Opinion
No. 312 C.D. 2013
02-25-2014
Vilma D. Maldonado, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Vilma D. Maldonado (Claimant), pro se, petitions this court for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of the referee denying Claimant benefits under Section 402(b) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week "in which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ." 43 P.S. § 802(b).
Claimant was employed as an Advocate III with Maternity Care Coalition (Employer) from March 1, 2007 until her last day of work on September 7, 2012. Employer is an organization "which advocates and provides services to improve the health and well-being of pregnant women, infants and their families." Employer's Brief at 5. At the time of her separation from employment, Claimant was a Riverside MOMobile advocate working with incarcerated women who were either pregnant or had recently given birth. Claimant gave notice to Employer that she was moving to Florida with her mother to be with her family.
Claimant filed for unemployment compensation benefits with the Unemployment Compensation Service Center (UC Service Center) which granted benefits finding that Claimant voluntarily quit to move to Florida to get help for her ill mother, and, having exhausted all alternatives prior to quitting, she was eligible for benefits.
Employer appealed, and a hearing was scheduled at which Claimant was to testify via telephone from Florida, while Employer's witness was present at the hearing. After Claimant failed to appear, Employer's Human Resource Manager, Paul Antony, testified that the information he received regarding Claimant's separation from her employment was that "she was relocating down to Florida to be with her family." Hearing of November 21, 2012, Notes of Testimony (N. T.) at 5. Mr. Antony testified that Claimant "didn't tell me why" she was leaving and that because Claimant had been employed for more than a year, she "would have been eligible for an FMLA leave, which would have allowed her up to 12 weeks as a leave of absence to take care of, in this case, a sick family member." Id. at 5-6. Mr. Antony also testified that in addition to the 12 weeks of eligibility under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, Claimant could have applied for "a general leave of absence with the organization that would potentially have allowed her up to an additional year." Id. at 6. When asked whether Claimant would have been aware of the types of leave available to her, Mr. Antony testified that "[i]t's part of our HR policy manual. And [Claimant] actually took advantage of an FMLA leave previously [in 2010] for an unrelated reason." Id. at 7.
Before the referee started the hearing, she called the Claimant twice on her land line and on her cell phone, both numbers provided by Claimant. Claimant did not answer the calls and the referee left two voice messages, after which she proceeded with the hearing. See Notes of Testimony (N.T.) at 1-2. The notice of hearing explained that the referee would be calling "on a telephone line that will not display the originating telephone number . . . [and that] if your telephone blocks such calls and if you expect to participate in the hearing by telephone, it is your responsibility to ensure that you are able to accept the call to participate in the hearing." Original Record (O.R.), Item 9 at 1 (emphasis in original).
The referee made the following pertinent findings of fact:
2. The claimant gave in her two weeks notice and informed the employer that her last day at work would be September 7, 2012 as she was relocating to Florida to be with her family.Referee's Decision/Order at 1. The referee noted that under the Law, "there must be clear evidence that circumstances exist that require the relocation in order for it to be considered necessitous and compelling in nature." Id. at 2. The referee also noted that Claimant in such circumstances must establish that she "made a good faith effort to preserve the employment relationship by informing the employer of the obstacles to continuing employment, and took all reasonable and necessary steps to overcome such obstacles before quitting." Id. The referee found that continuing work was available to Claimant had she not quit. Finding insufficient evidence of record that Claimant had a necessitous and compelling reason to quit, the referee therefore denied benefits under Section 402(b) of the Law.
3. The claimant did not provide the employer with any other reason for relocating to Florida.
4. The claimant was aware that she could take leave under the Family and Medical Leave Act (FMLA) as she had done so previously.
5. The employer permits an employee to take leave under the FMLA and then a general leave of absence is given.
6. The claimant could have taken leave for one year and three months.
7. The claimant did not exhaust all alternatives.
8. On September 7, 2012, the claimant quit her employment to relocate to Florida to be with her family.
Claimant appealed to the Board, which adopted and incorporated the referee's findings and conclusions and affirmed the referee's decision. This appeal followed.
Claimant argues that the referee erred in finding insufficient evidence that she notified Employer that the reason she quit her employment was to move to Florida to get help with caring for her ailing mother, and that the referee erred in determining that she was ineligible for benefits because she did not establish a necessitous and compelling reason for quitting. With respect to her first issue, Claimant argues that she was constantly stressed and overwhelmed as the single mother to an autistic son and the sole caregiver of her mother, who has dementia and Parkinson's disease. Claimant contends that she had numerous discussions with her immediate supervisor about her situation and that Employer was well aware of her situation before she gave her notice. Claimant avers that when she told her supervisor that she needed to move to Florida where she had siblings who could help her care for her mother, the supervisor advised her to write that in her resignation letter. Finally, Claimant argues that her need for help in caring for her mother produced real and substantial pressure to leave her employment and that a reasonable person would not have stayed in Pennsylvania but would have moved to Florida where there were family members who could help with her mother's care. Claimant asserts that she had no other choice but to move and that Employer never made her aware of or offered her a leave of absence under the FMLA.
In support of her arguments, Claimant has attached several documents to her brief which she alleges are emails she sent to and received from Employer regarding her separation from employment. It is well settled that documents which are not part of the certified record in a case cannot be considered by the court on appeal. Fotta v. Workmen's Comp. Appeal Bd. (U.S. Steel/USX Corp. Maple Creek Mine), 534 Pa. 191, 196 n.2, 626 A.2d 1144, 1147 n.2 (1993). Therefore, this court will not consider the documentation attached to Claimant's brief or the factual allegations in her brief which are outside the record.
While caring for an ill family member may provide a claimant with necessitous and compelling reasons for leaving employment, the claimant must show that she attempted to preserve her employment by seeking alternative means of providing care or seeking accommodations from the employer. See Draper v. Unemployment Comp. Bd. of Review, 718 A.2d 383 (Pa. Cmwlth. 1998); Robinson v. Unemployment Comp. Bd. of Review, 532 A.2d 952 (Pa. Cmwlth. 1987). Although Claimant argues that she told Employer that she was quitting to care for her ill mother and thus established a necessitous and compelling reason to quit, the Board instead found that Claimant quit her employment to relocate to Florida to be with her family and that she did not exhaust all alternatives prior to quitting. Findings of Fact Nos. 7 and 8. The Board is the ultimate fact-finder and may accept or reject the testimony of any witness. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004).
Although she argues that she was unaware of the option to take a leave of absence, she acknowledges in her brief that "because she was under so much stress, her health failed and [she] had to go out on short term disability which [she] paid for herself." Claimant's Brief at 16. Employer counters that Claimant's FMLA argument is waived because she did not raise it before the referee; alternatively, Employer argues that even if not waived, her argument fails because she never requested an FMLA leave or any leave before she quit. The referee found that Claimant was aware she could take leave under the FMLA as she had done so previously and that Employer also allowed a general leave of absence, which she could have taken, and that Claimant did not exhaust all her alternatives. See Referee's Decision/Order, Findings of Fact Nos. 4, 5, and 7. --------
A claimant's eligibility for unemployment compensation benefits after voluntarily leaving her employment depends on whether or not the claimant can establish that she had cause of a necessitous and compelling nature to do so. Brown v. Unemployment Comp. Bd. of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). The claimant must demonstrate circumstances existed which produced real and substantial pressure to terminate one's employment; that such circumstances would compel a reasonable person to act in the same manner; that she acted with ordinary common sense; and that she made a reasonable effort to preserve her employment. Id. Whether a claimant's voluntary termination of employment to care for an ill parent constitutes a necessitous and compelling reason must be decided on the specific facts of an individual case. Draper v. Unemployment Comp. Bd. of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998). The question of whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to this court's plenary review. Brown, 780 A.2d at 888.
In this case, Claimant did not participate in the hearing despite numerous attempts by the referee to contact her and she failed to present any competent evidence regarding the reasons for leaving employment, how those circumstances were of a necessitous and compelling nature, or whether she acted with ordinary common sense or made a good faith effort to preserve her employment. Employer's witness credibly testified that Claimant gave no reason for quitting other than relocating to Florida to be with family; that Claimant had taken leave under the FMLA previously and was aware she had the option to take leave again; and that continuing work was available to Claimant had she not quit. The Board's conclusion that there was insufficient evidence to establish that Claimant had cause of a necessitous and compelling nature to voluntarily quit her employment is supported by the record. Hence, Claimant is ineligible for benefits under Section 402(b). Discerning no error in the Board's determination, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of February, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge