G.B. Yancura v. UCBR

G
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George B. Yancura,                             :
                              Petitioner       :
                                               :
                 v.                            :   No. 1869 C.D. 2019
                                               :   Submitted: July 24, 2020
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: March 5, 2021


       Petitioner George B. Yancura (Claimant), pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board), dated
November 27, 2019, denying Claimant benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law),2 relating to voluntarily leaving work
without cause of a necessitous and compelling nature. We now 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 applied for unemployment compensation benefits on July 24, 2019,
after separating from his full-time position as Manager of Internet Technology and
Network Administration with University of Pittsburgh (Employer) on July 19, 2019.
(Certified Record (C.R.), Item No. 2 at 1-2; C.R., Item No. 8 at 4.) In his application
for unemployment compensation benefits, Claimant stated that he quit his position
because of health issues, namely “severe depression related to work environment.”
(C.R., Item No. 2 at 3.) The Duquesne UC Service Center (Service Center) denied
Claimant benefits pursuant to Section 402(b) of the Law, concluding that Claimant
voluntarily quit his position for personal reasons related to working conditions.
(C.R., Item No. 4.)      Claimant filed a timely appeal of the Service Center’s
determination, and a hearing was scheduled before an Unemployment
Compensation Referee (Referee). (C.R., Item Nos. 5, 7.) Claimant and Employer’s
tax representative, Kathleen Travers, appeared at the hearing. (C.R., Item No. 8
at 1.) Claimant testified on his own behalf regarding the circumstances surrounding
his separation from employment,3 and Employer declined to present any witness
testimony.
       The Referee issued a decision concluding that Claimant was ineligible for
benefits pursuant to Section 402(b) of the Law. (C.R., Item No. 9.) In so doing, the
Referee issued the following findings of fact:
       1. The claimant was employed full[ ]time as a Manager [of] IT and
       Network Infrastructure with the University of Pittsburgh from
       November 1, 2015[,] through January 16, 2019 . . . .
       2. The claimant applied for and [was] approved [for] 6 months of
       short-term disability.

       3
          At the Referee hearing, Claimant also introduced an email, sent July 12, 2019,
which the Referee admitted without objection and labeled “Claimant Exhibit #2.” (C.R., Item
No. 8 at 7, 12.)

                                            2
      3. The claimant exhausted his entitlement to short-term disability and
      expected to return to work on July 15, 2019.
      4. On Friday, July 12, 2019, the claimant emailed the employer
      informing that his doctor had not released him to return to work, asked
      for details concerning his return to work relevant to position and pay,
      informed that he had reservations about returning to employment with
      the University of Pittsburgh, and provided the employer with a list of
      job-related grievances.
      5. The claimant did not file for long-term disability or provide the
      employer with any medical documentation to substantiate his continued
      absence from work.
      6. The claimant did not report for work as expected on July 15, 2019.
      7. On July 17, 2019, the Director of Employee & Labor Relations
      [(Director)] sent email correspondence to the claimant informing that
      he did not return to work on Monday, July 15, 2019[,] as expected,
      informed that she was not aware of any approved leave for the
      claimant’s current status, and informed that the claimant would be
      terminated from his position for job abandonment effective
      July 22, 2019[,] unless he contacted the employer by close of business
      Friday, July 19, 2019[,] to explain his current status and availability to
      report to work as well as a satisfactory explanation for his failure to
      properly call off work and failure to respond to attempts made to
      contact the claimant.
      8. The claimant did not contact the employer by Friday, July 19, 2019[,]
      to explain his current status and availability to report to work but rather
      resigned his position effective July 19, 2019.

(Id. at 1-2.) The Referee explained:
      In the present case, the claimant argues that he was unable to return to
      work and forced to quit under threat of termination. The claimant’s
      argument is found to be without merit. The claimant was aware that his
      short-term disability would end after six months but failed to address
      his concerns about return to employment with the employer until
      Friday, July 12, 2019[,] just prior to his expected return to work date;
      elected not to apply for long-term disability; failed to provide the
      employer with any medical documentation to support his continued
      absence from work; and failed to contact the employer as requested to
      explain his current status and availability to report for work.
                                          3
       For these reasons, the claimant failed to take the necessary and
       reasonable steps to preserve his employment relationship and has not
       met his burden of proving cause of necessitous and compelling nature
       for voluntarily leaving employment. Therefore, the claimant’s request
       for [unemployment compensation] benefits must be denied in
       accordance with [S]ection 402(b) of the Law.
(Id. at 2-3.)
       Claimant appealed the Referee’s decision to the Board. (C.R., Item No. 10.)
The Board adopted the Referee’s findings of fact and conclusions of law and
affirmed the Referee’s decision. (C.R., Item No. 15.) The Board concluded that the
“record lacks sufficient, credible evidence to prove that the claimant had adequate
health reasons to resign, that his workplace was intolerable, and that he took
reasonable measures to preserve his employment.” (Id. at 1.) Claimant now
petitions this Court for review.
       On appeal,4 Claimant argues: (1) the Referee and Board erred as a matter of
law or abused their discretion in failing to provide Claimant an opportunity to
question Employer about the circumstances surrounding his resignation; and (2) the
Board erred in concluding that Claimant voluntarily terminated his position.5
       We first consider the question of Claimant’s opportunity to question
Employer. Claimant essentially contends that, because Employer did not produce
any witnesses at the hearing, the Referee and Board improperly denied Claimant the
opportunity to elicit testimony from Employer’s employees regarding his separation
from employment. At the outset of the hearing, the Referee apprised Claimant of

       4
         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.
       5
          Claimant does not dispute any of the factual findings, and, therefore, those findings of
fact are binding on appeal. See Campbell v. Unemployment Comp. Bd. of Rev., 

694 A.2d 1167

,
1169 (Pa. Cmwlth. 1997).

                                                4
his right to call witnesses and to question both his own witnesses and the witnesses
of the opposing party. (C.R., Item No. 8 at 1.) After the Referee asked Claimant if
he was aware of his rights, Claimant responded: “I am now.” (Id.) Accordingly,
Claimant was made aware of his right to call witnesses and to question them
regarding his employment separation, but Claimant only presented his own
testimony. Prior to the hearing, he did not attempt to secure the attendance of any
of Employer’s employees—through agreement of the parties or via subpoena—nor
during the hearing did he request additional time to secure such witnesses. In the
absence of any request, we simply cannot conclude that the Referee or Board erred
as a matter of law.6
       Next, we consider whether Claimant voluntarily terminated his position.
Under Section 402(b) of the Law, an employee is ineligible for unemployment
benefits for any week “[i]n which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature.”                     In a voluntary
termination case, the claimant has the burden of proving the right to unemployment
compensation. Bowman v. Unemployment Comp. Bd. of Rev., 

410 A.2d 422

, 423
(Pa. Cmwlth. 1980). If the claimant asserts that the separation was not due to a
voluntary termination, the burden of proof similarly lies with the claimant to make
this showing.

Id. Whether an employee

voluntarily terminates his employment is a
question of law to be determined by this Court. Rettan v. Unemployment Comp. Bd.


       6
          An unemployment compensation referee is obligated to issue subpoenas for witnesses
upon request and where such issuance would lead to relevant and probative testimony. See AVCO
Corp. v. Unemployment Comp. Bd. of Rev., 

739 A.2d 1109

, 1116 (Pa. Cmwlth. 1999). If the
request is denied, a claimant can challenge the referee’s denial on appeal to the Board or to this
Court. See Miller v. Unemployment Comp. Bd. of Rev., 

512 A.2d 797

, 798-99 (Pa. Cmwlth. 1986).
Here, had Claimant made such a request and been denied, this Court could have reviewed the
denial for an error of law or abuse of discretion.

                                                5
of Rev., 

325 A.2d 646

, 647 (Pa. Cmwlth. 1974). Voluntary termination is found
where, without action by the employer, an employee resigns, leaves, or quits his
employment. Fishel v. Unemployment Comp. Bd. of Rev., 

674 A.2d 770

, 772 (Pa.
Cmwlth. 1996). Where an employee resigns his position to avoid the possibility of
termination by the employer, such resignation is considered a voluntary termination
on behalf of the employee. Charles v. Unemployment Comp. Bd. of Rev., 

552 A.2d 727

, 729 (Pa. Cmwlth. 1989). On the other hand, in order to show that a discharge
occurred, an employer’s language to that effect must contain the immediacy and
finality of a termination. 

Fishel, 674 A.2d at 772

.
      Claimant essentially contends that he was effectively discharged because
Employer required that Claimant return to work while knowing that Claimant was
not approved for work by his doctor. Claimant argues that “it was improper for . . .
[Employer] to demand his return to work or be terminated for job abandonment
under these conditions while [Claimant] was still not released to return to work.”
(Pet’r’s Br. at 5.) Claimant asserts, therefore, that his resignation was caused by
Employer’s ultimatum. Contrary to Claimant’s assertion, however, the Director’s
July 17, 2019 email did not state that Claimant was required to return to work by
July 19 or 22, 2019, to prevent termination. Rather, the Director’s email stated that
Claimant had to contact the Director by Friday, July 19, 2019, to provide information
regarding Claimant’s continued absence from work despite Claimant’s medical
leave having ended on July 14, 2019, or else Claimant would be terminated for
job abandonment the following Monday, July 22, 2019. (C.R., Item No. 8 at 26.)
It is clear to this Court that the Director’s language does not have the immediacy and
finality of a termination. See Fishel. The Director gave Claimant the option of
contacting her and providing information concerning his health, his medical leave,


                                          6
and his reasons for not returning to work. If Claimant failed to do so, only then
would he be terminated. Claimant opted to resign via email on July 19, 2019.
(C.R., Item No. 8 at 30.)
       Claimant’s testimony at the Referee hearing, however, was that he resigned
because he had already provided such information in his email on July 12, 2019, and
the Director seemingly ignored his email and his concerns regarding unhealthy
working conditions. (C.R., Item No. 8 at 16.) According to Claimant, he was,
therefore, left with little choice. We disagree. Claimant’s bare assertion in his
July 12, 2019 email that his doctor had not cleared him for work does not absolve
Claimant of his responsibility to provide the Director with more information or to
appear at work. Claimant had not contacted Employer to request additional time off,
and he had not applied for long-term medical leave. Claimant also did not provide
in the July 12, 2019 email any note or medical evaluation from his doctor expressing
that Claimant was unable to appear for work beginning July 15, 2019.7 While
Claimant insisted at the Referee hearing that he was seeking a different position with
Employer, which course of action was apparently recommended by Claimant’s
doctor, Claimant admitted that he had not submitted any applications or made any
effort to obtain such a position apart from contacting Employer on July 12, 2019.8
(C.R., Item No. 8 at 21-22.) Finally, Claimant waited until July 12, 2019—three

       7
          While Claimant argues in his brief that he produced a statement from his doctor at the
Referee hearing expressing that he had not been released to return to work in mid-July 2019, the
note was dated September 26, 2019, and Claimant did not provide anything similar to Employer.
(C.R., Item No. 8 at 11, 18, 29.)
       8
          Moreover, any indication in Claimant’s July 12, 2019 email that he was seeking a
different position with Employer was likely far too cryptic for the Director to ascertain, as
Claimant’s email only states that he was uncomfortable returning to his old position, and Claimant
specifically wrote that he had “serious reservations about returning to any position at [Employer].”
(C.R., Item No. 8 at 27 (emphasis added).)

                                                 7
days before his expected return to work—to broach these issues with Employer.
Accordingly, we cannot accept Claimant’s argument that he was left with no choice
but to resign when Employer gave Claimant the option of providing further
(and maybe redundant) information regarding his health condition to avoid job
abandonment and Claimant had the option of requesting additional time off,
applying for long-term medical leave, or applying for a different position with
Employer prior to July 15, 2019.
      Pursuant to Section 402(b) of the Law, a claimant who voluntarily quits his
employment may be eligible for unemployment compensation benefits if the
claimant had cause of a necessitous and compelling nature to do so. The claimant
bears the burden of proving cause of a necessitous and compelling nature. Fitzgerald
v. Unemployment Comp. Bd. of Rev., 

714 A.2d 1126

, 1129 (Pa. Cmwlth. 1998),
appeal denied, 

794 A.2d 364

(Pa. 1999). Whether a claimant meets this burden is a
question of law for this Court to resolve. Wasko v. Unemployment Comp. Bd. of
Rev., 

488 A.2d 388

, 389 (Pa. Cmwlth. 1985). To establish cause of a necessitous
and compelling nature, a claimant must show: (1) circumstances existed that
produced real and substantial pressure for the claimant to terminate his employment;
(2) like circumstances would compel a reasonable person to act in the same manner;
(3) the claimant acted with ordinary common sense; and (4) a reasonable effort was
made by the claimant to preserve his employment. Procito v. Unemployment Comp.
Bd. of Rev., 

945 A.2d 261

, 264 (Pa. Cmwlth. 2008). Where other compelling or
contributory circumstances are absent, a voluntary termination, done solely to avoid
the possibility of a discharge, does not constitute a necessitous and compelling
reason to quit. See Ganter v. Unemployment Comp. Bd. of Rev., 

723 A.2d 272

, 275
(Pa. Cmwlth. 1999).


                                         8
       Presently, it is apparent that Claimant’s argument on appeal focuses almost
entirely on the question of whether he was terminated.9 It can be fairly suggested
by Claimant’s brief, however, that Claimant also contends that he had cause of a
necessitous and compelling nature to voluntarily terminate his employment because
he was not medically cleared to return to work. See Pa. R.A.P. 2116 (“[n]o question
will be considered [on appeal] unless it is stated in the statement of questions
involved or is fairly suggested thereby.” (emphasis added).) Claimant’s brief
provides:
       Although [Claimant’s] short-term medical leave had expired,
       [Claimant] was not released to return to work by his doctor and was
       undergoing a review and discussion with the insurance company and
       his doctor about the possibility of being put on to their [sic] long-term
       medical leave program. [Claimant] supplied at the hearing a statement
       from his doctor that he had NOT been released to return to work and it
       was her belief that returning to the work situation at [Employer] would
       be detrimental to [Claimant’s] wellbeing.

(Pet’r’s Br. at 5.) The Board concluded, however, that Claimant did not produce
sufficient credible evidence to establish that he had adequate health reasons to
resign and that he failed to take reasonable measures to preserve his employment.
We agree with the Board.
       As noted above, at the time Claimant was expected to return to work, Claimant
had several options available to him to preserve his employment, including filing for
long-term medical disability, applying for a different position with Employer, or
simply responding to the Director’s email by Friday, July 19, 2019. Claimant failed
to pursue any of those options, and he did not provide the Director any medical

       9
          The question presented section of Claimant’s brief describes the issue, in full, as follows:
“Why the [Referee] refused to acknowledge [Claimant’s] position that he was terminated while he
was still on medical leave and that he had not voluntarily resigned his position. The [Board] did
not address this question.” (Pet’r’s Br. at 4.)

                                                  9
documentation certifying his ongoing medical condition, instead resigning his
position. As a result, we cannot conclude that Claimant exhausted all available
options to preserve his employment relationship. Porco v. Unemployment Comp.
Bd. of Rev., 

828 A.2d 426

, 428-29 (Pa. Cmwlth. 2003).
      Accordingly, we affirm the order of the Board.




                                        P. KEVIN BROBSON, Judge




                                       10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George B. Yancura,                   :
                      Petitioner     :
                                     :
           v.                        :   No. 1869 C.D. 2019
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER


     AND NOW, this 5th day of March, 2021, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.




                                     P. KEVIN BROBSON, Judge

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