Opinion
No. 1668 C.D. 2014
03-25-2015
Michael M. Cooney, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Michael M. Cooney (Claimant) petitions for review of the August 21, 2014 order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits. The Board concluded that Claimant voluntarily left his employment with the Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Unemployment Compensation Tax Services (Employer) without a necessitous and compelling reason and was therefore disqualified from receiving benefits under Section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant filed an initial internet claim for unemployment compensation on April 21, 2014 and a Notice of Determination was issued on April 25, 2014 finding Claimant ineligible to receive benefits because he failed to demonstrate that he had a necessitous and compelling reason to voluntarily leave his employment. (Record Item (R. Item) 2, Initial Internet Claim; R. Item 4, Notice of Determination.) Claimant appealed and a hearing was held before the Referee on May 29, 2014. (R. Item 11, Hearing Transcript (H.T.).) On June 2, 2014, the Referee issued a decision and order affirming the Notice of Determination. (R. Item 12.) Claimant appealed the Referee's order to the Board and requested a remand hearing. (R. Item 13.) On August 21, 2014, the Board issued a decision and order concluding that Claimant was ineligible to receive unemployment benefits under Section 402(b) of the Law. (R. Item 15.) In its decision, the Board determined that the record was sufficient to make a determination without a remand hearing and made the following findings of fact:
1. [Claimant] worked for [Employer] from September 8, 2008, through April 16, 2014, as a full-time UC Tax Agent for a final hourly wage of $25.01.
2. [Claimant's] spouse was informed that her budget was being cut.
3. [Claimant's] spouse was not informed that her position was being eliminated.
4. [Claimant's] spouse speculated that her position was being eliminated and began looking for another job.
5. [Claimant's] spouse was unable to find a position that paid $104,000.00 annually in Pennsylvania, and began seeking work out of state.
6. [Claimant's] spouse accepted a position in Florida that paid $100,000.00 annually.(R. Item 15, Board Decision and Order, Findings of Fact (F.F.) ¶¶1-11.) The Board concluded that Claimant had proven that his new residence in Florida presented an insurmountable commuting problem and that maintaining two residences would constitute a financial hardship, but that Claimant was nonetheless ineligible for benefits. (R. Item, Board Decision and Order, Discussion at 2.) The Board stated that "[Claimant's] spouse has not established that her job was eliminated. [Claimant's] spouse speculated that her job would be eliminated. Because [Claimant's] spouse was not unemployed at the time she voluntarily quit her employment, [Claimant] did not have good cause to voluntarily quit to follow his spouse." (Id.) Claimant sought reconsideration of the Board's order denying him unemployment compensation benefits, which the Board denied. (R. Item 16; R. Item 19.) Claimant appealed to this Court for review.
7. [Claimant] and his spouse were unable to afford maintaining two residences.
8. The distance from Mercer, PA, to Mulberry, FL, is too great to allow for commuting.
9. [Claimant's] spouse is the primary wage earner in the family.
10. [Claimant] quit his employment to relocate to Florida with his spouse.
11. [Claimant] was also dissatisfied with his working conditions, but the reason for his voluntary quit was his spouse's new job and move to Florida.
In an unemployment compensation appeal, this Court's scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Diehl v. Unemployment Compensation Board of Review (ESAB Group, Inc.), 57 A.3d 1209, 1216 (Pa. 2012). --------
Where the termination of employment is voluntary, a claimant has the burden to demonstrate that it was for a necessitous and compelling reason or the claimant will be ineligible for unemployment compensation; a claimant can meet this burden by demonstrating that the circumstances produced both real and substantial pressure to leave employment and that a reasonable person would have been compelled to act in the same manner under the same circumstances. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 833 (Pa. 1977); Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). Whether a claimant has a cause of a necessitous and compelling nature to voluntarily leave employment is a question of law subject to this Court's plenary review. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
When a claimant voluntarily leaves employment in order to move with a spouse who is relocating, the claimant's burden to demonstrate eligibility for unemployment compensation benefits is twofold and is often referred to as the "follow-the-spouse" doctrine. Wheeler v. Unemployment Compensation Board of Review, 450 A.2d 775, 778 (Pa. Cmwlth. 1982). First, the claimant must demonstrate that the move created insurmountable commuting problems for claimant and that maintaining two residences would result in an economic hardship. Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561, 564 (Pa. Cwmlth. 1995). Second, the claimant must demonstrate that the necessity to relocate was caused by circumstances beyond the control of the claimant's spouse, that the decision was reasonable and made in good faith, and that the relocation was not a result of the spouse's personal preferences. Pennsylvania Gaming Control Board, 47 A.3d at 1267.
In the instant matter, the Board concluded that Claimant failed to provide sufficient evidence to demonstrate that the move was not the result of his spouse's personal preferences. Claimant challenges the findings of fact made by the Board in support of this conclusion. Claimant argues that the Board's finding of fact number three (3)—that his "spouse was not informed that her position was being eliminated"—and finding of fact number four (4)—that she instead "speculated that her position was being eliminated and began looking for another job"—were not supported by substantial evidence. (R. Item 15, Board Decision, F.F. ¶¶3-4.)
In unemployment compensation matters, the board is the ultimate finder of fact and if the record, when examined as a whole, contains substantial evidence to support the board's findings, the board's findings are binding and conclusive on appeal. Taylor, 378 A.2d at 832; Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013). Substantial evidence is defined as such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Claimant argues that his wife's testimony directly refutes the Board's findings of fact. At the hearing before the Referee, Claimant's spouse testified that during her employer's budgeting season, she was informed that her budget was being cut and that there was going to be a reduction in force. (R. Item 11, H.T. at 10.) Claimant's spouse further testified that a few weeks after receiving this information, she learned that a colleague at her employer's San Diego facility, who was also employed as a Controller, had been let go as a part of the reduction in force. (Id.) Claimant's spouse testified that she became concerned for her job security and began looking for similar employment in the area, but was unable to find employment in Pennsylvania for a comparable salary because she was not a Certified Public Accountant. (Id.) The Referee questioned Claimant's spouse about whether her employer gave her a timeframe as to when her job would be eliminated, to which she answered that her position was supposed to be eliminated in February, and the Referee then asked: "So you're presuming that you would have been gone by the end of March, is that correct?" to which Claimant's spouse answered affirmatively. (Id. at 11.) Following this exchange with the Referee, Claimant specifically asked his spouse whether the circumstances "produced real and substantial pressure that [her] job was going to be eliminated" and Claimant's spouse answered:
Yes. Yes, that's correct not only about the Controller in San Diego being let go, [my Employer] was experiencing for the third year in a row our division was experiencing heavy losses. So I knew that they were looking to cut costs and the fact that they did not replace her or her position and it was a RIF. Sorry a reduction in force. Yes, I—and I guess—I mean and I was proven right just because they did not replace me after I did leave. So clearly, I was the person intended for the reduction in force.(Id.) The Referee found in his decision that "[Claimant's] spouse was informed that her position would be terminated by the end of the first quarter of 2014, and began seeking another job." (R. Item 12, Referee Decision, F.F. ¶ 2.) The Board disagreed with the Referee and found that Claimant's spouse believed that her position would be eliminated, but was never specifically told by her employer that her job would be eliminated, and that her belief was therefore speculative. (R. Item 15, Board Decision, F.F. ¶¶3-4.)
The testimony here is not conclusive. Instead, the testimony offered by Claimant's spouse could support either the finding of the Referee or that of the Board. However, whether a version of the facts different from those accepted by the Board could be accepted is irrelevant to our inquiry; the question is instead whether there is evidence to support the findings actually made. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The testimony of Claimant's spouse is equivocal regarding the information communicated to her by her employer about a future reduction in force affecting her position. In such instances, the conflict internal to the testimony must be resolved, the weight afforded to the testimony must be determined and a finding of fact must be made; such determinations are within the sole province of the Board as the ultimate fact finder. Claimant, having voluntarily left his employment, has the burden of production and persuasion. Claimant offered evidence to support his claim for unemployment compensation, but the Board did not find this evidence sufficient. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987) (differentiating a claimant's burden of production and burden of persuasion). Instead, the Board found that the belief of Claimant's spouse that she was going to be laid off was speculative and this finding is binding on appeal.
Next, Claimant argues that the Board erred as a matter of law by concluding that a claimant could only demonstrate that the decision to relocate was caused by circumstances beyond the control of his spouse if the claimant demonstrated that his spouse's job had already been eliminated. We disagree with Claimant's characterization of the Board's legal analysis.
Under the second prong of the "follow the spouse" doctrine, the desire to maintain the family unit, alone, is not sufficient to establish a necessary and compelling reason to leave employment. Schecter v. Unemployment Compensation Board of Review, 491 A.2d 938, 941 (Pa. Cmwlth. 1985). Instead, a claimant must demonstrate that the spouse's relocation was for reasons other than personal preference and were beyond the spouse's control because a claimant is ineligible for unemployment compensation as a "mode of financing domestic transition." Wheeler, 450 A.2d at 778. A claimant can meet this burden by demonstrating that the relocating spouse's position has been eliminated, if the claimant has also satisfied the first prong of the "follow the spouse" doctrine. Other examples of evidence offered to meet this burden have included a limited job market due to the highly specialized nature of a spouse's occupation, see Glen Mills Schools, a spouse's military orders, see Pennsylvania Gaming Control Board, a spouse's medical needs, see Steck v. Unemployment Compensation Board of Review, 467 A.2d 1378, 1380 (Pa. Cmwlth. 1983), or evidence that a spouse's job will be eliminated, see Mechanicsburg Area School District v. Unemployment Compensation Board of Review, 551 A.2d 401 (Pa. Cmwlth. 1988) (claimant's spouse was informed that his employer would be going out of business on a specific date).
Here, Claimant demonstrated only that his spouse believed she was going to lose her job and that she could not find a job with an equivalent salary for which she was qualified within commuting distance. As a result, Claimant and his spouse made a decision for her, as the spouse with the higher salary, to accept a position in Florida and for him to leave his employment in Pennsylvania. This decision is one based on the family's personal preference for Claimant's spouse to maintain an equivalent salary and speculation that she may have lost her job at some point in the future. Contrary to Claimant's argument, the Board did not make a legal error by requiring Claimant to produce evidence that his spouse had lost her job in order to meet his burden; instead, the Board made a legal determination that Claimant's burden required him to show that more than mere speculation about future difficulties prompted the relocation. The Board applied the correct legal standard, and Claimant simply failed to produce the evidence necessary to meet it.
Accordingly, the order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 25th day of March, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge