                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 HANNAH 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) petitions this Court pro se for 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 voluntarily 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 supervisors when she was fired.2 After review, we affirm.
              Claimant 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 amended, 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 Claimant Br. at 6. However, because Claimant
was not discharged from her employment, as discussed fully below, that issue is not before this
Court.
$13 per hour. Prior to April 16, 2019, Claimant had been excessively absent from
work. On March 29, 2019, Employer placed Claimant on an employee improvement
plan regarding her attendance. Claimant continued to be absent from work after
being placed on the employee improvement plan for attendance. Claimant’s position
as a day program aide does not afford Employer an opportunity to find replacement
staff members when Claimant is absent from work. Claimant’s frequent absences
had a negative impact upon the day program and prevented Employer from offering
certain programs to its clients because Employer was short-staffed.
            On April 16, 2019, Employer met with Claimant to discuss her ongoing
attendance issues and to offer Claimant work in Employer’s group homes which
would provide more flexibility for Claimant in scheduling her hours and allow
Employer to provide coverage for any absences Claimant may continue to incur. The
group home position offered the same number of hours and pay rate she received in
the day program.    Additionally, Claimant could continue to work her day shift
schedule, typically from 9:00 a.m. to 3:00 p.m. During the meeting, Claimant 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 childcare issues.
Employer did not inform Claimant 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. Claimant again refused to work in the group home
setting and informed Employer that she would not accept work other than in the day
program. Pursuant to Employer’s handbook, Employer asked Claimant to sign a
resignation notice giving her two-weeks’ 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 Referee affirmed the UC Service Center’s determination. Claimant
                                          2
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 voluntarily quit but, rather, she was
wrongfully discharged.
              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 necessitous 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
(Pa. 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 express resignation is
              not necessary to constitute a voluntary termination; conduct
              which is tantamount to a voluntary termination of
       3
          “‘Our 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. Commonwealth [C]ourt noted that it was
submitted el[]ectronic[al]ly November 20th 2019.” Application at 2. Because the UCBR’s brief
contains a certificate of service stating its brief was mailed to Claimant’s record address, the
Application is denied.
                                                3
            employment is sufficient.’ Shrum v. Unemployment Comp.
            Bd. of Review, 690 A.2d 796, 799-800 (Pa. Cmwlth. 1997)
            (quoting Sears, 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 deemed 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)).

Greenray 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 require her to
work nights and weekends. Specifically, Claimant testified, 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 Kuhn
            [(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 Director] 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
            the 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 nights

                                           4
             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 can’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 opinion 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?



                                           5
            [A] Yes[,] that was the purpose. The first meeting was for
            that purpose so we expected that 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[-]week
            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
            that 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
the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence
and to determine the credibility of witnesses.’ Procito v. Unemployment Comp. Bd.
of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008).” Umedman v. Unemployment
Comp. Bd. of Review, 52 A.3d 558, 562 (Pa. Cmwlth. 2012). Here,

            [w]hile [] [C]laimant testified 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 did

                                          6
               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 provide 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 findings and conclusions[.]” UCBR Dec. at 1.
               The record evidence establishes: (1) Claimant was working at the time
Employer offered her work in its group homes; (2) Claimant knew that she would
lose her job if she refused to work in group homes; and, (3) Claimant refused to work
in group homes.        Because Claimant refused to accept an offer of continued
employment while employed, she is deemed to have quit her position. Greenway
Indus.   Thus, Claimant engaged in conduct that was tantamount to a voluntary
termination.     Id.   Accordingly, the UCBR properly concluded that Claimant
voluntarily quit her job.
               Having ruled that Claimant voluntarily resigned from her employment,
we must next determine whether she had a necessitous and compelling reason for
doing so.

               Whether a claimant had cause of a necessitous and
               compelling nature for leaving work is a question 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 compelling
               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 ordinary common sense, and (4) the
               claimant made a reasonable effort to preserve [her]
               employment.




                                           7
Greenray 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 group homes
because she could not work nights and weekends.        However, the UCBR found
Employer’s testimony credible that Claimant 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 alternative job offer,
Claimant did not prove that she made a reasonable effort to preserve her employment.
Thus, Claimant did not have a necessitous and compelling reason to terminate her
employment. Greenray Indus. Accordingly, the UCBR properly denied Claimant
UC benefits under Section 402(b) of the Law.
             Claimant next asserts that the Referee improperly 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. However, 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. at 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, 1196 (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.




                                         8
For all of the above reasons, the UCBR’s order is affirmed.


                         ___________________________
                         ANNE E. COVEY, Judge




                             9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tiffany J. Cunningham,              :
                  Petitioner        :
                                    :
            v.                      :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 1090 C.D. 2019
                 Respondent         :



                                 ORDER

            AND NOW, this 4th day of February, 2020, the Unemployment
Compensation Board of Review’s July 25, 2019 order is AFFIRMED.   Tiffany
Cunningham’s Application to Compel is DENIED.



                                  ___________________________
                                  ANNE E. COVEY, Judge
