Partner Denied Benefits

BY ARTHUR S. LEONARD | The Commonwealth Court of Pennsylvania ruled 6-1 on March 17 against Joan Procito's bid for unemployment benefits to compensate for leaving her job to follow her same-sex domestic partner to Florida.

Upholding a decision by the state's Unemployment Compensation Board of Review, the court seemed to deliberately obfuscate the facts to avoid reaching constitutional claims that Procito raised in her appeal. That at least was the criticism dissenting Judge Rochelle S. Friedman made against the majority's ruling.

The review board upheld a ruling by an Unemployment Compensation Referee after a hearing in which Procito and her partner participated by telephone from Florida. Procito testified that her partner quit her job because job-related stress was having an adverse effect on her health. The partner had several sons, one of whom had learning disabilities and was beginning college in Florida. Procito's partner decided she should move to Florida to provide emotional support for her son entering college, and Procito, unable to maintain households in two states, quit her own job to move as well.

Lesbian who followed family to Florida ineligible for unemployment aid.

If the two women were married, Procito could be eligible for unemployment benefits. But the referee determined that domestic partners do not qualify for a policy Pennsylvania courts have developed called the “following the spouse” doctrine.

Judge Doris A. Smith-Ribner's majority opinion noted that the referee stated that the doctrine relies on a legal marriage and that domestic partnership does not fit that “definition.” Consequently, Procito could not demonstrate that she met the statutory requirement of showing that leaving her job was “due to a necessitous and compelling cause.”

The unemployment review board confirmed the referee's decision, finding that Procito left her job for “personal reasons,” and denying her benefits.

Procito adopted alternative arguments in appealing to the Commonwealth Court. First, she argued that failing to treat domestic partners the same as spouses violated the Pennsylvania Constitution's guarantee of equal protection of the laws. Alternatively, she argued that on the merits her decision to quit her job to move to Florida should not be viewed as purely voluntary, stressing her inability to maintain two homes.

Finding that the reasons Procito's partner left her own job were irrelevant to Procito's claim for benefits, since the “following the spouse” rule did not apply, the referee had sharply limited testimony on that score. On appeal, Procito argued that her partner's motivation was relevant in determining whether Procito had left her own job for “necessitous and compelling cause,” and that the review board should have sent the case back to the referee to reconsider the issue.

In her dissent, Judge Friedman complained that her colleague Smith-Ribner re-characterized the referee's factual findings. Smith-Ribner wrote that question of whether Procito's “partner had necessitous and compelling cause to quit is not before the Court.” However, Smith-Ribner then proceeded to conclude, based on “admitted facts,” that the partner's son, an adult, had chosen to go to school in Florida and that his mother was also motivated by her desire for a less stressful job in moving there, so that her relocation decision was “a matter of personal preference, which would preclude a determination by the Board or this Court that Procito had a necessitous and compelling cause to follow.”

The facts of the case, Smith-Ribner concluded, meant the court had no responsibility to address Procito's constitutional claims.

Judge Dante R. Pellegrini, joined by the other three judges in the majority, wrote a concurring opinion stating that there was no evidence that Procito's “domestic situation caused her to leave her employment and relocate to Florida. All evidence indicates that her domestic partner moved to Florida to be with her son in college because she wanted to, not because they needed to.”

Friedman's dissent scolded the court for overstepping its role, by engaging in fact-finding, which is the referee's role. The dissenting judge argued that the majority relied on facts beyond those found in the record to evade Procito's constitutional challenge. She noted that the referee, backed by the review board, established only four facts as the basis of a decision – Procito's employment record, that Procito “voluntarily resigned” to follow her domestic partner, that the “partner relocated to be near her son, who has a learning disability,” and that Procito “resigned her position and relocated to Florida because she was not financially able to maintain two separate households.”

The review board made no finding about why Procito's partner left her job, a point on which the referee specifically limited testimony. The review board's conclusion was that “unfortunately” Procito could not receive benefits because she was not married to her partner. The clear implication of that conclusion is that had the couple been married Procito would have been eligible for unemployment benefits.

That, in turn, Friedman argued, directly raised the question of whether the refusal to apply the “following the spouse” doctrine violated Procito's constitutional rights. The majority, in a manner that seems clearly inconsistent, implicitly applied that doctrine and found, contrary to the review board's reasoning, that the facts did not qualify Procito for benefits. That finding violated her due process rights, Friedman argued, because the referee denied her from presenting her evidence once he ruled that the doctrine the court implicitly relied on did not apply to her.

In other words, Procito was snared in a trap of circular legal reasoning.

Friedman argued that the original refusal to apply the “following the spouse” doctrine to Procito violated her constitutional rights. Friedman noted that the court's opinion ignored the fact that Procito's partner had more than one son, and that the couple and all the children formed a family by the standards of other Pennsylvania court rulings. In particular, courts in that state have recognized an “in loco parentis” relationship between gay people and their partners' children with whom they live in a common household.

“Inasmuch as our supreme court has recognized the bonds that unite same-sex families,” wrote Friedman, “even without the benefit of legal marriage, it would be absurd to suggest that same-sex families do not experience the same real and substantial pressure that traditional families experience when one parent must relocate due to circumstances beyond his or her control.”

Applying principles of equal protection, under which the state would need to show a rational justification for treating Procito's family differently from a marital family, Friedman argued that “the pressures that create necessitous and compelling cause under the 'following the spouse' doctrine are real and substantial whether the claimant is married or not. There is simply no difference that would justify dissimilar treatment.”

Procito can appeal to the Pennsylvania Supreme Court, which has become receptive to LGBT family law claims in recent years.

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