IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Cambria,
: :
Petitioner
: :
v.
:
NO. 849 C.D. 2001
:
Unemployment Compensation Board
:
of Review,
:
Submitted: September 14, 2001
:
Respondent
:
BEFORE:
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
1
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY
FILED: February 22, 2002
County of Cambria (Employer) petitions for review of the order of the
Unemployment Compensation Board of Review (Board) granting Laura Lorditch's
(Claimant) application for benefits and reversing a Referee's decision which denied
Claimant benefits pursuant to Section 402(b) of the Unemployment Compensation
Law (Law).
We affirm.
Claimant filed for unemployment compensation benefits with the
Altoona UC Service Center upon the termination of her employment with
Employer. The Service Center issued a determination denying her benefits
pursuant to Section 402(b) of the Law on the basis that she had voluntarily quit her
employment and she did not exhaust all alternatives prior to voluntarily leaving her
employment.
Claimant appealed the Service Center's determination and a hearing
was conducted before a Referee. Following the hearing, the Referee affirmed the
Service Center's determination.
Claimant then appealed the Referee's decision to the Board. On
March 23, 2001, the Board issued a decision and order in which it made the
following relevant findings of fact:
1.
The claimant was last employed since August 1,
1991 and her last job was as a counselor II/clerical at a
final hourly rate of $9.97 per hour with [Employer]. Her
last day of work was June 28, 2000.
2.
The claimant worked at the Cambria County
Juvenile Detention Center.
* * *
5.
In February 1992, the claimant became a full time
counselor and clerical worker at the Detention Center.
6.
In February 1992, the claimant had usually 10-12
children assigned to her to counsel.
* * *
(b) 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 "employment" as defined in this act...
43 P.S. § 802(b).
7.
There were 10 full time staff members working
with the claimant plus per diem workers.
8.
The claimant had to perform the secretarial duties
for this whole office.
9.
In 1993, an emergency shelter care was opened on
the second floor of the Detention Center. This facility
was for delinquents in a maximum security setting.
10.
The claimant was given additional duties when the
shelter was opened and claimant's "paperwork" doubled.
11.
At the time the shelter opened there were 22
members of staff and 19 children housed there.
12.
The claimant continued to work until June 28,
2000 when a second shelter was opened.
13.
An additional wing was added on to the facility
and a second shelter opened housing 10 additional
children.
14.
There were 36 staff members at that time and only
the claimant was performing secretarial work.
15.
Prior to June 28, 2000, the claimant had discussed
the increasing workload with her supervisor,
administrator.
16.
The claimant was overwhelmed with the extra
added work and it was impacting on her health.
17.
The claimant met with the administrators and ... it
was agreed that each morning the administrator would
assign, in writing, a list of duties for that day alone.
18.
No list, however, was ever presented and the work
was erratically handed to her and additional tasks
assigned as the day progressed.
* * *
21.
Upon claimant's return [from a maternity leave of
absence] in April 2000, the above meeting with the
administrator was conducted.
22.
During the course of claimant's employment, she
had unsuccessfully sought transfers to other positions.
23.
Upon advice received from management, the
claimant spoke to President Judge Long indicating at the
very least, she would like a change in title, status and job
description.
24.
The President Judge indicated he would see what
he could do but no accommodations were implemented,
or ever suggested.
25.
The claimant sent a letter of resignation on June
24, 2000.
26.
In the letter the claimant outlined the increased
workload she had been burdened with, provided her
resignation and concluded: "Please feel free to contact
me if there is an opening for a transfer. This would be
appreciated, otherwise, my resignation at the Detention
Center is effective immediately."
27.
The claimant got no response from the employer to
her letter of resignation.
28.
The claimant's workload was adversely affecting
her health and her physician had removed her from work
between June 26, 2000 and July 30, 2000.
29.
The claimant's workload aggravated her anxiety
and caused panic attacks for which she was receiving
medication.
* * *
32.
The claimant was never granted a medical leave or
a transfer to other work.
33.
The claimant voluntarily terminated her
employment due to the unworkable workload she had
been given.
Board Decision at 1-4.
Based on these facts, the Board made the following relevant
conclusions:
At the outset, the Board rules that claimant in fact
voluntarily terminated her employment in her letter of
June 24, 2000. The Board, however, disagrees with the
Referee and finds that through claimant's competent and
credible testimony that she was compelled to resign from
her employment due to the onerous working conditions
to which she was subjected. The claimant informed
employer and requested transfers; however, no effective
accommodation was implemented. Claimant is eligible
for benefits under Section 402(b) of the Law.
Id. at 4.
Based on the foregoing, the Board issued an order reversing the
Referee's decision and granting Claimant unemployment compensation benefits.
Id. at 5. Employer then filed the instant petition for review.
In this appeal, Employer claims: (1) the Board's determination that
Claimant terminated her employment for cause of a necessitous and compelling
reason is not supported by substantial evidence; and (2) the Board erred in
reversing the Referee's credibility determinations.
We initially note that our scope of review in an unemployment
compensation appeal is limited to determining whether an error of law was
committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa.C.S. § 704; Borough of Coaldale v.
Unemployment Compensation Board of Review, 745 A.2d 728 (Pa. Cmwlth. 2000).
Substantial evidence is relevant evidence that a reasonable mind might consider
adequate to support a conclusion. Peak v. Unemployment Compensation Board of
Review, 509 Pa. 267, 501 A.2d 1383 (1985); Ryan v. Unemployment Compensation
Board of Review, 547 A.2d 1283 (Pa. Cmwlth. 1988).
In addition, issues of the weight and credibility of the evidence are for
the Board as the ultimate finder of fact. Peak. As the finder of fact, the Board is free
to reject even uncontradicted testimony. Daniels v. Unemployment Compensation
Board of Review, 755 A.2d 729 (Pa. Cmwlth. 2000); Ryan. The Board's findings of
fact are conclusive upon review provided that the record, taken as a whole, contains
substantial evidence to support the findings. Taylor v. Unemployment Compensation
Board of Review, 474 Pa. 351, 378 A.2d 829 (1977); Borough of Coaldale. In
reviewing the Board's decision, this Court must examine the evidence in a light most
favorable to the party who prevailed before the Board. Taylor; Borough of Coaldale.
Finally, a claimant who alleges that she has terminated employment
for necessitous and compelling reasons has the burden of establishing such
reasons. Taylor; Mauro v. Unemployment Compensation Board of Review, 751
A.2d 276 (Pa. Cmwlth. 2000); Fitzgerald v. Unemployment Compensation Board
of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), petition for allowance of appeal
denied, ___ Pa. ___, ___ A.2d ___ (No. 839 M.D. Alloc. Dkt. 1998, filed April 28,
1999). The claimant must establish that: (1) circumstances existed which produced
real and substantial pressure to terminate employment; (2) like circumstances would
compel a reasonable person to act in a like manner; (3) she acted with ordinary
common sense; and (4) she made a reasonable effort to preserve her employment. Id.
Moreover, whether a voluntary termination of employment was for a necessitous and
compelling cause is a question of law reviewable by this Court on appeal. Id.;
Broadus v. Unemployment Compensation Board of Review, 544 A.2d 1098 (Pa.
Cmwlth. 1988).
Employer first claims that the Board's determination that Claimant
terminated her employment for cause of a necessitous and compelling reason is not
supported by substantial evidence. In support of this assertion, Employer directs
our attention to the testimony of its witnesses which would support the conclusion
that Claimant did not possess cause of a necessitous and compelling nature to
terminate her employment. In essence, Employer asserts that because there is
conflicting evidence, the Board's determination in this regard is not supported by
substantial evidence.
However, as noted above, issues of the weight and credibility of the
evidence are for the Board as the ultimate finder of fact. Peak. As the finder of fact,
the Board is free to reject even uncontradicted testimony. Daniels; Ryan. In
addition, the Board's findings of fact are conclusive upon review provided that the
record, taken as a whole, contains substantial evidence to support the findings.
Taylor; Borough of Coaldale.
The mere fact that there is conflicting evidence in the record in no
way implicates conclusiveness of the Board's findings when they are supported by
substantial evidence. Indeed, as this Court has previously noted:
[W]hen there is conflicting evidence it does not
necessarily mean that the findings of fact are not
supported by substantial evidence. Alternatively, just
because there is conflicting evidence and inconsistencies
does not necessarily mean that substantial evidence does
not exist. Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.
Ryan, 547 A.2d at 1286 (citations omitted).
In this case, the Board found as fact that: Claimant's job duties with
Employer had increased dramatically over the course of her employment; Claimant
was overwhelmed with the added duties and it was impacting upon her health;
Claimant had discussed the increased workload with her superiors; Claimant had
sought accommodations and transfers to other positions; and, ultimately, Claimant
voluntarily terminated her employment due to the unworkable workload she had
been given. See Board Opinion at 2-4. These findings are amply supported by
Claimant's testimony at the hearing before the Referee. See N.T. 1/16/01
at 3-30.
Thus, the Board's findings of fact are supported by substantial evidence and, as a
result, they are conclusive upon our review. Taylor; Borough of Coaldale.
Moreover, these findings support the Board's award of unemployment
compensation benefits under the Law. While an employer may make reasonable
modifications in job assignments, a substantial unilateral change in employment
conditions renders a job unsuitable. Mauro; Fitzgerald; Broadus. Thus,
"[a]lthough 'one who voluntarily accepts a job thereby admits to its initial
suitability', a claimant may successfully assert that the employment was so
unsuitable as to be a compelling cause for leaving by proving that employment
conditions have changed..." Id., 544 A.2d at 1100 (citations omitted).
In this case, the dramatic increase in Claimant's duties over the course
of her employment provided a necessitous and compelling cause for leaving her
position with Employer. Fitzgerald; Broadus. In addition, Claimant's unsuccessful
requests for accommodations or transfers evince a reasonable effort to preserve her
employment. Mauro. In short, the Board did not err in awarding unemployment
compensation benefits under the Law.
Finally, Employer claims that the Board erred in reversing the
Referee's credibility determinations. However, it has long been recognized that,
pursuant to Section 504 of the Law
, the Board is the ultimate arbiter of credibility
in proceedings under the Law and may reverse the Referee's determinations in this
regard. Indeed, as the Pennsylvania Supreme Court has stated:
Analysis of appellant's argument that the Board
cannot reverse a referee's credibility determination shows
that, in reality, it does not involve a question of substantial
evidence. It is actually an assertion that the legislature
either did not or could not delegate the power to find facts
on the basis of credibility to the Board unless the Board
itself hears the evidence and observes the witnesses.
The argument that our legislature did not give such a
power to the Board is quickly disposed of. A long line of
cases has interpreted [Section 504 of the Law] to make the
Board the ultimate finder of fact...
* * *
It may be wiser, more efficient or more expedient to
entrust administrative determinations of fact based on
credibility to the person who hears the evidence.
Section 504 of the Law states, in pertinent part:
The board shall have power, ... on appeal, to ... review any claim
pending before, or decided by, a referee, and in any such case and
in cases where a further appeal is allowed by the board from the
decision of a referee, may affirm, modify, or reverse the determination
or revised determination, as the case may be, of the department or the
referee on the basis of the evidence previously submitted in the case...
43 P.S. § 824.
However, that judgment is one for the legislature, not the
judiciary...
* * *
At bottom, appellant's proposition that the referee
should have the exclusive power to resolve credibility
issues is based on the notion that credibility evaluations
depend on the observation of live witnesses while they
testify. Such observation is often important, but it is not
the only factor to be considered in deciding who is to
evaluate credibility on conflicting evidence.
Considerations of expertise, uniformity of decision and
control over policy are also relevant. Besides, a rule
embodying that proposition would preclude a factfinder
from weighing depositions against live evidence, or
documents or exhibits against witness's testimony, a
practice common and necessary in both administrative and
judicial fact finding. We decline to adopt such a rule.
Peak, 509 Pa. at 275-279, 501 A.2d at 1388-1390. In short, the Board did not err in
reversing the Referee's findings pursuant to the powers conferred by Section 504 of
the Law, and Employer's claim to the contrary is meritless. Id.
Accordingly, the order of the Board is affirmed.
_________________________________
JAMES R. KELLEY, Senior Judge