L.A. McLean v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie A. McLean, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 429 C.D. 2019
Respondent : Argued: November 14, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 13, 2019
Laurie A. McLean (Claimant) petitions for review of the March 15,
2019 order of the Unemployment Compensation Board of Review (Board) affirming
the decision of the referee to deny Claimant unemployment compensation benefits
(benefits) under Section 402(b) of the Unemployment Compensation Law (Law),1
which provides that a claimant shall be ineligible for benefits for any week in which
her unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature. Upon review, we affirm.
Claimant was employed full time as a reading specialist with Upper
Darby School District (Employer) from September 2000 to February 2018.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
Referee’s Decision & Order at 1, Finding of Fact (F.F.) 1, Certified Record (C.R.)
at 74.2 Claimant worked in elementary schools until Employer transferred her to the
high school in June 2017. See Internet Initial Claims at 4, C.R. at 13. On February
2, 2018, Claimant sustained an injury at work during a physical altercation amongst
a group of students in her classroom. F.F. 2. After leaving work following the
February 2018 incident, Claimant’s doctor cleared her to return to part-time “light
duty work” that same month. Transcript of Testimony (T.T.), 1/10/19 at 10 & 13,
C.R. at 60 & 63. Claimant had health and safety concerns upon her return to work,
but did not inform Employer of these concerns. F.F. 5 & 6. A second incident
occurred shortly after Claimant returned, but it was not as severe and Claimant
continued working. T.T. at 12-13, C.R. at 62-63. Employer then informed Claimant
it could no longer accommodate her part-time schedule. T.T. at 12, C.R. at 62.
Claimant again left work and received workers’ compensation until August 2018,
when her doctor released her to return to work without restrictions. F.F. 3 & 4; see
also T.T. at 13, C.R. at 64. Claimant submitted a notice of resignation to Employer
on August 16, 2018. F.F. 7. Claimant resigned her position due to health and safety
concerns. F.F. 8.
Claimant thereafter applied for benefits. Internet Initial Claims at 2,
C.R. at 11. Claimant noted that she had taken a leave of absence and was receiving
workers’ compensation benefits after she was assaulted in a “violent mob fight in
the workplace” during which she sustained physical injuries, and that she was
suffering from post-traumatic stress disorder (PTSD) and anxiety and was under a
doctor’s care. Internet Initial Claims at 3-4, C.R. at 12-13. Claimant contended that
she was unable to work due to anxiety and PTSD stemming from an unsafe
2
Our citations to the Certified Record reference the page numbers of the PDF document,
as the record is not paginated.
2
workplace, and that she was not supported by administration. Internet Initial Claims
at 3, C.R. at 12.
The Unemployment Compensation (UC) Service Center deemed
Claimant ineligible for benefits, finding that she voluntarily quit for personal
reasons, and Claimant appealed. Notice of Determination at 1, C.R. at 33; Petition
for Appeal, 12/14/18, C.R. at 37. A referee held a hearing, in which Claimant and
Employer’s assistant superintendent participated. T.T. at 1-2, C.R. at 50-51. The
referee affirmed the UC Service Center’s denial of benefits, determining that
Claimant voluntarily left employment due to health and safety concerns, that
Claimant failed to present competent evidence that health or safety reasons existed
to prevent her return to work and that Claimant failed to inform Employer of her
health or safety concerns prior to resigning. Referee’s Decision at 2-3, C.R. at 74-
75.
Claimant appealed, and the Board affirmed, adopting the referee’s
findings of fact and conclusions of law. Board’s Decision & Order at 1-2, C.R. at
101-02. The Board found that Claimant failed to inform Employer of the reason for
her resignation, noting that Claimant admitted in her brief that she had left blank the
portion of the resignation form inquiring as to the reason for leaving employment.
Board’s Opinion and Order at 1, C.R. at 101. Thus, the Board concluded that
Claimant did not act with ordinary common sense in trying to keep her job. Board’s
Opinion and Order at 1, C.R. at 101. Claimant then petitioned this Court for review.
Before this Court,3 Claimant argues that she had necessitous and
compelling cause to quit her employment and, therefore, requests that this Court
3
This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed or whether
3
reverse the Board’s order. Claimant’s Brief at 18-19. Claimant contends that
working conditions that subject a claimant to safety hazards can constitute
necessitous and compelling cause to quit employment. Id. at 14 (citing Green Tree
Sch. v. Unemployment Comp. Bd. of Review, 982 A.2d 573, 577 (Pa. Cmwlth.
2009)). Further, Claimant asserts that an employer’s refusal to address an
objectively legitimate safety concern brought to its attention by a claimant provides
necessitous and compelling cause to quit. Id. (citing Fitzgerald v. Unemployment
Comp. Bd. of Review, 714 A.2d 1126, 1128-30 (Pa. Cmwlth. 1998)). Claimant
maintains that Employer “completely ignor[ed]” and failed to mention the “written
safety concern and suggestion” she made in the written workers’ compensation
report.4 Id. at 17-18. Claimant asserts that “[E]mployer must be charged with
knowledge of [C]laimant’s legitimate safety concerns,” and maintains that “[t]he
fact is, . . . [Employer] simply did not care about those concerns.” Id. at 17. Claimant
also asserts she acted reasonably under the circumstances to preserve her
employment. Id. at 14.
A claimant who voluntarily terminates employment has the burden of
proving that a necessitous and compelling cause existed. Solar Innovations, Inc. v.
Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012); see
43 P.S. § 802(b). Employees who claim to have left their employ for a necessitous
and compelling reason must prove:
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).
4
Claimant indicates that her safety concern was “violent mob formation in the hallways of
[the high school].” Claimant’s Brief at 16. However, Claimant does not specify what her
suggestion was, but she is presumably referring to her recommendation in the work-related
incident report that Employer provide security in hallways of the high school, as Claimant
mentioned in the factual summary of her brief. See id. at 7; see also infra discussion pp. 6-7.
4
(1) circumstances existed which produced real and
substantial pressure to terminate employment; (2) such
circumstances would compel a reasonable person to act in
the same manner; (3) the claimant acted with ordinary
common sense; and (4) the claimant made a reasonable
effort to preserve her employment.
Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006). “Whether a claimant had cause of a
necessitous and compelling nature to quit a job is a conclusion of law subject to
review by this Court.” Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d
594, 596 (Pa. Cmwlth. 1997).
Claimant correctly notes that an unsafe work environment may provide
a necessitous and compelling reason to resign. See Claimant’s Brief at 14 (citing
Green Tree Sch., 982 A.2d at 577). However, in order to demonstrate necessitous
and compelling cause, an employee bears the burden to establish that she took all
necessary and reasonable steps to preserve the employment relationship. Peco
Energy Co. v. Unemployment Comp. Bd. of Review, 682 A.2d 58, 61 (Pa. Cmwlth.
1996). A claimant is not eligible for benefits absent evidence that she “explored
other options less drastic than quitting [her] job[.]” Draper v. Unemployment Comp.
Bd. of Review, 718 A.2d 383, 385–86 (Pa. Cmwlth. 1998). Thus, “even where there
is a real and serious safety concern, the claimant must make a reasonable attempt to
seek protection from the danger before resigning from her job.” Scavillo v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2723 C.D. 2015, filed Sept.
29, 2016), slip op. at 85 (citing Dep’t of Corr. v. Unemployment Comp. Bd. of Review,
547 A.2d 470, 474 (Pa. Cmwlth. 1988); Iaconelli v. Unemployment Comp. Bd. of
5
This Court’s unreported memorandum opinions may be cited for persuasive value.
Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
5
Review, 423 A.2d 754, 756 (Pa. Cmwlth. 1980); Mackanic v. Unemployment Comp.
Bd. of Review, 390 A.2d 884, 886 (Pa. Cmwlth. 1978)).
We note that on February 2, 2018, Claimant completed the section of
Employer’s work-related incident report regarding how the incident could have been
prevented, stating that “[s]tudents could have complied and left the room when told,
security could have been quicker, halls could be monitored so mobs are prevented,”
and “[s]ecurity should be in hallways between classes[.]” Work Related Incident
Report at 1-2, C.R. at 69-70. However, the Board found that “[C]laimant did not
inform . . . [E]mployer of her concerns” and, despite asserting that Employer should
be charged with knowledge of her safety concerns, Claimant does not argue that this
finding lacks substantial evidentiary support. F.F. 6; Board’s Decision & Order at
1, C.R. at 101; see also Claimant’s Brief at 17. Therefore, this finding is conclusive
on appeal. See Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 494
(Pa. Cmwlth. 2000) (stating that if a petitioner fails to challenge the factual findings,
they are conclusive on appeal).
Nevertheless, as noted above, Claimant contends that “[E]mployer
must be charged with knowledge of [C]laimant’s legitimate safety concerns.”
Claimant’s Brief at 17. Claimant maintains that Employer “simply did not care
about [these] concerns” and “chose to do nothing about” them. Id. at 17-18.
However, in attempting to shift the onus to Employer, Claimant evidently fails to
appreciate that she bears the burden of proving that she made a reasonable effort to
preserve her employment. See Brunswick Hotel & Conference Ctr., LLC, 906 A.2d
at 660.
When Claimant submitted her resignation form to Employer,
approximately six-and-a-half months after completing the incident report, Claimant
6
omitted the reason for her resignation. Board’s Decision at 1, C.R. at 101.
Additionally, Claimant did not tell the secretary to Employer’s assistant
superintendent that she did not feel safe returning to work until after she submitted
her resignation. Id. We note that even communicating these concerns at the time of
resignation would not have provided Employer the requisite notice. See Blackwell
v. Unemployment Comp. Bd. of Review, 555 A.2d 279, 281-82 (Pa. Cmwlth. 1989)
(stating that informing an employer of an issue at the time of resignation does not
satisfy a claimant’s burden to provide the requisite notice). Claimant testified that
Employer sent the e-mail accepting her resignation later that same day. See T.T. at
14-15, C.R. at 64-65. “It is well established that prior to terminating employment
the claimant must establish that [s]he has made a reasonable effort to advise the
employer of the problem or has otherwise made a reasonable effort to preserve [her]
employment.” Iaconelli, 423 A.2d at 756 (emphasis added).6 We therefore conclude
that Claimant failed to demonstrate that she made a reasonable effort to preserve her
employment. See Brunswick Hotel & Conference Ctr., LLC, 906 A.2d at 660. Thus,
the Board did not err in concluding that Claimant was unable to establish that she
had necessitous and compelling cause to quit. See id.
Accordingly, we affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
6
Because a claimant must demonstrate all four elements in order to establish necessitous
and compelling cause to quit, it is evident that Claimant cannot prevail. See Brunswick Hotel &
Conference Ctr., LLC, 906 A.2d at 660. We therefore decline to address the remaining Brunswick
factors.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie A. McLean, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 429 C.D. 2019
Respondent :
ORDER
AND NOW, this 13th day of December, 2019, the March 15, 2019
order of the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge