IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Eible , :

Petitioner :

: No. 1194 C.D. 201 5
v. : : Submitted: October 23, 201 5 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge 1

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: January 29, 2016

Paul M. Eible ( Claimant ) petitions , pro se , for review of the June 16, 2015 order of the Unemployment Compe nsation Board of Review (Board) which
affirmed a referee’s decision that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law)

. 2 For the following reasons,
we affirm.

1 This case was assigned to the opinion writer on or b efore December 31, 2015, when President Judge Pellegrini assumed the status of senior judge.

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §802(b). Section 402(b) of the Law provides that a claimant shall be ineligible for compensation for any week in which the claimant’ s unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.2 Facts and Procedural History
Claimant was employed by Carbon Lehigh Intermediate Unit #21 (Employer) from January 24, 2014, until h is resignation on March 13 , 2015. The
local service center determined that Claiman t was ineligible for benefits because he voluntarily terminated his employment without demonstrating the requisite necessitous and compelling reason. Claimant appealed that decision to a referee who held a hearing on April 23, 2015.

Claimant testified that he worked for Employer as behavioral support for
students with advanced autism

. Claimant stated that he met with Employer’s Director of Human Resources, Michele Borland (Borland), on March 13, 2015, during which Borland advised him that Employer was investigating allegations that
he had harmed a student

. Claimant also stated that a children and youth services agency (Childline) was conducting a separate investigation concerning the allegations
levied against him. Claimant testified that Borland advised him not to return to work
until the Childline investigation had been resolved; however, Claimant testified that he was not given any time frame for when that investigation might be completed

. Claimant further testified that, after the meeting, Bor land advised him that it would be in his best interest to resign because , if he left, Employer would cease its investigation immediately

. (Notes of Testimony (N.T.) at 5 , 7

- 8 .)

Claimant resigned on March 13, 2015, and stated that he resigned
because he was unclear when he would be allowed to return to work. Claimant acknowledged that he was not actually told that he was suspended, but explained that his employment status was uncertain because of the pending Childline investigation.
Claimant testified that Employer’s investigation was not resolved at the time of his resignation and he was not told that he was going to be terminated . Claimant added3

that the alleged incident occurred on February 12, 2015 , and that he was not afforded

an opportunity to pr esent a defense to the incident. (N.T. at 1, 5, 7

- 11.)

Borland testified that Claimant was not suspended. Instead, Borland stated that, when Employer learned of the Childline investigation, Employer
contacted Claimant on March 8, 2015, and notified him that his services would not be
needed that week. Borland further testified that she is not responsible for making employment determinations and that she did not advise Claimant that he was going to
be terminated. Borland stated that, if Claimant had not resigned, she would have completed her investigation, made a recommendation to Employer’s legal counsel, and Employer’s board of directors would have made a determination regarding Claimant’s employment status. Borland also testified that her investig ation had not
concluded at the time of Claimant’s resignation and , consequently, she did not make
a recommendation to the board of directors. Borland noted that , if she had made a recommendation to the board of directors, Claimant would have an opportunit y for a hearing before the board of directors , and she stated that this information is available in Employer’s contract. (N.T. at 11

- 13.)

Borland further testified that, during the March 13, 2015 meeting, she did not give Claimant any recommendations for his career. She stated that Claimant asked her what would happen if he resigned and she advised him that Employer’s investigation would be terminated and that Employer’s records would reflect that Claimant resigned

. Borland stated that Claimant did not ask her about any other employment options besides resignation. Borland testified that Claimant was a union member and could have requested union representation at the meeting ; however,
Claimant did not ask for union representation and a union representat ive was not present at the March 13, 2015 meeting. Borland added that any time Employer4

schedules an investigatory meeting that could result in discipline , the meeting request states that the individual has the right to union representation. Borland confirmed that Employer terminated its investigation into the alleged incident following Claimant’s resignation and that she was unaware of the results of Childline’s investigation

. (N.T. at 11

- 14 , 16 .)

Following the hearing, the referee made t he following findings of fact:
3. On March 8, 2015, a report was made to Childline, a hotline opera ted by the Department of Human S ervices to receive reports of suspected child abuse, alleging Claimant kicked a child. 4. On March 13, 2015, Employer con ducted an investigatory meeting with Claimant regarding the alleged abuse. 5. Employer explained it was conducting an investigation separate from the investigation conducted by Childline. 6. Claimant asked Employer what would happen if he resigned.

7. Employer advised Claimant it would cease its internal investigation and Claimant’s personnel records would reflect his employment ended with resignation. 8. Employer did not advise Claimant he would be discharged if he did not resign.

. . . 10. Neither Childline nor Employer had concluded their respective investigations at the time of Claimant’s resignation. 11. Claimant resigned effective March 13, 2015 rather than face the possibility of discharge.5

(Referee’s Findings of Fact Nos. 3

- 8, 10

- 11.)

Pursuant to the findings, t he referee concluded that Claimant was ineligible for compensation benefits because he voluntarily terminated his employment without a necessitous and compelling reason. Claimant appealed to the Board, which affi rmed the referee’ s decision. The Board found Borland’s testimony
that she did not make a recommendation to Claimant regarding his career choice
credible . The Board also found that Borland had not completed her investigation
when Claimant resigned and had no authority to discharge him because that authority was vested in Employer’s board of directors . The Board adopted the referee’s findings of fact and conclusions of law and determined that Claimant’s separation
from employment was voluntary and without necessitous and compelling reason, rendering him ineligible for benefits

. Claimant submitted a request for reconsideration of the Board’s decision, which was denied.

On appeal to this Court , 3 Claimant challenges the Board’s finding that
B orland did not make a recommendation to Claimant regarding his career choice.
Claimant also asserts that the Board erred when it concluded that his resignation was voluntary because Borland recommended that he retire and did not advise Claimant
that he wa s entitled to union representation or that he could be heard before Employer’s board of directors. Claimant asserts that, because this information was unavailable to him, resignation was his only choice.

3 Our scope of review in an unemploy ment compensation appeal 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; Leace v. Unemployment Compe nsation Board of Review , 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014).6 Discussion Initially, we note that the Board i s the ultimate fact

- finder and is
authorized t o resolve conflicts in evidence and determine the credibility of witnesses. Unemployment Compensation Board of Review v. Wright , 347 A.2d 328, 329 (Pa. Cmwlth. 1975). The Board’s findings of fact are conclusi ve on appeal if the record, taken as a whole, contains substantial evidence to support those findings. Henderson v. Unemployment Compensation Board of Review , 77 A.3 d 699, 718 (Pa. Cmwlth. 2013). Substantial evidence is relevant evidence upon which a rea sonable mind
could base a conclusion. Fritzo v. Unemployment Compensation Board of Review , 429 A.2d 1215, 1218 (Pa. Cmwlth. 1981). In determining whether substantial evidence exists, we must examine the testimony in the light most favorable to the prevai ling party below, giving that party the benefit of any inference which can be drawn logically and reasonably from the evidence. Johnson v. Unemployment Compensation Board of Review , 505 A.2d 738, 740 (Pa. Cmwlth. 1986).

A claimant has the burden of proving entitlement to unemployment compensation benefits. Jennings v. Unemployment Compensation Board of Review , 675 A.2d 810, 815 (Pa. Cmwlth. 1996). In a voluntary quit case, this Court must first
decide whether the facts surrounding the employee’s separation from employment constitute a voluntary resignation or a discharge. Charles v. Unemployment Compensation Board of Review , 552 A.2d 727, 729 (Pa. Cmwlth. 1989). Whether a termination constitutes a discharge or a volunt ary quit is a question of law to be determined by examining the Board’s findings of fact. Wise v. Unemployment Compensation Board of Review , 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997).

Generally , where an employee resigns to avoid an imminent discharge,
th e situation is considered a discharge. Fishel v. Unemployment Compensation7

Board of Review , 674 A.2d 770, 773 n.2 (Pa. Cmwlth. 1996). However, where an employee resigns, leaves, or quits employment without any action by the employer,
that action constitu tes a voluntary quit for purposes of compensation benefits. Monaco v. Unemployment Compensation Board of Review , 565 A.2d 127, 129 (Pa. 1989). An employee who quits work to avoid the possibility of being fired is not entitled to compensation. Fishel , 67 4 A.2d at 772

- 73.

Claimant asserts that the Board’s finding that Borland did not make any
career recommendations to Claimant during the meeting was erroneous because
Borland recommended that Claimant should resign

.

At the referee’s hearing, Borland t estified that she did not give Claimant

any career recommendations . T he Board found her testimony credible , and it rejected Claimant’s contrary version of their conversation. The Board is the ultimate arbiter of witness credibility and is authorized to resolve any conflicts in evidence. Wright , 347 A.2d at 329. Borland’s credible testimony constitutes substantial evidence sufficient to support the Board’ s finding . Accordingly, the Board’s finding that
Borland did not make any career reco mmendation to Claimant is conclusive on appeal and cannot be disturbed.

Next, Claimant argues that his resignation was not voluntary because
Borland recommend ed that he resign and did not advise him that he was entitled to union representation or that h e could be heard before Employer’ s board of directors.
Claimant asserts that resignation was his only choice.

This Court’s decision in Fishel , is instructive. The claimant in Fishel was a substitute teacher who received an unsatisfactory performance e valuation. A plan with performance objectives was created to improve the claimant’s performance,
but she received a second unsatisfactory evaluation. At a subsequent meeting with8

school administrators , an administrative assistant advised the claimant tha t she could resign and that if she did not resign he would recommend her te rmination to the
school board.

The claimant resigned, and a referee awarded her unemployment compensation benefits, concluding that she resigned under real and substantial

pressu re. The Board reversed, however, finding that only the school board had the authority to terminate an employee and would hold a formal hearing before doing so

. Accordingly, the Board concluded that the claimant resigned voluntarily without
necessitous an d compelling cause to avoid the possibility of termination

.

On appeal to this Court, the claimant in Fishel argued that she was forced to resign when the administrative assistant advised her to resign or be terminated by the school board. The claimant alleged that her resignation did not
constitute a voluntarily termination because she had no meaningful choice . This Court rejected that argument, stating that only a resignation to avoid imminent discharge will be treated as a discharge , and we noted th at t he outcome of the administrative assistant’s recommendation to the school board was far from certain

. We affirmed the Board’s decision, stating that it is well settled that “an employee who quits work to avoid the possibility of being fired is not ent itled to compensation

. ” I

d . at 772

- 73

. In this case , the Board found that Borland had not completed her investigation at the time of Claimant’s resignation and that Borland did not have the authority to discharge Claimant ; that authority was vested in Employer’s board of
directors. The Board also found that Claimant would have had an opportunity to defend himself at a hearing before Employer’s board of directors before he could be discharged.9

As in Fishel , Claimant’s future employment status was not certain. Employer’s investigation had not been completed at the time Claimant submitted his resignation, and it is not certain that the results of Borland’s investigation would have
been unfavorable to Claimant . Addition ally, Borland’s recommendation would not
be determinative because, like the situation in Fishel , she did not have the authority to discharge Claimant

. As in Fishel , Claimant would have had an opportunity to dispute the allegations against him at a hearing before termination occurred

. Thus, the Board properly determined that Claimant’s resignation does not constitute a resignation to
avoid imminent discharge. Instead, Claimant resigned to avoid the possibility of being fired and, therefore , he is not enti tled to compensation benefits.

Accordingly, we affirm.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Eible, :

Petitioner :

: No. 1194 C.D. 2015
v. : : Unemployment Compensation : Board of Review, :

Respondent :

ORDER

AND NOW, this 29 th day of January , 2016 , the June 16, 2015 order of the Unemployment Compensation Board of Review is affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge