Opinion
No. 2812 C.D. 2010
06-16-2011
Mary L. Stubblefield, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Mary L. Stubblefield (Claimant) petitions this Court for review of the December 13, 2010 order of the Unemployment Compensation Board of Review (UCBR) reversing the Referee's decision and denying benefits. The issues for this Court's review are: (1) whether Claimant is eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), and (2) whether Claimant is eligible for benefits under Section 401(d)(1) of the Law. For reasons that follow, we affirm the UCBR's order.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was employed by the Pennsylvania Department of Public Welfare (Employer) as an income maintenance caseworker for approximately nine years, ending on May 21, 2010. According to the record, the office in which Claimant worked was kept at a temperature she found very cold, requiring her to wear a jacket, shawl, blanket, and sometimes gloves and a hat. In May of 2008, the use of portable heaters was prohibited in the building, leaving her without a source of heat. Thereafter, Claimant would begin work at 8:00 a.m., and by 10:00 a.m. she would lose her voice due to the temperature. She would only feel warm after she went home. She resorted to taking Aleve, Advil or NyQuil to reduce achiness she experienced after work. She made regular verbal complaints to her supervisor, Blonzella Slappy, about the temperature in her work area.
On May 21, 2010, Claimant was shaking at her desk during work because she was so cold. When she got home, she took twice her normal dose of NyQuil. At approximately 10:00 p.m., she began experiencing tingling sensations in her arms. When it did not subside by 1:00 a.m., she went to the hospital. At the hospital, she was diagnosed with carpal tunnel syndrome and a pinched nerve, and was told to follow up with a rheumatologist for possible arthritis or fibromyalgia. She claims that her family doctor told her on May 24, 2010 to remain off work until a diagnosis was reached.
On July 4, 2010, Claimant applied for unemployment compensation (UC) benefits. The UC Service Center deemed Claimant ineligible for benefits under Sections 401(d)(1) and 402(b) of the Law. Claimant appealed, and a hearing was held before a Referee. On September 13, 2010, the Referee issued a decision reversing the UC Service Center's determination, stating that Claimant is eligible for benefits under Section 402(b) of the Law, and that she was able and available for suitable work pursuant to Section 401(d)(1). Employer appealed to the UCBR. By order mailed December 13, 2010, the UCBR reversed the decision of the Referee, thereby denying Claimant benefits under Sections 401(d)(1) and 402(b) of the Law. Claimant appealed, pro se, to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
We will first address the issue of whether the UCBR erred in reversing the Referee's decision that Claimant was entitled to benefits pursuant to Section 402(b) of the Law. Section 402(b) of the Law provides, in relevant part, that a person 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 . . . ." Notably: "It is well established that medical problems can create necessitous and compelling cause to leave employment." Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994). This Court has stated that:
To establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation . . . .Ann Kearney Astolfi DMD PC. v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010) (quoting Lee Hosp., 637 A.2d at 698).
Claimant in this case failed to establish that health problems were a compelling reason for her to quit her job with Employer. First, although Claimant had registered complaints with Employer about the temperature in the office prior to May 21, 2010, there was no evidence presented that Claimant informed Employer that she was experiencing health problems as a result of her work environment until after that date. Further, there is no evidence in the record that she supplied any proof, at any point, that her health problems were related to prolonged exposure to cold temperatures.
In addition, there is no competent evidence to justify Claimant's voluntary retirement. After the May 21, 2010 incident, Claimant called off work for several days, notifying Ms. Slappy daily. On June 4, 2010, she followed up with Employer's human resource (HR) analysts, who advised her to apply for leave under the Family and Medical Leave Act (FMLA), since she had little sick leave available, and that would save leave for use upon her return to work. Claimant applied for leave under the FMLA, which was approved on or about July 9, 2010, and lasted through August 31, 2010.
Finally, Claimant declined reasonable accommodations. Although Claimant testified that she would be willing to work if she thought she could find the right environment, that was not borne out by the undisputed testimony. HR Analyst Valerie Wilson advised Claimant that she could seek an accommodation under the Americans with Disabilities Act. Specifically, she told Claimant that if she provided a letter from her doctor that she should use a space heater at work, she would seek a waiver from management of the heater prohibition. Claimant declined to seek the waiver, stating that the damage to her health had already been done, and a heater in one area only on her lower extremities would not help her situation. HR Analyst Barbara Marshall offered Claimant a hardship transfer that would move her to another district office. Claimant declined that option on the basis that all of the district offices offered the same conditions. Finally, Claimant was informed that she could apply for workers' compensation benefits or disability, but she declined those options because she would be expected to work until she was approved, which she claimed was impossible because achiness in the morning made it difficult for her to move. Instead, Claimant notified Employer as to her resignation, and filed for retirement effective July 31, 2010.
Because Claimant failed to establish that her health problems created a necessary and compelling reason to quit her employment, she is not entitled to unemployment compensation benefits pursuant to Section 402(b) of the Law. Therefore, the UCBR did not err by reversing the decision of the Referee.
As for whether Claimant was entitled to benefits pursuant to Section 401(d)(1) of the Law, that provision states that compensation shall be payable to any employe who is or becomes unemployed and who "[i]s able to work and available for suitable work . . . ." At the hearing, it was established that Employer had suitable work available for Claimant. Claimant testified that she would be willing to work in a suitable environment, but she was not seeking work as of the time of the hearing, since she was still under a doctor's care. "[T]o be available for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force." Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600, 603 (Pa. Cmwlth. 2006). Further, "a claimant must minimally show he is able to do some type of work, and that there is a reasonable opportunity for securing such work." Id. Because Claimant, by her own testimony is not able and available to work, she is not entitled to unemployment compensation benefits pursuant to Section 401(d)(1) of the Law. Accordingly, the UCBR did not err by reversing the decision of the Referee.
For the reasons state above, the UCBR's December 13, 2010 decision is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge Judge McCullough concurs in the result only.
ORDER
AND NOW, this 16th day of June, 2011, the December 13, 2010 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge