Opinion
No. 1854 C.D. 2013
06-24-2014
Denise Stanley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Denise Stanley (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that she is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she voluntarily quit her job without a necessitous and compelling reason. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, §402, as amended, 43 P.S. §802(b). Section 402(b) provides that a claimant is ineligible for compensation if her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Id.
Claimant's employment as a full-time Director at Les Petits Cherubs (Employer), a day care center, began in January, 2011, and her last day of work was April 10, 2013. (Record Item (R. Item) 8, July 9, 2013 Referee Hearing Transcript (N.T.) at 5; R. Item 12, Board's Decision and Order, September 12, 2013, Findings of Fact (F.F.) ¶ 1.) Claimant applied for unemployment benefits on April 23, 2013, stating that she had quit her job because; (i) Employer refused to reinstate her medical benefits after she returned from maternity leave; (ii) Claimant had no job stability; (iii) Employer did not respect Claimant; and (iv) Employer continually tried to verbally intimidate Claimant. (R. Item 2, Claimant Questionnaire.) However, Employer indicated that on April 10, 2013, Claimant told Employer that she was having family problems and gave two weeks' notice; however, she never returned to work after that date. (R. Item 3, Employer Separation Information.) The Philadelphia Unemployment Compensation Service Center determined that Claimant was ineligible for benefits, finding that although she had a necessitous and compelling reason for quitting, there were alternatives to resolve the situation, and Claimant did not show that she exhausted all alternatives prior to voluntarily leaving her employment. (R. Item 4, Notice of Determination.)
Claimant filed a Petition for Appeal, in which she alleged "repeated violations/threats at employment," failure by Employer to fulfill her contract agreement, and "numerous violations" against her and "disagreement in practices." (R. Item 5, Claimant's Petition for Appeal from Determination.)
On July 9, 2013, the referee conducted a hearing at which Claimant and two witnesses for Employer testified. Employer's witnesses were Dalila Torres, Employer's Executive Director (the Executive Director) and Amelia Narcisi, Employer's Chief Executive Officer (the CEO). Before the referee, Claimant stated that she left her employment for several reasons; the first reasons stated were her inability to meet Employer's expectations and the fact that she was reprimanded for covering a classroom that was out of ratio. (R. Item 8, N.T. at 6.) Claimant explained that she was responsible for staff scheduling at the day care center, and that specific ratios of teachers to students, depending upon the age group of the students, are required to be maintained; she stated that these ratios cannot be maintained if, for example, a staff member fails to report for a shift on time. (Id., N.T. at 10-11.) Claimant testified that she brought the ratio issues to the attention of both the Executive Director and the CEO, and asserted that they both agreed that an increase in the number of staff persons was needed, as well as the authorization of more hours for the part-time staff. (Id., N.T. at 11-12.) Claimant also explained that when non-infant children are napping, ratios in those classrooms are doubled, and the same ratio of teachers to students is not required, thus freeing up teachers to go to other classrooms where coverage might be needed. (Id.)
Claimant described the reprimand she alleged she received on her last day of employment, stating that the CEO told her that it was not her responsibility to be in classrooms providing ratio coverage for teachers who may be reporting late for work, but rather that she should be moving staff around in order to provide coverage. (Id., N.T. at 14.) Claimant acknowledged that on several occasions, she met with the Executive Director and the CEO to resolve Claimant's frustration with staffing issues, and to develop plans of correction for a chronically late employee who was creating staffing problems for her. (Id., N.T. at 19.)
Claimant also testified that on April 10, 2013, she needed to leave work because her husband, who cared for their children, called to tell her that he had fallen down the steps while carrying the youngest child; she also explained that her mother was terminally ill, and she testified that on that day, she told Employer she was taking two personal days off. (Id., N.T. at 6-7.) She also acknowledged that on April 4, 2013, she requested information about Employer's bereavement leave policy, knowing that her mother's death was imminent, (id., N.T. at 21), and, although she testified that it was a coincidence, she had either taken off work or brought her child to work every Wednesday since her return from maternity leave on February 11, 2013. (Id., N.T. at 11, 22.)
The CEO testified that on the last day that she worked, Claimant did not request two personal days but rather gave two weeks' notice, and told the CEO that she could no longer meet the responsibilities of a Director because of her family obligations, with both husband and mother ailing. (Id., N.T. at 8.) The Executive Director similarly testified that on that day, Claimant specifically indicated that she was giving her two weeks' notice, and that her departure was due to family issues. (Id., N.T. at 28.) Before the referee, Claimant denied that she gave Employer two weeks' notice and stated that after leaving the building that day, and after further thought, she tried without success to call Employer on the following day in order to give notice. (Id., N.T. at 17.) However, Claimant stated:
So I didn't let them know until [the Executive Director] text messaged me and said I guess you're not giving your two weeks' notice. And after thinking about it, I wouldn't give two weeks' notice to an Employer that would make my last two weeks more awful than working there was.(Id., N.T. at 17-18.) Claimant testified that neither her failure to meet Employer's expectations nor her ongoing family obligations, by themselves, would have led her to leave her employment. (Id., N.T. at 8.) Claimant further testified that another reason she left employment was Employer's failure to provide health insurance. (Id., N.T. at 41-42.)
In a decision and order finding Claimant ineligible for benefits, the referee made specific findings that; (i) Claimant voluntarily left her employment in order to take care of family obligations; (ii) that Claimant's husband, who cares for their three children, suffers from Multiple Sclerosis and had fallen down a flight of stairs while carrying their 4½-month old child; and (iii) that Claimant's mother has stage four cancer. (R. Item 9, Referee's Decision and Order, F.F. ¶¶ 2-5.) The referee noted that the findings represented his credibility determinations based upon Claimant's testimony and that of Employer's witnesses. (Id., Reasoning.)
In his opinion, the referee addressed Claimant's assertion that Employer had denied her health insurance, and credited the testimony of Employer's witnesses that Claimant had been given the option of choosing COBRA, under which Employer could have maintained benefits while Claimant was on FMLA maternity leave, but Claimant opted to terminate her insurance; thus, Employer's health insurance provider required a ninety-day waiting period prior to reinstating Claimant's benefits after she returned from maternity leave. The CEO testified that Claimant had failed to give the insurance company correct information regarding her decision to terminate insurance while on maternity leave; the CEO stated that she contacted the insurance company, who confirmed that the ninety-day waiting period was required. (R. Item 8, N.T. at 46.) The CEO also stated that she subsequently e-mailed the insurer to request an earlier reinstatement for Claimant, but her request was denied. (Id., N.T. at 46-47.)
Noting that mere dissatisfaction with working conditions is not good cause for terminating one's employment, and that a claimant must also act with ordinary common sense in quitting and prove that reasonable efforts are made to preserve the employment, the referee concluded:
The Referee does not credit [Claimant's] testimony of these reasons for her resignation. The Referee finds that [Claimant] has presented these reasons for the purpose of the Referee's hearing but did not present these reasons for resignation on the date [Claimant] left her employment...The Referee finds that [Claimant] resigned from her position due to personal and family obligations. While the Referee notes that [Claimant] was dissatisfied with other issues at the job, the Referee does not find that those issues were adequately or formally communicated to [Employer] as her reasons for resignation. Indeed, the Referee finds that the issue of the staff to classroom ratio to be an issue that the Director of this program would need to address on a daily basis. The fact that [Claimant] complained about this issue establishes that the claimant was dissatisfied with her position as Director.(R. Item 9, Referee's Decision and Order, Reasoning.)
The Board denied Claimant's request for a remand hearing and, affirmed the decision of the referee in a decision and order dated September 12, 2013. The Board made findings substantially similar to those of the referee, and added specific findings that Claimant did not request a leave of absence, that the CEO spoke to Claimant because Claimant was not disciplining her staff for arriving to work late, and that Claimant did not receive a write-up for this failure. (R. Item 12, Board's Decision and Order, F.F. ¶¶ 7, 10-11.) The Board specifically resolved conflicts in favor of Employer, noting that Claimant had provided numerous reasons for voluntarily leaving her employment, but "in light of [Employer's] credible testimony, the Board finds that the actual reason [Claimant] quit was due to her family situation." (Id., Discussion.) The Board therefore found that the precipitating event that resulted in Claimant's decision to voluntarily leave her employment, i.e., her family situation, did not give her a necessitous and compelling reason, especially since Claimant did not make any effort to remedy the situation; as such, the Board concluded that Claimant failed to meet her burden and benefits were denied under Section 402(b) of the Law. (Id.)
On September 27, 2013, Claimant requested reconsideration of the Board's decision, which the Board denied. Claimant now appeals to this Court, arguing that the Board's factual finding that she terminated her employment without a necessitous and compelling reason was not supported by substantial evidence. Claimant argues that she presented evidence both that Employer required her to compromise her integrity and violate Pennsylvania laws in the performance of her job, and that her health benefits were unilaterally terminated.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1264 n.4 (Pa. Cmwlth. 2012); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). --------
A claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate that she had a necessitous and compelling reason for doing so. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). A claimant must demonstrate that: (i) circumstances existed which produced a real and substantial pressure to terminate employment; (ii) such circumstances would compel a reasonable person to act in the same manner; (iii) she acted with ordinary common sense; and (iv) she made a reasonable effort to preserve the employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). This Court has determined that normal workplace strains and pressures such as dissatisfaction with working conditions, reprimands, personality conflicts, and resentment of supervisory criticism absent unjust accusations, abusive conduct or profane language do not constitute real and substantial pressure to terminate employment. Ann Kearny Astolfi DMD PC v. Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa. Cmwlth. 2010).
In essence, Claimant asks this Court to accept her version of the events that precipitated her decision to leave her employment. Before the referee, she acknowledged that when she left the day care center on April 10, 2013, she left because of the situation with classroom/staff ratios and because her husband fell (R. Item 8, N.T. at 41); however, Claimant also testified that another reason she left her employment was Employer's failure to provide health insurance. The CEO testified that Claimant elected to discontinue her health insurance while out on maternity leave, necessitating a 90-day wait for reinstatement upon return to employment, and that there was no violation of laws regarding ratios at the daycare center. (Id., N.T. at 45.) The Board specifically resolved these conflicts in testimony in favor of Employer. The Board is the ultimate fact finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). The Board's findings are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings. Id.
Here, the referee and Board did not find that Claimant was required to violate laws and compromise her integrity or that Employer unilaterally terminated her health insurance benefits; rather, each found that Claimant left her employment due to personal and family obligations, and that she made no attempt to seek accommodation from Employer in order to preserve her employment. These findings necessarily exclude a finding that Claimant left her employment for her other stated reasons, and we need not examine them. See Baird v. Unemployment Compensation Board of Review, 372 A.2d 1254 (Pa. Cmwlth. 1977). The Board reasoned that Claimant quit her job without making any effort to remedy the conflict between her employment and her family situation, and found specifically that Claimant did not request a leave of absence. A claimant who leaves her employment to assist an ill family member may qualify for benefits under Section 402(b), but she must demonstrate that she explored alternative options and that she had no real choice except to leave employment. Robinson v. Unemployment Compensation Board of Review, 532 A.2d 952, 953 (Pa. Cmwlth. 1987).
We conclude that the Board's findings of fact are supported by substantial evidence and the Board did not err in determining that Claimant failed to sustain her burden of proving that she had a necessitous and compelling justification for leaving her employment. Accordingly, the order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 24th day of June, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge