O. Kaplan v. UCBR ( 2016 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Odayah Kaplan,                                :
    Petitioner        :
    :
    v.                       :
    :
    Unemployment Compensation                     :
    Board of Review,                              :   No. 713 C.D. 2016
    Respondent                :   Submitted: September 9, 2016
    BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE JOSEPH M. COSGROVE, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                       FILED: December 22, 2016
    Odayah Kaplan (Claimant) petitions this Court, pro se, for review of the
    Unemployment Compensation (UC) Board of Review’s (UCBR) April 11, 2016
    order affirming the Referee’s decision denying Claimant UC benefits under Section
    402(b) of the UC Law (Law).1 Essentially, Claimant presents one issue for this
    Court’s review: whether Claimant is entitled to a remand hearing to present necessary
    evidence to support her claim.2 After review, we affirm.
    1
    Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
    2
    Claimant’s Statement of the Questions Involved listed in her brief are as follows:
    1. How did I not use the open door policy? . . .
    2. How did I not show necessitous and compelling reason for leaving
    XPO [(Employer)] in order to qualify for benefits? . . .
    3. How is it considered a personality conflict? . . .
    4. How did I not show enough evidence to show that I had reason to
    quit [Employer]? . . .
    5. How did I not show compelling medical evidence? . . .
    Claimant Br. at 5. However, Claimant’s Argument Section of her brief consists solely of restated
    portions of the hearing transcript, wherein, the Referee posed questions to Claimant, followed by
    Claimant was employed as a full-time freight operations supervisor for
    Conway Central Express/XPO Logistics (Employer), earning $52,000 annually.
    Claimant was aware that Employer has an open door policy that can be used if an
    employee disagrees with a specific issue within the workplace. On November 19,
    2015, Employer issued Claimant a verbal warning for unsatisfactory work
    performance.      Claimant took a leave of absence from November 19, 2015 to
    November 30, 2015. On November 30, 2015, Claimant voluntarily resigned her
    employment due to her resentment of the disciplinary action given to her on
    November 19, 2015.
    Claimant applied for UC benefits. On December 15, 2015, the Indiana
    UC Service Center determined that Claimant was eligible for UC benefits under
    Section 402(b) of the Law. Employer appealed and a Referee hearing was held. On
    February 24, 2016, the Referee reversed the UC Service Center’s decision and ruled
    that Claimant was ineligible for UC benefits under Section 402(b) of the Law.
    Claimant appealed to the UCBR.              On April 11, 2016, the UCBR adopted the
    Referee’s findings and conclusions, and affirmed the Referee’s decision. Claimant
    appealed to this Court.3
    Initially, this Court has explained:
    Whether a claimant had cause of a necessitous and
    compelling nature for leaving work is a question of law
    subject to this Court’s review. A claimant who voluntarily
    what Claimant contends she “should have” answered. Claimant Br. at 14-16. Because Claimant in
    the Summary of Argument and Conclusion Sections of her brief asserts that she has evidence and
    needs a remand to present it, we will address her issue accordingly. See Claimant Br. at 13, 17.
    3
    “Our scope of review is limited to determining whether constitutional rights were violated,
    whether an error of law was committed, or whether the findings of fact were unsupported by
    substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
    Unemployment Comp. Bd. of Review, 
    64 A.3d 729
    , 731 n.3 (Pa. Cmwlth. 2013).
    2
    quits his employment bears the burden of proving that
    necessitous and compelling reasons motivated that decision.
    In order to establish cause of a necessitous and compelling
    nature, a claimant must establish that (1) circumstances
    existed that produced real and substantial pressure to
    terminate employment, (2) like 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 her
    employment.
    Middletown Twp. v. Unemployment Comp. Bd. of Review, 
    40 A.3d 217
    , 227-28 (Pa.
    Cmwlth. 2012) (citations omitted).
    Here, when asked by the Referee “why November 30, 2015 was [her]
    last day at work with [] Employer,” Claimant responded:
    Well after an accumulation of events that occurred from the
    point of entering my employment at [Employer’s] facility
    all the way through to November 30th I was dealing with a
    lot of issues that took a toll on me that I could no longer
    work there and keep a healthy situation with myself. I have
    numerous documentations of events that occurred where I
    even tried to make things work between myself and the
    company. I brought things to the surface right when it
    occurred. Everything’s documented. And I even had an
    investigation done where it was completed and due to that
    investigation it did not rectify any situation. There was . . .
    [.]
    Notes of Testimony, February 16, 2016 (N.T.) at 6.               Thereafter, the Referee
    interrupted:
    R Hold on a second. If an investigation was done in May
    and an investigation was done in June and you were not
    happy with the results [sic] you didn’t quit in November
    based on those investigations so there had to be something
    that happened between then and November . . .
    C Yes.
    R . . . that caused you to leave. That’s what I need to
    know.
    3
    N.T. at 7. Claimant explained that she was singled out on November 12 th and
    verbally disciplined twice on November 19th and 20th.4 Claimant also related an
    incident she discovered on November 25th; however, she admitted on cross-
    examination that she was on a leave of absence on the 25th so it must have been
    November 19th or 20th. See N.T. at 12. According to Claimant she was “targeted”
    and “set up.” N.T. at 8-9.
    Claimant expounded:
    So on the 19th that’s when all these events occurred and I
    could no longer handle the being falsely accused, the stress,
    my situations at work not being taken seriously, being set
    up, that for health reasons I cannot work in an environment
    that was targeting me, being hostile and not taking me
    seriously. So I had to remove myself from the situation and
    I did go to the doctor and that’s when the doctor and I
    discussed that it would be best to leave this place of
    employment and find other work because it’s not healthy
    for me to be in this kind of situation. And that’s what I did.
    So I went on – but in my mindset I was already not working
    there anymore because I knew I couldn’t go back, but I had
    to make sure I made the right choice. So on the 30 th I sent
    the e-mail to say that I no longer am working at [Employer]
    anymore because I can’t handle the stressed environment.
    N.T. at 13.
    Pennsylvania law is clear that “[m]ere dissatisfaction with one’s working
    conditions does not constitute cause of a necessitous and compelling nature for
    terminating one’s employment.”              Brunswick Hotel & Conference Ctr., LLC v.
    Unemployment Comp. Bd. of Review, 
    906 A.2d 657
    , 660 (Pa. Cmwlth. 2006).
    Further, “multiple causes, none compelling or necessitous, do not in combination
    become one qualifying cause.” Hostovich v. Unemployment Comp. Bd. of Review,
    
    414 A.2d 733
    , 735 (Pa. Cmwlth. 1980). Moreover,
    4
    See N.T. at 9 (relating to Claimant’s allegation that she was targeted on November 20th).
    4
    [t]o establish health as a compelling reason for quitting a
    job a claimant must: (1) offer competent testimony that
    adequate health reasons existed to justify termination; (2)
    have informed the employer of the health problem; and (3)
    be available, where a reasonable accommodation is made
    by the employer, for work which is not inimical to h[er]
    health.
    Karwowski v. Unemployment Comp. Bd. of Review, 
    74 A.3d 1179
    , 1184 (Pa.
    Cmwlth. 2013) (quoting Ridley Sch. Dist. v. Unemployment Comp. Bd. of Review,
    
    637 A.2d 749
    , 752 (Pa. Cmwlth. 1994)).
    In the instant matter,
    [t]he [UCBR] d[id] not find credible [C]laimant’s testimony
    that she was subjected to harassment. [E]mployer was
    acting in good faith when it issued discipline on November
    19, 2015. The [UCBR] d[id] not find credible medical
    evidence that [C]laimant suffered from a medical condition,
    the magnitude of which left her no reasonable option but to
    quit her position.
    UCBR Dec. at 1. The law is well-established that
    [a]ll credibility determinations are made by the [UCBR].
    The weight given the evidence is within the discretion of
    the factfinder. The [UCBR] is the ultimate factfinder. The
    [UCBR] determined that Claimant voluntarily left h[er]
    employment [without a necessitous and compelling reason].
    A review of the record reveals that the [UCBR’s] findings
    were supported by substantial evidence.
    Spadaro v. Unemployment Comp. Bd. of Review, 
    850 A.2d 855
    , 860 (Pa.
    Cmwlth. 2004) (citations omitted). Thus, we hold that Claimant is not eligible for
    UC benefits under Section 402(b) of the Law.
    In her brief, Claimant also appears to be requesting a remand for another
    hearing:
    I am requesting that [this Court] reverse the [UCBR’s]
    decision to affirm the [R]eferee[’s] decision so that I will
    not be penalized under [S]ection 402(b) [of the Law]. I
    5
    have compelling evidence to show that I was treated in a
    manner that was not acceptable. I was harassed, bullied,
    and discriminated upon due to gender. I have medical
    evidence and proof of harassment that I would like to
    introduce into court. I was not able to support my case
    due to the lack of evidence and the time I was given during
    the hearing by the [R]eferee. I argue that I was not given a
    fair chance to bring forward the evidence that was needed
    for the [UCBR] to appeal the [R]eferee’s decision.[5] I did
    use the open door policy and exhausted all means of
    expressing my concern within [Employer] before I had to
    voluntarily leave. I have an ongoing case with the [Equal
    Employment Opportunity Commission] which is also
    investigating the accusations I set forward.
    Claimant Br. at 13 (emphasis added). “However, a remand hearing is generally
    granted to allow a party the opportunity to present evidence not offered at the original
    hearing because it was not then available.” Fisher v. Unemployment Comp. Bd. of
    Review, 
    696 A.2d 895
    , 897 (Pa. Cmwlth. 1997); see also Paxos v. Workmen’s Comp.
    Appeal Bd. (Frankford-Quaker Grocery), 
    631 A.2d 826
    , 831 (Pa. Cmwlth. 1993)
    (“The purpose of granting rehearing . . . is to allow a party to present newly-
    discovered, noncumulative evidence, and will not be granted to permit the party to
    strengthen weak proofs already presented.”). Here, Claimant does not allege that the
    evidence she desires to present upon remand was not available at the time of the
    Referee hearing. Rather, she is seeking another chance to present evidence that was
    available to her at the time of the Referee hearing. Because the additional evidence
    Claimant now wishes to present was available at the time of the Referee hearing, a
    remand is not warranted. Fisher.
    5
    It appears Claimant may be arguing she was not permitted to offer evidence before the
    Referee. However, Claimant waived this issue because she failed to raise it before the UCBR. See
    Pennsylvania Rule of Appellate Procedure 1551(a); Lewis v. Unemployment Comp. Bd. of Review,
    
    42 A.3d 375
    , 379 n.8 (Pa. Cmwlth. 2012) (“because [c]laimant failed to raise these issues in h[er]
    appeal to the UCBR, they are waived”). Moreover, other than her testimony, Claimant did not
    produce any evidence at the Referee hearing. Nonetheless, Claimant does not present any support
    for her statement.
    6
    For all of the above reasons, the UCBR’s order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    7
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Odayah Kaplan,                         :
    Petitioner     :
    :
    v.                   :
    :
    Unemployment Compensation              :
    Board of Review,                       :   No. 713 C.D. 2016
    Respondent         :
    ORDER
    AND NOW, this 22nd day of December, 2016, the Unemployment
    Compensation Board of Review’s April 11, 2016 order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Odayah Kaplan,                          :
    Petitioner           :
    :
    v.                          :
    :
    Unemployment Compensation               :
    Board of Review,                        :   No. 713 C.D. 2016
    Respondent             :   Submitted: September 9, 2016
    BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE JOSEPH M. COSGROVE, Judge
    OPINION NOT REPORTED
    DISSENTING OPINION
    BY JUDGE COSGROVE                           FILED: December 22, 2016
    I am troubled by the Majority opinion in several respects. First,
    Claimant’s allegations of medical impairment and harassment are far more serious
    than mere dissatisfaction in the workplace.     The Board, in incorporating and
    adopting the Referee’s findings, stated that it did not find “credible medical
    evidence that the [C]laimant suffered from a medical condition, the magnitude of
    which left her no reasonable option but to quit her position,” and that it did “not
    find credible [ C]laimant’s testimony that she was subjected to harassment” in the
    workplace. (Petitioner’s Brief at 18a.) However, the Board did not clarify as to
    whether it believed what Claimant said she experienced did not happen, or that, if
    it did occur, it did not constitute harassment to such a degree that medical
    impairment could follow. On this record and with such a lack of clarity, I would
    remand this matter.
    Claimant also argues on appeal that she has medical evidence
    available to support her position. The Majority finds that since this was available
    at the time of the initial Referee hearing, remand would be inappropriate.
    However, there is nothing in the record to indicate that this information was indeed
    available previously. As such, on remand I would direct inquiry into how and
    when this information became available to Claimant. 1            For these reasons, I
    respectfully dissent.
    ___________________________
    JOSEPH M. COSGROVE, Judge
    1
    The Board does not address this issue in its brief.
    JMC - 2