discerning no error below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(b).
I. Background
Beginning in 2006, Claimant worked as a part-time housekeeper for Keystone Central School District (Employer). Following her separation from employment in July 2013, Claimant applied for UC benefits, which the local service center granted. Employer appealed.
A referee held a hearing at which Claimant, unrepresented, testified on her own behalf, and Employer, represented by counsel, presented the testimony of Rhonda Phillips, housekeeper and custodial supervisor (Supervisor), and Mona Calhoun, the supervisor of human resources.
Based on the testimony, the referee made the following findings. On July 16, 2013, Claimant received a letter from Employer advising that she was displaced from her position for the upcoming school year (Letter). See Referee's Decision, 9/26/2013, Finding of Fact (F.F.) No. 2. As a member of the support staff union, the Letter informed Claimant that she would receive a list of available bid positions in the near future, and she could exercise her right to bump. F.F. No. 3. When hand-delivering the Letter to Claimant, Supervisor advised Claimant to contact human resources to discuss her bidding and bumping options. F.F. No. 4.
In relevant part, Article 11.1-2 of the collective bargaining agreement between Employer and the support staff union provided:
Bumping: Upon notification of impending layoff or furlough, an employee so affected may exercise the following rights: part-time: any part-time employee who is displaced as a result of this section may exercise his/her part-time seniority rights by bumping the least senior part-time employee in a similar position in the same or in another building.F.F. No. 5.
Notably, the referee found Claimant reported to human resources, where she retired from her position without inquiring about her bumping rights or other available positions. F.F. No. 8. The referee also found that housekeeping jobs were available to Claimant within 26 miles, with the same pay rate and same amount of hours or more. F.F. No. 7.
Ultimately, the referee concluded Claimant did not meet her burden of proving a necessitous and compelling reason to leave her position. Therefore, the referee found Claimant ineligible for UC benefits under Section 402(b) of the Law. Claimant appealed to the Board.
The Board affirmed the referee. In addition to adopting the referee's findings and conclusions, the Board explained:
[Claimant] was aware, at the time she retired, that she could bump to a position in the cafeteria; however, [Claimant] previously held a position in the kitchen which she disliked and she had no desire to work in the cafeteria. [Claimant] did not make a good faith effort to preserve the employment relationship by maintaining her employment until the list of positions she could bump to became available.Bd. Op., 11/20/2013, at 1. The Board noted it did not consider submissions that were not included in the record before the referee.
Claimant now petitions for review.
Our review 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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).
II. Discussion
Claimant raises two issues for this Court to consider. First, she asserts the administrative proceedings violated her due process rights because her submissions were not considered and she was not afforded an opportunity for legal counsel. Second, she questions whether the Board's determination regarding her ineligibility for benefits under Section 402(b) of the Law is supported by substantial evidence.
A. Procedural Due Process
Claimant asserts the referee denied her a right to counsel at her hearing. She also claims the referee denied her an opportunity to present papers in her favor. Specifically, she states that when the referee asked if she knew she could have counsel present, "I answered NO." Pet'r's Br. at 12. Claimant also assigns error in the rejection of a notarized letter from Anna O'Neill, who witnessed her meeting with human resources.
A referee is not required to assume the role of Claimant's advocate. Frimet v. Unemployment Comp. Bd. of Review, 78 A.3d 21 (Pa. Cmwlth. 2013); see also 34 Pa. Code §101.21. A referee "discharges his due process obligation to an uncounseled claimant by informing the claimant of his right to counsel, his right to offer witnesses and his right to cross-examine adverse witnesses." Frimet, 78 A.3d at 25. Further, due process in the UC context does not require a referee to advise a claimant on evidentiary issues or specific points of law. DeMeno v. Unemployment Comp. Bd. of Review, 413 A.2d 796 (Pa. Cmwlth. 1980).
From our review of the transcript, the referee comported herself in accordance with due process requirements. Frimet. The referee specifically advised Claimant of her right to representation, and to offer witnesses and to cross-examine adverse witnesses, thus discharging her duty. Referee Hr'g, Notes of Testimony, (N.T.), 9/26/13, at 2; Frimet; Miller v. Unemployment Comp. Bd. of Review, 476 A.2d 495 (Pa. Cmwlth. 1984). At the time the referee advised Claimant of her rights, Claimant acknowledged them and raised no objection. N.T. at 2. As such, we discern no due process violation by the referee.
As to Claimant's allegations regarding denial of counsel, the transcript of the referee's hearing does not reflect that Claimant desired counsel or that she did not know she could have counsel. The transcript reflects the referee's colloquy at the start of the hearing, in which she advised Claimant of her "right to an attorney or a non-legal advisor." N.T. at 2. Claimant replied "[t]hank you." Id. Given Claimant's lack of an objection at the time, the Board did not abuse its discretion by refusing to grant a remand hearing where Claimant would be represented by counsel. See Michael A. Tokarsky, Jr. Trucking, Inc. v. Unemployment Comp. Bd. of Review, 631 A.2d 686 (Pa. Cmwlth. 1993).
Further, the Board did not deny Claimant due process by not considering the notarized letter she submitted. The Board may not consider evidence that was not presented to the referee. Lock Haven Univ. of Pa. State Sys. of Higher Educ. v. Unemployment Comp. Bd. of Review, 559 A.2d 1015 (Pa. Cmwlth. 1989). It is clear Claimant did not attempt to submit the letter to the referee as it was dated and notarized after the referee issued her decision. Further, there is no indication that this evidence was not available to present to the referee. Claimant did not offer an explanation for not obtaining the notarized letter earlier. Therefore, the Board did not deny Claimant due process by refusing to consider it.
As there is no violation of due process, next, we turn to the merits.
B. Voluntary Quit
Section 402(b) of the Law provides that an employee 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). An employee who claims to have left employment for a necessitous and compelling reason bears the burden of proof. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012). Whether a claimant has a necessitous and compelling reason to terminate employment is reviewable by this Court as a question of law. Id.
An employee who claims to have left employment for a necessitous and compelling reason must show that: (1) circumstances existed that 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 his employment. Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). "[E]mployer has no burden of proof" in a voluntary quit case. Earnest v. Unemployment Comp. Bd. of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 2011).
Misapprehending the burden of proof, Claimant argues Employer did not submit any evidence that it offered her a job. Specifically, in her petition for review she states, "[Employer] didn't present any evidence that [it] offered me a job." Pet. for Review, at 1. However, Employer does not have the burden of proof. Earnest. Claimant bears the burden of proving she made reasonable efforts to preserve her employment. Solar Innovations. Claimant did not submit any evidence or argument in this regard.
To that end, there is no indication in the record that Claimant requested a list of available positions or expressed an interest in maintaining her employment. Significantly, Claimant does not dispute that she declined to exercise her bumping rights. Specifically, she stated she "didn't want to bump in the kitchen." N.T. at 11. Claimant did not inquire about housekeeping jobs that were available at other school locations. Id. Although she was aware of alternate positions, she declined to pursue them. In her oral interview, Claimant admitted: "I could have bid on a job in Lock Haven but that is over 30 miles away and I could not make that commute especially in the winter." Certified Record, Item No. 4.
Substantial evidence supports the Board's findings that Claimant did not make a reasonable effort to maintain her employment. Claimant admitted that she was advised she could bump into a kitchen position at the same location. N.T. at 8-9. Claimant also admitted she never contacted her union about her bumping rights. Id. at 9. Instead, she retired the same day she received the Letter. Id. at 10.
Claimant's contention that she was forced to retire is not supported by the record. She represents in her brief that Ms. Calhoun of human resources "made" her sign the retirement letter that she drafted. Pet'r's Br. at 6. However, there is no indication in the record that Claimant went to human resources for any reason other than to retire. In fact, Claimant testified she went to human resources for that express purpose. N.T. at 11. Thus, the evidence supports the Board's finding in that regard. See F.F. No. 8.
Additionally, in her uncounseled brief, Claimant asserts she retired because she had no other option. Pet'r's Br. at 16. At the close of the hearing, Claimant explained she went to human resources to retire because she was under the misapprehension that she had 10 days to either take a job or retire. She also believed there were only two jobs available for eight-hour shifts at her location, and that they were designated for her two co-workers, leaving her without a position. N.T. at 24. However, Claimant's subjective belief about availability of positions is not a sufficient justification for leaving employment. Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042 (Pa. Cmwlth. 2002).
The source of Claimant's confusion about this alleged 10-day period for action is unclear from the record. The Letter does not contain such a deadline. --------
As Claimant did not rebut Employer's evidence that she did not inquire about bumping rights or bidding a position, and Claimant did not present evidence showing reasonable efforts to preserve her employment, Claimant did not meet her burden of proof. Moreover, we conclude the Board's decision is supported by substantial evidence.
III. Conclusion
For the above reasons, we discern no error by the Board in determining Claimant was ineligible for UC benefits under Section 402(b) of the Law. In addition, we conclude that the referee and the Board afforded Claimant the process due her. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of October, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge