Opinion
No. 391 C.D. 2014
01-09-2015
Bridget M. Bailin, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Bridget M. Bailin (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's denial of benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was employed from March 11, 2013, until July 12, 2013, at Links 2 Care as a full-time Clinical Manager, earning $1,211.54 per week.
2. The claimant, as the Clinical Manager, is a mandated reporter who is expected to report child abuse to Children & Youth.
3. Nurses are also mandated reporters.
4. Instead of reporting cases of suspected child abuse to Children & Youth as required, some nurses were reporting suspected cases of abuse to the claimant.
5. When the claimant became aware of cases of suspected abuse, she reported the allegations to Children & Youth as required.
6. The Area Director asked the claimant to investigate the allegations of suspected abuse reported by nurses in order to avoid presenting hearsay evidence to Children & Youth.
7. The claimant believed that it was not her job to investigate suspected cases of child abuse; it was her job to report the suspected abuse to Children & Youth.
8. There was a particular household in which nurses reported suspected abuse, including seeing drug deals and drug paraphernalia in the home.
9. The claimant reported the suspected abuse to Children & Youth as required.
10. The claimant discussed her concerns with the Area Director and Regional Clinic Director.
11. The Area Director removed the claimant from any involvement with the home where the suspected drug deals were occurring.
12. Shortly after the claimant complained that nurses should be directly reporting the allegations of abuse to Children & Youth, another Clinical Director sent an email to all employees reminding them that they were mandated reporters and that they were required to report abuse directly to Children & Youth.
13. The claimant did not discipline nurses who failed to directly report cases of suspected abuse to Children & Youth.
14. The claimant voluntarily quit her employment because she disagreed with the employer's policies and procedures. She was asked to do tasks which were not in the scope of her practice and outside her job description. The claimant believed the employer's practices were illegal and unethical. The claimant had an issue with the policy on child abuse and reporting.Referee's Decision, October 31, 2013, (Decision), Findings of Fact Nos. 1-14 at 1-2.
The referee determined:
In this case, the claimant voluntarily quit her employment because she disagreed with the employer's policies and procedures and because she believed she was being asked to perform duties which were not in the scope of her practice and were outside of her job description. The claimant felt that the employer's practices were illegal and unethical and she had an issue with the policy on child abuse and mandatory reporting. Employees must report cases of abuse to Children & Youth, as employees are considered mandated reporters. Nurses were reporting suspected abuse to the claimant, rather than directly to Children & Youth. Because nurses are reporting these incidents directly to the claimant, the Area Director asked the claimant to investigate the allegations so as to avoid presenting hearsay information to Children & Youth. The claimant did not discipline the nurses who were not directly reporting the suspected cases of abuse. Shortly after the claimant discussed her concerns over the nurses' failure to report abuse, a clinical director sent an email to employees advising them that they were mandated reporters and should directly report abuse to Children & Youth. The Area Director also removed the claimant from any involvement with a particular client where suspected drug use was involved.
. . . .
Here, the employer credibly testified that the claimant was removed from any involvement with the particular
client in question. The employer and the claimant also testified that a memo was sent to nurses reminding them that they were mandated reporters and should directly report abuse cases to Children & Youth, rather than through the claimant. The claimant has failed to establish why these remedies were not sufficient. She has also failed to establish that the employer's actions were illegal and unethical, so as to compel someone to voluntarily leave the employment. As the Courts have consistently held, mere dissatisfaction with working conditions is not good cause to leave one's employment. The claimant has failed to meet her burden. Accordingly, benefits are denied.Decision at 2-3.
Claimant appealed to the Board which adopted the referee's findings and conclusions and affirmed.
Claimant contends that she had a necessitous and compelling reason to quit her job with Links 2 Care (Employer) because Employer's policy promoted professional misconduct and perpetuated a fraud upon the child abuse reporting system.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 693 (Pa. Cmwlth. 1994).
An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Where an employee resigns, leaves, or quits without action by the employer, the action amounts to a voluntary termination. Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 561 (Pa. Cmwlth. 1979). Good cause for voluntarily leaving one's employment results from circumstances which produce 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. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982). A claimant must make a reasonable effort to preserve her employment. Platz v. Unemployment Compensation Board of Review, 709 A.2d 450 (Pa. Cmwlth. 1998).
Claimant asserts that she resigned because Employer's practices violated Section 4304 of the Pennsylvania Crimes Code, 18 Pa.C.S. §4304, and Sections 6311 and 6319 of the Child Protective Services Law (Law), 23 Pa.C.S. §§6311, and 6319.
Section 4304(a)(1-2) of the Crimes Code, 18 Pa.C.S. §4304(a)(1-2), provides in pertinent part:
(a) Offense defined
(1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.
(2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).
Section 6311 of the Child Protective Services Law provides in pertinent part:
(a) General rule. - A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator.
(b) Enumeration of persons required to report.—Persons required to report under subsection (a) include, but are not limited to, any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official.
(c) Staff members of institutions, etc. - Whenever a person is required to report under subsection (b) in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with section 6313. This chapter does not require more than one report from any such institution, school, facility or agency.
Section 6319 of the Child Protective Services Law, 23 Pa.C.S. §6319, provides:
A person or official required by this chapter to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation.
Claimant asserts that Employer had a policy whereby nurses would report possible child abuse in homes they serviced to Claimant. Employer would then ask Claimant to investigate the suspected abuse and report back to Employer before any reports of child abuse would be filed to the proper reporting authorities. When Claimant investigated, evidence of abuse would not be found because the suspected abuser was aware that the inspection would take place. As a result, the original allegation of abuse would be ignored and the Employer's contractual services would continue. Claimant asserts that Employer implemented a policy that was designed to chill the reporting of suspected child abuse for the sole purpose of promoting client retention which insulated Employer and the nurses from criminal liability and put the criminal liability on Claimant.
Claimant, however, admits that Employer's policy complied with the Law because the nurses reported to a designated agent, Claimant. Claimant's argument that Employer engaged in unprofessional, unethical, or illegal conduct fails when she admits that Employer complied with the applicable law. "Where there is no express violation of law, regulation, or professional ethics . . . an employee does not establish cause of a compelling or necessitous nature in this type of case unless the employee proves that the duties required by the employer so affected his or her professional and personal integrity that it would justify the voluntary quit." Ayres v. Unemployment Compensation Board of Review, 598 A.2d 1083, 1087 (Pa. Cmwlth. 1983).
When Claimant complained to her superiors about the nurses failing to directly report potential child abusers to the proper authority Employer circulated an email to all employees which reminded them that they were mandated reporters and were required to directly report the abuse to the agency. However, Claimant was dissatisfied because this policy was not followed. Notes of Testimony, October 17, 2013, (N.T.) at 10. Despite her dissatisfaction, Claimant failed to discipline nurses who did not comply with the email even though she was authorized to do so. N.T. at 11. Further, Judy Souders (Souders), area director for Employer, testified that a day or two before Claimant resigned, Souders informed Claimant that for the one household that caused the most concern "we had made the arrangements that I [Souders] would be the contact person for the home . . . [and] Ms. Bailin [would] no longer [be] involved in the case." N.T. at 18.
While Employer attempted to resolve or, at least, address Claimant's concerns, Claimant did not attempt to enforce the policy of having the nurses report the abuse themselves and did not wait to see whether she in fact would not be involved in the case that she found most troubling. Claimant failed to take reasonable steps to preserve her employment and established only that she was dissatisfied with her employment.
Claimant also asserts that investigating allegations of child abuse were not part of her job description. Claimant failed to present evidence as to what her job description was. Therefore, she failed to establish this concern as a necessitous and compelling reason for terminating her employment. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 9th day of January, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge