Pennsylvania appellate court rejects lesbian partner's unemployment benefits claim

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 of the case in order to avoid reaching constitutional claims that Procito raised in her appeal, at least according to the criticisms that dissenting Judge Rochelle S. Friedman made against the majority’s view of the case.  Procito v. Unemployment Compensation Board of Review, 2008 WL 696393.

The Review Board upheld a ruling by an Unemployment Compensation Referee after a hearing in which Procito and her partner participated from Florida by telephone. Procito testified that her partner had quit her job because job-related stress was having an adverse effect on her health. The partner had several sons, one of whom, a person with learning disabilities, was about to begin college in Florida, and she decided she should move to Florida with her sons to provide family emotional support for her new collegian. Procito could not afford to maintain two households, and quit her own job to move to Florida with her partner.

Were Procito and her partner married, this scenario could make Procito eligible for unemployment benefits. But the Referee determined that domestic partners do not qualify for the "following the spouse" doctrine that the Pennsylvania courts have developed for such situations. Judge Doris A. Smith-Ribner’s decision for the court relates that "the Referee stated that in order to receive benefits under the Law an individual must be legally married and that a domestic partner is not recognized within the definition" of the law. Thus, the Referee found that Procito had not met the statutory requirement of showing that leaving her job was "due to a necessitous and compelling cause." The Review Board adopted the Referee’s decision, deciding that Procito left her job for "personal reasons," and denying her benefits.

On appeal to the Commonwealth Court, Procito adopted alternative argument strategies. First, she argued that failing to treat domestic partners the same as spouses for this purpose 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 and move to Florida should not be seen as purely voluntary because of the circumstances, stressing her inability to afford to maintain two homes.

The Referee had taken the position that Procito’s partner’s reasons for leaving her job were irrelevant to Procito’s claim for benefits, since the "following the spouse" rule did not apply, and thus the Referee had sharply limited testimony about those reasons. Procito argued on appeal that in fact those reasons were relevant to determining whether Procito had left her own job for "necessitous and compelling cause," and that the Board should have sent the case back to a Referee for reconsideration in order to take testimony on this point.

Judge Smith-Ribner seems to have recharacterized the factual findings of the Referee, at least according to the dissenting opinion. Wrote Smith-Ribner, "The case of whether the partner had necessitous and compelling cause to quit is not before the Court, and the mere fact of her separation from employment in Pennsylvania did not constitute reason beyond her control to move to Florida. Once the partner separated from her job, she decided to move to Florida to seek work in a less stressful environment and to be near her son. These admitted facts show that the partner did not originally decide to leave work and move to Florida because the son needed her, and Procito offered no such proof. Procito testified that the main reason her partner left her job was the ongoing stress, and they then decided to coordinate moving to Florida to a less stressful environment ‘and as an additional reason’ to be closer to the son. The son, however, was an adult starting at a college of his choice. . . The partner’s decision to relocate to Florida 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."

Smith-Ribner asserted that this case was different from a prior ruling in which the court awarded benefits where a single parent had relocated to be nearer a young child with developmental disabilities, and asserted that due to these factual "findings," the court had no need to address Procito’s constitutional claims.

In a concurring opinion, Judge Dante R. Pellegrini, joined by three other judges (representing together a majority of the seven-member panel), after reviewing the history of the court’s treatment of the "following the spouse" doctrine, asserted, "In this case, there is no evidence that Claimant’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. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits."

Justice Friedman’s dissent scolded the court for overstepping its role to engage in fact-finding, and for evading the constitutional questions by finding facts beyond those found on the record by the Referee. She observed that the Review Board’s decision, adopting the findings of the Referee, found only four facts on which it based its decision: Procito’s employment record, that Procito "voluntarily resigned" to follow her domestic partner to Florida, that the "partner relocated to Florida 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 in two states." The Board made no finding about why Procito’s partner left her job, a point on which the Referee had limited the testimony and made no finding. The Board had stated, based on these four factual findings, that "unfortunately" Procito could not receive benefits because she was not married to her partner. Implicitly, then, the Board had ruled that if Procito was married to her partner, she could have been eligible for benefits based on these facts.

Friedman pointed out that this placed directly in play the question whether failure to give Procito the benefit of the "following the spouse" doctrine violated her constitutional rights. But the court evaded answering this question by implicitly applying the doctrine and finding, apparently contrary to the Board’s reasoning, that Procito could not have qualified under the facts she had proved, even if the doctrine was applied in her case. This violated her due process rights, Friedman argued, because the Referee cut her off from presenting her evidence after ruling that the spouse doctrine did not apply to her.

Forging ahead, Friedman argued that refusing to apply the doctrine to Procito violated her constitutional rights. Friedman noted a fact that the court’s opinion ignored: that Procito’s partner had more than one son, and that Procito, the sons, and the partner formed a family unit of a type that Pennsylvania courts have recognized in other contexts, most notably in those finding 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. Here, Claimant presented evidence indicating that her domestic partner has ‘sons,’ not just the special needs son attending college, and that Claimant has been an ‘integral part of the raising of [those] sons.’ Thus, although Claimant cannot be legally married to her domestic partner, I would consider Claimant’s family to be a real family and apply the ‘following the spouse’ doctrine to this case."

Applying principles of equal protection, under which the state would need a rational justification for treating Procito’s family differently from a marital family, Judge 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 seek review for this decision from the Pennsylvania Supreme Court, which has become receptive to LGBT family law claims in recent years, as Judge Friedman pointed out in summarizing the recent family law decisions recognizing families headed by same-sex couples in other contexts.

Philadelphia attorney Katie R. Eyer represented Procito on the appeal to the Commonwealth Court.