Opinion
No. 415 C.D. 2012
10-01-2012
Gary E. McAninch, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Gary E. McAninch (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that he is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law because he voluntarily quit his job without a necessitous and compelling reason. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, §402, as amended, 43 P.S. §802(b). Section 402(b) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature .... Provided, That a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a necessitous and compelling nature." Id.
Claimant was employed full-time as a science instructor by Lenape Area High School (Employer) from August 2009 through the end of the 2010-2011 school year. (Record Item (R. Item) 18, Board Decision and Order, Findings of Fact (F.F.) ¶¶1, 7, 18; R. Item 10, Referee Hearing Transcript (H.T.) at 3-4.) During this employment, Claimant became dissatisfied with Employer's discipline and teaching strategies. (R. Item 18, F.F. ¶2; R. Item 10, H.T. at 6.) On March 1, 2011, Claimant received an unsatisfactory performance evaluation rating, and in late March and early April 2011, Claimant served a five-day suspension for an inappropriate classroom discussion with male students regarding a medical condition related to his genitalia. (R. Item 18, F.F. ¶¶3-4; R. Item 10, H.T. at 6-9 & Claimant Ex. 3.)
Claimant had been treated by his doctor for several years for anxiety and depression, which worsened in the 2010-2011 school year, and his doctor referred him to a psychologist. (R. Item 18, F.F. ¶6; R. Item 7D, Letter of William J. Lynch, D.O.) Claimant went on medical leave of absence in late April 2011 and remained on medical leave through the end of the school year, May 27, 2011. (R. Item 18, F.F. ¶7; R. Item 10, H.T. at 4-5, 11.) Claimant did not return to work from his medical leave, and on June 8, 2011, Employer contacted Claimant by certified letter stating that attempts to reach him had been unsuccessful and that it was important that he meet with Employer for his year-end review. (R. Item 18, F.F. ¶¶9-11; R. Item 10, Employer Ex. 2.) Claimant responded to this letter by an email, in which he stated that he had not yet been released by his doctor to return to work and that "[t]o enable you to make staffing/scheduling decisions, I have decided not to return to Lenape and am planning to move due to my spouse's job." (R. Item 18, F.F. ¶¶12-13; R. Item 10, Employer Ex. 3.) On June 20, 2011, Claimant sent Employer a letter stating that he was "resigning my position effective June 30, 2011 and accordingly, will not be returning for the 2011-2012 school year due to medical reasons." (R. Item 18, F.F. ¶18; R. Item 10, Employer Ex. 1.)
Claimant applied for benefits on August 28, 2011, stating that he left his employment for health reasons. (R. Item 2, Internet Initial Claims Application.) After the Unemployment Compensation Service Center denied Claimant's application for benefits, Claimant appealed, and the Referee conducted a hearing at which Claimant and Employer's administrative director testified. Claimant also submitted letters from his treating physician and his psychologist. The letter from Claimant's physician confirmed that Claimant was treated for anxiety and depression, but stated that "I did not advise patient to terminate employment." (R. Item 7D, Letter of William J. Lynch, D.O.) The letter from Claimant's psychologist, dated September 26, 2011, stated that he advised Claimant "to terminate his employment due to health reasons," but Claimant admitted that he did not receive that advice from his psychologist until shortly before the date of that letter. (R. Item 7C, Letter of Albert J. DiGilarmo, Psy.D.; R. Item 10, H.T. at 10.)
On October 31, 2011, the Referee issued a decision reversing the Service Center's determination and finding Claimant eligible for benefits. The Referee found that the evidence showed that "there may have been some stress involved in the work environment" and that Claimant voluntarily terminated his employment on the advice of medical professionals that he "would be best advised to leave employment with [Employer] for health reasons." (R. Item 11, Referee's Decision at 2 & F.F. ¶¶2, 4.) The Referee concluded that Claimant had therefore shown a necessitous and compelling reason for leaving his job and was entitled to benefits. (R. Item 11, Referee's Decision at 2.)
Employer appealed the Referee's decision to the Board. The Board, following its review of the record, made its own assessment of the credibility of the witnesses and its own findings of fact. (R. Item 18, Board Decision and Order.) The Board found that Claimant's testimony that he left his employment for health reasons was not credible in light of his statement to employer that he was planning to move due to his spouse's job and the absence of medical advice to leave his job when he made the decision to resign. (R. Item 18, Board Decision and Order at 3.) The Board concluded that Claimant voluntarily terminated his employment for personal reasons and that his philosophical differences with Employer's teaching and discipline strategies, which contributed to his decision to leave, did not constitute a necessitous and compelling cause for terminating employment. (R. Item 18, Board Decision and Order at 3-4.) The Board, accordingly, reversed the Referee's decision and denied benefits. (R. Item 18, Board Decision and Order at 4.) Claimant filed the instant petition for review appealing the Board's order to this Court.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1264 n.4 (Pa. Cmwlth. 2012); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
A claimant seeking benefits after voluntarily quitting his job has the burden to demonstrate that he had a necessitous and compelling reason for doing so. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002); 43 P.S. §802(b). Whether or not a claimant had a necessitous and compelling reason for leaving employment is a question of law subject to this Court's plenary review. Pennsylvania Gaming Control Board, 47 A.3d at 1265; Nolan, 797 A.2d at 1046.
Health problems can constitute a necessitous and compelling reason to leave employment. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982); Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1118 (Pa. Cmwlth. 2005); Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994). Disagreement or dissatisfaction with an employer's policies or management style does not, however, constitute a necessitous and compelling cause for voluntary termination of employment. Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 442 (Pa. Cmwlth. 1996); Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995).
Here, the Board concluded that Claimant did not meet his burden to show that he left his job for health reasons, and found that he instead resigned for personal reasons related to his wife's job and his philosophical disagreements with Employer's discipline and teaching strategies. (R. Item 18, Board Decision and Order at 3-4.) Although Claimant introduced evidence that he suffered from anxiety and depression, the Board rejected as not credible Claimant's contention that these medical problems were the reason for his departure. (R. Item 18, Board Decision and Order at 3.) The Board is the ultimate fact finder and its credibility determinations and findings of fact are binding on this Court where they are supported by substantial evidence, even if there is other contrary evidence. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255-56 (Pa. Cmwlth. 2001); Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728, 731-32 (Pa. Cmwlth. 2000).
While the need to move because of a spouse's job may constitute necessitous and compelling grounds for terminating employment, the Board correctly concluded that this reason for Claimant's resignation could not support eligibility for benefits. (R. Item 18, Board Decision and Order at 3.) To show necessitous and compelling cause based on a spouse's job, the claimant must show that the move was not solely for personal reasons and that spouse's job location created economic hardship or an insurmountable commuting distance. Pennsylvania Gaming Control Board, 47 A.3d at 1266-70. No evidence at all was introduced concerning the location of Claimant's wife's job and Claimant testified that the need to move for his wife's job never actually materialized. (R. Item 10, H.T. at 12.) --------
The Board's finding that Claimant did not leave his job for health reasons is supported by substantial evidence. Claimant's email to Employer in which he first advised Employer that he would be leaving did not mention health issues as a reason for his departure and stated that he was "planning to move due to my spouse's job." (R. Item 10, Employer Ex. 3.) When asked by the Referee why he no longer worked for Employer, Claimant testified that the real reason was his differences with Employer over Employer's discipline and teaching strategies. (R. Item 10, H.T. at 6.) Claimant testified:
R[eferee]: ... we want to get to why you left employment with Lenape as quickly as we can, please.(R. Item 10, H.T. at 6) (emphasis added). Indeed, most of Claimant's testimony and documents that he submitted at the Referee's hearing concerned his criticisms of Employer's handling of disruptive students and his contentions that Employer's ratings of his performance and disciplinary actions against him were unfair. (R. Item 10, H.T. at 5-9 & Claimant Exs. 1-3.)
C[laimant]: Okay. That leads to this one then. It basically came down to discipline and teaching strategies.
In contrast, Claimant gave comparatively little testimony concerning the nature or severity of his medical problems, and his treating physician did not advise him to terminate his employment. (R. Item 7D, Letter of William J. Lynch, D.O.) Claimant also admitted that he did not receive any medical advice that he leave his job with Employer until his psychologist gave him that advice in mid or late September 2011, months after he resigned and after he filed his claim for benefits. (R. Item 10, H.T. at 10.) While medical advice to terminate employment is not needed to prove health problems as a necessitous and compelling circumstance, the fact that Claimant was not acting on medical advice when he made his decision to quit was legitimately considered by the Board in evaluating his credibility in claiming a medical reason, along with the other evidence before it that his reasons were personal rather than medically based. Fioretti v. Unemployment Compensation Board of Review, 405 A.2d 1382, 1384 (Pa. Cmwlth. 1979).
Moreover, even if Claimant had shown that he left his job for medical reasons, the evidence would still fail to support a finding of necessitous and compelling cause. To prove health problems as a necessitous and compelling reason for leaving employment, the claimant must show not only (1) that adequate health reasons existed to justify terminating the employment; but also (2) that claimant sufficiently informed the employer of the health reasons for leaving employment; and (3) that claimant was available to work if reasonable accommodations could be made. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 879 A.2d 388, 390 (Pa. Cmwlth. 2005); Nolan, 797 A.2d at 1046; Wivell, 673 A.2d at 441; Lee Hospital, 637 A.2d at 698. Failure to meet any one of these requirements bars a claim for unemployment compensation. Wivell, 673 A.2d at 441; Lee Hospital, 637 A.2d at 698.
The evidence before the Board established that Claimant did not satisfy either of the latter two elements. Sufficient notice to the employer requires that the claimant inform the employer of the nature of the health problems prior to leaving employment so that the employer can attempt to accommodate the claimant's health issues. Bailey v. Unemployment Compensation Board of Review, 653 A.2d 711, 713-14 (Pa. Cmwlth. 1995); Lee Hospital, 637 A.2d at 699; Blackwell v. Unemployment Compensation Board of Review, 555 A.2d 279, 281-82 & n.6 (Pa. Cmwlth. 1989). Merely stating in a resignation letter that the departure is for unspecified medical reasons, as Claimant did here, does not give the employer an adequate opportunity to offer accommodations that could permit him to continue to work. Bailey, 653 A.2d at 713-14; Blackwell, 555 A.2d at 281-82 & n.6.
In addition, Claimant did not make himself available to work if reasonable accommodation was made. While Claimant was not required to request or propose any specific accommodation, he was required to give Employer the opportunity to provide an accommodation. Bailey, 653 A.2d at 714. Claimant instead made clear that he was not available to work. The only information Claimant provided to Employer consisted of the statement that he was leaving for personal reasons unconnected to his work, due to his spouse's job, and his unconditional resignation for unspecified "medical reasons." (R. Item 10, Employer Exs. 1 & 3.) Indeed, Claimant testified that he told Employer that he was unavailable. (R. Item 10, H.T. at 11.) Claimant testified:
R[eferee]: ... Now, did you provide any of this medical documentation to your Employer to show that, you know, or did you ask for any differences or any changes or anything
that you felt could help you keep your job, or was there anything that you felt was available that you could ask for?(R. Item 10, H.T. at 11) (emphasis added).
C[laimant]: Just indicating that I was unavailable to work. That was — I didn't get into specifics. Based on some of the meetings I had had with Ms. Kocher, I felt that it'd be used against me.
There was no basis to conclude that accommodation would necessarily have been impossible. Employer's administrative director testified that alternative work was available. (R. Item 10, H.T. at 11). Given the evidence that there was a possibility of developing alternative work compatible with the claimant's medical condition, Claimant's failure to properly communicate and afford Employer the opportunity to propose an alternative cannot be excused on grounds of futility. Nolan, 797 A.2d at 1046 (claimant's failure to complete civil service application for jobs compatible with her medical condition was not excused on grounds of futility, even though she thought no jobs were available and that it was too late to apply, because she foreclosed the possibility of remaining employed); Bailey, 653 A.2d at 714 (rejecting futility argument and holding claimant ineligible for benefits because it was not undisputed that school district had no alternative work for HIV-positive non-teaching assistant, even though claimant testified that no alternative work was available when he quit and school district representative testified that he did not know of any job postings as of that date).
"[W]here the claimant has failed to take all necessary and reasonable steps to preserve the employment relationship, he or she has failed to meet the burden of demonstrating necessitous and compelling cause, and a claim for unemployment compensation benefits upon voluntary termination of that employment must be rejected." Nolan, 797 A.2d at 1046-47 (citations omitted). Claimant, by not communicating adequately concerning his medical issues and availability to work, did not take reasonable and necessary steps to preserve the employment relationship and therefore could not be found to have shown necessitous and compelling circumstances for leaving his job with Employer.
For all of the foregoing reasons, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 1st day of October, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge