A. Myers v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoinette Myers, :
Petitioner :
:
v. : No. 474 C.D. 2020
: Submitted: November 20, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 25, 2021
Petitioner Antoinette Myers (Claimant) petitions, pro se, for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed a decision of the Unemployment Compensation Referee (Referee),
thereby denying Claimant unemployment compensation benefits pursuant to
Section 402(b) of the Unemployment Compensation Law (Law),2 relating to
voluntary separation from employment without cause of a necessitous and
compelling nature. For the reasons set forth below, we affirm.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
Claimant filed a claim for unemployment compensation benefits following
her separation from employment with her employer, Aveanna Healthcare LLC
(Employer). (Certified Record (C.R.), Item No. 2.) The Altoona UC Service Center
(Service Center) determined Claimant to be ineligible for benefits, because, although
she had a necessitous and compelling reason for quitting, she did not exhaust all
alternatives available to resolve the situation with Employer before doing so.
(C.R., Item No. 5.) Claimant appealed, and a Referee conducted a hearing at which
Claimant testified on her own behalf and Courtney Liptock (Liptock), Employer’s
Executive Director, testified on behalf of Employer. (C.R., Item Nos. 6, 9 at 1.)
At the hearing, Claimant testified that she began work for Employer as a
quality assurance nurse on May 12, 2012, and that the last day she worked was May
6, 2019. (C.R., Item No. 9 at 3.) When asked to explain why she was no longer
working for Employer, Claimant stated that she was terminated for no reason and
that she received a termination notice effective May 14, 2019. (Id. at 4.)
Of particular importance herein, we note that Claimant suffered an injury to
her right knee in 2014, which had been the source of an ongoing workers’
compensation dispute with Employer. (Id. at 4, 6-8, 11, 15-18.) Claimant testified
that she suffered a medical emergency, unrelated to her right knee injury, and was
out of work from April 24, 2019, through May 5, 2019. (Id. at 4, 6.) When she
returned to work on May 6, 2019, Claimant was told by Employer that her doctor’s
note was inadequate, so Employer gave her an additional form to be filled out by the
emergency room doctor who treated her. (Id. at 4-5.)
Claimant testified that she did not return to work with Employer until
after an appointment with her workers’ compensation doctor on May 13, 2019.
(C.R., Item Nos. 6 at 9-11, 9 at 6.) At that appointment, Claimant explained to her
2
doctor that her duties were becoming too much, she had been working in pain, and
she refused to continue to do so. (C.R., Item No. 9 at 6.) Claimant told her doctor
that Employer refused to pay for her knee brace, medications, a stool, or a standing
desk, all things that would assist her in staying at work and doing her job. (Id.
at 6-7.) Claimant testified that her doctor agreed to take her out of work for two
weeks, at which point she should be reevaluated. (Id. at 8.)
Following her doctor’s appointment on May 13, 2019, Claimant went into
work and presented Employer with her doctor’s note from her previous emergency
room visit, dated May 8, 2019. (C.R., Item No. 9 at 8.) She then walked into
Liptock’s office and handed Liptock her laptop and tablet. (Id.) Claimant explained
their interaction as follows:
I did not trust [Liptock] with the information [regarding
her May 13th doctor’s appointment]. I just – that’s just the
truth. [Liptock] has not proven to be an honest person,
in my sight. So, I did not trust her with the information.
So, what I did tell her, when I walked into her office, I had
in my hand, my laptop and my tablet, which I use for work.
I handed that to her. She said to me, aren’t you going to
need these? My response was my attorney’s [sic] will be
in touch. That was the end of the conversation about why
I handed her the laptop and the tablet. Anything beyond
that is a fabrication. Before I totally departed her office,
I think I got, maybe, a step through the doorway, I did turn
back and say to her, I didn’t get paid last week, when I was
in the hospital. So I’m going to need to be paid for that.
That was the end of our interaction. I went to my desk,
gathered my things, and I left. My doctor assured me that
he would send the note – the doctor’s note to [Employer].
(Id.)
When questioned further by the Referee, Claimant admitted that she also left
her keys in her desk and that her plan, which she failed to tell anyone at work that
day, was not to return until she could negotiate different job modifications through
3
her attorney. (C.R., Item No. 9 at 15.) On cross-examination, Claimant admitted
she “was not forthcoming” with Employer because she “was not comfortable with
giving [Liptock] the information.” (Id. at 20.) Claimant explained that the only
people she saw when she went to work on May 13, 2019, were Liptock and Eric,3
that everyone else was in a meeting, and that she did not want to interrupt the meeting
to explain what was going on. (Id.) She testified that she did not talk to Eric about
it because Eric was on his way to the meeting. (Id.)
Claimant testified that she did not have a note from her doctor with her when
she went to Employer on May 13, 2019, because “[i]t had to be typed up and all of
that.” (Id. at 8.) Claimant’s understanding when she left her doctor’s office was that
the doctor was going to send a note to Employer. (Id.) Claimant testified that her
doctor later told her he faxed the note to Employer and that Claimant called
Employer’s office to confirm that it was received. (Id. at 9-10, 18.) Claimant
admitted she did not tell Employer that her doctor took her out of work or that she
would return to Employer in two weeks, and that she just wanted to deal with her
attorney due to the “trust issue.” (Id. at 8-10, 12.) Claimant further admitted that
she left work that day without telling anyone when she would be back or what was
going on with her medical condition, just that her “attorney would be in touch.”
(Id. at 13.)
Claimant testified that she received a “termination notice” through
Employer’s “Workday” system on May 14 or 15, 2019. (C.R. Item No. 9 at 4,
8-9, 19.) She forwarded the termination notice to her attorney, but she admittedly
did not reach out to Employer to find out why she received the notice. (Id. at 13.)
3
The individual named “Eric” is not fully identified in the transcript or elsewhere in the
certified record, other than Liptock stating that he was her “leadership” at Employer. (C.R., Item
No. 9 at 26.)
4
Claimant further stated that she received a “retraction” from Employer in
December 2019, explaining that her employment was not terminated. (Id. at 10.)
While Claimant testified that she repeatedly asked to return to work through her
attorney and that Employer refused these requests, Claimant did not have any
paperwork supporting this assertion and was not represented at the hearing.
(Id. at 14, 17.)
Liptock then testified on behalf of Employer, essentially confirming
Claimant’s version of events leading up to the separation. (See C.R., Item No. 9
at 20-21.) Liptock testified that on May 13, 2019, Claimant came into her office
with her laptop and other device, told Liptock it was her last day and that her attorney
would be contacting Employer, and that was the end of the conversation. (Id. at 21.)
Liptock interpreted Claimant’s actions and statements as meaning “she would be
resigning from the company.” (Id.) Liptock stated that at no time prior to the date
of her testimony had she seen the note provided by Claimant’s doctor taking
Claimant out of work as of May 13, 2019. (Id. at 22.) Moreover, to Liptock’s
knowledge, Employer never received any documentation that Claimant would be out
of work for that two-week time period. (Id. at 23.)
As for the “termination notice” Claimant stated she received, Liptock testified
that it was a document generated from Employer’s internal “Workday” system and
that it did not reflect that Claimant’s employment was actually terminated: “It’s just
terminated from our system. So, it doesn’t represent someone being terminated or
not. It’s just them being taken out of our system.” (C.R., Item No. 9 at 21.) Liptock
explained that despite the use of the word “terminated” on that particular document,
Claimant was processed in Employer’s system as a voluntary resignation.
(Id. at 21-22, 26.) Liptock testified that, as of May 13, 2019, and ongoing, there was
5
work available within the parameters that had been set for Claimant. (Id. at 23.) She
also testified that Employer sent Claimant a letter to that effect on June 4, 2019,4
stating that Claimant was not fired and that her position was still available if she
would like to return. (Id.) Employer never received a response from Claimant
regarding this letter. (Id. at 23-24.)
The Referee issued a decision on February 24, 2020, affirming the Service
Center’s determination and denying benefits. (C.R., Item No. 10.) In so doing, the
Referee made the following findings of fact:
1. []Claimant was employed as a Quality Assurance Nurse with
[Employer] from May 12, 2012[,] through May 6, 2019 . . . .
2. As a result of an earlier medical issue, Claimant had modified work
duties including no lifting, pushing[,] or pulling over ten pounds, and
the opportunity to get up occasionally and move around.
3. Claimant was off work from April 24, 2019[,] until she was released
to return to work with the same prior limitations effective May 6, 2019.
4. Claimant provided [] Employer with the return to work [paperwork],
and was told the paperwork needed to be completed by the original
emergency room doctor that treated her.
5. Claimant was scheduled off for personal reasons through
May 13, 2019, but complied with [] Employer’s instructions and was
able to have the medical documents completed on May 8, 2019.
6. On May 13, 2019, [] Claimant saw her physician for continuing knee
pain from the prior medical situation, and was placed out of work as of
May 13, 2019[,] with a doctor follow[-]up appointment in two weeks.
7. On that same day[,] May 13, 2019, [] Claimant provided the
corrected medical release form for her time off beginning
April 24, 2019.
4
Liptock explained that this was the letter Claimant referred to as the one in which
Employer “retracted” her termination. (C.R., Item No. 9 at 23.) Liptock testified that Employer
first sent this letter to Claimant on June 4, 2019, and when she did not reply, Employer sent the
exact same letter to her again on December 19, 2019. (Id.) We note that while a copy of the letter
dated December 19, 2019, is contained in the certified record, a copy of the letter dated
June 4, 2019, is not. (C.R., Item No. 4 at 5.)
6
8. Claimant did not inform [] Employer that she had been put out of
work for her knee effective May 13, 2019[,] and ongoing, as she was
under the impression her physician was going to provide that
information to [] Employer.
9. The medical documentation of [] Claimant’s physician visit on
May 13, 2019[,] shows that a copy of the medical information was
provided to [] Claimant’s attorney.
10. On May 13, 2019, [] Claimant also turned in her laptop and tablet
to the Executive Director of [Employer, Liptock], with no explanation,
simply indicating her attorney would be in touch.
11. [] Employer did not receive the medical information from
May 13, 2019, and [] Claimant never followed up with Employer.
12. On May 15, 2019, [] Claimant received an email from [] Employer
showing that she had been terminated out of the system effective
May 14, 2019.
13. Based on [] Claimant’s actions on May 13, 2019, and never
receiving any indication as to why she had not continued reporting to
work after providing Employer with the medical release, [] Employer
assumed [] Claimant had resigned from her position.
14. Continuing work was available to [] Claimant at the time, and on
June 4, 2019[,] [] Employer reached out to [] Claimant about returning
to work but received no response.
(Id. at 1-2.)
The Referee denied benefits pursuant to Section 402(b) of the Law, because
Claimant failed to prove that she had a necessitous and compelling reason for leaving
her employment. (Id. at 3.) The Referee reasoned that while Claimant had valid
reasons to be out of work based on her doctor’s medical advice, she chose not to
inform Employer of the situation and did not provide Employer with any written
documentation from her physician. (Id.) In addition, the Referee stated that
“[a]s Claimant’s only comments when she turned in her laptop and tablet were that
[] Employer will be hearing from her attorney, and Claimant failed to return to work,
Employer assumed she had voluntarily resigned, and subsequently terminated her
from their [sic] system, which is what [] Claimant saw in an email on May 15, 2019.”
7
(Id.) Given her actions, the Referee found that Claimant did not act with ordinary
common sense or make a good faith effort to preserve her employment. (Id.)
The Referee, therefore, affirmed the Service Center’s determination.
Claimant appealed to the Board. (C.R., Item No. 11.) On April 17, 2020, the
Board adopted the Referee’s findings of fact and conclusions of law and affirmed
the Referee’s decision, denying benefits. (C.R., Item No. 12.) In doing so, the Board
resolved the conflicts in the testimony in favor of Employer and found the testimony
of Liptock to be credible. (Id.) On April 25, 2020, Claimant petitioned the Board
for reconsideration of its decision. (C.R., Item No. 13.) Her petition was deemed
denied when the Board failed to rule on it within the applicable timeframe.5
Claimant now petitions this Court for review of the Board’s April 17, 2020 order.
On appeal,6 Claimant appears to argue the following: (1) the Board’s findings
of fact are not supported by substantial evidence; (2) the Board erred in concluding
that she voluntarily quit her employment as opposed to having been discharged;
and (3) alternatively, if the Court concludes that Claimant voluntarily quit her
employment, the Board erred in concluding that she failed to establish cause of a
necessitous and compelling nature to quit.
As to her substantial evidence argument, Claimant does not identify any
specific factual findings that are not supported by substantial evidence, but it is
evident that she takes issue with the findings concerning whether she informed
Employer regarding her May 13, 2019 doctor’s note, excusing her from work for
two weeks. Despite Claimant’s arguments to the contrary, the Board did not ignore
5
See Section 35.241(d), (e) of the General Rules of Administrative Practice and
Procedure, 1 Pa. Code § 35.241(d), (e).
6
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. 2 Pa. C.S. § 704.
8
the proffered evidence; rather, it resolved the conflict with respect to that evidence
in favor of Employer. The Board’s determination specifically states that “[C]laimant
also argues that [] [E]mployer received a doctor’s note via fax, but [Liptock] testified
to the contrary.” (C.R., Item No. 12 at 1.) The Board then resolved all conflicts in
the testimony in favor of Employer and found Liptock to be credible. The Board is
the ultimate factfinder and is entitled to make its own determinations as to witness
credibility and evidentiary weight, as well as to resolve conflicts in the evidence.
Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1388-89 (Pa. 1985);
DeRiggi v. Unemployment Comp. Bd. of Rev., 856 A.2d 253, 255 (Pa. Cmwlth.
2004). When the Board’s findings are supported by substantial evidence,7 they are
conclusive on appeal. Henderson, 77 A.3d at 718. Claimant is essentially asking
this Court to overturn the Board’s credibility and evidentiary weight determinations,
which we cannot do based on the record before us.
As to Claimant’s argument that the Board erred in concluding that she
voluntarily quit her employment, Claimant contends that Employer’s termination of
her employment is evidenced by the termination notice she received on
May 15, 2019. The Board argues that Claimant failed to prove that she was fired;
rather, Claimant’s actions in telling Liptock that it was her last day, returning her
laptop and tablet, and failing to notify Employer that her doctor took her out of work
demonstrate Claimant’s intent to resign. The Board maintains that any confusion
generated by Employer’s “termination notice” was rectified through Employer’s
June 4, 2019 correspondence to Claimant.
7
Substantial evidence has been “defined as relevant evidence upon which a reasonable
mind could base a conclusion.” Henderson v. Unemployment Comp. Bd. of Rev., 77 A.3d 699,
718 (Pa. Cmwlth. 2013).
9
To be eligible for unemployment compensation benefits, a “claimant bears the
burden of proving separation from employment, whether voluntary or involuntary.”
Watkins v. Unemployment Comp. Bd. of Rev., 65 A.3d 999, 1004 (Pa.
Cmwlth. 2013). As this Court has explained,
[w]hether a claimant’s separation from employment is the result of a
voluntary action or a discharge is a question of law subject to review
by this Court and must be determined from a totality of the facts
surrounding the cessation of employment. A claimant seeking
unemployment compensation benefits bears the burden of establishing
either that (1) [her] separation from employment was involuntary
or (2) [her] separation was voluntary but [she] had cause of a
necessitous or compelling nature that led [her] to discontinue the
relationship.
Greenray Indus. v. Unemployment Comp. Bd. of Rev., 135 A.3d 1140, 1143 (Pa.
Cmwlth. 2016) (quoting Watkins, 65 A.3d at 1004).
To be interpreted as involuntary, meaning a discharge, “the employer’s
language must possess the immediacy and finality of a firing.” Watkins, 65 A.3d
at 1004 (citing Charles v. Unemployment Comp. Bd. of Rev., 552 A.2d 727, 729 (Pa.
Cmwlth. 1989)). As for the claimant’s side of the equation, it is well established
that “[a]n express resignation is not necessary to constitute a voluntary termination;
conduct which is tantamount to a voluntary termination of employment is
sufficient.” Greenray Indus., 135 A.3d at 1143 (quotations omitted) (quoting Shrum
v. Unemployment Comp. Bd. of Rev., 690 A.2d 796, 799-800 (Pa. Cmwlth. 1997)).
A voluntary termination, however, “requires a finding that the claimant had a
conscious intention to leave employment” based upon “the totality of the
circumstances surrounding the incident.” Procyson v. Unemployment Comp. Bd. of
Rev., 4 A.3d 1124, 1127 (Pa. Cmwlth. 2010) (quotations omitted) (citing
Fekos Enters. v. Unemployment Comp. Bd. of Rev., 776 A.2d 1018, 1021 (Pa.
Cmwlth. 2001)).
10
Here, the totality of the circumstances supports the Board’s determination that
Claimant voluntarily quit. The Board found that, on May 13, 2019, Claimant turned
in a return to work form from a previous absence, and then handed her laptop and
tablet to Liptock and stated that her attorney would be in touch. Claimant then went
to her desk, gathered her things, left her keys on the desk, and left the building
without any explanation whatsoever. Claimant admittedly did not attempt to explain
to anyone at Employer, either on May 13, 2019, or at any time thereafter, that her
doctor had written her out of work or when/if she may return. Moreover, Claimant
received correspondence from Employer dated June 4, 2019, and
December 19, 2019, stating that continuing work was available if she wished to
return. Claimant, however, never responded to either correspondence. This Court
has held that a claimant “who leaves her employment without informing her
employer when or if she is planning to return[] may be held to have voluntarily quit.”
Iaconelli v. Unemployment Comp. Bd. of Rev., 892 A.2d 894, 896 (Pa.
Cmwlth. 2006). This is especially true where, as here, a reasonable period of time
has passed “in which [the claimant] ha[d] the opportunity to manifest an intent to
quit and the employer ha[d] the opportunity to contact the [claimant] or vice-versa.”
Id. (citing Ryan v. Unemployment Comp. Bd. of Rev., 448 A.2d 713 (Pa.
Cmwlth. 1982)).
Finally, as to Claimant’s alternative argument that the Board erred in
concluding that she failed to establish cause of a necessitous and compelling nature
to quit, we acknowledge that a claimant’s “medical condition or health reason may
create cause of a necessitous and compelling nature to terminate (or leave)
employment voluntarily.” Watkins, 65 A.3d at 1004 (citing Deiss v. Unemployment
Comp. Bd. of Rev., 381 A.2d 132 (Pa. 1977)). The underlying medical condition or
11
health reason, however, is only relevant if the claimant demonstrates, through
competent and credible evidence, that she informed the employer of her health
problems. Watkins, 65 A.3d at 1004-05. Again, here, the Board found credible
Liptock’s testimony that she had never seen Claimant’s doctor’s note prior to the
hearing before the Referee, and that, to her knowledge, Employer never received
anything taking Claimant out of work beginning May 13, 2019. Claimant herself
admitted that she was not forthcoming with Employer about the issue, and that she
did not discuss it with anyone at Employer on May 13, 2019, or anytime thereafter.
She simply handed over her work items and left without any explanation or
indication of when, or if, she would return. For all of these reasons, the Board did
not err in determining that Claimant failed to demonstrate cause of a necessitous and
compelling nature for leaving her employment.
Accordingly, the order of the Board is affirmed.8
P. KEVIN BROBSON, Judge
8
We note that Claimant attached to her brief a written statement purportedly from her
workers’ compensation attorney. (See Pet’r’s Br. at 17.) This Court, however, cannot consider
evidence that was not part of the record before the Board. See Croft v. Unemployment Comp. Bd.
of Rev., 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (“This Court may not consider auxiliary information
appended to a brief that is not part of the certified record.”). For this reason, we have not
considered the statement attached to Claimant’s brief in our review of this matter.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoinette Myers, :
Petitioner :
:
v. : No. 474 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 25th day of February, 2021, the order of the Unemployment
Compensation Board of Review is AFFIRMED.
P. KEVIN BROBSON, Judge