A.M. Park v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anna Marie Park, :
Petitioner :
:
v. : No. 1495 C.D. 2019
: Submitted: May 22, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: September 18, 2020
Petitioner Anna Marie Park (Claimant) petitions, pro se, for review of an order
of the Unemployment Compensation Board of Review (Board), which affirmed a
decision by a Referee, denying benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law).1 We now affirm the Board’s order.
Claimant filed a claim for unemployment compensation benefits following
the end of employment with her employer, Avalon Dental (Employer). (Certified
Record (C.R.), Item No. 1.) The Department of Labor & Industry, Office of
Unemployment Compensation Benefits (Department) determined Claimant to be
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
ineligible for benefits under Section 402(b) of the Law, because she had voluntarily
quit her job without cause of a necessitous and compelling nature. (C.R., Item
No. 3.) Claimant appealed, and a Referee conducted a hearing at which Claimant
appeared and testified.
At the hearing, Claimant testified that she began work with Employer on
January 29, 2019, and her last day was January 31, 2019. (C.R., Item No. 9 at 3.)
When asked about the circumstances surrounding her separation from employment,
Claimant stated that she was “not sure exactly how things happened, [but she] did
not quit.”2 (Id.) She further stated that Employer did not tell her that she could no
longer work; rather, Employer told her “to go home for the day because there were
some issues going on and [Employer] was going to reach out to [her] on Friday[,
February 1, 2019,] to discuss further . . . what was going to happen with [her]
employment.” (Id.) Employer did not contact her on Friday, and Claimant did not
try to contact Employer. (Id.) When Employer did not call Claimant on Friday, she
assumed that Employer was not going to have her come back into work. (Id. at 4.)
Claimant later texted Employer to ask about the hours she had worked, and
Employer responded that a check would be issued. (Id.) Claimant never indicated
that she would like to return to work. (Id.)
With regard to the issue that caused Claimant to be sent home or leave work
early on January 31, 2019, Claimant testified that Employer assigned an employee
(Trainer) to train Claimant in her new position. (Id.) Claimant and the Trainer began
“having some issues.” (Id.) Claimant stated that the Trainer’s method of training
2
Although Claimant testified that she did not quit, when she filed her claim for benefits
she indicated that she had quit her employment. (C.R., Item No. 9 at 4.) When the Referee asked
Claimant about the discrepancy, Claimant replied that she must have been confused when she did
that. (Id.)
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was “unacceptable” and that the Trainer “was just very nasty and negative about
things like [Claimant] was a burden to her.” (Id. at 6.) Claimant testified that she
would return to work only if she would not be working with the Trainer. (Id.)
The Referee issued a decision on March 3, 2019, affirming the Department’s
determination. In so doing, the Referee made the following relevant findings of fact:
1. For purposes of this appeal, the claimant was
employed as a full-time Treatment Coordinator with
Avalon Dental earning $24 per hour. The claimant began
employment on January 29, 2019, and last worked on
January 31, 2019.
2. The claimant was being trained by someone she did
not feel comfortable with, and did not feel was a good fit.
3. The claimant went home on January 31, 2019, after
which the claimant was supposed to speak to the employer
on February 1, 2019.
4. The employer did not reach out to the claimant on
February 1, 2019, nor did the claimant reach out to the
employer.
5. The claimant would have returned to work for the
employer if she did not have to continue working with the
same trainer.
6. The claimant did not inform the employer she
would return to work under any circumstances.
7. The claimant voluntarily quit her employment.
(C.R., Item No. 10.)
The Referee denied benefits pursuant to Section 402(b) of the Law, because
Claimant failed to prove she had a necessitous and compelling reason for leaving
employment. (Id.) The Referee reasoned that “although the claimant argued she did
not quit her employment, based on the totality of the evidence contained in the record
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. . . the claimant was not discharged from employment, the claimant clearly had a
personality conflict with her trainer, made no effort to return to employment after
her last day of work, and finally would not have done so unless she did not have to
work with a certain trainer upon her return.” (Id.)
Claimant appealed to the Board. 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.) Claimant now petitions this Court for review of the Board’s
order.
On appeal,3 Claimant argues that she was fired by Employer and did not
voluntarily quit. As a result, she contends that she is entitled to benefits. The Board
argues that Claimant’s failure to maintain contact with Employer and failure to
inform Employer of her intent to return to work constitutes a voluntary quit. The
Board also argues that Claimant does not assert that she had a necessitous and
compelling reason to quit her employment, and, therefore, Claimant has waived that
issue.
When making a determination of whether a person voluntarily or involuntarily
left her employment, we must examine the totality of the facts surrounding the
cessation of employment. Watkins v. Unemployment Comp. Bd. of Review, 65 A.3d
999, 1004 (Pa. Cmwlth. 2013). “Whether 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.” Id. “A claimant seeking unemployment compensation benefits bears
the burden of establishing either that (1) his separation from employment was
involuntary or (2) his separation was voluntary but he had cause of a necessitous or
This Court’s standard of review is limited to determining whether constitutional rights
3
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.
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compelling nature that led him to discontinue the relationship.” Id. To be interpreted
as involuntary—i.e., a discharge—the “employer’s language must possess the
immediacy and finality of a firing.” Charles v. Unemployment Comp. Bd. of Review,
552 A.2d 727, 729 (Pa. Cmwlth. 1989). 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 Indus. v. Unemployment Comp. Bd. of Review,
135 A.3d 1140, 1143 (Pa. Cmwlth. 2016). A voluntary termination “requires a
finding that the claimant had a conscious intention to leave employment.” Procyson
v. Unemployment Comp. Bd. of Review, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2012).
“[A]n employee’s failure to take all necessary and reasonable steps to preserve her
employment will result in a voluntary termination of employment.” Westwood v.
Unemployment Comp. Bd. of Review, 532 A.2d 1281, 1282 (Pa. Cmwlth. 1987).
The claimant is reasonably expected to display an effort in making contact with the
employer to demonstrate her continued interest in employment. Id. at 1283.
In situations where an employee leaves her employment without informing her
employer when or if she is planning to return, courts often allow for a reasonable
period of time thereafter for an employee to manifest an intent to quit or for an
employer to discharge the employee. Iaconelli v. Unemployment Comp. Bd. of
Review, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).
Claimant essentially argues that Employer terminated her employment
because Employer did not contact her on February 1, 2019, or at any time thereafter.
Claimant in her brief states that it was “not [her] choice to leave Avalon Dental on
Thursday, January 31, 2019.” Claimant implies that Employer’s act of instructing
her to “go home” on January 31, 2019, and Employer’s failure to call her the next
5
day together constitute a termination of her employment. We disagree. Employer’s
conversation with Claimant on January 31, 2019, did not include language that
possessed the immediacy and finality of a firing. See Charles, 552 A.2d at 729.
While it may be true that Employer sent Claimant home on January 31, 2019, it was
Claimant’s choice to not contact Employer until February 5, 2019—five days after
last speaking with Employer. Although Claimant contends that Employer did not
give her an opportunity to discuss her employment, there is no evidence that
Claimant ever communicated a desire to return to work. When Claimant eventually
contacted Employer, she asked only about payment for the hours she worked and
did not express continued interest in employment. Quite simply, Claimant, in her
later contact with Employer, expressed no intention to continue employment or any
interest in discussing further employment. Under these circumstances, the Board
did not err in determining that Claimant voluntarily quit her employment.
Section 402(b) of the Law provides that “an employe[e] shall be ineligible for
compensation for any week . . . [i]n which [her] unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.” Whether a
claimant had cause of a necessitous and compelling nature for voluntarily quitting
her employment is a question of law subject to this Court’s review. Brunswick Hotel
& Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 661
(Pa. Cmwlth. 2006). A claimant who voluntarily terminates her employment “bears
the burden of proving that necessitous and compelling reasons motivated that
decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129
(Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish cause of
a necessitous and compelling nature, a claimant must show that (1) circumstances
existed that produced real and substantial pressure to terminate employment, (2) like
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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 his employment. Procito v. Unemployment Comp. Bd. of Review,
945 A.2d 261, 264 (Pa. Cmwlth. 2008). “A personality conflict with a supervisor or
another employee . . . does not constitute a necessitous and compelling cause for
terminating employment.” Matvey v. Unemployment Comp. Bd. of Review,
531 A.2d 840, 843 (Pa. Cmwlth. 1987).
We agree with the Board that Claimant has waived the issue of whether she
had a necessitous and compelling cause for voluntarily quitting her employment by
not developing it in her brief. “Arguments not properly developed in a brief will be
deemed waived by this Court.” Rapid Pallet v. Unemployment Comp. Bd. of Review,
707 A.2d 636, 638 (Pa. Cmwlth. 1998). Even if we were to interpret Claimant’s
brief as having preserved this issue, the result would be the same. Our case law is
clear that a personality conflict alone does not constitute circumstances that would
produce real and substantial pressure to terminate employment. See Matvey,
531 A.2d at 849. Moreover, as discussed above, Claimant did not make any
reasonable effort to preserve her employment. See Procito, 945 A.2d at 264.
Furthermore, Claimant would not have returned to work unless Employer assigned
another employee to train her. For these reasons, the Board did not err in concluding
that Claimant did not have cause of a necessitous and compelling nature when she
voluntarily terminated her employment.
Accordingly, we will affirm the order of the Board.
P. KEVIN BROBSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anna Marie Park, :
Petitioner :
:
v. : No. 1495 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of September, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.
P. KEVIN BROBSON, Judge