Opinion
No. 1561 C.D. 2012
01-24-2013
Debra L. Dodson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Debra L. Dodson (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because she failed to prove cause of a necessitous and compelling nature for leaving her employment. For the reasons that follow, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act.
Claimant was employed full-time from March 13, 2012, until March 16, 2012, by Ameristar Tax Center (Employer) in an administrative capacity. The hours of work for Claimant's position were 8:30 a.m. to 5:30 p.m., Monday through Friday. Prior to accepting this position, Claimant requested that the ending time of 5:30 p.m. be changed to 5:15 p.m. so that she could pick up her nine-year-old son from daycare, but Employer refused to provide her with a scheduling accommodation. On March 16, 2012, Claimant voluntarily left her employment due to dissatisfaction with her assigned work hours.
Claimant filed for unemployment compensation benefits with the UC Service Center which denied benefits because she voluntarily left her employment without a necessitous and compelling reason, and Claimant appealed. Before the Referee, Claimant testified that when she interviewed for the position with Employer, she knew the hours for the position were Monday through Friday, 8:30 a.m. to 5:30 p.m. She stated that prior to accepting the position, she asked Employer if she could take a shorter lunch break and work until 5:15 p.m. so that she could pick up her son from daycare at 5:30 p.m. Claimant explained that the estimated travel time from Employer's office to her son's daycare center is approximately 15 minutes and that the daycare charged a penalty of $1 per minute for every minute she was late after 5:30 p.m. Despite Employer's refusal to provide her with the requested scheduling accommodation, Claimant testified that she nevertheless accepted the position because she made arrangements with her husband, a salesperson at a car dealership, to leave his job, pick up their son before 5:30 p.m., and keep him at the car dealership until she arrived to pick him up. However, Claimant explained, that arrangement ultimately did not work because her husband was unable to leave customers waiting or cease sales negotiations in order to pick up their son. Claimant testified that she left her position with Employer because she had no relatives or neighbors who were able to assist her in picking up her son from daycare and could not afford to pay the $15 per day penalty to the daycare center.
The UC Service Center also imposed a non-fault overpayment pursuant to Sections 401, 4(u), 404(d) and 804(b) of the Law, 43 P.S. §§801, 753(u), 804(d) and 874(b), for failure to report earnings for the claim week ending March 17, 2012, which the Referee and Board upheld. However, Claimant does not contest the non-fault overpayment on appeal and, therefore, we will not address the issue.
The Referee found that Claimant voluntarily left her employment due to dissatisfaction with her assigned work hours ending at 5:30 p.m. and her son's daycare charging a $1 per minute penalty for every minute she was late after 5:30 p.m. Despite finding Claimant's travel time estimate of 15 minutes from Employer's office to her son's daycare center to be reasonable and accepting Claimant's testimony that she would incur a $15 per day penalty, the Referee denied benefits, concluding that "[C]laimant has failed to establish that the $15 per day penalty to care for her 9-year-old son is substantial enough to cause a reasonably prudent person to quit employment that she recently commenced." (Referee's April 30, 2012 Decision at 2). Claimant appealed to the Board, which affirmed the Referee and additionally found that "[C]laimant made no effort to find alternative day care that would have been available until 6:00 or to see if another person might be able to pick her child up from day care." (Board's June 19, 2012 Decision at 1). This appeal by Claimant followed.
Our review is limited to determining whether the Board's decision is in violation of constitutional rights, whether an error of law has been committed, or whether the factual findings are supported by substantial evidence. Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 n.2 (Pa. Cmwlth. 2011).
On appeal, Claimant argues that the Board erred in finding that she did not exhaust all alternatives prior to terminating her employment. Claimant contends that despite being uncomfortable with sending her son to a different daycare center, she made an effort to contact other daycare centers, but they also closed at 5:30 p.m. Claimant alleges in her brief that the Board ignored that she contacted other daycare providers and that all of those facilities also closed at 5:30 p.m. She further alleges that she was unable to receive assistance from other family members and had no other option but to resign from her position with Employer.
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). The burden is on a claimant to prove necessitous and compelling reasons for quitting. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). In order to show cause of a necessitous and compelling nature, 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. Brown, 780 A.2d at 888. --------
However, the record reveals that Claimant provided no testimony whatsoever before the Referee regarding her efforts to contact other daycare centers. Moreover, Claimant testified that no relatives or neighbors could assist her in picking up her son, but other than her testimony about the initial arrangement she had with her husband, she offered no testimony detailing her efforts to acquire any such help. Because Claimant failed to adequately demonstrate that she made a reasonable effort to preserve her employment, we find no error in the Board's determination that Claimant is ineligible for unemployment compensation benefits pursuant to Section 402(b) of the Law.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 24th day of January, 2013, the order of the Unemployment Compensation Board of Review, dated June 19, 2012, at No. B-538171, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge