D.R. Cozzi v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dara R. Cozzi, :
Petitioner :
:
v. : No. 1068 C.D. 2020
: SUBMITTED: July 16, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 17, 2021
Dara R. Cozzi (Claimant) petitions for review, pro se, of the August 26, 2020
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to deny Claimant unemployment compensation (UC) benefits.
The Board determined that Claimant was ineligible for UC benefits under Section
402(b) of the Unemployment Compensation Law (Law)1 because she voluntarily
quit her employment without cause of a necessitous and compelling nature. We
affirm the Board’s Order.
Background
Claimant last worked as a full-time Legal Assistant II for the Pennsylvania
Board of Probation and Parole (Employer) from December 16, 2013 through
October 25, 2019. Bd.’s Finding of Fact (F.F.) No. 1; Record (R.) Item No. 3.
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 provides that a claimant is “ineligible for [UC] 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).
Ninety percent of Claimant’s job involved working on a computer. Bd.’s F.F. No.
2.
In June 2019, Claimant began experiencing eye issues at work, which
substantially affected her vision and caused eye pain. Id. No. 3. Claimant sought
medical attention and was diagnosed with corneal abrasion. Id. Nos. 3, 4. Claimant
informed her supervisor that she was having an eye issue and that her eye doctor
recommended that she take frequent breaks from the computer to rest her eyes. Id.
Claimant’s supervisor advised Claimant to take breaks from working as needed. Id.
No. 5. Due to understaffing in her office, however, Claimant did not believe she
could take breaks as often as she needed. Id. No. 6.
In August 2019, Claimant experienced a second eye issue and returned to her
eye doctor. Id. No. 7. Several weeks later, on September 30, 2019, Claimant
experienced a third eye issue, and her eye doctor referred her to a specialist. Id. No.
8. Thereafter, Claimant notified her supervisor that: (1) she was being referred to a
specialist for her eye condition; (2) she was unsure if she would return to work that
week; and (3) she was unsure how much longer she would be able to perform her
job. Id. No. 9.
When Claimant returned to work on October 3, 2019, she gave Employer a
doctor’s note for the three days she had missed due to her eye condition. Id. No. 10.
At that time, Claimant informed Employer that her doctor recommended that she
reduce the amount of time she spends on the computer until she heals. Id. No. 11.
Claimant’s supervisor stated that Employer would accommodate her requested
restriction. Id. No. 12. Claimant’s supervisor asked Claimant if she had enough
non-computer work to fill her work days until she healed, and Claimant replied that
she did. Id. The supervisor also asked Claimant if she needed assistance with any
2
non-computer-related work matters with an upcoming due date, and Claimant
replied that she did not. Id.
Employer could have continued to accommodate Clamant by giving her work
that did not involve prolonged computer usage. Id. No. 13. However, on October
10, 2019, Claimant submitted a resignation letter to Employer without indicating
why she was resigning. Id.2 Claimant quit her employment due to her eye condition.
Id. No. 14.
Claimant filed a claim for UC benefits, which the local UC Service Center
granted. The Service Center found, based on the documents in the UC claim record
at that time, that Claimant quit her employment for health reasons and Employer
failed to offer her alternate work after being notified of her work limitations. R. Item
2
In her October 10, 2019 resignation letter, Claimant stated:
This letter is to serve as an official notification that I will be resigning from my
position as a Legal Assistant II with [Employer]. My final day . . . will be Friday,
October 25, 2019.
. . . I would like to express my sincere gratitude for the opportunity to serve in this
capacity for nearly two years. During this period, I have learned much valuable
information related to the area of law and various court systems. I am also grateful
for the training and development opportunities made available to me during my
tenure with the Commonwealth . . . . As I exit this position, I will take along with
me a great deal of beneficial wisdom and also many great memories during my time
with [Employer]. . . . [I]t has been a pleasure working with everyone here in our
office.
During the remainder of my time with the Office of Chief Counsel, I plan to assist
with making this transition as smooth as possible, helping in any way I can. Please
do not hesitate to let me know if there is anything additional I can do to aid before
I move onto my next adventure.
R. Item No. 3.
3
No. 7. The Service Center determined that Claimant had a necessitous and
compelling reason to voluntarily quit and, thus, she was eligible for UC benefits. Id.
Employer appealed to the Referee, who held an evidentiary hearing on
February 21, 2020. Claimant, appearing with counsel, testified on her own behalf.
Employer presented the testimony of its Law Clerk and Office Manager, Cindy G.
Watson, who was Claimant’s supervisor at the time of her resignation.
At the hearing, Claimant testified that on a typical work day, she spent 90%
of her shift working on a computer. Notes of Testimony (N.T.), 2/21/20, at 9.
Claimant believed that she would not be able to fill an entire shift with non-computer
work because “everything that we do is primarily done on a computer” and “there is
not sufficient [non-]computer[-]related work to fill a work day.” Id. at 9-10.
Claimant described the eye problems she began experiencing in June 2019.
Claimant testified that, in June 2019, she experienced “burning, tearing[,]” and
“extreme discomfort and pain in [her] eye while [she] was at work.” Id. at 10. At
that time, her eye doctor diagnosed her with corneal abrasion, but “later [she] found
out through further occurrences of this same event that it was not simply an abrasion,
. . . [she] was actually experiencing . . . recurrent corneal erosions.” Id.
Shortly after this first eye occurrence, Claimant spoke with Ms. Watson and
informed her that Claimant was “in a bandaged contact that [she] was using until
[she] healed.” Id. She also informed Ms. Watson that her eye doctor advised her
“to take frequent breaks from the computer usage that [she] performed during [her]
shift to give [her] eyes a break, since this [eye problem] was trying to heal.” Id. at
11. According to Claimant, Ms. Watson “acknowledged [the doctor’s
recommendation] and encouraged [Claimant] to take those breaks as needed.” Id.
Claimant testified, however, that this accommodation “was not always workable”
4
for her, because her office “had been consistently understaffed . . . since the previous
February.” Id. at 12. Claimant explained:
It was very difficult to even take normal breaks some days. And I had
difficulty in doing this because of the workload. There were also days
when I was covering the office alone and[] . . . the phone was ringing
and things needed to be completed. And . . . I was the person that others
were coming to for questions and help with assignments or tasks,
anything that needed to be done. So I was in demand at that point. It
was very difficult, those days, to get the breaks that I needed, especially
in this case with needing frequent breaks.
Id. Claimant testified that she had expressed to Ms. Watson many times during the
course of her employment that she felt “overwhelmed with work.” Id. at 27.
However, she never told Ms. Watson, prior to quitting, that she was going to resign
due to understaffing. Id.
Claimant testified that she experienced a second eye occurrence on a weekend
in August 2019. Id. at 12-13. On the following Monday, she notified Employer that
she would not be at work that day. Id. at 13. She was able to see her eye doctor a
day or two later. Id. With regard to her work, Claimant testified that “since these
erosions were recurring, . . . [she] was attempting to try to follow the initial
recommendation of [her] doctor to take frequent breaks when [she] was at work.”
Id.
Claimant testified that she experienced a third eye occurrence in September
2019. Id. At that time, her eye doctor referred her to a corneal specialist. Id. at 14.
Claimant testified:
I informed [Ms. Watson] that I still could not see to drive, so I would
not be coming into work. I told her that I was being referred to a
specialist[] . . . . And I told her that I was not sure when I was actually
coming back to work that week. And when I did return, I provided a
doctor’s note for the three days that I had missed.
5
Id.3 When she returned to work after her specialist appointment, Claimant told Ms.
Watson that she “was not sure how much longer [she] could continue to do the job.”
Id. at 27.
Claimant then testified about text messages she had exchanged with Ms.
Watson after her third eye occurrence, which were entered into evidence. The
messages were dated between September 30, 2019 and October 7, 2019. See id. at
15-18 & Exs. C-1 & C-2. With regard to the final text message, dated October 7,
2019, Claimant testified:
[In this message], I’m notifying [Ms. Watson] that since my
appointment is in the mid-day, I might not be returning to work. . . .
....
. . . The thread continues on October 7th with some back and forth
regarding what the outcome of the appointment was, because [Ms.
Watson] had asked me to update her. . . .
N.T., 2/21/20, at 17. That same day, after her appointment with the corneal
specialist, Claimant texted Ms. Watson:
[M]y corneas are just ripply/bumpy on the surface. It can be caused by
long[-]term dry eye and many other things including irritants to the eye
and any allergies. Basically because my corneas are bumpy it increases
my risk of current erosions . . . .
....
We are going to work from the conservative treatment through more
aggressive . . . procedures to give this a chance to continue healing. . . .
3
The doctor’s note Claimant provided to Employer did not identify any restrictions on her
ability to work. See N.T., 2/21/20, Ex. C-3; Ref.’s Order, 3/6/20, at 3.
6
Id., Ex. C-2. Claimant testified that, following these text communications, Ms.
Watson offered “no additional accommodations” to Claimant, “[d]espite that [she]
suffered all th[o]se months with recurring erosions,” and “was . . . referred to a
specialist who diagnosed [her] with an actual disorder.” N.T., 2/21/20, at 18.
Claimant testified that she began actively searching for another job that would
involve less computer work, but she was not offered any positions. Id. at 18-20.
Claimant did not notify Ms. Watson that she was attempting to find another job
because she “was concerned that it may create a negative environment” in the office.
Id. at 20.
Claimant acknowledged that she did not state her reason for quitting in her
resignation letter to Employer. Id. She explained why she omitted that information
as follows:
It had been my experience in the past in working for [Employer], and
in the office setting[,] . . . that a lot of personal information at various
times had been[] . . . spread around the office or[] . . . through office
gossip and whatnot. And I didn’t wish to have others questioning me
as to what my health issues were, nor did I want to include what my
actual diagnoses were in my letter of resignation.
Id. Claimant testified, however, that she had discussed her resignation with
Employer “some time during that week” before she submitted the resignation letter.
Id. at 21.
Ms. Watson then testified on Employer’s behalf. Ms. Watson testified that
she and Claimant had discussed her possible resignation before she resigned;
however, at that time, Claimant had offered a different reason for possibly resigning:
[Claimant] and her father were not getting along that well, and . . . he
planned to get his own apartment, which would leave [Claimant]
without free daycare. And her concern was not being able to be home
7
with her daughter. And . . . she would like to spend – her daughter was
to have gone to kindergarten th[at] year, but did not because she has
some issues that I’d rather not touch on. That’s [Claimant’s] business.
But she wanted to be home with her daughter to make sure that she was
ready for kindergarten in 2020.
Id. at 32-33. Ms. Watson testified that Claimant did not mention health problems as
a reason for wanting to resign. Id. at 33. When asked if she accommodated
Claimant’s request for frequent breaks beginning in June 2019, Ms. Watson replied,
“Absolutely.” Id.
Ms. Watson agreed with Claimant’s testimony that the office had been
understaffed and testified that “[they] . . . all felt overworked at times.” Id. at 33-34.
With regard to Claimant’s request to take frequent breaks, Ms. Watson testified:
“[Claimant and I] met, we went over what [Claimant] was doing. I volunteered to
take some of what she had. We talked about different ways[] . . . that we could begin
doing our processors [sic] to make it a little less intense.” Id. at 34. Ms. Watson
explained: “[A]s [Claimant] went through these [eye] episodes, I would always
check with her. I’d check in in the morning, see how she was doing; check in in the
afternoon, see how she was doing. She, honestly, did mention dust, because our
offices can be dusty. . . .” Id. Ms. Watson also testified that she gave Claimant her
own office so that Claimant could control the lighting in her workspace, which had
been causing her to experience migraines. Id. at 29, 34.
Ms. Watson acknowledged that Claimant had spoken with her several times
about her eye issues between June and October 2019, but “[n]ot specifically [about]
what [the diagnosis] might be.” Id. at 36. When asked if she was aware that
Claimant’s eye condition was not improving, Ms. Watson replied: “I am not a
doctor. I’m not an ophthalmologist. I couldn’t make that decision. I can tell you
there were episodes.” Id.
8
Ms. Watson testified about the accommodations Employer offered to
Claimant for her eye issues as follows:
I gave [Claimant] an office of her own. I told her to take as many breaks
as [she] needed. I asked her when she was suffering the one time, would
she like me to give her work that wasn’t computer[-]related. I did
everything that I could to accommodate what she shared with me. I’m
not a mind reader.
....
When I have an employee who has an issue, I will find work for them
to do to accommodate whatever their medical issue is at the time.
....
[Claimant] said she had enough work. . . . She said she had enough
non-computer work to keep her busy.
....
I asked her specifically, . . . do you have enough work to do? Do you
need something? [Claimant] said no, I have enough here that I can
work on without using the computer, for that period of [time].
Id. at 37-38. Ms. Watson then elaborated on the type of non-computer work that
would have been available to Claimant:
She could have worked in our law library. She could have done other
work that I normally do that isn’t related to being on the computer. We
could have had her copying. We could have had her scanning for the
attorneys. There were several things. And we could have seen if our
Chairman’s Office had anything that she could help with.
Id. at 38.
Following the hearing, the Referee reversed the Service Center’s decision.
The Referee concluded:
9
[C]laimant has shown that she has a serious [eye] problem and
conveyed the information to . . . [E]mployer with the recommendations
provided to her by her eye doctor. [E]mployer provided . . . [C]laimant
with accommodations, including reduced computer work, work office
with better lighting, and allowed [C]laimant to have frequent breaks.
[C]laimant chose not to take the frequent breaks because of the
workload. [C]laimant did not take advantage of the supervisor’s offer
to reduce [C]laimant’s amount of computer work with alternate duties.
[C]laimant returned to work after the [third] occurrence, with a doctor’s
statement that did not indicate any restrictions or need for
accommodations. The supervisor continued to check with [C]laimant
on her condition. [C]laimant did not advise the supervisor that she was
contemplating voluntarily terminating her employment because of the
continued amount of computer work she was doing, or that she did not
feel that she could take her needed breaks. [C]laimant did not [pursue]
other options to resolve the problem and [to] remain employed by
checking with the chief counsel, the human resources office, her union,
or the office of general counsel.
Ref.’s Order, 3/6/20, at 3 (emphasis added). The Referee found that Claimant did
not sustain her burden of proving that she had a necessary and compelling reason for
voluntarily quitting. Id. Therefore, the Referee concluded that Claimant 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 credited Claimant’s testimony that she suffered an eye condition affected by
prolonged computer work and that she informed Employer that she needed to take
frequent breaks. Bd.’s Order, 8/26/20, at 3. However, the Board made the following
additional credibility findings:
While [C]laimant testified[ that] she was unable to take all the breaks
she needed due to staffing issues and workload, there is a lack of
evidence that she communicated that her accommodations were not
being met to her supervisor. [C]laimant’s supervisor only testified to
having a general conversation with [C]laimant about being
10
overwhelmed with work and the [Board] credits that testimony. If the
employer is unaware that an accommodation is not being met, it cannot
take steps to correct the problem.
Further, [C]laimant testified that her doctor informed her after her third
occurrence that she should do non-computer[-]related work due to her
condition. The Board credits the [written] statement in evidence
authored by [E]mployer’s witness[, Ms. Watson,] wherein [Ms.
Watson] indicated that [C]laimant informed her of the need for non-
computer work until she healed. However, the Board also credits [Ms.
Watson’s] statement and testimony that when she asked [C]laimant if
she had enough non-computer work to fill her days until she healed[,
C]laimant responded that she did, and when [Ms. Watson] asked
[C]laimant if she needed any help with [non-]computer[-]related tasks
with upcoming deadlines[, C]laimant responded that she did not. The
Board does not credit [C]laimant’s contrary testimony that she was not
offered non-computer work as an accommodation. Therefore, the
Board finds [that E]mployer offered [C]laimant a reasonable
accommodation. [C]laimant quit despite that accommodation.
Id. (emphasis added).
The Board determined that Claimant voluntarily quit without necessitous and
compelling cause and failed to take reasonable steps to preserve her employment
before quitting. Id. at 3-4. Therefore, the Board concluded that Claimant was
ineligible for UC benefits under Section 402(b) of the Law. Id. at 4. Claimant now
petitions for review of that decision.4
Analysis
A claimant who becomes unemployed by voluntarily terminating her
employment “bears the burden of proving that the termination was for cause of a
necessitous and compelling nature.” Lee Hosp. v. Unemployment Comp. Bd. of Rev.,
4
Our scope of review is limited to determining whether the necessary factual findings 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.
11
637 A.2d 695, 697 (Pa. Cmwlth. 1994); see 43 P.S. § 802(b). A health problem can
provide a necessitous and compelling reason to voluntarily quit in some
circumstances. Genetin v. Unemployment Comp. Bd. of Rev., 451 A.2d 1353, 1355
(Pa. 1992). To establish a health problem as a compelling reason to quit, the
claimant must: (1) offer competent testimony that adequate health reasons existed to
justify the voluntary termination; (2) have informed her employer of the health
problem; and (3) be available to work if reasonable accommodations can be made.
Lee Hosp., 637 A.2d at 698. “Failure to meet any one of these conditions bars a
claim for [UC].” Id. Further, “a claimant who desires to quit a job for health reasons
must communicate her health problem[] to her employer so the employer can attempt
to accommodate the problem.” Blackwell v. Unemployment Comp. Bd. of Rev., 555
A.2d 279, 281 (Pa. Cmwlth. 1989).
First, Claimant asserts that the Board erred in concluding that she is ineligible
for UC benefits because the evidence showed that Employer failed to comply with
Commonwealth of Pennsylvania, Governor’s Office Management Directive 205.25,
titled “Disability-Related Employment Policy” (Management Directive), in
handling her accommodation requests.
Claimant devotes a significant portion of her appellate brief to arguing that
Ms. Watson did not have the authority to make the accommodations she made, did
not forward Claimant’s request for accommodation to Employer’s disability
coordinator, and did not provide additional long-term accommodations as allegedly
required by the Management Directive. See Claimant’s Br. at 17-25. However,
Claimant did not raise these issues before the Referee, nor did she present any
evidence relating to the Management Directive at the Referee’s hearing. Claimant
also did not raise these issues in her initial appeal to the Board. The first time
12
Claimant raised these issues was in a “Supplement to Appeal” that she filed with the
Board three months after filing her appeal, to which she appended a copy of the
Management Directive.
It is well settled, however, that both the Board and this Court are prohibited
from considering such extra-record evidence. This Court has held that “[t]he
[Board] cannot review evidence that was not submitted to the Referee, unless it
directs the taking of additional evidence.” Umedman v. Unemployment Comp. Bd.
of Rev., 52 A.3d 558, 564 (Pa. Cmwlth. 2012); see 34 Pa. Code § 101.106 (stating
that in an appeal from a referee’s decision, “the Board may review both the facts and
the law pertinent to the issues involved on the basis of the evidence previously
submitted, or direct the taking of additional testimony”) (emphasis added). This
Court also cannot consider evidence that is not part of the certified record on appeal.
Umedman, 52 A.3d at 564; see Grubbs v. Pa. Bd. of Prob. & Parole, 481 A.2d 1390,
1391 (Pa. Cmwlth. 1984) (“[N]either the [agency] in its decision[]making process,
nor this Court in a review of that process, may consider any matters not made a part
of the record when counsel and the litigants are present.”).
In her Supplement to Appeal, Claimant asserted that she was unaware of the
Management Directive at the time of the Referee’s hearing and did not discover it
until after she filed her appeal with the Board. See R. Item No. 18. However,
Claimant failed to explain why she could not have discovered the Management
Directive with the exercise of reasonable diligence before the hearing, particularly
when she was represented by counsel in the proceedings before the Referee. See
Croft v. Unemployment Comp. Bd. of Rev., 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (en
banc) (concluding that the Board may not consider post-hearing factual
communications, as it is restricted to the facts and law pertinent to the issues on the
13
basis of the evidence previously submitted; thus, the Board was justified in refusing
to consider evidence attached to the claimants’ briefs that was not entered into the
record); Helverson v. Workmen’s Comp. Appeal Bd. (Cent. Foundry Co.), 463 A.2d
1243, 1247 (Pa. Cmwlth. 1983) (recognizing that a remand will not be granted for
presentation of newly discovered evidence that could have been discovered through
reasonable diligence at the time of the agency hearing). Therefore, we conclude that
the Board properly declined to consider Claimant’s supplemental evidence and
arguments relating to the Management Directive.5
Next, Claimant asserts that the Board erred concluding that she is ineligible
for UC benefits when evidence in the UC claim record shows that, despite Ms.
Watson’s testimony to the contrary, Employer failed to provide Claimant any
accommodations for her worsening eye condition. We disagree.
In particular, Claimant points to Employer’s responses on the Employer
Questionnaire completed shortly after Claimant filed her initial UC claim. See
Claimant’s Br. at 27. The Employer Questionnaire was completed by Stephanie
Festog, a claims analyst with Employer’s third-party claims administrator. See R.
Item No. 3. On the Questionnaire, when asked, “Did you offer other work to the
claimant,” Ms. Festog replied, “No.” Id. When asked, “[W]as continuing work
available within the claimant’s limitations had the claimant not separated [from her
employment],” Ms. Festog replied, “Yes.” Id. Ms. Festog did not respond to the
question, “[P]lease explain why the work was not offered to the claimant.” Id.5
Furthermore, in her “Supplement to Appeal,” Claimant did not request a remand to the
Referee or a supplemental hearing to present evidence relating to the Management Directive. She
merely asked the Board to consider what she deemed to be “additional information and facts
essential to reaching an appropriate decision in [her] case,” averring that “the issues [relating to
the Management Directive] are part of the record in this matter.” R. Item No. 18.
14
Despite these representations by Employer’s third-party claims analyst, the
Board chose to credit the testimony of Claimant’s direct supervisor, Ms. Watson,
that: she advised Claimant to take breaks as needed; she asked Claimant if she had
enough non-computer work to fill her days until she healed and if she needed any
help with non-computer tasks with upcoming deadlines; and Employer could have
continued to accommodate Claimant by giving her work that did not involve
prolonged computer usage. Bd.’s F.F. Nos. 5, 12, and 13. Claimant’s attempt to
cast doubt on Ms. Watson’s credibility by pointing to contrary evidence in the record
is insufficient to establish that the Board’s findings are unsupported by substantial
evidence. See Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d
338, 342 (Pa. Cmwlth. 2008) (“It is irrelevant whether the record contains evidence
to support findings other than those made by the [Board as] fact[]finder; the critical
inquiry is whether there is evidence to support the findings actually made.”)
(emphasis added).
Claimant also contends that Employer failed to produce any documentary
evidence to corroborate Ms. Watson’s testimony and written statement. Claimant
asserts that “Employer should have been expected to provide some form of
documentation supporting [Ms. Watson’s] claims that accommodations were
provided in order to meet its burden . . . .” Claimant’s Br. at 29. Claimant also
asserts that “[w]hen an employer makes a verbal claim or statement in the absence
of any supporting documentation, it does not meet its burden of showing the
availability of continuing work, or in this particular case, of providing
accommodations.” Id. Contrary to Claimant’s assertions, however, the Board’s
factual findings can be based on testimony alone; corroborating documentary
evidence is not required. See Holt v. Unemployment Comp. Bd. of Rev., 840 A.2d
151071, 1073 (Pa. Cmwlth. 2004) (concluding that testimony alone, if credited by the
Board, is substantial evidence sufficient to support a finding of fact).
At the hearing, Ms. Watson testified: “I told [Claimant] to take as many
breaks as she needed. I asked her when she was suffering the one time, would she
like me to give her work that wasn’t computer[-]related. I did everything that I could
to accommodate what she shared with me. . . .” N.T., 2/21/20, at 37. This testimony
was consistent with Ms. Watson’s prior written statement, where she stated:
[Claimant] did advise me, at that time, that she was being treated for
the eye issue and that the treating physician had instructed her to reduce
the amount of time she spent on the computer until her eye healed. At
that time, I advised [Claimant] that we would accommodate her
physician’s advice.
R. Item No. 8. The Board expressly credited Ms. Watson’s testimony and written
statement and discredited Claimant’s contrary testimony that she was not offered
non-computer work. Bd.’s Order, 8/26/20, at 3. This Court will not disturb the
Board’s credibility determinations on appeal, as they are supported by the evidence
of record. See Serrano v. Unemployment Comp. Bd. of Rev., 149 A.3d 435, 439 (Pa.
Cmwlth. 2016) (“Questions of credibility . . . are within the sound discretion of the
Board[] and are not subject to re-evaluation on judicial review.”).
Finally, Claimant asserts that Employer failed to provide any long-term
accommodations for her deteriorating eye condition after Claimant informed Ms.
Watson that she was referred to a specialist and was unsure how much longer she
could do her job. See Bd.’s F.F. No. 9. After making this statement, however,
Claimant returned to work on October 3, 2019, and told Ms. Watson only that her
doctor recommended that she reduce the amount of time she spends doing computer
work until she healed. Id. No. 11; R. Item No. 8. The doctor’s note Claimant
16
provided upon her return to work also did not identify any restrictions on her ability
to work. See N.T., 2/21/20, Ex. C-3; Ref.’s Order, 3/6/20, at 3.
The evidence of record establishes that the only restriction Claimant
communicated to Employer before quitting was that she needed frequent breaks
from computer work. Claimant testified:
[Employer’s Representative:] [T]hese frequent breaks, according to
your testimony, was that your supervisor encouraged you to take
frequent breaks.
[Claimant:] Yes.
[Employer’s Representative:] And that restriction, or need, never
changed between the time of the first [eye] incident continuing to
October?
[Claimant:] Correct. It was a progressively – basically, it would
recover to the point where I needed few breaks. And then it would
happen again, and then they would tell me the same thing. So, yes.
[Employer’s Representative:] Right. But[] . . . Ms. Watson was always
supportive in that, take whatever you need, do whatever you need,
correct?
[Claimant:] Yes.
....
[Employer’s Representative:] . . . [Ms. Watson] was willing to
accommodate the need to have frequent breaks?
[Claimant:] That’s correct.
[Employer’s Representative:] But other than that, there [were] no
other restrictions you placed on your ability to work, correct?
[Claimant:] That is correct.
17
N.T., 21/21/20, at 24-25 (emphasis added). Ms. Watson also credibly testified that
she provided the following accommodations to Claimant:
I gave [Claimant] an office of her own. I told her to take as many breaks
as she needed. I asked her when she was suffering the one time, would
she like me to give her work that wasn’t computer related. I did
everything that I could to accommodate what she shared with me. I’m
not a mind reader.
Id. at 37.
Employer offered Claimant the precise (and only) accommodation she
requested for her eye condition: frequent breaks from computer work. A claimant
who leaves work for health reasons is ineligible for UC benefits “if the employer
provides alternative work [that] is compatible with the [claimant’s] disability.”
Leonarczyk v. Unemployment Comp. Bd. of Rev., 397 A.2d 49, 50 (Pa. Cmwlth.
1979); see Cent. Data Ctr. v. Unemployment Comp. Bd. of Rev., 458 A.2d 335, 337-
38 (Pa. Cmwlth. 1983) (“[A] claimant need only communicate [her] medical
difficulties to [her] employer, and stand ready to accept any reasonable
accommodation offered by the employer.”) (emphasis added). “[U]nless the
requirements of the job being offered are so obviously beyond the physical
capabilities of the claimant as to involve an unreasonable risk of injury, then the
claimant must make a reasonable effort before declaring [that] she cannot perform
the duties.” Leonarczyk, 397 A.2d at 50 (emphasis added).6 Although Claimant
6
In Fetterman v. Unemployment Compensation Board of Review, 467 A.2d 402, 404 n.2
(Pa. Cmwlth. 1983) (emphasis added), this Court explained:
Although we are aware that [the Supreme Court’s decision in] Genetin . . . obviated
the requirement that the employee attempt to initiate or effectuate a transfer to more
suitable work, we are equally cognizant, however, of the employee’s responsibility
to remain available to the employer if reasonable accommodations can be made by
the employer which are not inimical to the employee’s health.
18
argues that Employer never offered her suitable work to accommodate her eye
condition, the Board credited Employer’s evidence to the contrary.
Furthermore, there is no indication in the record that Claimant ever informed
Employer that the accommodations provided were inadequate before she voluntarily
quit. In fact, in Claimant’s October 7, 2019 text message to Ms. Watson, after her
appointment with the corneal specialist, Claimant stated, “I will see you tomorrow
and let you know if anything changes by morning . . . back to normalcy hopefully[.]”
N.T., 2/21/20, Ex. C-2 (emphasis added); see also N.T., 2/21/20, at 13 (Claimant
testified that after the third eye occurrence, she “was attempting to . . . follow the
initial recommendation of [her] doctor to take frequent breaks when [she] was at
work”) (emphasis added). Three days later, Claimant quit her employment. Bd.’s
F.F. No. 13. Claimant never informed Employer that she was contemplating quitting
due to her eye condition, nor did she inform Employer of any reason for quitting in
her resignation letter.7 Id.; Bd.’s Order, 8/26/20, at 3; see Bonanni v. Unemployment
Comp. Bd. of Rev., 519 A.2d 532, 536 (Pa. Cmwlth. 1986) (“We fail to see how an
employer can make a reasonable accommodation when that employer does not know
what is reasonable.”).
7
The claim record shows that, in her initial interview with UC authorities, Claimant offered
the following reason for resigning from her employment:
I used sick time for travel time to and from work and appointments because I was
not afforded the opportunity to have time to work from home like others. The
staffing levels at the office made me feel like there was no choice but to resign
because I was not able to take time off for the weeks needed for me to recover from
a potential surgery because of staffing at the office.
R. Item No. 6 (emphasis added).
19
Conclusion
Based on the credible evidence of record, we conclude that Claimant failed to
satisfy her burden of proving that she had a necessitous and compelling reason to
voluntarily quit her employment.8 Accordingly, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
8
In her appellate brief, Claimant also challenges the Board’s finding that Employer gave
her an office so that she could control the lighting in order to reduce the frequency of her migraines,
asserting that there is “no evidence” to support such a finding. Claimant’s Br. at 35. The record,
however, contradicts this assertion. Claimant testified:
[Employer’s Representative:] [I]sn’t it true that your supervisor[, Ms. Watson,]
actually put you in an office?
[Claimant:] She did, yes.
[Employer’s Representative:] So that you could control the lighting?
[Claimant:] Oh, that’s true.
N.T., 2/21/20, at 29. This testimony was also corroborated by Ms. Watson. See id. at 34.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dara R. Cozzi, :
Petitioner :
:
v. : No. 1068 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 17th day of November, 2021, we hereby AFFIRM the August
26, 2020 Order of the Unemployment Compensation Board of Review.
__________________________________
ELLEN CEISLER, Judge