G. Herbert v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geraldine Herbert, :
Petitioner :
:
v. : No. 1129 C.D. 2018
: SUBMITTED: April 11, 2019
Unemployment Compensation Board of :
Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 1, 2019
Geraldine Herbert (Claimant) petitions for review of the July 17, 2018 Order
of the Unemployment Compensation Board of Review (Board) affirming a Referee’s
decision to deny Claimant unemployment compensation (UC) benefits under
Section 402(b) of the Unemployment Compensation Law (Law).1 The Board
concluded that Claimant was ineligible for UC benefits because she voluntarily quit
her employment without cause of a necessitous and compelling nature. For the
reasons that follow, we affirm the Board’s Order.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) of the Law states that an employee shall be ineligible for UC benefits for
any week “[i]n which [her] unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.” 43 P.S. § 802(b). The Board also determined that Claimant
was able and available to work and, thus, was not disqualified from receiving UC benefits under
Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1). Claimant does not challenge the Board’s ruling
under Section 401(d)(1) on appeal.
Background
Claimant worked as a housing counselor for Consumer Credit Counsel
(Employer) from June 5, 2017 through November 30, 2017. Bd.’s Finding of Fact
(F.F.) No. 1. In mid-September 2017, Employer notified Claimant that she was
supposed to complete client billing packages as part of her work, but she had not
done so. Id. No. 2; Notes of Testimony (N.T.), 3/19/18, at 16. Employer instructed
Claimant to complete the billing packages. Bd.’s F.F. No. 2. Claimant told one of
her supervisors, Rosemary Lavelle, that completing the billing packages was
stressful but that she would do her best to catch up. Id. Claimant asked Ms. Lavelle
to remove her from the calendar so that she could catch up on her work, but Ms.
Lavelle denied the request. Id.
In August and September 2017, Claimant informed both of her supervisors,
Ms. Lavelle and Marilou Protulipac,2 that her work was becoming overwhelming
and exasperating. Id. No. 4; N.T., 3/19/18, at 18, 21. Claimant told Ms. Lavelle that
she was having issues with anxiety, that her psychiatrist had increased her
medication, and that she believed the increased medication would help with her
anxiety. Bd.’s F.F. No. 5; N.T., 3/19/18, at 14-15.
In late September or early October 2017, Employer’s then-Vice President,
Mary Loftus, verbally warned Claimant that she was behind in her work. Bd.’s F.F.
No. 6; N.T., 3/19/18, at 27. Claimant did not mention any health issues to Ms. Loftus
during that conversation. Bd.’s F.F. No. 6.
Claimant was under the care of both a psychiatrist and a counselor. Id. No. 7.
While Claimant had discussed her work-related stress with her psychiatrist and her
2
The transcript of the Referee’s hearing identifies Claimant’s supervisor as “Mary Lou
Patrillipack (phonetic),” N.T., 3/19/18, at 10, but the record shows that the supervisor’s name is
“Marilou Protulipac,” see id., Exs. R-28, R-29, & R-30.
2
counselor, neither provider gave Claimant any limitations or special instructions
regarding her ability to work. Id.; N.T., 3/19/18, at 15. Claimant did not inform
Employer that she needed any accommodations due to a medical condition. Bd.’s
F.F. No. 9.
Between August and October 2017, Employer gave Claimant significantly
more time to complete her work than other housing counselors, but Claimant was
still unable to complete her work. Id. No. 3.
On October 30, 2017, Claimant submitted a letter of resignation to Employer.
Id. No. 8. In the letter, Claimant stated:
I am writing to provide you a 30[-]day notice of my resignation
from my position as Housing Counselor with [Employer]. My final day
will be Friday, December 1, 2017. I have enjoyed working with the
customers and the opportunity to assist them in their homeownership
journey. However, the position in the Harrisburg/Carlisle office is very
stressful for just one counselor and should have two active counselors[]
persons [sic]. In addition, I believe that more adequate training from
the beginning would be beneficial to future hires.
N.T., 3/19/18, Ex. R-28; Bd.’s F.F. No. 8. Claimant did not cite any medical issues
as the reason for her resignation in the letter. Bd.’s F.F. No. 8.
Following her resignation, Claimant filed a claim for UC benefits. The local
UC Service Center found that Claimant voluntarily left work for health reasons and
needed to work in a stress-free environment, but she did not inform Employer of her
work limitations. Not. of Determ., 12/3/17, at 1. Therefore, the Service Center
determined that Claimant failed to establish a necessitous and compelling reason for
voluntarily quitting her employment under Section 402(b) of the Law. Id.
3
Claimant appealed to the Referee, who held a telephone hearing on March 19,
2018. Claimant testified on her own behalf, and Employer presented the testimony
of Ms. Loftus, Employer’s President and Chief Executive Officer.3
Claimant testified that she moved from West Virginia to Harrisburg to accept
the position with Employer. N.T., 3/19/18, at 11. Claimant explained that her job
duties were to meet with clients and manage their housing paperwork, including
applications for Pennsylvania’s Homeowners Emergency Mortgage Assistance
Program (HEMAP). Id. at 10. Claimant testified that initially she spent two to three
hours counseling each client and additional time after each client meeting to
complete the necessary paperwork. Id. at 11. However, Employer later informed
Claimant that she was supposed to spend only two to three hours total per
transaction. Id.
Claimant also testified that when she began working for Employer in June
2017, she worked in the Harrisburg office, which was close to her home, but one
month later, the office moved to Lemoyne, which was further from her home. Id. at
11-12. Also in July 2017, Employer informed Claimant that she would need to travel
to Carlisle once per week to meet with clients. Id. at 12.4 Claimant testified that her
work began to pile up due to the increased travel time, so she began to work longer
hours. Id. at 13. Although she was working extra hours, she was paid for 37.5 hours
per week and was not paid overtime. Id.
3
Ms. Loftus was Employer’s Vice President at the time of Claimant’s employment but
subsequently became the President and Chief Executive Officer. Heather Murray, Employer’s
Manager of Community Relations, was also present at the hearing, but she did not testify.
4
In her Brief in Support of Appeal filed with the Board, Claimant stated that Lemoyne is
about 15 miles from Harrisburg, and Carlisle is about 30 miles from Harrisburg. Record (R.) Item
No. 10 at 1.
4
Claimant testified that in August 2017, she approached her supervisor, Ms.
Lavelle, “and I actually was crying when I talked to her because I was upset feeling
that I wasn’t keeping up with everything and that everything was kind of being given
to me last minute.” Id. at 12. Ms. Lavelle told Claimant “to hang in there [and] that
it would all work out.” Id. at 13. Claimant also testified that she told Employer’s
then-Vice President, Ms. Loftus, that when she accepted the position, she did not
expect to travel to Carlisle, but Ms. Loftus responded that it was “part of her job.”
Id. at 20.
Claimant testified that she was taking medication for anxiety at that time. Id.
at 14. She explained that “by August I was taking one [dose] a day to cope. And
then by the time September came around I was taking two [doses] a day to get
through the day and trying to stay calm and level so that I could work with my
clients.” Id. Claimant informed Ms. Lavelle that “I was having issues with my
anxiety and stress levels and that I had increased my one pill and that . . . I was
hoping that would help with everything.” Id. Claimant also testified that she
suffered a concussion in September 2017, which she reported to Ms. Loftus. Id. at
14-15.
Claimant further testified that she had been treating with a counselor and a
psychiatrist since 2013 and that she was diagnosed with depression, generalized
anxiety, and bipolar disorder. Id. at 15. When asked if her medical providers had
imposed any limitations on her ability to work, Claimant replied:
No, they just gave me . . . the psychiatrist prescribed medication and
you know, I never had any issues with work. So . . . we would discuss
it at our counseling sessions. And [in October 2017] [the psychiatrist]
suggested that I reconsider this position because it was increasing the
symptoms I was having for the depression and the anxiety.
5
Id.
Claimant testified that when Ms. Loftus approached her in late September or
early October 2017 about being behind in her work, Claimant told her it was “all she
could do.” Id. at 16. According to Claimant:
I had requested additional time off the calendar so that I could catch up
especially once they had, the middle of September when they told me I
needed to be doing billing packages and I had been there since June and
that was the first time I had heard of that. That is why the piles of
folders were placed outside the drawer. While I continued to counsel I
was also trying to get these billing statements and the files reorganized
for that purpose.
Id.
Finally, Claimant testified that she “absolutely” explained her specific
medical conditions to her supervisors and that she “made them aware that things
were slower for” her and that her “doctor suggested that [she] be more cautious with
details.” Id. at 21-22.
Ms. Loftus testified on Employer’s behalf. Ms. Loftus testified that, at the
time of Claimant’s hiring, she informed Claimant “that the [Harrisburg] office was
closing and that we were moving to Lemoyne.” Id. at 22. Ms. Loftus explained:
We also made every applicant aware that if they accepted the position
they would have to travel [to Carlisle] and [Employer] would reimburse
[them] for mileage, which we did. We also let [our employees] leave
at 4:00 when they traveled to Carlisle. So . . . the candidates as well as
[Claimant] were fully aware of that requirement.
Id. at 22-23. Ms. Loftus specifically recalled telling Claimant about the move to
Lemoyne, as “there were only two candidates that we interviewed for that position,
so . . . I had notes of what I wanted to make sure that I told people.” Id. at 27.
6
Ms. Loftus offered into evidence a utilization report comparing the amount of
work Claimant completed in the months of August, September, and October 2017 to
that of two other housing counselors. Id. at 23. Ms. Loftus testified that, based on
the information in the report, the other counselors “had far less time per [client]”
than Claimant and Claimant had “more than adequate time to complete the
counseling and any associated follow[-]up.” Id. & Ex. R-34.
Ms. Loftus testified that the only health issues of Claimant’s of which she was
personally aware were a broken tooth and a concussion, because Claimant had
requested time off for each. Id. According to Ms. Loftus, neither of Claimant’s
supervisors ever informed her that Claimant was suffering from any other health
conditions, and she had “no reason to think that [the supervisors] would not have
brought that information to me.” Id. at 25-26.
Ms. Loftus also testified that in late September or early October 2017,
I had a . . . conversation with [Claimant], which I told her was a verbal
warning because she was so far behind with all of her work. And during
that conversation[,] she never mentioned any issues. She just said that
the HEMAP[] [applications] were taking her three hours and that the
pre-closing pre-certifications were taking two hours. I went through
that same [u]tilization [r]eport that I provided as evidence with her and
she really had no reasons as to why she was behind. And she never told
me that there were any kind of medical issues that were preventing her
from keeping up with her work.
Id. at 26-27 (emphasis added). Ms. Loftus testified that she intended to have a
follow-up meeting with Claimant a few weeks later, but Claimant resigned before
that occurred. Id. at 27.
Following the hearing, the Referee affirmed the Service Center’s decision.
The Referee resolved the conflicts in the testimony in Employer’s favor and credited
Ms. Loftus’s testimony. Ref.’s Order, 3/20/18, at 2. The Referee found that
7
“Claimant was notified of the job conditions and work sites at hire.” Id. The Referee
also found that although Claimant had discussed her health issues with her
supervisors, she “never raised a medical concern with [Ms. Loftus] as the reason for
her work issues during the verbal warning in late September 2017.” Id. Because
Claimant failed to establish a necessitous and compelling reason for voluntarily
quitting, the Referee concluded that she was ineligible for UC benefits under Section
402(b) of the Law. Id.
Claimant appealed to the Board, which affirmed the Referee’s decision. The
Board likewise resolved the evidentiary conflicts in Employer’s favor and credited
Ms. Loftus’s testimony. Bd.’s Order, 7/17/18, at 3. The Board concluded:
[C]laimant did not inform [E]mployer of the extent of her medical
condition or that it necessitated an accommodation. [C]laimant did
inform her supervisors that she found the job stressful and that she has
anxiety for which she was taking medication. She also informed
[E]mployer that her medication was being increased and should help
with her anxiety.
[C]laimant did not provide any documentation from a treating medical
provider to show she could not perform her work or needed an
accommodation. Although she asked to be taken off the calendar, her
reason for doing so was to catch up after she was informed she failed
to complete billing packages and had to go back and complete them for
each of her cases and not because of any medical issue.
We do not find that [C]laimant acted in a reasonable manner in quitting
her employment or that she made a reasonable effort to maintain her
employment.
8
Id. (emphasis added). Therefore, the Board determined that Claimant was ineligible
for UC benefits under Section 402(b) of the Law. Id. Claimant now appeals to this
Court.5
Issues
(1) Did Claimant have a necessitous and compelling reason for leaving her
employment?
(2) Did Claimant provide sufficient notice to Employer of her health
condition?
(3) Did the Board err in finding that Claimant did not act in a reasonable
manner in quitting her employment?
(4) Did the Board err in finding that Claimant did not make a reasonable
effort to maintain her employment?
Analysis
To qualify for UC benefits under Section 402(b) of the Law, the claimant has
the burden of proving that she had a necessitous and compelling reason for
voluntarily leaving her employment. St. Clair Hosp. v. Unemployment Comp. Bd.
of Review, 154 A.3d 401, 404 (Pa. Cmwlth. 2017) (en banc). Specifically, the
claimant must prove that: (1) circumstances existed that produced real and
substantial pressure to terminate her 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. Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38
A.3d 1051, 1056 (Pa. Cmwlth. 2012). The claimant must demonstrate that she took
5
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the Board’s findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
9
“all necessary and reasonable steps to preserve the employment relationship” before
voluntarily quitting. St. Clair, 154 A.3d at 404-05 (quotation omitted).
Claimant contends that her health conditions made it impossible for her to
continue working for Employer without an accommodation. “[T]o establish that a
medical condition is a necessitous and compelling reason for the voluntary
termination of one’s employment, a claimant must: (1) establish, through competent
evidence, the existence of a medical condition; (2) inform the employer of the
condition; and (3) be able and available to work if a reasonable accommodation can
be made.” Id. at 405.
“[A] claimant who desires to quit a job for health reasons must communicate
her health problem[] to her employer so that the employer can attempt to
accommodate the problem.” Blackwell v. Unemployment Comp. Bd. of Review, 555
A.2d 279, 281 (Pa. Cmwlth. 1989). Before an employer’s duty to accommodate is
triggered, the employer must have sufficient knowledge of the claimant’s health
condition. See id. The claimant must communicate her “specific physical
restrictions” to the employer and “explain [to the employer] her inability to perform
her regularly assigned duties.” Fox v. Unemployment Comp. Bd. of Review, 522
A.2d 713, 715 (Pa. Cmwlth. 1987).
“[O]nce an employee makes an employer aware of such health problems, the
employer bears the burden [of] establish[ing] that it made a reasonable attempt to
identify and propose possible accommodations for the employee’s health problems.”
Watkins v. Unemployment Comp. Bd. of Review, 65 A.3d 999, 1005 (Pa. Cmwlth.
2013). “Only through communication can an employer be afforded an opportunity
to accommodate a claimant’s problem by offering suitable work.” Fox, 522 A.2d at
715.
10
Here, Claimant testified that she was treating with both a counselor and a
psychiatrist for depression, anxiety, and bipolar disorder. N.T., 3/19/18, at 15.
However, when asked whether either provider had given her “any special orders or
limitations when it came to work,” Claimant replied “[n]o” and stated that her
psychiatrist had only prescribed an increase in her medication. Id.
The record shows, and the Board found, that Claimant had discussed her stress
and anxiety with her supervisors in August and September 2017. Bd.’s F.F. Nos. 4,
5. However, the last time Claimant discussed those issues with her supervisors, she
stated that she had increased her medication, which she believed would help alleviate
her symptoms. Id. No. 5; see N.T. 3/19/18, at 14-15, 21. According to Claimant, “I
told [Ms.] Lavelle that I was having issues with my anxiety and stress levels and that
I had increased my one pill and that . . . I was hoping that would help with
everything.” N.T., 3/19/18, at 14. There is no evidence that Claimant subsequently
informed either of her supervisors or Ms. Loftus that her efforts to reduce her anxiety
with medication had been ineffective before she voluntarily quit her employment.
Furthermore, Ms. Loftus testified that had Claimant presented Employer with
specific medical restrictions, “we would have worked with her. We would [have]
had to have an understanding from a medical provider as far as what limitations there
were and then we would have . . . tried to work with her as far as if [sic] we could .
. . what would be a reasonable accommodation.” Id. at 25. Significantly, Ms. Loftus
testified that when she confronted Claimant about being behind in her work in late
September or early October 2017, Claimant “never mentioned any issues . . . [a]nd
she never told me that there were any kind of medical issues that were preventing
her from keeping up with her work.” Id. at 26. While Claimant testified that her
psychiatrist had advised her to reconsider the position with Employer in October
11
2017, id. at 15, Claimant never communicated that information to Employer before
quitting.
The Board resolved the conflicts in the evidence in Employer’s favor and
specifically credited Ms. Loftus’s testimony. Bd.’s Order, 7/17/18, at 3. It is well
settled that the Board is the ultimate factfinder in UC cases and is empowered to
resolve conflicts in the evidence and determine the credibility of witnesses. Metro.
Edison Co. v. Unemployment Comp. Bd. of Review, 606 A.2d 955, 957 (Pa. Cmwlth.
1992). Where the Board’s factual findings are supported by substantial, credible
evidence, those findings are conclusive on appeal. Brandt v. Unemployment Comp.
Bd. of Review, 643 A.2d 78, 79 (Pa. 1994).
Claimant also argues that Employer denied her request for an accommodation
when she asked to be taken off the calendar in September 2017. However, by
Claimant’s own testimony, the reason Claimant made that request was to catch up
on her work after she was instructed to complete the client billing packages. N.T.,
3/19/18, at 16-17; Bd.’s Order, 7/17/18, at 3. She did not make that request for
medical reasons.
We conclude that Claimant did not provide Employer with sufficient
information about her health conditions to trigger Employer’s duty to offer her a
reasonable accommodation. The last time Claimant spoke to her supervisors about
her anxiety, she told them she was going to increase her medication, which she hoped
would alleviate the problem. There is no evidence that, after those discussions,
Claimant informed Ms. Lavelle, Ms. Protulipac, or Ms. Loftus that her effort to treat
her anxiety had been unsuccessful or that her psychiatrist had advised her to
reconsider the position with Employer. In fact, Ms. Loftus credibly testified that,
during her final conversation with Claimant shortly before her resignation, Claimant
12
did not mention any health issues at all. Bd.’s F.F. No. 6. Therefore, Employer
could not have known that Claimant’s health conditions were of such a magnitude
that she could no longer perform her job duties.
Conclusion
Based on the evidence credited by the Board, we conclude that Claimant failed
to establish a necessitous and compelling reason to voluntarily quit her employment.
Accordingly, we affirm the Board’s Order.
ELLEN CEISLER, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geraldine Herbert, :
Petitioner :
:
v. : No. 1129 C.D. 2018
:
Unemployment Compensation Board of :
Review, :
Respondent :
ORDER
AND NOW, this 1st day of May, 2019, the Order of the Unemployment
Compensation Board of Review, dated July 17, 2018, is hereby AFFIRMED.
ELLEN CEISLER, Judge