Thiessen v. Unemployment Compensation Board of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard S. Thiessen, :
Petitioner :
:
v. : No. 1080 C.D. 2017
: Submitted: December 29, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
SENIOR JUDGE PELLEGRINI FILED: January 18, 2018
Richard S. Thiessen (Claimant) petitions for review of the
Unemployment Compensation Board of Review’s (Board) decision affirming the
Referee’s determination that Claimant is ineligible for unemployment
compensation (UC) benefits under Section 402(b) of the Unemployment
Compensation Law (Law)1 because he voluntarily left his employment with J&J
Staffing Resources (Employer) without a necessitous and compelling reason. For
the following reasons, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
I.
In October 2015, Claimant began his employment with Employer, a
temporary staffing agency. At the beginning of Claimant’s employment, he signed
an agreement that required him to contact Employer at the end of any assignment
and every day thereafter that he was able to work. That agreement provided:
According to the policies of [Employer], an employee
must, upon completion of an assignment, contact their
[Employer] Service Coordinator and request placement
in a new assignment. If such contact is not made within
48 hours after the end of an assignment and every day
you are able to work thereafter, [Employer] will consider
you to have voluntarily quit employment, you will be
deemed unavailable for work and not actively seeking
work. Failure to contact [Employer] may affect your
eligibility for unemployment benefits.
(Record (R.) Item No. 3, Employer Separation Information.)
Claimant was assigned to perform work for Veeva Systems (Veeva)
as a full-time data steward. On August 26, 2016, Employer contacted Claimant
and informed him that his assignment to Veeva had ended because it no longer
needed his services. When notifying him, Employer did not offer Claimant a new
assignment. In September 2016, a friend of Claimant’s retained him as an
independent contractor to perform CPA services. This work ended in November
2016.
2
In December 2016, Claimant applied for UC benefits, naming his
work with Employer as his most recent employment. Upon applying for benefits,
Claimant was asked on the application questionnaire:
Following the completion of an assignment, did the
temporary employment agency for whom [sic] you
worked have an established policy that required you to
contact the agency for a new assignment?
(R. Item No. 2, Claimant Separation Information.) Claimant responded “Yes” to
this question. Claimant provided that the policy was to “check daily [illegible]
website for posted jobs & respond [to] any relevant positions.” Id. The
questionnaire also asked: “Did you follow the agency’s policy following the
completion of your last assignment?” Id. To this question, Claimant also
responded “Yes.” Id.
The Department of Labor and Industry (Department) found Claimant
not ineligible for benefits under Section 402(e)2 of the Law because Employer did
not prove that Claimant’s separation was due to any willful misconduct on his part.
Employer appealed the decision, citing as its reason that it wished to present
2
Section 402(e) of the Law provides that a claimant is ineligible for compensation for
any week:
In which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his
work, irrespective of whether or not such work is “employment” as
defined in this act. . . .
43 P.S. § 802(e).
3
additional testimony and evidence at a hearing. Claimant objected to this appeal
on the basis that Employer did not provide any concrete reason for the appeal. The
Referee overruled the objection, stating that Employer had a right to a hearing,
regardless of its reasons.
At the hearing, Employer’s Office Manager, Kristie Roth (Roth),
testified that the policy requires an employee to contact Employer within 48 hours
of the completion of an assignment and every day thereafter because Employer
needs to keep track of who is actively looking for work and who is not. Roth also
testified that if Claimant had maintained contact with Employer, work would have
been available for him. She admitted, however, that she did not have available
work on August 26, 2016, when she contacted Claimant informing him of the
completion of his assignment at Veeva.
Claimant testified that he was aware of the policy to maintain contact
when he signed the agreement, but did not maintain contact with Employer
because he had forgotten about the policy and Employer did not mention it when it
informed him that his assignment with Veeva was over.
The Referee found that because Claimant failed to maintain contact
with Employer for future assignments as provided by Employer’s policy, he was
deemed to have voluntarily separated from employment with Employer.
Moreover, because Claimant did not provide any reasonable explanation as to why
he did not remain in contact for assignments, the Referee found that he failed to
4
prove this voluntary separation was for a necessitous and compelling reason,
making him ineligible for benefits under Section 402(b) of the Law.
Claimant appealed to the Board, contending that he was unemployed
because Veeva no longer needed his services and that this event did not constitute
a voluntary severance of employment. The Board disagreed and affirmed the
Referee’s decision. This appeal followed.3
II.
Claimant contends that the Referee should never have granted a
hearing because Employer failed to provide a reason for the appeal in its petition.
Claimant argues that by hearing the case, the Referee and the Board displayed bias
in considering Employer’s appeal when it did not set forth a specific reason to
challenge his eligibility for benefits.
Employer’s appeal stated:
On behalf of the employer, J&J Staffing, we respectfully
appeal the decision on the Notice of Determination,
mailed on . . . that indicated the claimant is eligible for
unemployment benefits. We request that a hearing be
scheduled to provide the employer with an opportunity to
present additional testimony and evidence in support of
3
In an unemployment compensation appeal, our review is limited to determining whether
constitutional rights were violated, whether an error of law was committed, or whether the
necessary findings of fact are supported by substantial evidence. Key v. Unemployment
Compensation Board of Review, 687 A.2d 409 (Pa. Cmwlth. 1996).
5
their appeal. Please notify our office of the date and time
set for this hearing.
(R. Item No. 5, Employer’s Petition for Appeal from Determination w/Attachment,
dated 1/12/2017.)
Claimant objected to the appeal, claiming Employer did not set forth
the reasons for the appeal. The Referee overruled Claimant's objection, stating that
the reason for the appeal “could merely just be they [Employer] [sic] disagree,”
which was sufficient at that level of the proceedings. (R. Item No. 11, Referee’s
Hearing: Transcript of Testimony, dated 2/8/2017, p. 3.) Claimant argues that the
Referee and Board lacked impartiality by allowing Employer's appeal.
Citing to Black Lick Trucking v. Unemployment Compensation Board
of Review, 667 A.2d 454 (Pa. Cmwlth. 1995), the Board contends that once the
Department issued a determination recognizing that there was an issue as to
whether Claimant quit his job or was terminated, those issues could be considered
in the original appeal whether they were specifically raised or not.
In Black Lick, the employer made a similar argument contending that
the claimants’ appeals should be dismissed because they did not specifically raise
any issue as to why the denial of benefits was improper. In rejecting that
argument, we relied on 34 Pa. Code § 101.87 which provides:
When an appeal is taken from a decision of the
Department, the Department shall be deemed to have
ruled upon all matters and questions pertaining to the
claim. In hearing the appeal the tribunal shall consider
6
the issues expressly ruled upon in the decision from
which the appeal was filed. However, any issue in the
case may, with the approval of the parties, be heard. . . .
We held that under this Regulation, whatever the Department
addressed was before the Referee who should likewise address the issues involved
in the determination, regardless of whether a party specifically raised the issue in
his appeal. Black Lick Trucking, Inc., 667 A.2d at 457-458 (citing Jordan v.
Unemployment Compensation Board of Review, 547 A.2d 811 (Pa. Cmwlth.
1988)).
Likewise, the fact that Employer raised no specific issue in its appeal
is immaterial. The Department addressed whether Claimant quit his employment
or was discharged and, therefore, the Referee was charged with addressing whether
Claimant quit his employment or was discharged, regardless of whether Employer
raised this issue in its appeal.4
III.
As to the merits, Claimant again contends that he cannot be deemed
ineligible for benefits under Section 402(b) of the Law because he did not
voluntarily quit. Claimant bases his argument on the assumption that he was
unemployed because Veeva no longer needed his services, not because of his
4
We also note that though Claimant raised this issue before the Referee, he did not raise
this issue in his appeal to the Board. An issue not raised before any administrative tribunal is
considered to be waived. Wing v. Unemployment Compensation Board of Review, 436 A.2d 179(Pa. 1981).
7
failure to contact Employer. Claimant argues that he automatically became
unemployed when Employer told him Veeva no longer needed his services. To
address that issue, we need to discuss what it means to “voluntarily leave”
employment within the meaning of the Law.
Section 402(b) of the Law provides, in relevant part, that a claimant is
not eligible to receive benefits for any week:
In which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling
nature, irrespective of whether or not such work is in
“employment” as defined in this act. . . .
43 P.S. § 802(b). “Employment” is defined in Section 4(l)(1) of the Law as:
[A]ll personal service performed by remuneration by an
individual under any contract of hire, express or implied,
written or oral, including service in interstate commerce,
and service as an officer of a corporation.
43 P.S. § 753(l)(1).
When examining whether a claimant has “voluntarily” left
employment, an express resignation is not necessary to make this determination
and “conduct which is tantamount to a voluntary termination of employment is
sufficient.” Greenray Industries v. Unemployment Compensation Board of
Review, 135 A.3d 1140, 1143 (Pa. Cmwlth. 2016) (citing Shrum v. Unemployment
Compensation Board of Review, 690 A.2d 796, 799-800 (Pa. Cmwlth. 1997)).
8
When making a determination of whether a person voluntarily left his
employment, we must examine the totality of the facts surrounding the cessation of
employment. Watkins v. Unemployment Compensation Board of Review, 65 A.3d
999 (Pa. Cmwlth. 2013). An employee’s failure to take all necessary and
reasonable steps to preserve his employment will result in a voluntary termination
of employment. Westwood v. Unemployment Compensation Board of Review, 532
A.2d 1281 (Pa. Cmwlth. 1987).5
Claimant contends that his failure to adhere to Employer’s policy was
not a voluntary termination of his employment because in order for there to be
“employment” under the Law, there must be remuneration for services. Because
he was not being remunerated when he was supposed to report his availability for
assignment, Claimant contends that he could not have voluntarily left employment
because there was no employment for him to leave.
However, Section 402(b) of Law states that a claimant is ineligible for
UC benefits for any week “[i]n which his unemployment is due to voluntarily
5
In voluntary quit cases, a claimant bears the burden of proving that he resigned for a
necessitous and compelling reason. Uniontown Newspapers, Inc. v. Unemployment
Compensation Board of Review, 558 A.2d 627, 629 (Pa. Cmwlth. 1989). This means that the
employee experienced circumstances which placed real and substantial pressure on the employee
to terminate employment and which would cause a reasonable person under like circumstances
to do the same. Id. What constitutes a necessitous and compelling cause is a question of law
reviewable by this Court. Craighead-Jenkins v. Unemployment Compensation Board of Review,
796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). The Board is the ultimate fact finder and its findings
are conclusive on appeal as long as they are supported by substantial evidence. Middletown
Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth.
2012).
9
leaving work without cause of a necessitous and compelling nature, irrespective of
whether or not such work is in ‘employment’ as defined in this [Law]. . . .” 43 P.S.
§ 802(b) (emphasis added). Section 402(b) does not require that the voluntary
termination be of “employment” but rather that the voluntary termination be from
“work.” Employees of temporary staffing agencies who fail to follow the
employer agency’s policies regarding work availability will be considered to have
voluntarily quit “work.” See Calizaya v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 2640 C.D. 2015, filed July 14, 2016) 2016 WL 3762709(holding that an employee of a temporary staffing agency who did not contact an
employer agency after completion of an assignment in order to obtain a new
assignment, per the employer’s policy, had voluntarily quit); Glover v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1236 C.D. 2008,
filed March 31, 2009) 2009 WL 9096661 (holding that a claimant was ineligible
for benefits under Section 402(e) of the Law when she ceased all contact with her
employer, a temporary staffing agency, and did not make herself available).
In this case, Employer’s policy specifically provides that an employee
will be considered “to have voluntarily quit employment” should he or she fail to
contact Employer within 48 hours of the completion of an assignment. Claimant
admits that he signed an agreement with Employer containing this provision and
that he was aware Employer had such a policy, both in his response to the claimant
questionnaire and at the hearing.
Claimant contends that he had a good reason for not following the
policy in that it was not intentional because he had forgotten about the policy and
10
Employer failed to remind him of it when calling to inform him that his assignment
with Veeva had ended. “Forgetting” and “not being reminded” of the policy does
not rise to the level of a “necessitous and compelling” reason for voluntary
termination. See Westwood, 532 A.2d at 1283 (holding that a claimant’s failure to
take necessary and reasonable steps to preserve employment constituted voluntary
termination without cause of a necessitous and compelling nature). For these
reasons, we find that Claimant voluntarily terminated his work with Employer and
he failed to provide a necessitous and compelling reason for this termination.6
Accordingly, we affirm.
_____________________________
DAN PELLEGRINI, Senior Judge
6
Claimant contends that the Board’s findings and conclusions are variously incomplete,
legally unsound, unimaginative and unsupported by the record. None of the facts involved in
this appeal are disputed. What Claimant is contending is that if the Board adopted his take on
the facts and the law, it would have found him eligible for benefits. However, the Board’s take
on the facts and law was well reasoned and we will not disturb it on appeal.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard S. Thiessen, :
Petitioner :
:
v. : No. 1080 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of January, 2018, the June 7, 2017 order of
the Unemployment Compensation Board of Review in the above-captioned matter is
hereby affirmed.
_____________________________
DAN PELLEGRINI, Senior Judge