W. Hixen v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wendy Hixen, :
Petitioner :
:
v. : No. 529 C.D. 2016
: Submitted: November 4, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: December 1, 2016
Wendy Hixen (Claimant) petitions, pro se, for review of an order of
the Unemployment Compensation (UC) Board of Review (Board) finding her
ineligible for benefits under Section 402(b) of the Unemployment Compensation
Law (Law)1 because she voluntarily quit her employment with Teletech Service
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Under Section 402(b) of the Law, an individual is not eligible for unemployment
compensation benefits if his or her unemployment is due to “voluntarily leaving work without
cause of a necessitous and compelling nature….” 43 P.S. § 802(b). “Necessitous and
compelling cause” occurs under circumstances where there is a real and substantial pressure to
terminate one’s employment that would compel a reasonable person to do so. See Smithley v.
Unemployment Compensation Board of Review, 8 A.3d 1027, 1030 (Pa. Cmwlth. 2010). A
claimant in an unemployment case bears the burden of proving necessitous and compelling
reasons for quitting. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714,
(Footnote continued on next page…)
Corporation (Employer) without cause of a necessitous and compelling nature. We
affirm.
I.
From September 24, 1998, through November 23, 2015, Claimant was
employed by Employer as a Quality Specialist and was responsible for monitoring
recorded calls so as to ensure compliance with Employer’s specified guidelines.
On November 24, 2015, Claimant filed for UC benefits stating that she voluntarily
quit her job because of a “[h]ostile work environment/stress,” further explaining, in
pertinent part:
I recently requested to have 3 days of personal time off in
which I currently have 140 hours of [paid time off] time
accumulated. I was told by [my manager, Toni Harp-
Hartzell, that] I could not have the time off [because] I
have not reached my numbers for the month, [and] I
responded [that] . . . I understood and I would be at work
. . . . She then scheduled a meeting via . . . telephone,
telling me I was not a top performer [and that] everyone
had to be held accountable for not reaching [their] goal. I
repeated I understood [and] I would be at work. While
still having the [telephone conversation], she then told
our service delivery manager[,] Terri Frost[, that] she
wanted her to watch me during those 3 days to make sure
I was not saying anything verbally against the company
policies or showing a negative attitude. I then told
(continued…)
716 (Pa. Cmwlth. 2005). The claimant must prove that he or she acted with ordinary common
sense in quitting and made a reasonable, good faith effort to preserve the employment
relationship. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58,
61 (Pa. Cmwlth. 1996).
2
[Harp-Hartzell that] I was offended with that comment[,]
that I was not a child [and] did not appreciate being
talked down to [and] being treated that way. I then told
her she did not have to worry about me [and] walked out
of the [telephone] meeting giving my work badge to the
service delivery manager[,] Terri Frost.
(Record (R.) Item 2, Internet Initial Claims, 11/24/2015.) Employer, in response,
asserted that it did not know why Claimant voluntarily quit her job and indicated
that continuing work was available for Claimant had she not voluntarily quit.
On December 8, 2015, the Indiana UC Service Center (Service
Center) denied Claimant benefits because she failed to exhaust all alternatives2
prior to voluntarily quitting her job as required by Section 402(b) of the Law, 43
P.S. § 802(b). Claimant appealed and a hearing was scheduled before an
Unemployment Compensation Referee (Referee). Shortly thereafter, Employer
“requested a telephone hearing as the employer is not available in person. . . . The
witness will be Toni Harp-Hartzell and she is located in Missouri.” (R. at Item 8,
Employer Request for Telephone Hearing, 12/28/2015.) The Referee granted
2
When a claimant voluntarily terminates his or her employment, he or she is ineligible
for benefits unless he or she left the employment for a necessitous and compelling cause. Nolan
v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). A
claimant has failed to meet the burden of demonstrating a necessitous and compelling cause
where he or she has failed to take all necessary and reasonable steps to preserve the employment
relationship, and a claim for benefits upon the voluntary termination of that employment must be
rejected. Id. at 1046-47.
3
Employer’s request and then notified Claimant of his decision. Neither Claimant
nor her attorney3 objected to Employer’s Request for Telephone Hearing.
At the hearing before the Referee, Claimant testified that Toni Harp-
Hartzell (Supervisor) was her intermittent supervisor for several years, but that she
never communicated with her in person. While Claimant admitted that the two of
them “got along” mostly, she did indicate that they “disagree[d] on some issues”
and that there were “instances of friction” between them. (R. Item 10, Referee’s
Hearing: Transcript of Testimony, 1/11/2016 at 6.) Claimant stated that in early
November 2015, she requested paid time off for the day before and the two days
following Thanksgiving because she wanted to be with her family and because she
was approaching the maximum amount of paid time off that she was permitted to
accrue. The Supervisor, however, denied this request because Claimant was
substantially behind on her required work for the month. Although Claimant said
she understood and agreed to work on the days surrounding the holiday, the
Supervisor scheduled a telephone meeting with her to further discuss the matter.
On November 23, 2015, a telephone meeting was held between the
Supervisor, Claimant and another manager that was physically present with
Claimant. At the outset of the telephone meeting, the Supervisor explained the
reasons for denying Claimant’s request and assured her that there were several pay
3
At the hearing before the Referee, it was acknowledged by Claimant’s counsel that they
each received notice that the Referee granted Employer’s Request for Telephone Hearing. (R.
Item 10, Referee’s Hearing: Transcript of Testimony, 1/11/2016.) Claimant is no longer
represented by previous counsel and petitions, pro se, for review.
4
periods remaining before she could no longer accrue paid time off. However, after
some discussion, the Supervisor eventually permitted Claimant to take the
requested paid time off to be with her family, which Claimant declined. Claimant
stated that the Supervisor then instructed the other manager to monitor her to
ensure that she did not damage or steal any of Employer’s property. Claimant
responded that she was offended by the instruction and told the Supervisor that she
“didn’t have to worry about me.” Id. at 9. She then placed her employee badge on
the table and walked out of the room. Security escorted her out of the building.
When asked why Claimant decided to voluntarily quit, she explained:
It was [the Supervisor’s] tone and how she talked to me,
the way she said take time with your family and then
after she told [the other manager] to watch me, I was
offended with that comment. . . . I was really offended
and taken back by that conversation. It was – I didn’t
understand why we had a meeting after I had clearly told
her in an email that I understood there was no problem, I
would be there.
(R. Item 10, Referee’s Hearing: Transcript of Testimony, 1/11/2016 at 10.)
Claimant admitted that she did not take any steps toward remedying the situation
or keeping her employment prior to handing in her badge.
Employer then presented the testimony of the Supervisor. Notably,
during the beginning portions of the Supervisor’s testimony, the Referee inquired
whether she was using notes or mechanisms that were providing her information
not contained in the record. After admitting that she was making reference to an
5
email chain, the Referee instructed her to “close it up and do not make reference to
it.” Id. at 16.
After complying with the Referee’s instruction, the Supervisor went
on to deny telling any manager to monitor Claimant prior to the moment that she
turned in her badge and quit. When asked about her tone toward Claimant, the
Supervisor also explained that she had “a very firm tone [throughout the meeting]
and I had a . . . no nonsense attitude.” Id. at 17. She stated that continued work
would have been available for Claimant had she not voluntarily quit.
After the Supervisor provided her testimony, the Referee then
inquired into “background noise like bings or whatever,” which she explained was
coming from her Cisco Softphone and resulted “because I’m dialed in over the
Internet, you’re hearing the pings of mail or the system stating live, that’s all that
you’re hearing.” (R. Item 10, Referee’s Hearing: Transcript of Testimony,
1/11/2016 at 18.) The Referee accepted the Supervisor’s explanation and no
objections were made by Claimant.
The Referee denied Claimant UC benefits because she voluntarily quit
her job without a necessitous and compelling reason as required by Section 402(b)
of the Law, 43 P.S. § 802(b). Claimant appealed and the Board affirmed finding,
in pertinent part, that she voluntarily quit her job because she did not like the
Supervisor’s tone of voice when she was informed that she could take paid time off
for the Thanksgiving holiday period. Moreover,
6
[t]he Board notes the conflicts in testimony and credits
the [S]upervisor’s testimony that she did not ask the other
manager to watch the [C]laimant and escort her out until
after the [C]laimant had verbally quit and turned in her
employee badge. There is no reason for the supervisor to
have said that prior to the [C]laimant’s quit.
(R. Item 13, Board’s Decision/Order, 3/1/2016 at 2.) Claimant then filed this
petition for review.
II.
On appeal,4 Claimant contends that the Board erred when accepting
the Supervisor’s testimony because she provided her testimony by telephone and
admitted to relying on documents that were not entered into the record. The
Board’s telephone hearing regulation provides, in pertinent part:
(a) The tribunal may schedule, on its own motion,
testimony by telephone of a party or witness when it
appears from the record that the party or witness is
located at least 50 miles from the location at which the
tribunal will conduct the hearing, without regard to State
boundaries.
***
(d) The tribunal will promptly rule on a request that
testimony be taken by telephone after a reasonable
attempt has been made to inform the parties of the
request, the basis for the request, the regulations under
4
Our review of the Board’s decision 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. Middletown Township v. Unemployment
Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
7
which telephone testimony can be taken, and the right of
a party to object. The basis for the request, the position
of the parties, if known, and the ruling will be
documented on the record.
34 Pa. Code §§ 101.128(a), (d). The Board’s regulations also provide:
(h) A document not provided as required by § 101.130(e)
(relating to notice of testimony by telephone and use of
documents) may not be admitted nor testimony given or
taken from it unless consent has been requested from and
given by all parties. Testimony taken or given in
violation of this subsection will be excluded from
consideration, as will the document.
34 Pa. Code § 101.131(h).
Contrary to Claimant’s assertion, the Board did not err when
accepting and crediting the Supervisor’s telephone testimony because Claimant
received notice of Employer’s Request for Telephone Hearing, and without
objection, permitted the Supervisor to testify by telephone at the hearing because
she was located in Missouri. While the Supervisor may have initially referred to
documents that were not part of the record, the Referee directed her to discontinue
using any documents before her, and both the Referee and the Board accepted her
testimony as credible. We will not disturb that determination on appeal. As we
have explained, “Matters of credibility and evidentiary weight are within the
province of the Board.” BK Foods v. Unemployment Compensation Board of
Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (citing McGuill v. Unemployment
Compensation Board of Review, 523 A.2d 1194, 1196 (Pa. Cmwlth. 1987)).
8
Accordingly, the order of the Board is affirmed.5
_________________________________
DAN PELLEGRINI, Senior Judge
5
Claimant also contends that the Board erred when determining that she voluntarily quit
her job without cause of a necessitous and compelling nature because the Supervisor’s testimony
is incredible, and substantial evidence does not support the Board’s finding that Claimant quit
her job because of the Supervisor’s tone of voice alone. The Board, in turn, contends that all
other issues are waived pursuant to Pennsylvania Rule of Appellate Procedure 2116(a), which
provides, in pertinent part:
(a) General rule. The statement of the questions involved must
state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail. The
statement will be deemed to include every subsidiary question
fairly comprised therein. No question will be considered unless
it is stated in the statement of questions involved or is fairly
suggested thereby. . . .
Pa. R.A.P. 2116(a) (emphasis added). We agree with the Board that Claimant waived all other
issues because she failed to assert them in the Statement of Questions Involved in her brief and
failed to provide anything more than bare-bone accusations of impropriety by the Board. As we
have explained, Rule 2116(a) is mandatory, even where the party has not had the benefit of an
attorney’s assistance and is acting pro se. See Dalesandro v. Unemployment Compensation
Board of Review, 625 A.2d 1291, 1291 (Pa. Cmwlth. 1993) (“The fatal flaw in [Claimant’s] brief
is that she has not supplied any statement of the questions involved on appeal.”); Daly v.
Unemployment Compensation Board of Review, 631 A.2d 720, 721 (Pa. Cmwlth. 1993) (“This
rule applies to all briefs, regardless of whether they are written by an attorney or by a party in his
or her own behalf.”).
In any event, the Board did not err when it determined that Claimant voluntarily quit her
job without cause of a necessitous and compelling nature. Claimant testified that she voluntarily
quit because of the Supervisor’s tone of voice, and the Board accepted the Supervisor’s credible
testimony that she did not instruct another manager to chaperone Claimant prior to her quitting.
As such, substantial evidence supports the Board’s determination that Claimant voluntarily quit
because of the Supervisor’s tone of voice alone and the Board’s denial of Claimant’s UC benefits
pursuant to Section 402(b) of the Law, 43 P.S. § 802(b), because she failed to act with ordinary
common sense in quitting and failed to make a reasonable effort to preserve the employment
relationship. See PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d
58 (Pa. Cmwlth. 1996).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wendy Hixen, :
Petitioner :
:
v. : No. 529 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 1st day of December, 2016, it is hereby ordered that
the order of the Unemployment Compensation Board of Review dated March 1,
2016, is affirmed.
_________________________________
DAN PELLEGRINI, Senior Judge