Opinion
No. 1146 C.D. 2011
04-12-2012
Jamie Baker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Jamie Baker (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board), affirming the determination of the Unemployment Compensation Referee (Referee), that Claimant did not have cause of a necessitous and compelling nature for leaving her position at In Home Oxygen & Medical Equipment (Employer) and, therefore, was ineligible for Unemployment Compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. § 802(b). Claimant asserts that the Board erred in finding her ineligible because: (1) Claimant had cause of a necessitous and compelling nature to leave her job; (2) it would have been futile to request accommodation from Employer, who acknowledged during the hearing that it could not provide such accommodation; and (3) Claimant's actions were reasonable and necessary under these circumstances.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving employment without cause of a necessitous and compelling nature.
Claimant voluntarily left her position as a full-time customer service representative for Employer on January 7, 2011. Claimant applied for UC benefits, which the local service center denied because it found Claimant ineligible pursuant to Section 402(b) of the Law. Claimant appealed, and a hearing was held before the Referee. Both Claimant and Employer presented testimony and documentary evidence. Upon consideration of that evidence, the Referee found the following.
Claimant began working for Employer in June 2010 and her final day was January 7, 2011. Claimant has cerebral palsy, which prevents her from driving and requires her to rely on others to get to and from work. When Claimant lived in Bloomsburg, Pennsylvania, she received transportation through county agencies. Before relocating from Bloomsburg, Claimant inquired with several agencies on the availability of the same type of transportation services in Berks County. Claimant applied for her position with Employer, which is located in Berks County, and provided a Berks County address on her application. However, Claimant had actually relocated to a town in Lancaster County. When Claimant began working for Employer, her boyfriend, with whom she lived and who was unemployed, drove her to and from work and, when he was unable to do so, his father or grandmother provided Claimant with transportation. Claimant's boyfriend was recalled to work in the beginning of December 2010, at which time her boyfriend's father and grandmother drove Claimant to and from work. However, providing such transportation eventually became difficult for the father and grandmother and, therefore, Claimant again contacted county agencies to see if bus transportation was available. Through her contacts, Claimant became aware that the Lancaster and Berks County agencies would not cross county lines and, thus, it was not possible for Claimant to use their services. Claimant also inquired into using a private carrier, such as a taxi, but the costs of using such a service daily would be prohibitive. (Referee's Findings of Fact ¶¶ 1-11.)
Claimant sent Employer a text message on Sunday, January 9, 2011, stating that she would not be at work on Monday because she was ill. Claimant sent another text message on Monday, January 10, 2011, indicating that her doctor did not want her to work for the remainder of the week, and she would return to work the following Monday, January 17, 2011. However, Claimant neither came to work nor contacted Employer on Monday, January 17, 2011, nor did she contact Employer on Tuesday, Wednesday, or Thursday. Concerned, Employer tried to contact Claimant on Monday, Tuesday, and Wednesday and, after receiving no responses to the messages, sent a driver to the address Claimant had used on her employment application. Claimant did not indicate to Employer that she had issues with her transportation or that she had other concerns about her employment. Employer continued to have work available for Claimant had she not left her employment. (Referee's FOF ¶¶ 12-20.)
Based on these findings of fact, the Referee concluded that Claimant did not satisfy her burden of establishing that she had cause of a necessitous and compelling nature for voluntarily leaving her employment. The Referee acknowledged that Claimant did attempt to resolve her transportation problems, but held that Claimant was ineligible for benefits because she never notified Employer of this problem thereby depriving Employer of the opportunity to make accommodations so that Claimant could continue working. According to the Referee, because Claimant "entirely precluded [E]mployer from the situation, she has failed to meet her burden under Section 402(b)." (Referee's Decision at 3.) Claimant appealed to the Board, which affirmed the Referee's determination, adopting and incorporating the findings of fact and conclusions of law as its own decision. Claimant now petitions this Court for review.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). --------
Claimant argues that the Board erred in finding her ineligible for benefits because her transportation problems were insurmountable, she made reasonable efforts to resolve those problems and, although she did not inform Employer of her difficulties, Employer admitted that there was nothing it could have done to resolve Claimant's transportation problems. Claimant contends that she made every effort to resolve her transportation issues "without pestering her Employer," including calling her state senator, to no avail. According to Claimant, she has established that she tried to maintain her employment relationship with Employer and any request for assistance she would have made to Employer would have been futile. Therefore, Claimant maintains that she had cause of a necessitous and compelling nature to voluntarily end her employment with Employer.
Section 402(b) provides that a claimant is ineligible for compensation if her unemployment is due to her voluntarily leaving employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). The claimant bears the burden of showing that she had cause of a necessitous and compelling nature to voluntarily terminate her employment. Latzy v. Unemployment Compensation Board of Review, 487 A.2d 121, 123 (Pa. Cmwlth. 1985). Transportation inconveniences may rise to the level of a necessitous and compelling reason for voluntarily terminating one's employment if the transportation problems are "so serious and unreasonable as to present a virtually insurmountable problem." J.C. Penney Co., Inc. v. Unemployment Compensation Board of Review, 457 A.2d 161, 163 (Pa. Cmwlth. 1983) (citation omitted). However, "the claimant must demonstrate that . . . she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship." Id. (citation omitted).
In Yurack v. Unemployment Compensation Board of Review, 435 A.2d 663, 664 (Pa. Cmwlth. 1981), in which a claimant voluntarily resigned her position because she could no longer drive for medical reasons, this Court held that the claimant "should [have] request[ed] her employer's assistance in finding transportation" before resigning. We noted that "[h]ad such a request been made . . . her employer might have helped [the c]laimant make arrangements with a co-worker to alter his or her commuting arrangements to include [the c]laimant. Alternatively, the employer might have been able to arrange a carpool with employees." Id. However, because she had not taken such actions, we held that the claimant could not "claim the [transportation] problem [was] insurmountable and that her termination was for necessitous and compelling reason." Id. Similarly, in Latzy, we held that the claimant, who had been furloughed from one position, had not established necessitous and compelling cause to reject a job offer at a different location because, although she had inquired about public transportation as a way to get to the new position, she "fail[ed] to investigate the possibility of riding to work with other employees and to ask for the [employer's] assistance." Latzy, 487 A.2d at 123. We stated that such failure "is not consistent with one desiring to remain employed" and did not establish that the claimant "took reasonable steps to overcome her transportation difficulties." Id.
Here, as in Latzy and Yurack, Claimant did inquire into other means of transportation to work once it became clear that assistance would not be forthcoming from Lancaster or Berks counties. Indeed, Claimant went beyond the efforts of the claimants in Latzy and Yurack by, inter alia, contacting her state senator for assistance. However, also like the claimants in Latzy and Yurack, Claimant did not discuss her transportation problems with Employer, thereby preventing Employer and Claimant from inquiring into whether Claimant could obtain a ride with a co-worker. Although Claimant asserts that such an inquiry would have been futile because Employer did not offer carpooling or a car/van service, we have held that a claimant cannot rely upon the claimant's own presumption or assumption that it would be futile to seek the employer's assistance, but must present evidence to support the alleged futility. Dickhoff v. Unemployment Compensation Board of Review, 449 A.2d 807, 810 (Pa. Cmwlth. 1982) (citing Yurack). Claimant did not present any evidence of the futility of informing Employer of her transportation difficulties and, although Employer indicated that it did not offer a car/van service or a stipend for transportation services, Employer's General Manager/Human Resources Director (General Manager) testified that, had Claimant come to her, Employer would have spoken with other employees to see if Claimant could have gotten a ride to work with one of her co-workers. (Referee Hr'g Tr. at 27-28, R.R. at 32-33.) In fact, the General Manager stated that, knowing her staff, she would not have been surprised if a co-worker would have offered Claimant transport to and from work. (Referee Hr'g Tr. at 28, R.R. at 33.)
Although we sympathize with Claimant and acknowledge the efforts she did make to resolve her transportation difficulties, we conclude, as we did in Latzy and Yurack, that Claimant did not make reasonable efforts to resolve her transportation problems when she did not inform Employer of those difficulties. Therefore, Claimant did not establish that she had cause of a necessitous and compelling nature for voluntarily ending her employment with Employer.
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 12, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge