Opinion
No. 1266 C.D. 2012
03-12-2013
Sally J. Barto, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Sally J. Barto (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. The Board held that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), because she voluntarily quit her job without informing her employer that the accommodations it had made for her health condition were inadequate. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. §802(b).
Claimant worked for Giant Food Stores (Employer) as a service center associate, from October 13, 2008, until she resigned on November 13, 2011. Claimant was stationed behind the customer service desk, where she was responsible for operating two cash registers, a Western Union machine, and a lottery machine, as well as assisting customers. Claimant typically worked 30 to 34 hours per week. On November 7, 2011, Claimant submitted a resignation to be effective November 20, 2011; however, on November 13, 2011, Claimant quit for health reasons.
Claimant applied for unemployment compensation benefits. On December 12, 2011, the Allentown UC Service Center issued a Notice of Determination denying her application. The notice stated that the last day to appeal the determination was December 27, 2011. On January 3, 2012, Claimant contacted the UC Service Center stating that she never received a notice from it; the UC Service Center then mailed a second notice. On January 8, 2012, Claimant filed her appeal of the determination, and the matter was assigned to a Referee.
Following a hearing, the Referee dismissed Claimant's appeal as untimely under Section 501(e) of the Law, 43 P.S. §821(e), which requires an appeal to be filed within 15 days after the notice of determination is mailed or delivered. The Board remanded the matter to the Referee, acting as a hearing officer for the Board, to conduct a hearing on the merits.
Claimant testified that in September 2011 she fractured her pelvis. The injury caused her a great deal of pain and difficulty walking. Claimant testified that her duties at the service desk required her to move around often. Certified Record Item No. 15; Notes of Testimony, March 22, 2012, at 7. Claimant provided a doctor's note to Employer recommending sedentary work and restricting her to occasional lifting of up to ten pounds. Employer provided Claimant with a chair to work from, but Claimant testified that she was unable to perform her job responsibilities while seated. Claimant testified that she informed Amber Hoffman, Employer's customer operations manager, that she was in pain and that the chair was not working. Claimant also requested a transfer to two other positions that could be done while seated, but her requests were denied.
Claimant was unable to provide an exact date of the injury or how the injury occurred.
Claimant worked with the chair for six weeks. Claimant returned to her doctor, who informed her that the pelvic fracture had not healed and that she would have to use a walker. On November 7, 2011, after she had been given a write-up for absenteeism, Claimant gave Employer her two weeks' notice because her recovery was going to necessitate further absences from work. Claimant was not able to fulfill the two weeks because Employer assigned her shifts to other employees.
Employer offered the testimony of Amber Hoffman and Jeffrey Lebo, the store manager. These witnesses presented a different version of the facts surrounding Claimant's resignation. Hoffman testified that Claimant was never offered a different position with Employer because Claimant never requested a different position. Hoffman further testified that Claimant told her that the chair was helping and that whenever Claimant complained of pain, Hoffman permitted her to leave early. Lebo testified that Claimant never requested assignment to a different position and that Employer has no positions that can be performed entirely while seated.
The Board vacated the Referee's decision that Claimant's appeal was untimely based upon Claimant's testimony that she was having mail delivery problems. On the merits, the Board held that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b), because she voluntarily left her employment and failed to prove a necessitous and compelling reason for doing so. The Board credited the testimony of Employer's witnesses and not that given by Claimant. The Board further found that Employer made reasonable accommodations for Claimant by giving her a chair and allowing her to leave early. The Board concluded that Claimant did not have a necessitous and compelling reason to quit because she did not inform Employer that these accommodations were inadequate. Claimant now petitions this Court for review.
On appeal, Claimant argues that two of the Board's findings of fact are not supported by substantial evidence. Specifically, Claimant argues that the Board erred in finding that Claimant did not ask for additional accommodations (Finding of Fact #6) and that Claimant told Employer that the accommodations she was given were suitable (Finding of Fact #7). Claimant also contends that the Board erred by denying her benefits because her health condition, which Employer failed to accommodate, gave her a necessitous and compelling reason to quit.
Our review is limited to determining whether constitutional rights were violated, errors of law committed or whether the findings of fact are supported by the evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (Pa. Cmwlth. 2003).
We first consider Claimant's contention that the Board's Findings of Fact numbered 6 and 7 are not supported by substantial evidence. These Findings of Fact state:
6. The claimant did not ask the customer operations manager for additional accommodations or alternate work.Board Adjudication at 1-2. Claimant argues that her own testimony and Hoffman's testimony contradict these findings of fact.
7. When the customer operations manager asked the claimant if the chair was working, the claimant responded that it was.
It is well-settled that credibility determinations and resolutions of conflicting evidence are within the Board's discretion. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Such determinations are not subject to judicial review. Id. So long as the Board's findings of fact are supported by substantial evidence, they are conclusive on appeal. Id. Here, Claimant testified that she asked for additional accommodations and informed Employer that the chair was not working. Hoffman, on the other hand, testified that Claimant did not ask for additional accommodations and stated that the chair was working. Presented with this conflict in testimony, the Board chose to believe Hoffman and not Claimant. This was within the Board's discretion and we may not revisit its credibility determination. Hoffman's credited testimony is substantial evidence to support Findings of Fact 6 and 7.
Claimant also identifies what she believes is a conflict in Hoffman's testimony. Specifically, Claimant points to Hoffman's testimony that Claimant told her (1) the chair was working and (2) that she was suffering from pain. Claimant asserts that these contradictory statements render Hoffman's testimony unreliable. We disagree. Even if Employer knew Claimant was in pain from her injury, it does not necessarily follow that Employer knew the chair was not working.
Next, we turn to Claimant's contention that the Board erred in holding that she was ineligible for benefits under Section 402(b) of the Law. Claimant argues that she met her burden of proving that her injury provided a necessitous and compelling reason to quit. Claimant also contends that Employer failed to prove that it provided Claimant with reasonable accommodations.
It is well settled that in a voluntary quit case the claimant bears the burden of proving that she resigned for necessitous and compelling reasons. Draper v. Unemployment Compensation Board of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998). Cause of a necessitous and compelling nature is defined as a circumstance that produces pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358-59, 378 A.2d 829, 832-33 (1977). A claimant must show that the circumstances prompting her resignation were such that she had no real choice other than to leave her employment. Carter v. Unemployment Compensation Board of Review, 629 A.2d 212, 215 (Pa. Cmwlth. 1993). A claimant must also demonstrate that she acted with ordinary common sense in leaving her employment and took all reasonable efforts to preserve her employment. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002).
Health problems can provide a necessitous and compelling reason to quit one's job. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982). A claimant asserting health problems as a compelling reason to quit bears the burden of proving that she: (1) had a medical condition adequate to justify the voluntary termination; (2) communicated her medical condition to the employer, and (3) was available to work if reasonable accommodations had been made. Id. at 129-31, 451 A.2d at 1355-56. Once the claimant meets this burden, the employer must prove that it offered the claimant suitable work which the claimant rejected. Id. at 131-32, 451 A.2d at 1356.
A claimant need not present expert testimony to meet her burden. She may rely upon her own testimony and documentation. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 372, 453 A.2d 591, 594 (1982). --------
It is undisputed that Claimant's fractured pelvis interfered with her ability to perform her job. Claimant informed Employer of this injury and that it limited her to sedentary work. Claimant also informed Employer that she would like to continue working. At that point the burden shifted to Employer to make a reasonable accommodation. Employer did so by offering Claimant a chair. Claimant accepted the accommodation, performed her job with the chair, and informed Employer that the chair was working. Claimant never informed Employer that the chair was an inadequate accommodation. Because Claimant failed to do so prior to resigning, she is ineligible for benefits.
Claimant argues that Employer had constructive knowledge that the chair was an inadequate accommodation because when she complained of pain, she was permitted to leave work early. This Court has held that we will not impute constructive knowledge of a claimant's medical condition to the employer. Allen v. Unemployment Compensation Board of Review, 501 A.2d 1169, 1171 (Pa. Cmwlth. 1985). It is the duty of the claimant to be specific about her limitations so that the employer may make reasonable accommodations. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 699 (Pa. Cmwlth. 1994). Here, Claimant's complaints of pain and early dismissals were not sufficiently specific to notify Employer that the accommodations were inadequate.
Finally, Claimant argues that she met her burden because she attempted to perform her job with the accommodation before she quit. In support, Claimant cites Tapia v. Unemployment Compensation Board of Review, 462 A.2d 915 (Pa. Cmwlth. 1983), and Sankey v. Unemployment Compensation Board of Review, 425 A.2d 52 (Pa. Cmwlth. 1981). In both Tapia and Sankey, the claimants informed their employers of their medical conditions, agreed to their employers' accommodations, but quit before attempting to do the job. In rejecting the claimants' claims for benefits, we held that if an employer provides a claimant with an accommodation, then the claimant must attempt to work under that accommodation before he can argue that he had no real choice but to resign. Here, Claimant argues that because she attempted to work with the chair provided by Employer she is eligible for benefits. This argument is flawed because, as noted, Claimant had a duty to inform Employer that the accommodation was insufficient. She failed to do so. Therefore, Claimant is ineligible for benefits under Section 402(b) of the Law.
For these reasons, we affirm the adjudication of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 12th day of March, 2013, the order of the Unemployment Compensation Board of Review dated June 8, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge