Diversified Care Management, LLC v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge LEAVITT.

I respectfully dissent. I believe that the present case is factually distinguishable from Allegheny Valley School v. Unemployment Compensation Board of Review, 548 Pa. 855, 697 A.2d 243 (1997), making the relevant inquiry not Employer’s justification for changing Claimant’s job duties but, rather, whether the terms of Claimant’s employment have substantially changed. I also believe that the Board, in its application of Allegheny Valley, improperly shifted the ultimate burden of proof to Employer.

It is a well-settled principle that an unemployment compensation claimant bears the burden of demonstrating “necessitous and compelling” reasons for voluntarily terminating her employment, as acknowledged in Allegheny Valley. Id. at 361, 697 A.2d at 246. Although the Board is the ultimate finder of facts, whether cause is necessitous and compelling is a question of law subject to appellate review. Willet v. Unemployment Compensation Board of Review, 59 Pa.Cmwlth. 500, 429 A.2d 1282, 1284 (1981). As noted by the majority, Allegheny Valley established that “the logical focus for determining whether necessitous and compelling reasons exist for a claimant to voluntarily terminate [her] employment after receiving a demotion is the justification for the demotion.” Allegheny Valley at 365, 697 A.2d at 248. In so holding, however, the Court reasoned that “a claimant does not have necessary and compelling reasons to voluntarily terminate [her] employment if the demotion was justified because the change in job duties and remuneration was the result of claimant’s fault.” Id. (emphasis added). As the emphasized text makes clear, the Court’s holding is premised on the notion that a demotion involves a change in an employee’s responsibilities and a corresponding reduction in salary. Thus, in a case where an employee claims that she quit because she was demoted, our initial inquiry involves a question of law: whether both of those factors are present so as to constitute a demotion. If so, then the justification analysis is applicable.

In this case, the Board found that “although the claimant’s responsibilities would be reduced, there would be no reduction in her salary or benefits.” Board Opinion at 2; Finding of Fact No. 19 (F.F_). These facts are quite different from those in Allegheny Valley, where the Claimant’s annual salary was reduced from $18,725 to $14,000.1 Allegheny Valley, 548 *136Pa. at 358-359, 697 A.2d at 245. Allegheny Valley is therefore distinguishable from the present case in this crucial respect and, in my view, inapposite.2 In other words, inquiry into the justification for Claimant’s so-called demotion is unnecessary. See also Anchor Darling Valve Co. v. Unemployment Compensation Board of Review, 143 Pa.Cmwlth. 171, 598 A.2d 647, 650 (1991) (noting that “compensation for self-perceived demotions or loss of job prestige is not provided for under the Act.”). Because Claimant voluntarily quit her job after her job duties were changed, I would analyze this case like any other involving a change in terms of employment.

As stated above, an unemployment compensation claimant who has voluntarily quit her job bears the burden of establishing a necessitous and compelling cause for her decision. 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 the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve employment. Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 (Pa.Cmwlth.1998). “The question of whether a unilateral change in terms of employment constitutes ‘cause of a necessitous and compelling nature’ is subject to a substantial change analysis.” McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1270 (Pa.Cmwlth.2003) (quoting Kaolin Mushroom Farms v. Unemployment Compensation Board of Review, 669 A.2d 438, 442 n. 3 (Pa.Cmwlth.1995)). The impact that the employer’s changes have upon the employee, not the employer’s reasons for instituting the changes, is the focus of the inquiry. McCarthy, 829 A.2d. at 1271.3

The Board did not engage in a substantial change analysis, and its factual findings are lacking on that issue. The extent of the Board’s findings in this regard is that “although the claimant’s responsibilities would be reduced, there would be no reduction in her salary or benefits.” Board Opinion at 2; F.F. 19. Without additional specific findings on the nature of the changes in Claimant’s responsibilities, and the impact those changes had on her, it is impossible to determine whether those *137changes were substantial and whether “like circumstances would compel a reasonable person” to voluntarily quit. Fitzgerald.4 Because the foregoing inquiries are within the province of the Board, I would remand this matter for further factual findings and a substantial change analysis.

Assuming, arguendo, that Allegheny Valley is controlling, I disagree with the Board’s application of the “justification principle” in this case. In any voluntary quit case, the claimant bears the burden of proving that she is entitled to benefits because she is unemployed through no fault of her own. Allegheny Valley, 548 Pa. at 365, 697 A.2d at 248 (citing Sections 8 and 402(b) of the Unemployment Compensation Law). This means that a claimant who leaves employment following a demotion bears the burden of proving that the demotion was not justified. The burden should not shift to the employer to prove the obverse.5 In this case, the Board did exactly that, and it improperly treated this case as if it were a willful misconduct case.

In its legal discussion, the Board concluded that because Employer “ha[d] no specifie policy regarding the use of County telephones by its employees ... the Board does not agree that the claimant committed misconduct or even exercised poor judgment.” Board Opinion at 3.6 Whether Employer had a specific policy for phone usage would be a relevant inquiry if Claimant had been discharged since, in that situation, the burden would have rested on Employer to show that the discharge was in accordance with its own rules. Charles v. Unemployment Compensation Board of Review, 764 A.2d 708, 710 (Pa.Cmwlth.2000). The discharge-for-willful-misconduct analysis is simply not relevant where a claimant’s unemployment is due to her voluntary termination of employment.

The stated goal of Allegheny Valley was to avoid intruding upon the ability of employers to make “valid demotions.” 548 Pa. at 366, 697 A.2d at 248. This goal has not been realized. Instead, the Board believes that Allegheny Valley has given it carte blanche to decide whether it would make the same management decision. I do not believe that the Supreme Court intended to authorize the Board to substitute its judgment for that of the employer *138in every demotion case. However, that is what has happened. The test should not be whether the Board agrees with Employer’s decision to relieve Claimant of her supervisory responsibilities but whether Employer can show that its stated reasons for a demotion can be factually supported.7

Based on the foregoing analysis, I would vacate the order of the Board and remand for further proceedings consistent with this opinion.

. The majority suggests that Employer's acknowledgment that it demoted Claimant is somehow dispositive. Slip Opinion at 7, n. 4. I disagree. Regardless of whether one or both parties refer to an employer's action as a "demotion,” I believe that this is a legal question, like any inquiry into whether cause for quitting was necessitous and compelling. The Court in Allegheny Valley defined a demotion both in terms of a change in job duties and a corresponding reduction in salary, and, in my view, both of those factors must be present to trigger the Allegheny Valley analysis. I acknowledge that in Korpics v. Unemployment Compensation Board of Review, 833 A.2d 1217 (Pa.Cmwlth.2003), this Court applied Allegheny Valley in a situation where an employee lost certain supervisory responsibilities with no reduction in salary. In that case, however, we were not confronted with the threshold issue of whether, as a matter of law, the claimant was demoted for purposes of the Allegheny Valley analysis. Thus, the majority in Korpics proceeded directly to the justification analysis and concluded that the claimant's demotion was justified. Interestingly, we acknowledged that that inquiry involved a legal question. We did not, as do the Board and the majority in this case, attempt to assume the role of super employer and substitute our judgment for that of the employer.

. The remuneration factor is crucial in light of the largely economic objectives of Pennsylvania's Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914. See Allegheny Valley, 548 Pa. at 363, 697 A.2d at 247 (noting that the Law was enacted to address the “serious menace" of “economic insecurity due to unemployment”) (quoting Section 3 of the Law, 43 P.S. § 752). When an employee stands to lose money as well as job responsibilities as a result of a managerial decision, it stands to reason that the "serious menace of economic insecurity" will come into play. This point was evidently not lost on the Court in Allegheny Valley since it essentially held that an unjustified demotion involving both of those factors automatically provides an employee with necessitous and compelling reasons to quit.

. The majority opines that McCarthy applies only in cases where an employee quits in order to preserve retirement benefits. Slip Opinion at 7, n. 5. I disagree. The principles cited in McCarthy, and in the above text, apply in all voluntary quit cases where a substantial change in employment is alleged. Indeed, several of the cases from which the McCarthy court derived those principles involved claimants who left work for reasons unrelated to retirement benefits. See, e.g., Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358-359, 378 A.2d 829, 832-833 (1977) (repeated incidents of racial prejudice); Kaolin Mushroom Farms v. Unemployment Compensation Board of Review, 669 A.2d 438, 442 n. 3 (Pa.Cmwlth.1995) (unilateral change in base wage, overtime pay and product packaging methods).

. I note that, with respect to the fourth factor identified in Fitzgerald, it does not appear that Claimant made a reasonable effort to preserve her employment. She voluntarily quit without attempting to perform her new duties at the same salary and benefit level.

. Perhaps the demotion case is best analogized to a discrimination claim, where the moving party — the unemployment compensation claimant — makes a prima facie showing that she suffered a demotion in salary and job responsibilities. The employer rebuts the claimant’s case by offering its reasons for the demotion; however the ultimate burden remains on the claimant to prove that the demotion was not justified. This methodology advances our Supreme Court's stated objective of avoiding any "chilling effect on valid demotions” and, specifically, "the undesirable effect of employers leaving incompetent peo-pie in positions they are incapable of performing.” Allegheny Valley, 548 Pa. at 366, 697 A.2d at 248. An employer may certainly be reluctant to demote an employee, even for valid reasons, if it anticipates that in a subsequent unemployment compensation proceeding it will have to convince the Board to agree with its judgment as to a particular demotion.

.The Board somewhat mischaracterized Employer's reasons for changing Claimant’s job duties. It was not simply her use of the phone to conduct personal business but the extent to which Claimant brought her personal problems into the workplace, occupying the time not just of Claimant but also of her coworkers. In addition, there had been complaints about Claimant's performance lodged by Employer’s customer, the Allegheny County Department of Human Services, to which Claimant had been assigned.

. The danger to be avoided, as noted by the dissent in Allegheny Valley, is the case where an employer without any reason, seeks to force an involuntary quit by substantially reducing an employee's compensation or assigning that employee to a completely different assignment. A brain surgeon has been constructively discharged if he is discharged from his surgical duties by a hospital but reassigned a janitorial position. Under the "substantial change” analysis, this change in duties would constitute a compelling and necessitous reason to resign.