Opinion
No. 1074 C.D. 2012
03-05-2013
Loudella Stevenson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Loudella Stevenson (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that she is ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law because she voluntarily quit her job without a necessitous and compelling reason. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, §402(b), 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 ...." Id.
Claimant, a resident of Fort Lauderdale, Florida, was employed full-time as a customer service representative by Alorica (Employer) in Sunrise, Florida, from November 30, 2011 until December 22, 2011. (Record Item (R. Item) 10, Referee's Decision and Order, Findings of Fact (F.F.) ¶¶1, 2; R. Item 9, Referee's Hearing Transcript (H.T.) at 1, 4; R. Item 1, Claim Record at 2.) This job was 15 miles from Claimant's residence. (R. Item 9, H.T. at 5, 7.) Claimant does not have a car and had to travel an hour by bus plus a half-hour walk from the bus stop to Employer's premises each way. (R. Item 10, F.F. ¶¶6, 9; R. Item 9, H.T. at 5-7.) The last bus on this route departed the stop near Employer's premises at 11:00 p.m. (R. Item 10, F.F. ¶8; R. Item 9, H.T. at 5-6.) Claimant knew at the time she was hired by Employer that she could be assigned to a 2:00 p.m. to 11:00 p.m shift after she completed her training period. (R. Item 3, Claimant Questionnaire-Transportation Problems at 2; R. Item 9, H.T. at 5.)
Neither the Board nor the Referee explain what relationship this case has to Pennsylvania. It appears from the Claim Record that Claimant had prior employment in Philadelphia, Pennsylvania, for seven months in 2010. (R. Item 1, Claim Record at 2.)
Claimant was in a training course the first weeks that she worked for Employer, which was from 10:00 a.m. to 6:30 p.m. (R. Item 10, F.F. ¶¶2-3; R. Item 3, Claimant Questionnaire-Transportation Problems at 1, 2; R. Item 9, H.T. at 5, 7.) Following her training, Claimant was assigned to the 2:00 p.m. to 11:00 p.m. shift. (R. Item 10, F.F. ¶4; R. Item 9, H.T. at 5-6; R. Item 3, Claimant Questionnaire-Transportation Problems at 1.) Claimant worked this shift for four or five days, getting rides home from family members, but could not obtain transportation from family members every day on a regular basis. (R. Item 10, F.F. ¶¶5, 7; R. Item 9, H.T. at 5, 7.) Claimant told Employer about her transportation predicament and requested assignment to an earlier shift, but no openings were available on any earlier shift. (R. Item 10, F.F. ¶10; R. Item 9, H.T. at 4-5; R. Item 3, Claimant Questionnaire-Transportation Problems at 1.) Claimant, however, did not ask Employer for help arranging a carpool. (R. Item 10, Referee's Decision at 2; R. Item 9, H.T. at 6-7.) Claimant also did not ask co-workers whether she could ride with them. (R. Item 10, Referee's Decision at 2; R. Item 9, H.T. at 5-6.) Claimant resigned because of her transportation problem, and Employer promised to put her on a rehire list if a position on an earlier shift became available. (R. Item 10, F.F. ¶¶11-12; R. Item 9, H.T. at 4-7.)
Claimant applied for benefits, stating that she had quit her job because of her transportation problem. (R. Item 3, Claimant Questionnaire-VQ for Personal Reasons at 1.) After the Unemployment Compensation Service Center denied Claimant's application for benefits, Claimant appealed, and the Referee conducted a hearing by telephone with Claimant's consent, at which Claimant testified. Employer did not appear at the Referee's hearing. At the hearing, Claimant admitted that she did not ask Employer for assistance finding a ride. (R. Item 9, H.T. at 6-7.) Claimant testified: "No, I didn't ask my Employer to help you know arrange me a carpool. No, I did not." (R. Item 9, H.T. at 7.) There were other employees working the same shift as Claimant, and Claimant knew that other employees on her shift had rides to work. (R. Item 9, H.T. at 6-7.) Claimant admitted, however, that she did not try to set up transportation with any co-workers because she did not feel comfortable asking them. Claimant testified: "I didn't know anybody on the job. I was only there for a few weeks. I didn't feel comfortable. You had to pay somebody to take you home if that would have happened. ... I didn't have a friendship or relationship up there with anybody. It was a late shift and I just know that some people had rides." (R. Item 9, H.T. at 5, 6.)
On March 2, 2012, the Referee issued a decision affirming the Service Center's determination and finding Claimant ineligible for benefits. The Referee recognized that Claimant's shift assignment and the public transit schedule created a serious transportation problem. (R. Item 10, F.F. ¶¶4-10.) The Referee concluded that this did not constitute a necessitous and compelling reason for terminating her employment, however, because she knew of the shift time and transportation difficulties at the time of hire and did not request assistance from Employer in finding transportation or attempt to find rides with other employees. (R. Item 10, Referee's Decision at 2.)
Claimant appealed the Referee's decision to the Board. The Board adopted the Referee's findings and conclusions and affirmed the Referee's decision denying benefits. (R. Item 12, Board Decision and Order.) The Board also noted that "Claimant admitted to knowing that some employee's [sic] had 'rides' but she was not comfortable asking because she did not have a relationship with anyone and she did not want to pay for rides." (R. Item 12, Board Decision and Order.) 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). --------
A claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate that she 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). To prove a necessitous and compelling reason for leaving employment, the claimant must show circumstances that produced real and substantial pressure to terminate employment and would compel a reasonable person to act in the same manner, and must also show that she acted with ordinary common sense and made a reasonable effort to preserve her employment. Pennsylvania Gaming Control Board, 47 A.3d at 1265; Unangst v. Unemployment Compensation Board of Review, 690 A.2d 1305, 1307 (Pa. Cmwlth. 1997). 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.
Inability to obtain transportation to work can constitute a necessitous and compelling reason to terminate employment. Kawa v. Unemployment Compensation Board of Review, 573 A.2d 252, 254 (Pa. Cmwlth. 1990); Love v. Unemployment Compensation Board of Review, 520 A.2d 107, 109 (Pa. Cmwlth. 1987). "It is well settled that insurmountable commuting problems can constitute the required just cause to justify a voluntary quit." Kawa, 573 A.2d at 254. For transportation problems to constitute a necessitous and compelling reason for leaving employment, however, the claimant must demonstrate that she took all reasonable steps to overcome the transportation problems prior to severing the employment relationship, including requesting the employer's assistance in finding transportation with co-workers and asking co-workers whether she could obtain a ride with them. Latzy v. Unemployment Compensation Board of Review, 487 A.2d 121, 123 (Pa. Cmwlth. 1985); Yurack v. Unemployment Compensation Board of Review, 435 A.2d 663, 664 (Pa. Cmwlth. 1981). "[F]ailure to investigate the possibility of riding to work with other employees and to ask for the [employer]'s assistance in this regard is not consistent with one desiring to remain employed." Latzy, 487 A.2d at 123.
Claimant established that she had a very substantial transportation problem, and also showed that she made some attempts to obtain transportation from family members before resigning. While Claimant argues in her briefs that "[a]ll option[s] for transportation had been exhausted" (Petitioner's Brief at 9; Petitioner's Reply Brief at 1), this assertion is contradicted by the record in this case. The record shows that Claimant did not pursue all reasonable transportation possibilities. Claimant neither asked Employer for any assistance in obtaining rides from other workers on her shift nor made any inquiry with any of her co-workers about riding home with them, even though she knew that some co-workers had rides to and from work. (R. Item 9, H.T. at 5-7.)
Moreover, overcoming these daunting transportation obstacles was a burden that Claimant assumed when she accepted this employment. Claimant's transportation problem was not the result of an unanticipated change in working conditions imposed by Employer or even a change in her means of transportation. Rather, it was a problem that Claimant knew she would need to solve when she took the job - she was aware when she was hired that she would have to get to the workplace by a lengthy bus ride and was likely to be assigned to a shift that was incompatible with the bus schedule. (R. Item 3, Claimant Questionnaire-Transportation Problems at 2; R. Item 9, H.T. at 5.)
Under these circumstances, the Board did not err in finding that Claimant failed to make reasonable efforts to overcome her transportation predicament and therefore did not met her burden of proving necessitous and compelling reasons for terminating her employment. Latzy, 487 A.2d at 123 (even where claimant's transportation problems were caused by employer moving claimant to a new job site and claimant made other unsuccessful attempts to find transportation, claimant could not show necessitous and compelling circumstances where she did not seek rides from other employees or ask her employer for assistance in obtaining transportation); Yurack, 435 A.2d at 664 (even where claimant's transportation problems were caused by change in claimant's ability to get to work, claimant failed to show necessitous and compelling circumstances where she did not ask her employer for help in finding alternative transportation such as car pools).
Accordingly, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 5th day of March, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge