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Green Tree School v. Unemployment Compensation Board of Review

October 19, 2009

GREEN TREE SCHOOL, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge LEAVITT*fn1

Submitted: June 12, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Green Tree School (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board), granting benefits to Sherril Newmark (Claimant). The Board affirmed the Referee's finding that Claimant had a necessitous and compelling reason for voluntarily leaving her position. In this case, we consider whether Claimant's stated safety concerns and Employer's refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.

Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. By letter of May 9, 2008, Claimant informed the school's Board of Directors that its "decision to cut the position of Behavior Coordinator for the coming year . has resulted in my resignation." Amended Reproduced Record (A.R.R. ____) at 17a. The Board of Directors accepted Claimant's resignation effective May 30, 2008, and Claimant applied for unemployment benefits.

The UC Service Center denied Claimant benefits under Section 402(b) of the Unemployment Compensation Law (Law),*fn2 finding that Claimant had voluntarily quit work without a necessitous and compelling reason. Claimant appealed, and a hearing was held before a Referee.

At the hearing, Claimant testified that in November 2001, Employer began interviewing for a "behavior management coordinator," a position Claimant helped to create. Trish Treskot, Claimant's life partner, was hired to fill the position. Claimant had informed Employer of her relationship with Treskot before the hiring decision was made.

Claimant testified that staff members made unfounded allegations about Treskot to Dr. Herman Axelrod, who was in charge of the school and was Claimant's supervisor. Sometime thereafter, Dr. Axelrod advised Claimant that Treskot's position had to be eliminated so the school could hire a music therapist and a computer teacher. Claimant asked the Board of Directors to reconsider the elimination of Treskot's position in her above-referenced letter of May 9, 2008,*fn3 and to that end requested a meeting with the directors. Her letter stated that eliminating Treskot's position "endangers the physical and emotional safety of every child and every staff on campus." A.R.R. 17a. Claimant's letter also warned that the Board of Directors' "clear discrimination against those choosing non-heterosexual lifestyles cannot be ignored." A.R.R. 18a. Claimant testified that the elimination of Treskot's position was the first time in her seven years as Education Director that she was not consulted about a staffing decision of this type.

Claimant testified that she intended to resign at the end of the school year if the Board of Directors did not reconsider, explaining that she had not intended her letter of May 9, 2008, to convey a resignation. Claimant also stated that she had informed Dr. Axelrod several times that she would never leave before the end of a school year. Claimant noted that on May 16, 2008, Dr. Axelrod sent her an email asking her to reconsider her intention to resign.

Claimant explained that on May 30, 2008, she and Treskot were summoned to a meeting with Dr. Axelrod and the Chairman of the Board. At that meeting, she was informed that the Board of Directors had decided not to reconsider its decision to eliminate Treskot's position and to accept Claimant's resignation. Four days later, on June 3, 2008, Dr. Axelrod announced that the position of behavior coordinator was being replaced by a behavior analyst position, which required credentials that Treskot did not have.

Claimant testified that she resigned because of her inability to assure the safety of the students and the staff. She stated that had she known that Treskot's position would be replaced by a behavior analyst, her safety concerns would have been alleviated. Finally, Claimant asserted that a letter she received from Employer after the May 30, 2008, meeting was a form letter sent exclusively to persons whose employment was terminated and not to those who resigned. Employer presented the testimony of Judith Jones Blanks, Employer's Human Resources Director. Blanks testified that Claimant emailed her May 9, 2008, letter of resignation to all the members of the Board of Directors. Blanks explained that in response the Board held an emergency meeting on May 21, 2008. The Board decided not to revisit the decision to eliminate Treskot's position, thereby accepting Claimant's resignation of May 9, 2008. Blanks testified that Dr. Axelrod did not include Claimant in the decision to eliminate Treskot's position for the simple reason that Claimant was personally close to the matter.

Employer also presented the testimony of Jonathan Thompson, a Behavior Management Specialist who has worked for Employer for approximately eleven years. Thompson testified that Treskot's duties were the same as those of the other five employees in the Behavioral Department, but with additional administrative responsibilities. He stated that the department had dealt adequately with safety issues before the addition of the behavior coordinator and experienced no difficulties after its elimination. Thompson acknowledged that the behavior coordinator position was created as a result of "critical incidents," but he explained that the department had been able to handle them. A.R.R. 55a.

Finally, Employer presented Dr. Axelrod, who testified that he made the decision to eliminate the behavior coordinator position in late April or early May and communicated that decision to Claimant at a regular weekly meeting. When Claimant learned this, she told Dr. Axelrod that she was resigning. He also testified that the Board of Directors believed that Claimant had resigned in her May 9, 2008, letter. Dr. Axelrod acknowledged that Claimant had told him prior to sending the letter that she would not leave before the end of a school year.

Dr. Axelrod explained that May 30, 2008, was chosen as Claimant's last day of work because the school administration "felt that a Friday afternoon would [cause] the least amount of disruption to the staff and students." A.R.R. 60a. The letter sent to Claimant was the one sent to all staff leaving employment, whether by discharge or resignation. Treskot's position was eliminated ...


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