IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tiffany J. Cunningham, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review

, : No. 1090 C.D. 2019

Respondent : Submitted: December 13 , 2019

BEFORE: HONORABLE MARY HANN AH LEAVITT

, President Judge

HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 4, 2020

Tiffany J. Cunningham ( Claimant ) petition s this Court pro se f or review

of the Unemployment Compensation (UC) Board of Review’s (UCBR) July 25, 2019

order affirming the Referee’s decision denying Claimant UC benefits under Section

402(b) of the UC Law (Law). 1 Claimant presents three issues for this Court’s review:

( 1) whether Claimant voluntar il y quit her employment; (2) whether the Referee

properly excluded Claimant’s hearsay evidence; and (3) whether Lifestyle Support

Services, Inc. (Employer) committed unfair work practices because Claimant was

alone with three su pervisors when she was fired. 2 After review, we affirm.

C laimant worked as a part

- time day program aide for Employer from

December 18, 2017 through April 16, 2019, working 30 hours per week and earning

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amen ded , 43 P.S. § 802(b) (relating to voluntarily leaving work without cause of a necessitous and compelling nature ).

2 Claimant includes the additional issue of whether she committed willful misconduct

because she had good cause for missing work. See Claima nt Br. at 6. However, because Claimant was not discharged from her employment, as discussed fully below, that issue is not before this

Court.2

$13 per hour. Prior to April 16, 2019, C laimant h ad been excessively absent from

work. On March 29, 2019, Employer placed C laimant on an employee improvement

plan regard ing her attendance. C laimant continued to be absent from work after

being placed on the employee improvement plan for attendance. Cla imant’ s position

as a day program aide does not afford E mployer an opportunity to find replacement

staff members when C laimant is absent from work . Claimant’ s frequent absences

had a negative impact upon the day program and prevented E mployer from offer in g

certain programs to its clients because Employer w as short

- staffed.

On April 16, 2019, E mployer met with C laimant to discuss her ongoing

attendance issues and to offer C laimant work in Employer’ s group homes which

would provide more flexibility for Clai mant in scheduling her hours and allow

E mployer to provide coverage for any absences C laimant may continue to incur. The

group home position offered the same number of hours and pay rate she received in

the day program. Additionally, C laimant c ould conti nue to work her day shift

schedule, typically from 9:00 a

. m

. to 3:00 p

. m. During the meeting, C laimant refused

to accept work in Employer’ s group home, as she believed she would have to work

nights and weekends , which she was unable to do because of child care issues.

E mployer did not inform C laimant that she would need to work nights and weekends

and met with her again prior to the end of her workday on April 16, 2019

, hoping that

she would reconsider its offer. C laimant again refused to work in the grou p home

setting and informed E mployer that she would not accept work other than in the day

program. P ursuant to Employer’s handbook

, Employer asked Claimant to sign a

resignati on notice giving her two

- week s’ notice . Claimant refused to do so.

Claimant applied for UC benefits. On May 8, 2019, the Altoona UC

Service Center determined that Claimant was not eligible for UC benefits under

Section 402( b ) of the Law . Claimant appealed and a Referee held a hearing. On June

7, 2019, the R eferee affirmed the U C Service C enter’s determination. Claimant3

appealed to the UCBR. On July 25, 2019, the UCBR affirmed the Referee’s decision.

Claimant appealed to this Court. 3

, 4

Claimant first argues that she did not voluntar il y quit but

, rather, she was

wrongfully d ischarged.

Initially,

[w] hether 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 and must be determined from a totality of the facts surrounding the cessation of employment. A claimant seeking [UC] benefits bears the burden of establishing either that (1) h [er] separation from employment was involuntary or (2) h [er] separation was voluntary but [s] he had cause of a necessito us or compelling nature that led h [er] to discontinue the relationship. In other words, in order to be eligible for [UC] [benefits], the claimant bears the burden of proving separation from employment, whether voluntary or involuntary.

Greenray Indus. v. Unemployment Comp . Bd. of Review

, 135 A.3d 1147, 1149

- 50

(P a. Cmwlth. 2016) (quoting Watkins v. Unemployment Comp. Bd. of Review

, 65

A.3d 999, 1004 (Pa. Cmwlth. 2013) (citations and footnote omitted) )

.

Further,

[i]t is well

- established law that ‘ [a]n exp ress resignation is not necessary to constitute a voluntary termination; conduct
which is tantamount to a voluntary termination of

3 “‘ O u r scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. ’ Miller v. Unemployment Comp. Bd. of Review , 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014) .” Talty v. Unemployment Comp. Bd. of Review , 197 A.3d 842, 843 n.4 (Pa. Cmwlth. 2018).

4 On December 11, 2019, Claimant filed an Application to Compel [(Application)] consisting of the following: “ I [Claimant] [w] ould like to make a [n] Application to Compel [] [d] ue

to not [r] ec [ei] ving [the UCBR’] s Br [ie] f Statement. Commonwe alth [C] ourt noted that it was

submitted el [] ectronic [al] ly November 20th 2019. ” Application at 2. Because t he UCBR’s brief

contains a certificate of service stating its brief was mailed to Claimant’s record address, the Application is denied.4 employment is sufficient. ’ Shrum v. Unemployment Comp. Bd. of Review

, 690 A.2d 796, 799

- 8 00 (Pa. Cmwlth. 1997) (quoting Sear

s, Roebuck & Co. v. Unemployment Comp. Bd. of Review

, . . . 394 A.2d 1329, 1332 ( [Pa. Cmwlth.] 1978) ). This Court has held that ‘ [ c ] laimants who, while employed, refuse to accept an offer of continued employment are de emed to have quit their position , and are thus subject to Section 402(b) of the [Law], which denies compensation to a claimant who ‘ voluntarily [leaves] work without cause of a necessitous and compelling
nature.’ ’ Middletown Twp. v. Unemployment Comp. Bd. of
Review

, 40 A.3d 217, 225 (Pa. Cmwlth. 2012) (quoting Hosp. Serv. Ass’ n of Ne. Pa. v. Unemployment Comp. Bd. of
Review

, . . . 476 A.2d 516, 518 ( [Pa. Cmwlth.] 1984)).

Green r ay Indus. , 135 A.3d at 1150 (bold emphasis added)

. Here, because of Claimant’ s excessive absenteeism, Employer offered

Claimant continued employment in its group home program. Claimant refused the

offer because she believed working in the group home program would requ ire her to

work nights and week ends. Specifically, Claimant tes tified , in relevant part :

I showed up to work on April 16th, 2019. A typical day. I had given [Employer ] my medical notice that I had got [sic]
from the doctor to come back to work.

. . . As soon as I
came in [Employer’s Day Program Manager ] [ ] Terry Ku hn [ ( Kuhn ) ] had a whole bunch of papers for me to fill out.
Documents for consumers. Approximately around I think it was 1:30 p.m. I was asked to go upstairs. I was pulled into
the office into a conference room and it was [] Kuhn, [Employer’s Program Di rector] Vikki Nelson [Nelson] and [Employer’s Executive Program Director] Mike Cappella

were [sic] all in there. They had told me that my missing attendance did not work for a day program because they need consistency which I totally agree with because
th e consumers do need consistency. But I had given plenty
of medical notices. We were all understanding of what was going on and actually I had called and talked to [ Kuhn ] on the phone whenever I was off. I think I was off about five days give or take and he

-- . . . . So at that point they had all
told me that I wouldn’ t work for day program and they wanted to offer me a position in group homes

. I said I
could not take that because they want me to work nights5 and weekends.

. . . That is the reason why I declined group
homes. Because I declined group homes they then told me that I would not work for day program and was fired.

. . .

Certified Record (C.R.) Item 9

, Notes of Testimony

, June 5, 2019 (N.T.) at 6

- 7

(emphasis added) . Claimant continued:

I ca n’ t take group homes because of the kids. When I was originally hired and it says on this paper I was hired for day programming. That ’ s what I was hired for. That was the availability that I gave them and in my opinion and this is just my opin ion if you can’ t no longer offer me a job that I was originally assigned that shows right there that I was fired.

N.T. at 7.

However, Nelson related:

[Q] [] Nelson [,] did [Claimant] voluntarily resign her employment with [Employer] ?

[A] Yes.

[Q] [] Nelson [,] do you recall the date when [Claimant] voluntarily resigned or resigned from [Employer] ?

[A] 4/16/19.

[Q] On that date was there any attempt whatsoever to
terminate [Claimant’s employment] ?

[A] No. There was absolutely no intent to terminate her [employment]

.
[ Q] You said that there was

-- well what was the purpose of meeting with [Claimant] on 4/16/19?

[A] To discuss her absenteeism and also to offer her employment in the group home to open up availability that
she could actually get in her 30 hours per week.

[ Q] Was it your belief that she would accept that agreement? That alternative?6 [A] Yes [,] that was the purpose. The first meeting was for
that purpose so we expected th at she would do that because
we’ ve done this in the past. Other people have accepted.
She did not. That’ s why we ended up having that second meeting just because I had to consult with [Employer’s attorney Devin] Bennati.

[Q] So there was [sic] two meetings that day?

[A] There were two meetings that day. Yes.

[Q] What was discussed at the second meeting later that day?

[A] The second meeting we had hoped that after she processed it and had a few minutes to calm down that she
would reconsider and take the employment in the homes to

-- and then she was also

-- she was asked if she wanted to write a resignation letter not to say hey I quit today. That
was in our handbook you’ll see that it’ s a two [

- ]w eek
notice. We do a resignation letter is generally a two [

- ] week notice so we offered her to write that resignation
letter. And again like I said we asked if she would reconsider working in the group homes because it would open up so much

-- so many different times for her. Other people from the day program who transferred over have still worked a 9 to 3 position so we never gave her a time
th at she had to work

. It was just extra hours that she could
have.

N.T. at 12

- 13 (emphasis added)

.

The law is well established that “ ‘[ i]n [UC] proceedings, the [ UCBR ] is

t he ultimate fact finder, and it is empowered to resolve all conflicts in the evidenc e

and to determine the credibility of witnesses. ’ Procito v. Unemployment Comp. Bd.

of Review

, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008) .” Umedma n v. Unemployment

Comp. Bd. of R eview , 52 A.3d 558, 562 (Pa. Cmwlth. 2012). Here,

[w] hile [] [C] laimant test ified at the time of hearing that she was told by [] [E] mployer that she would have to work nights and weekends and could not do so due to childcare constraints, the Referee credit [ ed ] [] [ E ] mployer’s testimony that the position offered to [] [ C ] laimant di d7 not require nights and weekends and that [] [C] laimant
would be able to continue to work the same schedule and would be offered more flexibility with the work in the group home setting and would also benefit [] [E] mployer by allowing [it] to be able to p rovide coverage for any of the
absences [] [C] laimant may continue to incur.

Referee Dec. at 3 (emphasis added). “ [T] he [UCBR] adopt [ed] and incorporate [d]

the Referee’ s f

in dings and conclusions [.]” UCBR Dec. at 1.

The record evidence establishes: (1) Claimant was working at the time

Employer offer ed her work in its group homes ; (2) Claimant knew that s he would

lose h er job if s he refused to work in group homes ; and, (3) Claimant refused to work

in group homes

. Because Claimant refused to accept an of fer of continued

employment while employed, s he is deemed to have quit h er position. Greenway

Indus. Thus, Claimant engaged in conduct that was tantamount to a voluntary

termination. Id. Accordingly, the UCBR properly conclud ed that Claimant

voluntaril y quit her job

.

Having ruled that Claimant voluntarily resigned from h er employment,

we must next determine whether s he had a necessitous and compelling reason for

doing so.

Whether a claimant had cause of a necessitous and

compelling nature for leaving w ork is a questi on of law subject to this Court’ s review. A claimant who voluntarily quits h [er] employment bears the burden of proving that necessitous and compelling reasons motivated that decision. In order to establish cause of a necessitous and compel ling nature, a claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like circumstances would compel a reasonable person to act in the same manner, (3)
the claimant acted with ordina ry common sense, and (4) the
claimant made a r easonable effort to preserve [her ] employment.8

Green r ay Indus ., 135 A.3d at 1151 (quoting Middletown Twp.

, 40 A.3d at 227

– 28

(citations omitted) )

.

Here, Claimant testified that she refused to work in the gro up homes

because she could not work nights and weekends. However , the UCBR found

Employer’s testimony credible that Claim a nt would not be required to work nights

and weekends in the group homes

. Thus, Claimant did not meet her burden of

proving that her concern over working nights and weekends was real and substantial

pressure that would cause a reasonable person to terminate her employment

. Because

a person with ordinary common sense would not refuse the alternat ive job offer,

Claimant did not prove tha t she made a reasonable effort to preserve her employment.

Thus , Claimant did not have a necessitous and compelling reason to terminate her

employment. Green r

ay Indus

. Accordingly, the UCBR properly denied Claimant

UC benefits under Section 402(b) of th e Law.

Claimant next asserts that the Referee im properly excluded an

anonymous witness statement from evidence

, and that Employer committed an unfair

work practice because Claimant was alone with three supervisors during the April 16,

2019 meetings . How ever, although Claimant raised both of these issues in her

“Statement of Questions Involved,” Claimant Br. at 6, she did not mention either

issue in the “Summary of Argument,” Claimant Br. at 8, or the “Argument of

Petitioner” in her brief. Claimant Br. a t 9

- 10. It is axiomatic that “ [ w ]hen a party

appeals, but fails to address an issue in the brief , the issue is waived

. ” HPM

Consulting v. Unemployment Comp. Bd. of Review , 185 A.3d 1190, 119 6 (Pa.

Cmwlth. 2018) (quoting Jimoh v. Unemployment Comp. Bd. of Review

, 902 A.2d

608, 611 (Pa. Cmwlth. 2006) ). Accordingly, these issues are not properly before the

Court.9 For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMON WEALTH COURT OF PENNSYLVANIA

Tiffany J. Cunningham, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 1090 C.D. 2019

Respondent :

O R D E R

AND NOW, this 4 th day of February , 20 20

, the Unemploym ent

Compensation Board of Review’s July 25, 2019 order is AFFIRMED

. Tiffany

Cunningham’s Application to Compel is DENIED.

___________________________ ANNE E. COVEY, Judge