K. Franklin v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly N. Franklin, :
Petitioner :
:
v. : No. 291 C.D. 2016
: Submitted: August 26, 2016
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: December 19, 2016
Kelly N. Franklin (Claimant) petitions for review of an adjudication
of the Unemployment Compensation Board of Review (Board) denying her
application for unemployment compensation benefits. In doing so, the Board
affirmed the Referee’s determination that Claimant was ineligible for benefits
under Section 402(b) of the Unemployment Compensation Law (Law) 1 because
she voluntarily terminated her employment without cause of a necessitous and
compelling nature. Finding no error by the Board, we affirm.
Claimant began receiving unemployment compensation benefits in
May 2015 after her separation from a prior employer. On July 31, 2015, Claimant
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It
provides, in relevant part, that “[a]n employe shall be ineligible for compensation for any week
… [i]n which his unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.” 43 P.S. §802(b).
began employment with Puff & Snuff (Employer) as a part-time cashier, and her
unemployment benefits were reduced to reflect her part-time earnings. On October
5, 2015, Claimant quit her job with Employer and filed for unemployment
compensation benefits. The Duquesne UC Service Center denied her application
because it found that Claimant had voluntarily resigned without a necessitous and
compelling reason. Claimant appealed, and a hearing was held before a Referee on
November 24, 2015.
At the hearing, Claimant testified that she left her job with Employer
for two reasons: a reduction in her work hours and difficulty with childcare
services. Regarding her hours, Claimant testified that she typically worked 18 to
20 hours per week at a rate of pay of $7.40 per hour. Notes of Testimony,
11/24/2015, at 5, 8 (N.T. __). Claimant testified that on October 4, 2015, Staisha
Gereshenski, the store manager, scheduled her for eight hours for the week
beginning October 5, 2015. Claimant considered this reduction in her hours to
constitute an involuntary discharge in light of her previously expressed concerns
about the possibility of having her hours reduced.
In response, Gereshenski testified that Claimant was habitually late
for work, a problem she discussed with Claimant. Gereshenski stated that she
reduced Claimant’s work hours as a form of discipline, but she acknowledged that
she did not advise Claimant of that fact. Gereshenski also testified that Claimant
never asked her why her hours were reduced.
Sara Fye, Employer’s district manager, testified that when Employer
hired a new employee, Claimant asked Fye whether her hours would be reduced.
Fye told Claimant that the new employee was just a “floater,” and that she would
speak with Gereshenski to try to keep Claimant “at a decent amount of hours.”
2
N.T. 13-14. Fye further testified that she had no control over the schedule of
cashiers.
Claimant’s second reason for leaving her job with Employer
concerned childcare difficulties. Claimant has four children. Her 18-year-old
daughter babysat her other children, ages 3, 7 and 13, when Claimant was at work.
However, on September 24, 2015, Claimant evicted her daughter from her house,
leaving her without childcare. Claimant advised Gereshenski about her childcare
issue.
Claimant testified that from September 24, 2015, to October 4, 2015,
her brother stayed with the children. On other occasions, Claimant took her
children to work when she did not have a babysitter, but found it difficult to
concentrate. Claimant testified that the reduction in hours and earnings left her
unable to pay for a babysitter. Accordingly, on October 5, 2015, she returned her
keys to Fye and Gereshenski and informed them that she was unable to continue
working because of the reduction in her hours and her childcare issue.
In response to this testimony, Gereshenski testified that Claimant did
not ask for an accommodation. Gereshenski also testified: “…yes, she came to me
and told me that her children no longer had a babysitter. She never said [any]thing
about working with another babysitter, or I can’t work because I have no
babysitter, or can you lower my hours due to a babysitter. We never discussed
anything upon that, no.” N.T. 14. Employer then asked, “Did she ask for different
alternatives or offer different alternatives…[?]” Id. Gereshenski replied: “No.”
Id. Gereshenski testified that she had no problem with Claimant bringing her
children to work.
3
The Referee concluded that Claimant voluntarily resigned without a
necessitous and compelling reason and denied her benefits under Section 402(b) of
the Law, 43 P.S. §802(b), for any week after her separation from employment on
October 5, 2015. The Referee, nonetheless, held that Claimant was entitled to
partial benefits under Unemployment Compensation Board of Review v. Fabric,
354 A.2d 905 (Pa. Cmwlth. 1976),2 based on her separation from a prior employer
in May 2015. Claimant appealed. On review, the Board adopted the Referee’s
findings of fact and conclusions of law and affirmed the Referee’s order. Claimant
now petitions for this Court’s review.3
On appeal, Claimant raises three issues. First, she contends that the
Board erred in concluding that she voluntarily quit because Employer’s reduction
of her hours constituted a constructive discharge. Second, she contends that,
assuming she voluntarily quit, the Board erred in concluding that she failed to
demonstrate a necessitous and compelling reason for resigning. Third, she
contends that she has not received the partial benefits that were supposed to
continue under the Referee’s decision.
In her first issue, Claimant argues that the Board erred in concluding
that she voluntarily quit when she was constructively discharged. Claimant’s
hours were substantially reduced from her average of 18 to 20 hours per week to
eight hours for the week of October 5, 2015. Claimant also contends that
2
In Fabric, this Court held that where a claimant leaves part-time employment within the
meaning of Section 402(b) of the Law, he may be denied benefits only to the extent that his
benefits were decreased by virtue of his part-time earnings. Fabric, 354 A.2d at 908.
3
Our scope of review is to determine whether constitutional rights were violated, an error of law
was committed or whether necessary findings of fact are supported by substantial competent
evidence. Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298
n.2 (Pa. Cmwlth. 1995).
4
Employer knew that she needed more hours in order to afford a babysitter, and that
common sense dictates that eight hours per week at the rate of pay of $7.40 per
hour is insufficient to support herself and children. Under these circumstances, it
was reasonable for Claimant to conclude that she was being forced to resign.
Whether a claimant’s separation from employment constitutes a
voluntary resignation is a question of law subject to this Court’s plenary review
and will be determined from the facts surrounding the cessation of employment.
Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d
217, 224 (Pa. Cmwlth. 2012). It is the claimant’s burden to prove that her
separation from employment was involuntary. Bell v. Unemployment
Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). “In order
for an employer’s actions to constitute a discharge, the claimant must demonstrate
that the employer’s actions had the immediacy and finality of a ‘firing.’” Id.“[T]he employer need not specifically use words such as ‘fired’ or ‘discharged.’”
Id.A voluntary termination requires a finding “that the claimant had a
conscious intention to leave employment.” Procyson v. Unemployment
Compensation Board of Review, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2010).
Voluntary termination of employment renders an employee ineligible for
unemployment compensation benefits under Section 402(b) of the Law unless the
employee resigned for cause of a necessitous and compelling nature. Whether a
claimant has necessitous and compelling reasons for terminating her employment
is a question of law subject to appellate review. Taylor v. Unemployment
Compensation Board of Review, 378 A.2d 829, 832 (Pa. 1977).
5
In the present case, it is undisputed that Claimant returned her keys to
the store manager and district manager and told them that she was no longer able to
work. Claimant contends that she made a reasonable effort to preserve her
employment when her hours were cut from 18 to 20 hours a week to eight hours.
This effort was demonstrated by her conversation with Fye, the district manager,
when Claimant expressed concerns that her hours would be reduced by the
addition of a new employee. Despite Fye’s assurances, Claimant’s hours were
substantially reduced to eight hours a week. Claimant argues that given these
circumstances she reasonably concluded that Employer intended her to leave.
Claimant argues that Employer’s substantial unilateral changes to the
terms of her employment justified her resignation.4 By scheduling her for eight
hours for the week of October 5, 2015, Employer reduced her work hours by 58%,
which constitutes a substantial and unilateral change in the terms of her
employment. Claimant’s Brief at 15-18 (citing No.1 Cochran v. Unemployment
Compensation Board of Review, 579 A.2d 1386, 1390 (Pa. Cmwlth. 1990); Ship
Inn, Inc., v. Unemployment Compensation Board of Review, 412 A.2d 913, 915
(Pa. Cmwlth. 1980); and National Freight, Inc. v. Unemployment Compensation
Board of Review, 382 A.2d 1288, 1290 (Pa. Cmwlth. 1978)).
Assuming it was a voluntary resignation, Claimant contends her
conversation with Fye shows that she tried to preserve her employment. The
Board responds that Claimant should have voiced her concern about the reduction
in her hours after it occurred but did not. Thus, Claimant failed to take reasonable
steps to preserve her employment.
4
On appeal, Claimant does not assert her lack of childcare as a necessitous and compelling
reason for resignation. Accordingly, we will not address that issue.
6
A claimant who voluntarily resigns from her employment bears the
burden of showing that she resigned for a necessitous and compelling reason.
Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa.
Cmwlth. 1987). A claimant can meet this burden by showing
that circumstances existed which produced real and substantial
pressure to terminate employment; such circumstances would
compel a reasonable person to act in the same manner; the
claimant acted with ordinary common sense; and the claimant
made a reasonable effort to preserve her employment.
Collier Stone Company v. Unemployment Compensation Board of Review, 876
A.2d 481, 484 (Pa. Cmwlth. 2005). Mere dissatisfaction with working conditions
does not provide a necessitous and compelling cause to quit employment.
Kellenbenz v. Unemployment Compensation Board of Review, 454 A.2d 1202,
1203 (Pa. Cmwlth. 1983). Additionally, an employee’s acceptance of a job
indicates her agreement to the wages and conditions of employment. Stiffler v.
Unemployment Compensation Board of Review, 438 A.2d 1058, 1060 (Pa.
Cmwlth. 1982). When an employer substantially changes those conditions
subsequent to hiring, the employee has a necessitous and compelling reason to
voluntarily quit. Id.Here, Employer hired Claimant as a part-time cashier. After working
18 to 20 hours per week, Employer suddenly reduced her work to 8 hours a week.
This constitutes a compelling reason to quit. Nevertheless, Claimant had to make
an effort, after her hours were reduced, to preserve her employment. Claimant did
not discuss the matter with Employer. Claimant’s conversation with the district
manager before her hours were reduced did not satisfy this burden. Accordingly,
7
we conclude that the Board did not err in holding that Claimant was ineligible for
unemployment benefits under Section 402(b) of the Law.
Finally, Claimant argues that if she is deemed ineligible for benefits
under Section 402(b) of the Law by virtue of her separation from Employer, she
was still eligible for reduced benefits on her active claim following her separation
from her prior employer. The Referee so held, applying this Court’s decision in
Fabric, 354 A.2d 905. Claimant alleges that, despite the Referee’s holding, the
last time she received a benefit check was on October 8, 2015. Claimant’s Brief at
21. She asks this Court to remand for further proceedings to determine the benefits
to which she is entitled. The Board, in response, has attached a copy of a claim
record showing that Claimant began receiving benefit payments beginning with the
week ending October 10, 2015, and ending with the week ending January 16, 2016.
Respondent Brief’s at 13. These documents are de hors the record.
It is well settled that a party who proceeded before a Commonwealth
agency under the terms of a particular statute may not raise upon appeal any
question, other than the validity of the statute, that was not raised before the
agency unless allowed by this Court upon due cause shown. 2 Pa. C.S. §703(a);
Placid v. Unemployment Compensation Board of review, 427 A.2d 748, 750 (Pa.
Cmwlth. 1981). Claimant has raised this issue for the first time on appeal to this
Court, and we are precluded from considering the issue.
Claimant does not contest the Referee’s holding. Rather, she alleges
that despite the Referee’s finding that she was eligible for partial benefits, she has
not received a benefit check since October 8, 2015. Even assuming the issue were
not waived, this Court is not the proper forum to address Claimant’s claim that she
8
has not received the benefit checks due to her. Claimant should contact the UC
Service Center to have this matter resolved.
For all of the foregoing reasons, we affirm the Board’s decision.
_____________________________________
MARY HANNAH LEAVITT, President Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly N. Franklin, :
Petitioner :
:
v. : No. 291 C.D. 2016
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 19th day of December, 2016, the order of the
Unemployment Compensation Board of Review dated January 22, 2016, in the
above-captioned matter is hereby AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge