The opinion of the court was delivered by: Judge Leavitt
Submitted: August 27, 2010
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Lloyda Smithley (Claimant) petitions this Court, pro se, to review an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under the Unemployment Compensation Law (Law).*fn1 The Board affirmed the determination of the Referee that Claimant voluntarily quit her job without cause of necessitous and compelling nature and, thus, is ineligible for benefits under Section 402(b) of the Law.*fn2 Finding no error by the Board, we affirm.
Claimant worked for Saint Gobain Ceramics & Plastics (Employer) as a lab technician for over 43 years. In April 2009, Employer offered an early retirement package*fn3 to Claimant and four other senior employees in order to implement a workforce reduction. The Employer's plan was to offer the package to its five most senior employees and then move down the seniority list until five employees accepted the package.
Claimant accepted the retirement package and retired on May 1, 2009. She applied for unemployment compensation benefits, which were initially granted, but later terminated when the UC Service Center determined that Claimant had voluntarily quit her employment. The UC Service Center also assessed a fault overpayment in the amount of $2,615. Claimant appealed and a hearing was held before the Referee.
Claimant testified that she accepted the retirement package knowing that continuing work was available to her because she was a high seniority employee. Claimant acknowledged that she would not have retired if Employer had not offered the severance package. Claimant testified that if she had continued working, then five employees with the least seniority would have been laid off first if Employer had to resort to layoffs.
Following the hearing, the Referee affirmed the UC Service Center's determination that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b).*fn4 The Referee reasoned that because of her seniority Claimant would not have been laid off and, therefore, continuing employment was available to her. Because continuing work was available to Claimant, she was ineligible for unemployment compensation under Section 402(b) of the Law.
Claimant appealed to the Board, and it affirmed on the basis of the Referee's factual findings and conclusions of law. Claimant now petitions for this Court's review.
On appeal,*fn5 Claimant argues that the Board erred in finding her ineligible for unemployment compensation benefits because her acceptance of the early retirement package did not constitute a voluntary quit under Section 402(b) of the Law, 43 P.S. §802(b). Claimant contends her separation from employment was a layoff because if she did not accept the package, another employee would have been furloughed. Claimant also contends that she is eligible for benefits because three of her co-workers who accepted the early retirement package received unemployment compensation benefits.*fn6
Under Section 402(b) of the Law, an individual is not eligible for unemployment compensation benefits if her unemployment is due to "voluntarily leaving work without cause of necessitous and compelling nature.." 43 P.S. §802(b). "Necessitous and compelling cause" occurs under circumstances where there is a real and substantial pressure to terminate one's employment that would compel a reasonable person to do so. See Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691-92 (Pa. Cmwlth. 2003)(citing McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003)). If an employee voluntarily terminates her employment then she has the burden of proving that the termination was necessitous and compelling. Renda, 837 A.2d at 692 (citing Mansberger v. Unemployment Compensation Board of Review, 785 A.2d 126 (Pa. Cmwlth. 2001)).
Our Court has previously considered whether a claimant who voluntarily resigns when faced with a workforce reduction is entitled to unemployment benefits. We stated that
[i]n the context of corporate downsizing, the critical inquiry is whether the fact-finder determined the circumstances surrounding a claimant's voluntary quit indicated a likelihood that fears about the employee's employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well founded. "[S]peculation pertaining to an employer's financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause."
[W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible... and no other factors are found... that remove an employee's beliefs from the realm of speculation, a claim ...