Opinion
No. 1919 C.D. 2011
08-14-2012
Geraldine S. Isenberg, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Geraldine S. Isenberg (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of a Referee and determined Claimant to be ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), relating to voluntary separation without cause of a necessitous and compelling nature. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant applied for unemployment compensation benefits after voluntarily resigning from her position as a seamstress at Spotlight Costumes, LLC (Employer). The Duquesne UC Service Center (Service Center) determined that Claimant was eligible for unemployment compensation benefits under Section 402(b) of the Law. (Certified Record (C.R.), Item No. 5.) Employer appealed the Service Center's determination, and a hearing was held before a Referee. Following the hearing, the Referee issued a decision, in which he reversed the Service Center's determination and found Claimant ineligible for unemployment compensation benefits. (C.R., Item No. 10.)
Claimant appealed the Referee's decision to the Board, which affirmed the decision. (C.R., Item No. 17.) In so doing, the Board issued its own findings of fact and conclusions of law. (Id.) The Board made the following findings:
1. The Claimant was last employed as a seamstress by Spotlight Costumes LLC from December 22, 2008, at a final rate of $12.50 per hour and her last day of work was November 9, 2010.
2. The claimant worked full-time with a lot of overtime during different seasons of the year.
3. In June of 2010, the claimant advised the employer that in the future she would be eligible for her deceased husband's Social Security benefits and wanted to work part-time, under the table.
4. On October 31, 2010, the claimant left work early saying she had a pain in her left arm.
5. The claimant then arranged to see a doctor on November 9, 2010 and called the employer on her cell phone after she was finished.
6. The claimant informed the employer that the doctor's note indicated that the claimant could work only eight hours a day for two weeks, that she could not lift with her left hand, that she needed light duty and needed to take medication.
7. The employer asked the claimant to come in and discuss the issues and to bring the doctor's note.(Id.)
8. The doctor's note indicated only that the claimant could work only eight hours a day for two weeks and made no mention of light duty, lifting restrictions or medication.
9. The medication was an anti-inflammatory and did not restrict the claimant's ability to perform her job.
10. The employer noted that the doctor's note did not indicate light duty or lifting restrictions, but the employer attempted to work with the claimant regarding any restrictions she might have. The employer asked the claimant 'how is this going to work?'
11. The claimant then stated that it would not work and that she was quitting her job.
12. The claimant submitted a letter of resignation stating that she was resigning her position and noting that the doctor informed her that she had the beginnings of carpel tunnel syndrome.
13.On November 9, 2010, the claimant quit her job for undetermined reasons.
Based on the above-listed findings, the Board concluded that Claimant voluntarily terminated her employment without credibly establishing cause of a necessitous and compelling nature. (Id.) The Board noted that there were discrepancies between Claimant's and Employer's testimony regarding the reasons for Claimant's departure. (Id.) The Board, however, found Employer's testimony to be credible and resolved conflicts in testimony in Employer's favor. (Id.) Employer testified that Claimant submitted to Employer a letter of resignation. (Id.) As a result, the Board determined that Claimant "abruptly quit her job on November 9, 2010." (Id.) Further, the Board noted that her voluntarily leaving was not "due to health reasons," although Claimant "had the beginnings of carpel tunnel syndrome." (Id.) Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant argues that the Board's findings of fact are not supported by substantial evidence. Specifically, Claimant challenges findings of fact numbers 3, 8, 10, 12, and 13. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. John v. Unemployment Comp. Bd of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. (Id.) A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994) (emphasis added). Similarly, even if evidence exists in the record that could reasonably support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704 (emphasis added).
Claimant also appears to argue that the Board capriciously disregarded competent evidence in rendering the challenged findings of fact. When determining whether the Board capriciously disregarded the evidence, the Court must decide if the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important. Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007). We have characterized capricious disregard of evidence as "a deliberate and baseless disregard of apparently reliable evidence." Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). In the case now before the Court, Claimant and Employer both presented testimony regarding the circumstances surrounding Claimant's separation from employment. With regard to the challenged findings of fact, we cannot conclude that the Board capriciously disregarded evidence. Rather, the Board considered testimony presented by both Employer and Claimant and made its own determinations regarding the credibility of the witnesses and the weight to be afforded the evidence. In an unemployment compensation case, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). Thus, in the face of conflicting evidence, the Board exercised its discretion to resolve evidentiary conflicts, and its credibility determinations "are not subject to re-evaluation on judicial review." Peak, 509 Pa. at 276-77, 501 A.2d at 1388. Thus, the focus of our review is whether substantial evidence exists to support the factual findings rendered by the Board.
We note that Claimant challenged finding of fact number 11 in her Petition for Review. Claimant, however, failed to include this issue in the statement of questions presented and failed to brief this issue. The issue, therefore, is waived. Pa. R.A.P. 2116; Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544 (Pa. Cmwlth. 1994); Coraluzzi v. Cmwlth., 524 A.2d 540 (Pa. Cmwlth. 1987).
We also note that Claimant disputes several findings of fact contained in the Referee's decision. Only the Board's findings, however, are relevant on appeal. See First Fed. Sav. Bank v. Unemployment Comp. Bd of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008) ("[W]here, as here, the Board makes its own findings of fact, it is the Board's rather than the referee's findings that are subject to this court's review."), appeal denied, 601 Pa. 685, 970 A.2d 1148 (2009).
In an unemployment case, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). The Board also is empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). "Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review." Peak, 509 Pa. at 276-77, 501 A.2d at 1388.
As to finding of fact number 3, Claimant argues that substantial evidence does not exist to support the Board's finding that "[i]n June of 2010, [C]laimant advised [E]mployer that in the future she would be eligible for her deceased husband's Social Security benefits and wanted to work part-time, under the table." (C.R., Item No. 17.) Claimant argues that the factual finding contradicts her testimony before the Referee where she denied having expressed an interest in working under the table. (C.R., Item No. 9, at 10-11.) We note, however, that Claimant did not deny having broached the topic of Social Security benefits with Employer's owner, Kimberly Brown. Ms. Brown credibly testified that Claimant informed her in June 2010 that Claimant was going to be collecting her late ex-husband's Social Security benefits in October of that year. (Id. at 27.) Indeed, Claimant confirmed that she began receiving the benefits in October of 2010. (Id. at 11.) Ms. Brown further testified that Claimant requested to have her hours reduced and that, in response to Claimant's request, she informed Claimant that she would lose her healthcare benefits because they only were offered to full-time employees. (Id. at 27.) Ms. Brown also testified that Claimant asked her if Employer could pay Claimant under the table. (Id.) Finally, Ms. Brown testified that she categorically refused to comply with Claimant's requests. (Id.)
Here, the issue appears to be that of credibility, which the Board resolved in Employer's favor. (C.R., Item No. 17.) We emphasize that credibility determinations are within the Board's discretion. Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). Our review of the record, therefore, demonstrates that Ms. Brown's testimony constitutes substantial evidence to support the Board's finding that Claimant "wanted to work part-time, under the table" in an effort to collect her late ex-husband's social security. (C.R., Item No. 17.)
On cross-examination, Claimant testified as follows:
Q: Okay. And has, has working or, or not working affected the amount of social security benefits that you have been receiving since October of 2010?(C.R., Item No. 9, at 11.) One can reasonably infer from this exchange that Claimant believed that working full-time would have reduced her social security benefits.
A: It, it would have, but it didn't because of being fired.
Claimant also contends that there is no substantial evidence of record to support the Board's finding of fact number 8, which provides that "[t]he doctor's note indicated only that [C]laimant could work only eight hours a day for two weeks and made no mention of light duty, lifting restrictions or medication." (Id.) We note that Claimant introduced the doctor's note into the evidence at the Referee hearing. (C.R., Item No. 9, at 2.) On direct examination, Claimant testified as follows:
Q: Um-hmm. Now, I'm showing that to you. It's a piece - it's a form from Pittsburgh. Is that the document that Dr. Tranovish [sic] gave you?(Id. (emphasis added).) Additionally, Ms. Brown's testimony confirmed that Claimant's doctor's note did not contain any occupational restrictions other than a temporary prohibition against working overtime, i.e., beyond forty hours per week. (Id. at 22-23.) Based on the parties' testimony, we conclude that substantial evidence supports the Board's finding regarding the content of Claimant's doctor's note.
A: Yes.
* * *
Q: It says work eight hours a day for two weeks. Is that right?
A: Right.
Q: And is that your only limitation at that time from Dr. Tranovish [sic]?
A: Yes.
As to finding of fact number 10, Claimant argues that substantial evidence does not exist to support the Board's finding that "[E]mployer noted that the doctor's note did not indicate light duty or lifting restrictions, but the [E]mployer attempted to work with [C]laimant regarding any restrictions she might have. [E]mployer asked [C]laimant 'how is this going to work?'" (C.R., Item No. 17.) We have resolved the first part of the Board's finding in the preceding paragraph. Thus, we only must address whether substantial evidence supports the Board's finding regarding Employer's attempts to work with Claimant on any limitations not contained in the doctor's note. In particular, we must address Claimant's contention that the question "how is this going to work" is subject to different interpretations.
Here, Ms. Brown testified that Claimant called her to inform her that Claimant had been to the doctor and that the doctor prescribed her medication and ordered her to be on light duty with lifting restrictions. (C.R., Item No. 9, at 20.) As a result, Ms. Brown asked Claimant to come into the store on November 9, 2010, to ascertain and discuss Claimant's medical limitations. (Id. at 20-21.) When Ms. Brown reviewed the doctor's note, she was confused because it did not contain the restrictions-other than the prohibition against overtime-that Claimant had mentioned on the phone. (Id. at 23-24.) Wanting to accommodate an employee whom she valued, Ms. Brown asked Claimant questions about the medication that Claimant's doctor had prescribed and its effects on her ability to work as a seamstress. (Id. at 22-24.) Additionally, Ms. Brown testified that she discussed with Claimant ways to accommodate her light duty request, including lifting restrictions. (Id.) Recalling her discussion with Claimant, Ms. Brown credibly testified as follows:
Ms. Brown testified that she had no problem with honoring Claimant's doctor's order requiring Claimant to work no overtime for two weeks. (C.R., Item No. 9, at 23-24.)
In particular, Ms. Brown testified as follows:
Q: Those are her exact words?(C.R., Item No. 9, at 23.)
A: Yes, her exact words, 'Well, I can't lift nothing.' And I said, 'Can you lift with your right hand? Can you do that?' And she said didn't answer. And I said, 'Can you -' because I'm trying to find a way that this was going to work, because the only limitation I see here is overtime.
. . . 'Can your co-workers can [sic] carry for you?' And she didn't answer. And in frustration, because I am trying to find a way to make this work, I said, 'Gerry, how is this going work?' Meaning how can we accommodate this, so that the work gets done without further injury to yourself based on what you're telling me and I am trying to balance what I'm seeing here [doctor's note], which says that she can work. . . .(Id. at 24 (emphasis added).) Claimant argues that the question "how is this going to work" was indicative of Employer's refusal to accommodate Claimant's medical restrictions. We disagree. Ms. Brown's credible testimony supports the Board's finding that Employer attempted to work with Claimant regarding any restrictions.
Claimant also disputes finding of fact number 12, which provides that "[C]laimant submitted a letter of resignation stating that she was resigning her position and noting that the doctor informed her that she had the beginnings of carpel tunnel syndrome." Specifically, Claimant argues that the Board disregarded Claimant's testimony that Employer coerced her into writing the letter of resignation by withholding her paycheck. (Id. at 5.) We, again, note that the Board found Employer's testimony credible. As stated earlier, in an unemployment case, the Board as the ultimate fact finder is entitled to make its own determinations as to witness credibility and evidentiary weight, and it is empowered to resolve conflicts in the evidence. Peak, 501 A.2d at 1386; DeRiggi, 856 A.2d at 255.
Here, Ms. Brown credibly testified that, contrary to Claimant's allegations, she did not ask Claimant to resign and did not withhold her paycheck until she submitted a written resignation. (C.R., Item No. 9, at 25.) Ms. Brown, however, admitted to handing Claimant her paycheck sometime after she had submitted the letter of resignation. (Id. at 33.) Ms. Brown also testified that the payroll "might not have even been written" on November 8, 2010, when the paychecks were due because of time constraints. (Id.) We note that Claimant independently composed the resignation letter without any assistance from Employer and signed it. (Id. at 5, 24-25.) In the letter, Claimant wrote as follows:
Employer only placed the time of receipt of the resignation letter on the bottom of the letter. (C.R., Item No. 9, at 25.) --------
11-9-10(C.R., Item No. 16, Exhibit E.) Summarizing the conversation leading up to Claimant's resignation, Ms. Brown testified as follows:
Dear Kim,
I, Geraldine Isenberg, am resigning as of today. I went to an Orthapetic [sic] surgen [sic] for my left hand numbness who informed me of the beginning of carpal tunnel syndrome. He said the hours I've been working, lifting, carrying & sewing has brought about this condition.
I appreciate your help in the past 2 years.
Sincerely,
Geraldine Isenberg.
. . . And she said, 'It's not.' I was very confused. Her exact words were, 'It's not.' And I said, 'what's not going to work?' because I am perplexed at this point. And she said, 'This job. I'm quitting.' And I kind of took a breath. And I said, 'Okay.' And I said, 'You need to put your resignation in writing.' And she just stared at me. And I said, 'Gerry, it's in the employee manual. Two weeks notice.' That's what I thought I was going to get. So, I thought, okay, now, she's going to resign, but I am going to be able to still accommodate this. Well, she brought up a note that said 'I am quitting effective immediately. . . .'(C.R., Item No. 9, at 24-25 (emphasis added).) Thus, based on the parties' testimony and the content of the resignation letter, there is substantial evidence of record to support the Board's finding.
The final finding of fact that Claimant challenges for lack of substantial evidence is finding or fact number 13, which provides that "[o]n November 9, 2010, [C]laimant quit her job for undetermined reasons." (C.R., Item No. 17.) As we discussed in the preceding paragraph, Ms. Brown credibly testified that Claimant voluntarily terminated her employment on November 9, 2010, and that the reason Claimant gave was not reflected in the doctor's note that she presented to Employer. Ms. Brown also testified that she did not terminate Claimant's employment because she needed her and that she considered Claimant to be a valued employee. (C.R., Item No. 9, at 20-21.) We, therefore, conclude that, when viewed in a light most favorable to Employer, our review of the record demonstrates that there is substantial evidence to support the Board's finding that Claimant quit her job for undetermined reasons.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 14th day of August, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge