Opinion
No. 1478 C.D. 2011
04-04-2012
Markeisha Butler, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Markeisha Butler (Claimant), pro se, petitions for review of the June 13, 2011 order of the Unemployment Compensation Board of Review (Board) which affirmed the March 31, 2011 order of the Unemployment Compensation Referee (Referee) disallowing benefits to Claimant pursuant to 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. §§751 - 914. Claimant does not appeal the Board's denial of benefits under Section 4001(d)(2) of the Emergency Unemployment Act of 2008. Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323, Section 4001, 26 U.S.C. § 3304. --------
The Pennsylvania Bureau of Unemployment Compensation Benefits and Allowances (Bureau) issued a Notice of Redetermination, which found Claimant ineligible for benefits under Section 402(b) of the Law. (R. Item 6, Notice of Redetermination, February 16, 2011.) The Claimant appealed the denial of benefits and was granted a hearing on March 28, 2011 before the Referee. (R. Item 11, Notice of Hearing, March 18, 2011.) Neither the Claimant, nor her employer, Wachovia Shared Resources, appeared at the hearing. (R. Item 12, Transcript of Testimony - Referee Hearing, March 28, 2011, at 1.)
The Referee found that Claimant was employed by Wachovia Shared Resources and last worked on April 4, 2010. (R. Item 13, Referee's Decision, March 31, 2011, Findings of Fact (F.F.) ¶1.) The Referee also found that the Claimant quit voluntarily. (F.F. ¶2.) The Referee affirmed the determination of the Bureau that Claimant was ineligible for benefits under Section 402(b) of the Law. (R. Item 13, Referee's Decision, March 31, 2012, Reasoning at 2.)
On April 3, 2011, Claimant filed a timely appeal of the Referee's decision and order. (R. Item 14, Claimant's Petition for Appeal from Referee's Order.) On June 13, 2011, the Board issued an order affirming the Referee's decision, as well as incorporating and adopting as its own the Referee's findings and conclusions. (R. Item 15, Board's Order, June 13, 2011.) An appeal to this Court followed.
In unemployment compensation cases where neither party appears at the scheduled hearing, it is within the discretion of the Referee and the Board to render a determination based upon the "pertinent available records." Clariton Mun. Authority v. Unemployment Compensation Bd. of Review, 639 A.2d 921, 923 (Pa. Cmwlth. 1994) (quoting 34 Pa.Code § 101.51). It is such a decision that we have before us for review. Our review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Dopson v. Unemployment Compensation Bd. of Review, 983 A.2d 1282, 1284 n.2 (Pa. Cmwlth. 2009). Claimant contends that the Board erred in concluding that she failed to meet her burden of establishing eligibility for benefits under Section 402(b) of the Law. We disagree.
Section 402(b) provides, in pertinent part, that an employee shall be ineligible for compensation for any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. § 802(b). The burden of demonstrating that the cause for voluntarily leaving work was of a necessitous and compelling nature resides with the claimant. Livingston v. Unemployment Compensation Bd. of Review, 702 A.2d 20, 22 (Pa. Cmwlth. 1997). Where a claimant can show that the circumstances that forced him or her to terminate employment are real and substantial and would compel a reasonable person under those circumstances to act in the same manner, we will find the existence of a cause of a necessitous and compelling nature. Beachem v. Unemployment Compensation Bd. of Review, 760 A.2d 68, 71 (Pa. Cmwlth. 2000).
In the case before us, the record clearly supports the Board's conclusion that Claimant failed to carry her burden. Claimant's employer stated in separation information provided in response to inquiries from the Bureau that "Clmt. Voluntarily abandoned her job while continuing work was still available." (R. Item 4, Employer Separation Information, February 3, 2011.) In Claimant's oral interview with a representative from the Bureau, Claimant admitted that she was not officially fired and did just stop going to work without speaking to her employer. (R. Item 5, Oral Interview, February 15, 2011.)
Following denial of benefits, Claimant elaborated on her reasons for voluntarily leaving employment, including difficulty encountered in caring for her mentally ill child due to inconsistent work hours and time away from home. (R. Item 7, Claimant's Petition for Appeal from Redetermination, February 20, 2011, Attachment; R. Item 9, Desk Memorandum from Bureau to Referee, March 16, 2011, with Additional Information to be included with appeal.) As part of Claimant's contention that family obligations caused her to voluntarily leave employment, Claimant submitted some documentation of her child's illness to the Bureau, which was forwarded to the Referee and made a part of the record. (R. Item 9, Desk Memorandum from Bureau to Referee, March 16, 2011, with Additional Information to be included with appeal.)
Had Claimant appeared at the hearing to establish that her voluntary termination of employment was reasonable due to the necessitous and compelling nature of her family obligations, she would have had to demonstrate that she sought other arrangements for her child's care and pursued reasonable accommodations with her employer before voluntarily leaving, or that the emotional and behavioral demands of her child's illness left Claimant with no other choice but to voluntarily leave employment. Beachem, 760 A.2d at 72; see also Truitt v. Unemployment Compensation Bd. of Review, 527 Pa. 138, 589 A.2d 208 (1991) (claimant had a necessitous and compelling reason for voluntarily leaving employment to care for her child where before leaving she first pursued alternate child care arrangements and reasonable accommodations with her employer). However, Claimant failed to appear at the Referee hearing to provide testimony in support of her claim and give context to the document detailing her child's mental health issues. Although Claimant had taken steps to make this document a part of the record, the document alone did not shed light on the causative link between those struggles and Claimant's voluntary termination.
Without testimony from Claimant or other evidence provided at the hearing to illuminate Claimant's new allegations, the Referee was left with the original statements made to the Bureau by the Claimant and Employer that agreed she simply stopped showing up to work without explanation. Although Claimant asserts that she was compelled to leave her job to care for her daughter, she simply did not demonstrate that her leaving voluntarily was other than a choice; she did not show that she sought alternative care, she did not show that she sought accommodation from her employer, and she did not show that her child's mental health issues were so severe that they prevented her from working her scheduled shifts. As a result, the Referee found Claimant failed to satisfy her burden under Section 402(b) of the Law and was therefore ineligible for benefits. Following consideration of the entire record, the Board affirmed the Referee's denial. We find that the Board's order affirming the Referee and denying Claimant benefits was supported by substantial evidence and not in error. Accordingly, we affirm.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 4th day of April, 2012, the Order of the Unemployment Compensation Board of Review, dated June 13, 2011, is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge