Opinion
No. 1255 C.D. 2012
06-06-2013
Deborah Penn, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Deborah Penn (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. The Board held that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), because she voluntarily quit her job without cause of a necessitous and compelling nature. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It 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." Id.
Claimant worked for the Dress Barn (Employer) as a part-time sales associate from December 8, 2008, to April 10, 2011. Claimant's responsibilities included operating the cash register, selling clothes, and processing shipments of merchandise. Claimant typically worked 19.5 hours a week at $9 an hour. On April 11, 2011, Claimant resigned for health reasons and applied for unemployment benefits.
Claimant received one unemployment benefit check; however, on February 2, 2012, the UC Service Center issued a Notice of Determination denying Claimant further benefits because Claimant had failed to inform Employer about her health condition or to request an accommodation before quitting. Claimant appealed, and a hearing was held before a Referee.
Claimant testified that when she processed shipments of merchandise, her hands would numb and turn red, and she experienced pain in her feet. Claimant testified that to ease her pain she began wearing gloves when she processed shipments and explained to her supervisor, Teresa Jacobs, why she was doing so. Jacobs asked Claimant not to wear gloves because it offended customers, and Claimant complied. Claimant further testified that she told Jacobs about her health problems and asked to work the cash register, instead of processing shipments. According to Claimant, her pain became so severe that she went to the emergency room on April 10, 2011. Claimant testified that the emergency room doctor did not place any restrictions on her employment, but a doctor she visited after she quit her job with Employer suggested she find new work.
Jacobs testified for Employer and contradicted Claimant's testimony. According to Jacobs, Claimant never explained why she was wearing gloves at work. Jones testified that Claimant asked for more cash register assignments because Claimant felt it was unfair for her to process shipments more often than other employees.
The Referee resolved all conflicts in testimony in favor of the Employer and found that:
4. Claimant never advised the Employer that she was having any health issues because of her work with the Employer.Findings of Fact Nos. 4 and 5. The Referee held that Claimant quit without necessitous and compelling cause and denied benefits. On Claimant's appeal, the Board adopted and affirmed the Referee's decision, noting that "[C]laimant has not established that her physical symptoms were caused by her working conditions or that she informed the employer of any issues prior to resigning." Board Adjudication at 1. Claimant applied for reconsideration on May 21, 2012, which the Board denied. Claimant now petitions this Court for review.
5. Claimant never provided the Employer with any medical documentation to support that she had any restrictions regarding her ability to work.
On appeal, Claimant argues that the Board erred in concluding that she lacked a necessitous and compelling reason for quitting. Specifically, Claimant contends that the Board erred in finding that Claimant's medical condition was not related to processing shipments of merchandise. Claimant also asserts that the Board erred in finding that she did not inform Employer of her condition and request accommodations.
The scope of our review is limited to determining whether the Board's "adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of ... [the Administrative Agency Law relating to practice and procedure] have been violated ..., or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987) (quoting 2 Pa. C.S. §704).
It is well settled that in the case of a voluntary quit, the claimant bears the burden of proving that she resigned for necessitous and compelling reasons. Draper v. Unemployment Compensation Board of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998). A necessitous and compelling reason is one "which results from overpowering circumstances which produce both real and substantial pressure to terminate employment and which would compel a reasonable person to act in the same manner." Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 697 (Pa. Cmwlth. 1994) (citation omitted). Additionally, a claimant must demonstrate that she exercised "ordinary common sense in quitting." Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002).
Health problems can qualify as necessitous and compelling cause to quit one's employment. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982). In that case, the claimant must prove that she: (1) suffered from a medical condition that prevented her from performing her regular duties; (2) communicated that condition to her employer; and (3) was available to work with reasonable accommodations. Id. at 130-31, 451 A.2d at 1356. A claimant must satisfy all three elements. Ruckstuhl v. Unemployment Compensation Board of Review, 426 A.2d 719, 721 (Pa. Cmwlth. 1981).
In her first issue, Claimant argues that her testimony established that her medical condition justified voluntarily quitting her job. We disagree. The Referee and the Board rejected Claimant's testimony as not credible, and we are bound by that determination. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276-77, 501 A.2d 1383, 1388 (1985). Moreover, Claimant did not produce any medical evidence that she suffered from a medical condition that justified quitting. Although medical evidence is not required to establish a compelling health reason, Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 372, 453 A.2d 591, 594 (1982), Claimant offered no evidence to explain her medical condition. We agree with the Board that Claimant did not meet her burden under the first prong of Genetin.
Claimant appended medical documentation to her brief, but neither this Court nor the Board may consider evidence that was not presented at the Referee's hearing. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995). --------
Next, Claimant argues that the Board erred in finding that she did not inform Employer of her medical problems. The Board reached this conclusion by crediting Jacobs' testimony that Claimant did not inform Employer about her alleged pain and numbness in her hands and feet. The Board rejected as not credible Claimant's contrary testimony. Again, it is axiomatic that credibility determinations and resolutions of conflicting evidence are within the Board's discretion and are not subject to review. Peak, 509 Pa. at 276-77, 501 A.2d at 1388. Thus, we agree with the Board that Claimant failed to satisfy the second prong of Genetin.
In summary, Claimant failed to establish that she suffered from a medical condition that justified voluntary termination or that she communicated her health concerns to her Employer. Accordingly, we hold that Claimant did not demonstrate a necessitous and compelling cause to voluntarily quit her employment and, therefore, she was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). For these reasons, we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of June, 2013, the order of the Unemployment Compensation Board of Review dated May 4, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge