Opinion
No. 1316 C.D. 2014
04-14-2015
Emily J. Weltmer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Emily J. Weltmer (Claimant) petitions pro se for review of the June 6, 2014 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant was employed by PRM Asset Management LLC (Employer) as an associate from October 2008 until her last day of work on January 8, 2014. (Finding of Fact No. 1.) The local job center determined that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed, and a referee held a hearing on March 14, 2014.
Claimant testified that she initially worked full-time. After the birth of her son in May 2011, she worked a part-time schedule, averaging twenty-eight hours per week for the next two and a half years. Although Employer's policy provides that employees must work an average of thirty-two hours per week over a year in order to maintain full-time benefits, Claimant stated that she and her supervisor, Barbara Fava, agreed that Claimant could work part-time and still retain full-time benefits if she contributed more towards the cost of her healthcare benefits than full-time employees were required to contribute. (Notes of Testimony (N.T.) at 6-7.)
Claimant said that she learned she was losing her benefits in late November 2013, during Employer's open enrollment period, when she was unable to select benefits for the upcoming year on Employer's new website interface. (N.T. at 8.) In response to her query, Claimant received an email from Employer's Human Resources department on December 4, 2013, stating she was losing her healthcare benefits effective January 1, 2014, and would be offered COBRA at that time. (Claimant's Ex. 3.) Claimant testified that when she informed Fava of the situation, Fava replied that she thought this might happen. (N.T. at 9.) A subsequent email from Human Resources, dated December 9, 2013, informed Claimant that she would not be eligible for holiday pay or participation in Employer's Flexible Spending Account. (Claimant's Ex. 3.)
Claimant stated that she approached her supervisor again, and Fava offered her full-time employment. (N.T. at 11.) Claimant responded that she "would need to check with [her] daycare to see if that was something that [she] was able to do." (N.T. at 11.) Claimant testified that her son's current daycare center could not accommodate him until August 2013, and that she called at least five other daycare centers on December 10th, but none had an opening. (N.T. at 12.) According to Claimant, "[m]ost daycares actually have - usually at least three months in advance it takes to be able to get [children] in. Some of the daycares I spoke to were six, eight, nine months." (N.T. at 17.)
Claimant testified she had looked into COBRA as an option but found that it would cost her about $500 per month, which she could not afford. (N.T. at 15.) Claimant added that she needed health insurance because otherwise she would incur $450-$550 in monthly out-of-pocket costs to pay for medication she takes for her severe asthma. (N.T. at 18.) On December 30, 2013, Claimant submitted a resignation letter, effective January 9, 2014, citing the financial ramifications and short notice of the change in her benefits as her reasons for leaving. (Finding of Fact No. 7.)
By decision and order dated March 19, 2014, the referee concluded that Claimant was ineligible for benefits pursuant to section 402(b) of the Law. The referee found that Claimant voluntarily quit due to the reduction of her benefits, even though work remained available to her. (Findings of Fact Nos. 7-8.) The referee also found that Claimant was restricting her hours due to the daycare needs of her son, and that Claimant had remained eligible for full-time benefits due to Employer's oversight. (Findings of Fact Nos. 2, 5.) The referee noted that the findings of fact represented his determinations of witness credibility and evidentiary weight.
Recognizing that childcare needs and financial difficulties can establish a necessitous and compelling reason for quitting, the referee observed that a claimant must exhaust all other possibilities before benefits will be awarded. The referee determined that, given Claimant's earnings, the temporary nature of the $500 per- month cost of COBRA was not insurmountable if she continued to work part-time until her son's daycare needs could be accommodated. Thus, the referee concluded Claimant did not establish necessitous and compelling reason for leaving her employment.
Claimant appealed to the Board, which affirmed the referee's decision, adopting the referee's findings and conclusion. The Board noted that the elimination of Claimant's benefits was not a unilateral change in her employment, but instead was the direct result of her voluntarily working fewer than thirty-two hours per week, with knowledge of Employer's policy requirement that employees work thirty-two hours per week to remain eligible for full-time benefits. The Board reasoned as follows:
Unlike a claimant who was transferred or whose wages were reduced without her input, the elimination of the claimant's benefits was the direct result of her voluntarily working fewer than thirty-two hours per week. Because of the claimant's culpability and her knowledge of the policy that benefits were available only to those who worked more than thirty-two hours per week, this was not a unilateral change in the claimant's employment terms. That the employer mistakenly permitted the claimant to continue to receive benefits does not negate that it was the claimant's actions that ultimately resulted in the elimination of her benefits. In fact, this merely establishes that the claimant had received a windfall [from] the employer since May 2011, valued at nearly $4000.00 since 2013 alone. Removing a benefit to which one was not entitled, with a month notice, does not create a necessitous and compelling reason to quit.(Board's June 6, 2014 opinion and order.)
On appeal to this Court, Claimant contends that the Board erred in concluding that she did not establish necessitous and compelling reason for leaving her employment. Specifically, Claimant disputes the Board's finding that she was restricting her hours due to daycare problems, (Finding of Fact No. 2), arguing that Employer agreed that she could work part-time after her son was born. Claimant also challenges the Board's finding that she received full-time benefits by mistake, (Finding of Fact No. 5), asserting that Employer knowingly and willingly allowed Claimant to receive full-time benefits, at an additional monthly charge, while she worked part-time.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
Under section 402(b) of the Law, a claimant who voluntarily terminates her employment has the burden to demonstrate that she did so due to cause of a necessitous and compelling nature. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008). Whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). In order to show necessitous and compelling cause, the claimant must establish that: circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Id.
In unemployment compensation proceedings, the Board is the ultimate factfinder and is empowered to determine all matters of witness credibility and evidentiary weight. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). The Board is free to reject any testimony, even if it is uncontradicted. Id. Findings made by the Board are conclusive on appeal if the record contains substantial evidence to support them. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Substantial evidence is that which a reasonable mind, without weighing the evidence or substituting its judgment for that of the factfinder, might accept as adequate to support the conclusion reached. Centennial School District v. Department of Education, 503 A.2d 1090, 1093 n.1 (Pa. Cmwlth. 1986).
Claimant argues that the Board erred in finding that she was restricting her hours due to daycare problems, (Finding of Fact No. 2), because Employer agreed that she could work part-time after her son was born. Although Claimant insists that her part-time hours were approved by her supervisor and were not reduced due to daycare needs, her argument relies on evidence that was not credited by the Board. Moreover, the record supports the Board's finding to that effect, including Claimant's testimony that she "originally started full-time . . . and after the birth of [her] son, [she] was part-time." (N.T. at 6.) Claimant also testified that when Employer offered her full-time employment, she responded that she "would need to check with [her] daycare to see if that was something that [she] was able to do." (N.T. at 11.)
Claimant's challenge to the Board's finding that she continued to receive full-time benefits due to an oversight by Employer must also fail because it likewise disregards the Board's credibility determinations. We further conclude that substantial evidence supports that finding. See e.g., Claimant's Ex. 3, the December 9, 2013 email from Employer's Human Resources department, which states that Employer became aware of the fact that Claimant was below the thirty-two-hour eligibility requirement because of the open enrollment on the new website interface. Although Claimant maintains that her supervisor created an exception to the thirty-two hour requirement, Claimant did not present any credible evidence to support this contention.
In addition to the above arguments, Claimant asserts that she never received formal notice that her benefits were being eliminated, and that she learned of the "full scope" of the changes only twelve days before they were to occur, when a fourteen-day notice was required. In an email to the Human Resources department, Claimant made a vague reference to "some legal regulation pertaining to advance notice required before changing an employee's benefit eligibility status . . . ." (Claimant's Ex. 2.) However, Claimant has not identified any authority for a fourteen-day notice requirement, and she did not raise this before the administrative agency; accordingly, it is waived on appeal. Pa.R.A.P. 1551(a).
Claimant also contends that she had necessitous and compelling cause for quitting because her compensation package was reduced by more than twenty percent, asserting that the Board has set a ten percent reduction as acceptable grounds for quitting. Again, Claimant cites no authority for this assertion; this Court has held that there is no talismanic percentage that separates a substantial from a non-substantial wage reduction. Ship Inn, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).
In Ship Inn, we explained that while there is no legally recognized threshold, each case must be decided on its own circumstances, and a unilateral reduction in compensation can constitute a necessitous and compelling reason if it is a drastic change in the contract of hire. Id. at 915.
The claimant in Ship Inn worked as a waitress, head waitress, and hostess for some time. Subsequently, ownership of the business changed, and the new owner told the claimant she would no longer receive the additional compensation she earned for working as a head waitress. The claimant voluntarily quit and was ruled eligible for unemployment benefits by the Board. Although the record was unclear as to whether the reduction in pay was due to the elimination of the head waitress position or the new owner's decision to reduce the rate of pay for the head waitress duties, this Court affirmed the Board's decision, concluding that either situation constituted a necessitous and compelling reason to quit. Id. at 915. We explained that in the former scenario, a portion of the claimant's duties were unilaterally eliminated by her employer, resulting in her compensation being reduced by approximately twentytwo percent, and in the latter instance, the employer unilaterally changed the contract of hire by requiring the claimant to perform the same duties for reduced pay.
In contrast to the facts in Ship Inn, Employer did not unilaterally eliminate or reduce Claimant's duties nor require her to perform the same work at a reduced rate. Instead, Claimant admittedly reduced her hours from fulltime to parttime after her son was born. (N.T. at 6.). Claimant was aware of Employer's requirement that employees work at least thirtytwo hours per week to qualify for fulltime benefits, (N.T. at 13), and thus, there also was no change in her contract of hire.
Claimant also asserts that she would not have been able to maintain her employment with the additional healthcare costs and still pay her bills and daycare expenses. Although we recognize that the reduction in benefits would have a significant impact, we have observed that leaving one's employment is seldom conducive to bettering one's financial situation. Judd v. Unemployment Compensation Board of Review, 496 A.2d 1377, 1381 (Pa. Cmwlth. 1985). By voluntarily quitting her job, Claimant reduced her income to zero, while continuing work was available and the increase in healthcare costs was temporary.
Claimant's final contention is that she was not given a reasonable amount of time to transition to full-time employment. However, Employer did not set a time limit on Claimant's return to full-time status, but only stated that she would need to begin full-time work by January 1, 2015 to maintain full-time benefits. In fact, Employer never demanded that Claimant return to full-time status at all; Claimant's supervisor offered Claimant this option as a way to maintain her healthcare benefits.
For all of the foregoing reasons, we conclude that the Board properly determined that Claimant is ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of April, 2015, the order of the Unemployment Compensation Board of Review, dated June 6, 2014, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge