Opinion
No. 679 C.D. 2012
07-11-2013
Deborah L. Petersen-Stutzman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
Deborah L. Petersen-Stutzman (Claimant) petitions for review of the March 15, 2012 order of the Unemployment Compensation Board of Review (Board) reversing a referee's determination and holding that Claimant is ineligible for unemployment benefits under 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. §802(b). Section 402(b) provides that a claimant shall be ineligible for unemployment benefits for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant was employed as a reading specialist with the Harrisburg School District (Employer) from January 5, 2009, until April 20, 2011, at an annual salary of $66,498.00. (Board's Findings of Fact (F.F.) No. 1.) Claimant's last position with Employer was with high school level students and she had increasing difficulty controlling the class, which caused her stress and anxiety. (F.F. No. 2.) Claimant had previously worked with elementary level students and did not find children of that age group hard to control. (F.F. No. 3.) Claimant began to suffer from depression, anxiety, and panic attacks as a result of the high school students' behavior, and she took a leave of absence under the Family Medical Leave Act (FMLA) from February 22, 2011, through May 17, 2011. (F.F. No. 4.) Claimant also had personal problems, including a son who suffered from depression and suicidal ideation, and she took additional FMLA leave from April 26, 2011, through the end of the school year, June 9, 2011. (F.F. No. 5.)
Family and Medical Leave Act of 1993, 29 U.S.C. §§2601-2654.
On June 6, 2011, Claimant requested a transfer to work with elementary students due to her health condition, (F.F. No. 6; Ex. C-7), and she obtained clearance to return to work from her treating health care providers. Specifically, on July 12, 2011, Rev. Thomas R. Miller, B.A., M.A., Claimant's clinical pastoral counselor, issued a written recommendation that Claimant reduce or discontinue unnecessary stress related to her work. (F.F. No. 7; Ex. C-6.) In a note dated July 15, 2011, Lyle Jobe, M.D., Claimant's psychiatrist, stated that Claimant is able to return to work but not under stressful conditions, due to her depression, anxiety, and panic attacks. (F.F. No. 8; Ex. C-4.) In a letter of July 18, 2011, Richard R. Williams, Ph.D., Claimant's treating psychologist, stated that Claimant has functioned successfully as a teacher and tutor for over 27 years and can continue to do so provided that her work setting is not as violent or uncontrolled as was the setting in which she worked for Employer. (F.F. No. 9; Ex. C-5.)
By letter dated July 26, 2011, Employer informed Claimant that it approved her application for FMLA leave that she had taken from April 26, 2011, through June 9, 2011, as well as a medical leave of absence effective June 10, 2011. (F.F. Nos. 10, 12.) The letter stated in its entirety:
At the Board meeting on June 20, 2011 the Superintendent of Schools and the Board of School Directors approved your leave of absence from your position as Reading Teacher at Harrisburg High School. Your family medical leave of absence is effective April 26, 2011 through June 9, 2011, and your medical leave of absence is effective June 10, 2011.(Ex. E-1.)
If you have any questions or concerns, please contact the Human Resources Office at (717) 703-4006.
On August 16, 2011, Claimant mailed Employer a letter stating that she resigned her employment based on her medical conditions and doctors' recommendations. Claimant noted in the letter that she had requested four transfers during the past year due to her medical conditions and that all of her requests were denied. (F.F. No. 14; Ex. C-1.)
The local service center determined that Claimant was not ineligible for unemployment compensation under section 402(b) of the Law and granted her application for benefits. Employer appealed, and a referee held a hearing on December 8, 2011.
Claimant testified that she requested a transfer to a different school or position four times because the stress of working with high school students was adversely affecting her health. (Notes of Testimony (N.T.) at 7.) Claimant submitted the above-referenced letters from her treating psychiatrist, psychologist, and counselor advising that Claimant could return to work in a less stressful work environment. Claimant stated that in response to her requests for transfer, Employer informed her that the only available position was at the high school, and Claimant said that she received a second letter from Employer in August 2011, stating that she had a position as a reading specialist in the high school for the 2011-2012 school year. (N.T. at 11-14.)
Claimant testified that Employer's human resources department informed her that her medical benefits would expire on June 30, 2011, and also informed her that she would be back on the teaching roster for the upcoming 2011-2012 school year. (N.T. at 26.) Claimant stated that she was unaware that extended, unpaid, medical leave was available to her, that she was on such leave after her FMLA leave expired on June 10, 2011, or that the leave would have lasted through June 10, 2012. (N.T. at 26.) Claimant added that Employer's policy and practice is to have a physician complete paperwork for a medical leave of absence and that she had not done so with respect to leave after June 10th. (N.T. at 27.)
Employer stipulated that it was aware of Claimant's medical conditions, specifically, depression, anxiety, and panic attacks. (N.T. at 15.) Mary Ann Long (Long), Employer's human resources manager, stated that after Claimant's FMLA leave expired on June 10, 2011, Employer placed her on extended, unpaid, medical leave that would have lasted through June 10, 2012. (N.T. at 27-28.) Long explained that Employer's collective bargaining agreement with the teachers' association provided for this unpaid leave and that Claimant was notified that she was on such leave by Employer's July 26, 2011 letter. (Id.) Long acknowledged that Employer's customary practice was to require paperwork and that the paperwork on file for Claimant's leave expired on June 10, 2011. (N.T. at 31.)
Long testified that Employer had received Claimant's request for transfer to an elementary position, and she stated that if Claimant had remained on unpaid medical leave through June 10, 2012, "[i]t is possible" that continuing work would have been available to her; Long acknowledged that there was no guarantee Claimant would have been offered another position. (N.T. at 28, 29, 31.)
The referee accepted Claimant's testimony and found that Claimant did not understand from Employer's July 26, 2011 letter that she had been approved for an extra year of unpaid leave. The referee also found that Claimant repeatedly requested a transfer to an elementary school and noted that she was not guaranteed a transfer. The referee concluded that Claimant exhausted all alternatives prior to quitting. Furthermore, because Claimant's doctors advised her that she could continue working, but in a less stressful environment, the referee held that Claimant was available for work as required by section 401(d)(1) of the Law. By order dated December 14, 2011, the referee affirmed the service center's determination.
Section 401(d)(1) of the Law provides that unemployment benefits shall be payable to any employee who is or becomes unemployed, and who is able to work and available for suitable work. 43 P.S. §801(d)(1).
Employer appealed to the Board, which reversed the referee's order and held that Claimant was ineligible for benefits under section 402(b) of the Law. The Board rejected Claimant's testimony that she did not understand that her medical leave continued after June 10, 2011. The Board noted that Employer's letter included a phone number and concluded that because Claimant failed to call, Claimant did not establish that it would have been futile for her to continue the working relationship with Employer. The Board also concluded that a reasonable person would have remained on medical leave to allow Employer the opportunity to address Claimant's medical condition. The Board held that Claimant failed to establish that she made a reasonable effort to maintain her employment relationship or that she remained available for work.
The Board makes no reference, in its findings or discussion, to the fact that Claimant's "approved medical leave" was unpaid.
As previously noted, the Board recognized that Claimant's doctors approved her return to work in a less stressful environment. (F.F. Nos. 8-9.)
On appeal to this Court, Claimant first argues that the Board disregarded competent evidence and failed to make necessary findings of fact. Specifically, Claimant argues that the Board disregarded her testimony that she was told by Employer's human resources department that her medical benefits would expire on June 30, 2011, and that she was on the teaching roster for the upcoming school year as a reading specialist at the high school. Claimant asserts the Board also disregarded the fact that, after receiving Employer's July 26 letter and prior to resigning, she received a letter in August 2011 confirming her position for the upcoming school year as a reading specialist in the high school.
Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704. Substantial evidence is such evidence as a reasonable mind might find adequate to support a conclusion. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994).
An adjudication must include all findings necessary to resolve the issues raised, but it is not always necessary to address every allegation and defense raised by a party. Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994); Cicco v. Unemployment Compensation Board of Review, 432 A.2d 1162 (Pa. Cmwlth. 1981). We conclude that the testimony to which Claimant refers, although relevant, is not necessary to the determination on appeal and that the Board's findings are adequate for purposes of appellate review.
Relying on Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), Claimant also argues that the Board, without explanation, impermissibly rejected her testimony that she did not know or understand that she was on a medical leave from June 10, 2011, through June 10, 2012, after the referee found her testimony credible.
In Treon, the Board rejected a finding of the referee, but did not expressly reject the testimony on which it was based or explain that the finding was not supported by the record. The claimant appealed, and our Supreme Court ultimately held that the Board may not reject the referee's findings when they are supported by overwhelming evidence, but the Board has the right to disbelieve a claimant's testimony, even if the testimony is uncontradicted. In so holding, the Supreme Court explained that "[i]f particular findings are inconsistent, incredible or unsupported by the evidence, then the Board must so indicate. The Board may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so." Id. at 461, 453 A.2d at 962.
Here, the Board specifically found that Claimant's testimony concerning her unpaid medical leave was not credible and that Employer's letter informed Claimant that she was on medical leave beginning June 10, 2011. Contrary to Claimant's assertion, the Board did, in fact, explain its reasons for disregarding the referee's findings. In unemployment cases, the Board is the ultimate factfinding body, empowered to resolve conflicts in evidence, assess the credibility of witnesses, and determine the weight to be accorded evidence. Whitlatch v. Unemployment Compensation Board of Review, 61 A.3d 397 (Pa. Cmwlth. 2013).
Claimant next argues that Findings of Fact Nos. 5, 10, and 12 are not supported by substantial evidence. Claimant states that Finding of Fact No. 5 states that Claimant's FMLA leave ended on June 9, 2011, but the record reflects that her leave ended on June 10, 2011; Finding of Fact No. 10 states that Claimant received a letter from Employer on July 26, 2011, but the record reflects that the letter was mailed on this date and Claimant received it in August; and, Finding of Fact No. 12 states that Claimant could have remained on medical leave until June 10, 2012, but is contradicted by Claimant's testimony and Employer's actions.
With regard to the discrepancies in Findings of Fact Nos. 5 and 10, we conclude that these are harmless errors. See Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003) (error is harmless where it has no effect on the outcome of the case). We also conclude that Finding of Fact No. 12, that Claimant could have remained on leave until June 10, 2012, is supported by Long's testimony that the collective bargaining agreement applied to Claimant and provided for a year of medical leave, and Claimant began that leave on June 10, 2011. (N.T. at 27-28.)
Claimant next argues that the Board erred in holding that she failed to establish cause of a necessitous and compelling nature to terminate her employment. We agree.
Whether a voluntary termination was for cause of a necessitous and compelling nature is a legal conclusion subject to appellate review. Staub v. Unemployment Compensation Board of Review, 673 A.2d 434 (Pa. Cmwlth. 1996).
In Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982), our Supreme Court considered what an employee who voluntarily terminates employment due to health reasons must show in order to demonstrate entitlement to unemployment benefits. The court first observed that the employee has the burden to establish the existence of necessitous and compelling reason and an obligation to communicate the reason to his employer. Id. at 129-30, 451 A.2d at 1355. Rejecting the Commonwealth Court's contrary analysis, the court in Genetin further held that "once [an employee] has communicated his medical problem to the Employer and explained his inability to perform the regularly assigned duties, an employee can do no more." Id. at 131, 451 A.2d at 1356. The Supreme Court reasoned that:
As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimicable to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. . . . To insist upon the employee's initiating the quest for an
alternative position, would require a meaningless ritual that does not further the objectives of the Act.
Id.
In Moss v. Unemployment Compensation Board of Review, 533 A.2d 816 (Pa. Cmwlth. 1987), this Court further clarified the holding of Genetin. In Moss, the claimant worked as a receptionist for the employer, but due to the stressful nature of her work, she developed various ailments which caused her to be unable to work after February 20, 1985. She notified her employer of her health problems and received disability benefits from February 1985 until April 1985, after which she was on unpaid sick leave. In May 1985, the claimant's doctor advised her that she could resume work in a less stressful position. On June 1, 1985, the claimant voluntarily terminated her employment. The referee found the claimant eligible for benefits but the Board reversed, holding that she was ineligible under section 402(b) of the Law because the employer had a transfer policy, the claimant was aware of the policy, and the claimant failed to avail herself of the transfer procedure.
On appeal in Moss, this Court reversed, holding that the claimant was not required to remain on unpaid leave to maintain the employment relationship nor was she required to pursue all possible alternatives with her employer before terminating her employment for health reasons. In so holding, we cited Dornblum v. Unemployment Compensation Board of Review, 466 A.2d 747 (Pa. Cmwlth. 1983), in which we held that Genetin places a clear burden on an employer to offer a suitable alternative to termination of employment. We also noted our holding in Evasovich v. Unemployment Compensation Board of Review, 471 A.2d 921 (Pa. Cmwlth. 1984), that a claimant has no duty to request a leave of absence while an employer considers his request for a transfer, and a claimant has no duty to request a transfer, though he must accept a reasonable accommodation should the employer offer one.
In this case, the Board argues that because Employer's policy states that transfer requests must be made by February to be considered for the next school year (i.e., Claimant had to request a transfer by February 2011, to be considered for a transfer for the 2011-2012 school year), Claimant should have waited to see if Employer would transfer her to a different school or position. However, in Moss, we held that it is not unreasonable for the claimant to terminate her employment for health reasons merely because the employer has a policy regarding transfers if there is no indication when or if suitable work might become available to the claimant. Moss, 533 A.2d at 818-19. We explained that it is not reasonable to expect a claimant "to continue an unpaid leave of absence for up to one year, during which time the employer may or may not offer employment within claimant's limitations." Id. Thus, contrary to the Board's assertion, Claimant was not required to exhaust all alternatives to quitting or remain on unpaid medical leave for a year waiting for an offer of suitable work that Employer could not guarantee. Genetin; Moss; Evasovich; Dornblum.
A "note" on the Voluntary Transfer Request Form states that voluntary transfer requests and renewals must be made on or before the last day of February of the current school year, and that requests submitted after that date will be recorded for the following school year by February to be considered for the next school year. (Ex. C-7.) --------
The Board concedes that Claimant satisfied the requirements under Genetin to establish that she had a health problem which justified quitting work and that she informed Employer of this health problem, but the Board asserts that Claimant failed to establish that she was able or available for continuing work. This assertion is belied by the record as well as the Board's decision. Indeed, the only relevant evidence presented reflects that Claimant could work, albeit in less stressful conditions. And the Board found as fact that Claimant was able and available for continuing work within her medical limitations. (F.F Nos. 8 and 9.)
Claimant established that: (1) she had a health problem which justified quitting work; (2) she informed Employer of her health problem; and (3) she remained able and available for work. Employer did not offer Claimant a suitable alternative. Therefore, we conclude that Claimant is not ineligible for benefits under section 402(b) of the Law. Genetin.
Accordingly, we reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of July, 2013, the order of the Unemployment Compensation Board of Review, dated March 15, 2012, is reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge