Opinion
No. 1573 C.D. 2012
05-16-2013
Rebecca M. Middlesworth, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Rebecca M. Middlesworth (Claimant) petitions for review of the July 17, 2012 order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits. The Board concluded that Claimant voluntarily left her employment with Northwest Savings Bank (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's last day of work with Employer was December 23, 2011. (Board Opinion, Findings of Fact (F.F.) ¶1.) Claimant had been employed with Employer for twenty-eight years and at the time of her separation from employment, Claimant was a full-time office manager. (F.F. ¶¶1, 2.) In March 2011, Claimant was disciplined by Employer for a statement she made that was overheard by an employee. (F.F. ¶3.) In September 2011, Employer met with Claimant to discuss ongoing complaints Employer had received about Claimant from two employees, behavior towards the two employees Employer considered inappropriate, operational concerns about Claimant's location, and performance issues. (F.F. ¶¶4, 6, 9.) Employer made clear that the next offense or lack of improvement on Claimant's part would result in termination, and discussed with Claimant the option of early retirement. (F.F. ¶¶4, 10.) Claimant had been treated for cancer since May 2010 and she informed Employer that she would consider retiring, but that she would like to have an agreement that would allow her medical benefits to continue. (F.F. ¶¶11, 13.) Anticipating this concern, Employer's President had already sought approval for continued medical benefits from Employer, and offered Claimant a Settlement Agreement that would pay for continuing medical benefits until Claimant and her husband reached the age of sixty-five, in exchange for Claimant's agreement to retire early. (F.F. ¶12.)
Following Employer's offer, Claimant's husband went to Claimant's workplace and made a statement that was perceived to be a threat; Claimant's husband was then banned from the location. (F.F. ¶¶14, 15.) In October 2011, Claimant was informed by Employer that if she failed to improve the operational and performance issues or had another incident with the employees, her employment would be terminated, and she would not be eligible for continuing health benefits. (F.F. ¶¶16, 17.) On January 4, 2012, Claimant signed a Settlement Agreement with Employer, stating her intention to retire from her employment. (F.F. ¶24.) Employer informed Claimant that she could apply for unemployment benefits. (F.F. ¶18.) On January 5, 2012, Claimant filed for unemployment compensation benefits. (F.F. ¶25.)
A representative from the Department of Labor and Industry issued an initial determination finding Claimant ineligible for unemployment benefits, because she did not sustain her burden of proving that she had a necessitous and compelling reason for leaving her employment. (Certified Record Item (R. Item) 7, Notice of Determination 2/13/2012.) Claimant appealed and a hearing was held before a Referee on March 23, 2012. In a March 27, 2012 decision and order, the Referee found that Claimant was not ineligible to receive unemployment compensation benefits, because Claimant resigned in order to avoid an imminent discharge from employment. (R. Item 13, Referee's Decision and Order, Reasoning ¶6.) Employer appealed to the Board. The Board issued a July 17, 2012 opinion and order, in which it reversed the Referee and, based on its own findings of fact, concluded that Claimant was ineligible to receive unemployment compensation benefits, because she resigned her employment without a necessitous and compelling reason. (R. Item 15, Board Decision and Order.) Claimant appealed.
Before this Court, Claimant argues that the threat of imminent termination of her employment was a necessitous and compelling reason for her voluntary resignation and acceptance of the Settlement Agreement with Employer. The Board argues that Claimant's fear of imminent termination from her employment was subjective and that the Board correctly concluded that Claimant failed to make a reasonable effort to maintain her employment relationship.
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.), ___ Pa. ___, ___, 57 A.3d 1209, 1216 (2012); On Line Inc. v. Unemployment Comp. Bd. of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008). --------
Whether a claimant had cause of a necessitous and compelling nature to voluntarily leave his or her employment is a question of law subject to this Court's review. Ann Kearney Astolfi DMD PC. v. Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa. Cmwlth. 2010). Where a claimant has voluntarily terminated employment, the burden is on the claimant to prove that the termination of employment was for a necessitous and compelling reason. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 49, 51 n.1 (Pa. Cmwlth. 1996). A claimant has a necessitous and compelling cause to voluntarily leave employment where circumstances produce pressure to terminate employment that is both real and substantial and that would compel a reasonable person to act in the same manner. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977). Normal workplace strains, resentment, and personality conflicts do not constitute "pressures extreme enough to justify resignation." Ann Kearney Astolfi, 995 A.2d at 1289; Wert v. Unemployment Compensation Board of Review, 41 A.3d 937, 940 (Pa. Cmwlth. 2012) (claimant submitted little evidence concerning the nature of the personality conflict and failed to sustain burden of demonstrating that intolerable work environment constituted a necessitous and compelling reason to voluntarily leave employment).
Claimant likens her situation to situations where an employer induces an employee to take a lay-off or settlement package and the employee accepts, based on an objective belief that his or her job will not exist in the near future. The threat of imminent termination of employment has been recognized as a necessitous and compelling reason for voluntarily terminating employment where the surrounding circumstances indicate "that fears about his or her job security will otherwise materialize, that serious impending threats to the employee's job will be realized and that the employee's belief that his job is imminently threatened is well founded." Staub v. Unemployment Compensation Board of Review, 673 A.2d 434, 437 (Pa. Cmwlth. 1996); see also Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1207 (Pa. Cmwlth. 2011).
Here, the Board found that if Claimant had another offense of inappropriate behavior or a lack of improvement in her performance, her employment would be terminated, and that she was advised of that fact by Employer. (F.F. ¶10, 16.) The Board also found that continuing work was available to Claimant with Employer. (F.F. ¶¶20, 21.) The Board's factual findings led it to conclude that Claimant was ineligible to receive unemployment benefits, stating:
the Claimant quit because of her subjective fear that she could not get along with the employees she managed. The Board acknowledges that the president agreed that the odds were low, knowing the claimant and the employees that the claimant would have been successful. However, claimant must make a reasonable effort to maintain her employment relationship and the evidence establishes that it would
not have been futile for the claimant to attempt to address this issue; rather it would have been difficult.(R. Item 15, Board Decision and Order ¶3.) In unemployment compensation proceedings, the Board is the ultimate finder of fact, empowered to resolve conflicts in the evidence and determine the credibility of witnesses. On Line Inc. v. Unemployment Comp. Bd. of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008). When supported by substantial evidence of record, the Board's findings are binding and conclusive on appeal. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Claimant does not challenge the Board's findings, but argues that the legal conclusion drawn from them is in error. We disagree.
Claimant's employment was not terminated. Compare Lee v. Unemployment Compensation Board of Review, 33 A.3d 717, 722 (Pa. Cmwlth. 2011) (claimant voluntarily terminated employment without a necessitous and compelling cause where claimant resigns in order to execute a workers' compensation settlement agreement). Claimant's position was not eliminated, nor was there any evidence that the position itself would be eliminated in the future. The threat to Claimant's employment at issue here, unlike the imminent termination situations that we have found supported a necessitous and compelling reason to voluntary terminate employment, was the likelihood of Claimant's own future misconduct. A claimant's belief that he or she will not be able to adequately perform present employment in the future and will therefore have that employment terminated, does not constitute a necessitous and compelling reason to voluntarily leave that employment.
The Board's conclusion that Claimant made a voluntary choice to leave her employment and, as a result of this choice, is ineligible for unemployment benefits under the provisions of Section 402(b) of the Law, is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 16th day of May, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge