IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dara Scarborough, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1566 C.D. 2019
Respondent : Submitted: August 28, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 22, 2020
Dara Scarborough (Claimant) petitions, pro se, for review from the
August 29, 2019 order of the Unemployment Compensation Board of Review
(Board) that affirmed the Referee’s decision finding her ineligible for unemployment
compensation benefits. The Board concluded that Claimant was ineligible for
benefits because Claimant failed to show that she voluntarily quit her employment
for a necessitous and compelling reason pursuant to Section 402(b) of the
Unemployment Compensation Law (Law).1 Upon review, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) provides that a claimant is ineligible for compensation if her
unemployment is due to her voluntarily leaving employment without cause of a necessitous and
compelling nature. Id.
I. Background
UST Global Inc. (Employer) employed Claimant full-time as a junior
process associate from June 20, 2016, until October 5, 2018. Board Findings of Fact
(F.F.) 1; Certified Record (C.R.) Item No. 13, Referee’s Hearing Transcript of
Testimony (T.T.) dated 6/18/19 at 7. Claimant began her employment as a trainee
in a program administered by Employer known as “Step It Up America” (Program).2
F.F. 2; T.T. at 7, 18. Through the Program, Claimant received training in computer
programming, Employer introduced her to potential employers, and Employer
provided Claimant with access to job listings. F.F. 3; T.T. at 18, 25. In January
2017, Claimant applied for a position with a client of Employer based in Chicago,
but she was not hired because the client decided to consider only local candidates
for the job. F.F. 5; T.T. at 9, 19. Claimant trained for a position with another
potential employer, but at the end of her training period the potential employer
declined to hire Claimant and her enrollment in the Program ended. F.F. 4; T.T. at
9, 19, 25-26.
Although Claimant was not selected for a position with Employer’s
client, Claimant remained a full-time employee as part of Employer’s talent pool.
T.T. at 19, 25-26. As explained by Employer’s Human Resources Manager, Andrew
Dufresne (HR Manager):
once a candidate is identified and they are given the
training program, we let our end [clients] with whom we
have statements of work . . . select the candidate . . . . If
[the candidate is] not selected, then we look for
opportunities for them . . . . As soon as a candidate’s
2
Claimant testified that the Program, as she understood it, took inner city women and
veterans, those typically underrepresented in STEM (science, technology, engineering and
mathematics) careers, trained them and then placed them in a job related to their STEM training.
T.T. at 18.
2
training program at one site ends, they are considered as a
regular employee of [Employer], they’re given a regular
full-time offer letter with [Employer], and they are
identified for opportunities. If they are not fit for
opportunity when they are in the talent pool . . . the entire
list of opportunities in the [United States] [is] given to
them. It is up to them to apply for the positions and be
considered for those positions . . . .
T.T. at 25-26. Claimant continued her training in computer programming from April
15, 2018, until October 2018. F.F. 6; T.T. at 8, 18, 21-22. Although she was not
performing work for any of Employer’s clients, she continued to submit timesheets
to Employer, and Employer continued to pay wages to Claimant based on her
timesheets through sometime in September 2018. F.F. 6; T.T. at 10-11.
On September 26, 2018, Employer’s head of North America resource
management, Vandana Bhatia (RMG Head),3 who was responsible for managing the
talent pool, contacted Claimant by email. T.T. at 10-11. In the email, RMG Head
indicated that Claimant had completed her last assignment “a while ago” and her
availability for work had “gone unnoticed” due to manager changes. F.F. 7; C.R.
Item No. 3, T.T. at 10-11, 28. RMG Head informed Claimant that Employer tried
to reach Claimant “a couple of times” and had left a voice message to contact
Employer, leaving phone and email contact information for the two managers. F.F.
8; C.R. Item No. 3. However, Claimant did not respond to RMG Head’s September
26, 2018 email. F.F. 9; T.T. at 10, 24, 28.4
3
Employer’s RMG head changed her last name from Rayarangoth to Bhatia at some point
between the events giving rise to Claimant’s claim and the hearing before the Referee. T.T. at 28.
4
The September 26, 2018 email provided:
Subject: Please Call
Importance: High
3
Due to Claimant’s failure to respond to the September 26, 2018 email,
the following day, September 27, 2018, Employer’s managers tried to reach
Claimant a second time by telephone and left her a voicemail message. F.F. 10; C.R.
Item No. 3, T.T. at 11, 24. Again, RMG Head followed up with an email to
Claimant, which included her prior email, and requested that Claimant contact
Employer. F.F. 10; C.R. Item No. 3.5 Claimant failed to respond to the September
27, 2018 email. F.F. 11; T.T. at 24, 28.
Hello Dara,
We understand that you were released from your previous
assignment a while ago; however, due to manager changes this went
unnoticed.
While reconciling the allocation reports, your name came up as
unallocated and we thus found that you have not been on an
assignment, but paid as an active employee all throughout.
We tried reaching you a couple of times on your phone number . . .
and left a voice message to contact us.
Can you please call me . . . or Arun Joseph . . . at the earliest?
Regards,
Vandana
C.R. Item No. 3.
5
The September 27, 2018 email provided:
Subject: FOLLOW UP1; Please Call
Hello Dara,
Arun Joseph and I tried to reach you again on your cell . . . this
morning and left a message asking you to call us at the earliest[.]
Please call me . . . or Arun Joseph . . . or request you to respond to
our e-mail at the earliest[.]
Regards,
Vandana
4
Finally, on October 3, 2018, Employer’s managers tried to reach
Claimant for a third time by telephone, and again, left a voicemail message. F.F. 12;
C.R. Item No. 3. RMG Head sent a third email to Claimant requesting that Claimant
contact Employer before the end of the day. F.F. 12; C.R. Item No. 3.6 Claimant
failed to respond to Employer’s October 3, 2018 telephone call or email message.
F.F. 13; T.T. at 28. As a result of these failed attempts to reach Claimant, Employer
concluded that Claimant quit her employment by job abandonment. C.R. Item No.
16; Board’s Order mailed September 29, 2019; T.T. at 7.
Subsequently, Claimant applied for benefits with the Erie
Unemployment Compensation Service Center (Center). The Center issued a notice
C.R. Item No. 3.
6
The October 3, 2018 email provided:
Subject: RE: FOLLOW UP 2: Please Call
Importance: High
Hello Dara,
Arun Joseph ad [sic] I tried to reach you again this afternoon on your
cell . . . and we left a detailed voice message asking you to call us
back at the earliest.
We got to know from our payroll team that you have been
submitting time cards and UST has been paying you for the time
recorded. Since we have not heard from you even after multiple
follow-ups, and since you do not have an allocation; we are
suspending your payroll going forward. Please get in touch with me
. . . or Arun Joseph . . . by the end of the day today.
Regards,
Vandana
C.R. Item No. 3.
5
of determination finding that Claimant “voluntarily quit because of unknown
reasons” and denying benefits pursuant to Section 402(b) of the Law. C.R. Item No.
5, Notice of Determination dated 4/25/19 (Notice of Determination) at 1. Claimant
appealed the Center’s decision to the Referee, asserting that she did not “voluntarily
quit” but was “let go due to a lack of work.” C.R. Item No. 6, Petition for Appeal at
1.
The Referee held a hearing on the matter at which Claimant was
represented by counsel and testified on her own behalf. C.R. Item No. 13. Employer
had a non-legal representative present and had three witnesses testify on its behalf,
specifically HR Manager, RMG Head, and a manager involved with the talent pool,
Arun Joseph (Talent Pool Manager). Id. After the hearing, the Referee issued a
decision and order affirming the Center’s determination finding Claimant ineligible
for benefits. C.R. Item No. 14; Referee’s Decision/Order mailed 6/20/19. The
Referee explained:
At the hearing . . . Claimant argued that she did not
voluntarily leave her position.
In her testimony, . . . Claimant acknowledged that she
received []Employer’s email messages dated September
26 and 27, 2018 and October 3, 2018. She testified that
she tried to respond to the messages by telephone and that
. . . Employer’s managers failed to respond to her calls.
She also testified that she did not respond to the messages
by email because she had focused on responding via phone
and didn’t realize that an email response was possible or
appropriate.
. . . Claimant provided no documentary evidence of her
phone calls to . . . Employer.
6
. . . Employer[’s] witnesses testified that they did not
receive any response from . . . Claimant, neither [sic] by
phone or email.
The Referee does not find . . . Claimant’s testimony
credible and resolves the conflict in testimony in []
Employer’s favor.
Based on the testimony received at the hearing, the
Referee concludes that . . . Claimant initiated the
separation from employment by her refusal to respond to
inquiries from . . . Employer.
....
While the Referee credits . . . Claimant’s testimony that
the open positions communicated to her on September 20
and 27, 2018[,] may not have been appropriate for her, she
has failed to demonstrate that she had no other real choice
but to leave her employment and that she took all
necessary and reasonable steps to preserve her
employment.
As a result, the Referee concludes that . . . Claimant . . .
has failed to meet the burden of demonstrating necessitous
and compelling cause; therefore, benefits must be denied
under Section 402(b) of the Law.
Referee’s Decision/Order at 3-4 (emphasis added). Claimant appealed to the Board,
which issued an order affirming the Referee’s decision. C.R. Item No. 16; Board’s
Order mailed 8/29/19. The Board adopted and incorporated the Referee’s
conclusions, and further stated: “The Board would add to [the Referee’s] Finding
of Fact No. 10[7] that . . . [C]laimant was instructed to either call or email . . .
7
The Referee’s Finding of Fact 10 provided:
Due to . . . Claimant’s failure to respond to the September 26, 2018
email, the following day i.e., September 27, 2018[,] Employer’s
managers tried to reach . . . Claimant a second time by telephone.
7
[E]mployer and she failed to do either. The Board adds a finding, which shall read,
‘[C]laimant quit her employment by job abandonment.’” Id. (emphasis in original).
Claimant then brought this appeal.8
II. Issue
Although Claimant asserts her arguments as separate issues, she
essentially contends that the evidence demonstrates she did not abandon her job, but
was fired.9
When they were unable to reach . . . Claimant by phone, a voice mail
message was left for . . . Claimant. In addition, one of the managers
sent another email message to . . . Claimant including her prior
message and again requesting that . . . Claimant contact . . .
Employer, and repeating the phone contact information for the
managers.
Referee’s Decision/Order at 2.
8
This Court’s review is limited to determining whether constitutional rights were violated,
whether errors of law were committed, and whether findings of fact are supported by substantial
evidence. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth.
2008). In unemployment compensation proceedings, the Board is the ultimate finder of fact. Sipps
v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 484 (Pa. Cmwlth. 2018).
9
Claimant also asserts that the Board erred by adopting the Referee’s “finding” of willful
misconduct as this issue is waived. Claimant’s Br. at 17, 28-30. Claimant argues that Employer
did not discharge Claimant for willful misconduct and Employer never raised the issue before the
Board. Id. at 28. The Board states in its brief that “Employer consistently maintained Claimant
quit by job abandonment and did not assert an alternative theory as to what actions on Claimant’s
part rose to the level of willful misconduct; therefore, the Board agrees that under Wing v.
[Unemployment Compensation Board of Review], 436 A.2d 179 (Pa. 1981), Employer waived the
issue of misconduct.” Id. at 26 n.11.
We agree with the parties that the issue of willful misconduct was waived. However, the
Referee and the Board never reached that issue. The Referee’s order, which the Board affirmed,
was specifically limited to finding Claimant ineligible for benefits under Section 402(b) of the
Law. The Referee stated that if she had found that Employer terminated Claimant’s employment
and if she had made a ruling under Section 402(e) of the Law, 43 P.S. § 802(e), relating to willful
misconduct, Claimant would still be ineligible for unemployment benefits. Nonetheless, the
Referee made no such ruling here. Accordingly, this argument is moot.
8
III. Discussion
Whether a claimant’s separation from employment is a 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. See Greenray Indus. v. Unemployment Comp. Bd. of Rev., 135 A.3d
1140, 1143 (Pa. Cmwlth. 2016). A claimant seeking unemployment compensation
benefits bears the burden of establishing either that (1) her separation from
employment was involuntary, or (2) her separation was voluntary but she had cause
of a necessitous or compelling nature that led her to discontinue the relation. Id.;
see also Key v. Unemployment Comp. Bd. of Rev., 687 A.2d 409, 412 (Pa. Cmwlth.
1996) (“it is a claimant’s burden to prove that her separation from employment was
a discharge”). Further, “[a]n express resignation is not necessary to constitute a
voluntary termination; conduct which is tantamount to a voluntary termination of
employment is sufficient.” Shrum v. Unemployment Comp. Bd. of Rev., 690 A.2d
796, 799 (Pa. Cmwlth. 1997).
Here, Claimant does not contend that she voluntarily quit for a
necessitous and compelling reason. She asserts that she did not quit at all, but was
fired. We find her arguments without merit.
Claimant first cites and relies on “new evidence” she obtained after the
Referee’s hearing and the Board’s review, resulting from a wage complaint she filed
against Employer with the Bureau of Labor Law Compliance in August 2019.
Claimant’s Br. at 19-20. Specifically, Claimant cites an August 30, 2019 email
allegedly demonstrating that she worked without any periods of absence from
September 17, 2018, through October 5, 2018. Id. However, when reviewing a
matter on appeal, this Court cannot consider documents appended to a party’s brief
9
that are not part of the certified record. Twp. of Neshannock v. Kirila Contractors,
Inc., 181 A.3d 467, 472 (Pa. Cmwlth. 2018) (“The law is well settled that an
appellate court may not consider documents that are not part of the certified record.”)
(citing Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011)). As a result, we cannot
consider the “new evidence” presented by Claimant.
Next, Claimant argues that she was discharged by Employer with
“immediacy and finality” by Employer’s October 5, 2018 email. Claimant’s Br. at
21. Claimant contends the October 5th email shows that Employer discharged her
under its job abandonment policy, which provides for termination where an
employee has been absent for three or more consecutive days. Id. at 21-26. Relying
on the contents of the October 5th email, Claimant asserts that Employer failed to
prove that she was absent at all, much less for three or more consecutive days. Id.
at 23-24.
Employer’s October 5th email provided:
Dear Dara,
This communication is being sent to your e-mail address
in an effort to make sure that it reaches you in a timely
manner.
We tried to reach you at your phone number . . . and also
emails . . . and have left multiple messages on September
26th, September 27th, October []3rd and October 4th. We
are [sic] yet to receive any response from you.
Per company policy, you should be processed as a
resignation and terminated from the Company on the third
consecutive day of absence.
We are processing your separation as a resignation per
policy on Job Abandonment.
10
Sincerely,
Arun Joseph
Senior Manager - HR
C.R. Item No. 11, Referee Exhibit (Ex.) 20 (emphasis added). Contrary to
Claimant’s assertion, the contents of the email support the conclusion that Employer
construed Claimant’s refusal to respond to the earlier communications as a
resignation from her employment. See Fishel v. Unemployment Comp. Bd. of Rev.,
674 A.2d 770, 772 (Pa. Cmwlth. 1996) (providing that “[w]here the employee,
without action by employer, resigns, leaves, or quits employment, that action
amounts to voluntary termination for purposes of unemployment compensation”).
Claimant next challenges the Board’s findings of fact, asserting that
they are not “supported by substantial evidence” of record. Claimant’s Br. at 35-49.
Claimant is correct that this Court is bound by the Board’s findings only if they are
supported by substantial evidence. See 2 Pa.C.S. § 704. Substantial evidence is
defined as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383,
1387 (Pa. 1985) (internal quotations omitted). To determine whether there is
substantial evidence to support the Board’s findings, we must examine the testimony
in the light most favorable to the prevailing party, giving
that party the benefit of any inferences that can logically
and reasonably be drawn from the evidence. A
determination as to whether substantial evidence exists to
support a finding of fact can only be made upon
examination of the record as a whole.
Henderson v. Unemployment Comp. Bd. of Rev., 77 A.3d 699, 718 (Pa. Cmwlth.
2013).
11
Although Claimant challenges most of the Board’s findings, see
Claimant’s Br. at 36-42, the crux of her complaint is that the Board’s findings are
“not in line with what constitutes a violation of Employer’s [j]ob [a]bandonment
policy.” Id. at 42. However, as discussed above, the Board did not base its decision
on a violation of Employer’s policy. Rather, the Board concluded that Claimant
failed to meet her burden of showing a necessitous and compelling cause for leaving
her employment because she did not show that she had “no other real choice but to
leave her employment” or that she took “all necessary and reasonable steps to
preserve her employment.” Referee’s Decision/Order at 3; Board’s Order. Thus,
Claimant’s insistence that she did not quit, but was fired, fails to counter the basis of
the Board’s decision.
Moreover, the Board based its conclusion on its findings that Claimant
initiated her separation from employment when she failed to respond to inquiries
from Employer on September 26 and 27, 2018, and October 3, 2018. These findings
are supported by substantial evidence of record. The Board found, and there is no
dispute, that Employer attempted to contact Claimant on three occasions, September
26 and 27, 2018 and October 3, 2018, by both telephone and email, and instructed
Claimant to contact either RMG Head or HR Manager “at the earliest.” F.F. 7, 8,
10, 12; C.R. Item No. 3. Claimant acknowledged that she received these messages.
T.T. at 22-23. However, Claimant argues that two of the calls were made outside of
work hours, that she returned the calls nonetheless, and that Employer did not
indicate the reason for its communications. Id. at 39-40.
Contrary to Claimant’s assertion, all three of Employer’s witnesses
testified that they received no response from Claimant when they attempted to reach
her. T.T. at 10, 24, 28. This testimony constitutes substantial competent evidence
12
to support the Board’s finding of fact that Claimant failed to respond to the
September 26th and 27th emails and the October 3rd email and phone call. See F.F.
9, 11, 13.
Claimant, in essence, asks this Court to substitute its own findings for
those of the Board. Because there is substantial competent evidence in the record
sufficient for a reasonable mind to conclude that Claimant did not respond to
Employer’s telephone calls and email messages, we cannot disturb the Board’s
credibility determination on appeal or substitute our own findings for those made by
the Board. Cambria Cnty. Transit Auth. (CAMTRAN) v. Unemployment Comp. Bd.
of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019) (providing that “[q]uestions of
credibility and the resolution of evidentiary conflicts are within the sound discretion
of the Board, and are not subject to re-evaluation on judicial review”).
IV. Conclusion
Based on the foregoing, we agree with the Board that Claimant failed
to meet her burden of showing that she had a necessitous and compelling reason for
voluntarily terminating her employment. Accordingly, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dara Scarborough, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1566 C.D. 2019
Respondent :
ORDER
AND NOW, this 22nd day of December, 2020, the August 29, 2019
order of the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge