Opinion
No. 1489 C.D. 2014
06-24-2015
Cheryl Williams, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Cheryl Williams (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation benefits. The Board affirmed in part and reversed in part the decision of the Referee. The Board agreed with the Referee that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she lacked necessitous and compelling cause to quit her job with the Pennsylvania Human Relations Commission (Employer). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). In relevant part, Section 402(b) provides that an employee is ineligible for compensation when "his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature...[.]" 43 P.S. § 802(b).
Claimant was employed full-time as a Human Relations Representative 2 for Employer from September 1999 to August 9, 2013. Claimant suffers from fibromyalgia, chronic pain, and stenosis of the lower back, which she testified prevent her from sitting for long periods of time and making repetitive motions, such as typing. In 2002, Claimant requested a number of accommodations, including (1) a telephone with a headset and handset for dialing, (2) a left handed mouse with a track ball, (3) a footstool, (4) a height-adjustable desk to allow her to work while sitting or standing, and (5) voice-activated software to do dictation. Employer provided all of these items. Claimant's new desk was adjustable from 29 to 31.5 inches in height and required her cubicle to be enlarged. Claimant complained that the voice-activated software did not work well due to the surrounding noise in the office and spasmodic dysphonia that affected Claimant's voicebox; nevertheless, Claimant continued to work for Employer for many years despite this problem.
In 2010, Employer relocated its offices. Due to the configuration of the cubicles in the new building, Claimant's height-adjustable desk could not be installed in her cubicle. It was instead installed in another employee's office. Employer provided Claimant with a desk elevated to a fixed position of 32 inches. Claimant testified that she made multiple requests for the height-adjustable desk to be installed, but her requests were denied. Karen George, an administrative officer for Employer, refuted this testimony; George testified that Claimant never requested the adjustable desk at the new building.
In 2013, Claimant requested an indefinite leave under the federal Family and Medical Leave Act beginning on August 12, 2013. Claimant received notice that her job was protected until February 2014.
Claimant had already exhausted all sick and personal days and was not paid during her Family and Medical leave.
On September 8, 2013, Claimant applied for unemployment compensation benefits. The Duquesne UC Service Center determined that she was ineligible under Section 402(b) of the Law, 43 P.S. §802(b), and eligible under Section 401(d)(1) of the Law, 43 P.S. §801(d)(1). Claimant appealed, and two hearings were held before a Referee on November 1, 2013, and November 15, 2013. The Referee found that Claimant failed to demonstrate that she had informed Employer about her current medical restrictions and the accommodations necessary for her to continue working. Accordingly, the Referee held that Claimant was ineligible for benefits under Section 402(b).
The Referee also ruled Claimant ineligible under Section 401(d)(1) of the Law, which states that an employee seeking unemployment compensation must be "able to work and available for suitable work." 43 P.S. §801(d)(1). The Referee concluded that Claimant was not able to work due to her disability.
Claimant appealed to the Board which, following a remand hearing, affirmed the Referee's decision that Claimant was ineligible under Section 402(b). The Board rejected as not credible Claimant's testimony "that the job became too difficult for her when she worked at the adjusted [fixed height] workstation" in Employer's new building. Board's Adjudication at 3. The Board found that Employer had reasonably accommodated Claimant's condition. Claimant now petitions for this Court's review.
Because it appeared the Referee began the recording in the middle of the second hearing, the Board remanded to a designated Referee so the parties could review the hearing transcript and provide additional testimony.
The Board reversed the Referee's determination that Claimant was ineligible under Section 401(d)(1), finding Claimant was able and available to work. Claimant's eligibility under Section 401(d)(1) is not at issue in this appeal.
On appeal, Claimant raises one issue, i.e., that the Board erred in holding she was ineligible for benefits under Section 402(b). Claimant contends that she had a necessitous and compelling reason for quitting her job because Employer was aware of her disability and did not provide a reasonable accommodation.
In reviewing an unemployment compensation appeal, this Court determines whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1161 n. 2 (Pa. Cmwlth. 2012). --------
We begin with a review of the relevant law. A claimant who voluntarily resigns from her employment bears the burden of showing that she resigned for a necessitous and compelling reason. Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987). A claimant can meet this burden by showing
that circumstances existed which produced real and substantial pressure to terminate employment; such 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 her employment.Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005).
An employee's medical condition or health reason can constitute necessitous and compelling cause to terminate employment. Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). A claimant asserting a health-related reason for quitting her job must demonstrate through competent and credible evidence that: (1) the health reasons were sufficiently severe to cause the claimant to quit, (2) the claimant informed the employer of the problem, and (3) the claimant is able and available to work with reasonable accommodation by the employer. Id. at 1004-05.
In unemployment appeals, the Board's findings of fact are conclusive if the record, taken as a whole, contains substantial evidence to support them. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). "Substantial evidence" has been defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). The existence of conflicting testimony or evidence does not mean that the findings of fact are not supported by substantial evidence. Harper v. Pennsylvania Board of Probation and Parole, 520 A.2d 518, 523 (Pa. Cmwlth. 1987). This Court must examine the testimony in the light most favorable to the prevailing party, "giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony, to see if substantial evidence for the Board's conclusion exists." Taylor, 378 A.2d at 831.
Claimant contends that she is eligible for benefits because she established with competent evidence that she had adequate health reasons to quit; Employer was aware of her disability; and she requested reasonable accommodations that Employer did not provide, namely the height-adjustable desk that would allow her to work either sitting or standing and voice-activated software for dictation. Claimant maintains that the fixed-height desk provided by Employer at the new building was not an adequate accommodation, and that she made repeated requests to have the height-adjustable desk installed in her cubicle. Claimant also contends that the voice-activated software that Employer provided never worked properly. The Board counters that Claimant's testimony that she needed the height-adjustable desk was not credible, and that she offered no evidence that the height-adjustable desk was medically necessary. Further, Claimant worked for ten years with the allegedly defective voice-activated software, negating her claim that this was a reason to quit. We agree with the Board that Claimant is not entitled to relief.
To begin, there was conflicting testimony on whether Claimant requested that the height-adjustable desk be installed in her cubicle in Employer's new building. The Board discredited Claimant's testimony that she made such a request. Instead, the Board credited the testimony of Karen George, Employer's administrative officer, that Claimant never requested that the height-adjustable desk be installed in her new cubicle. See Notes of Testimony, November 15, 2013, at 36 ("[Referee]: Did [Claimant] ever ask to have the adjustable desk back? [George]: No."). Moreover, we note that the maximum height of the height-adjustable desk was 31.5 inches, while Claimant's new desk had a fixed height of 32 inches. Therefore, the Board's findings that Claimant did not require the height-adjustable desk and that Employer adequately accommodated Claimant's disability are supported by substantial evidence. Claimant did not have necessitous and compelling cause to quit her employment by virtue of Employer's replacement of her height-adjustable desk with a fixed elevated desk.
We also agree with the Board that Claimant's dissatisfaction with the voice-activated software was not a necessitous and compelling reason to quit her job. Although the software may not have worked to Claimant's liking, prompting her to lodge several complaints to Employer, she nonetheless continued to work for Employer for approximately 10 years after the software was provided. Thus, there is no merit to Claimant's claim that the lack of better functioning software was a necessitous and compelling reason for her to quit her job.
For these reasons, we affirm the Board's adjudication denying Claimant's claim for unemployment compensation under Section 402(b) of the Law, 43 P.S. §802(b).
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 24th day of June, 2015, the order of the Unemployment Compensation Board of Review dated August 13, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge