A.L. Crane v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amy L. Crane, :
Petitioner :
:
v. : No. 1301 C.D. 2021
: SUBMITTED: February 10, 2023
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: August 15, 2023
Claimant, Amy L. Crane, petitions for review of an order of the
Unemployment Compensation Board of Review that affirmed the referee’s decision
denying her unemployment compensation benefits. The decision was based on
Section 402(b) of the Unemployment Compensation Law,1 which provides that an
employee is ineligible for benefits during any week “[i]n which his [or her]
unemployment is due to voluntarily leaving work without cause of a necessitous and
compelling nature.” We reverse.
The facts as found by the Board are as follows.2 Claimant worked as a
full-time paraprofessional for Employer, Danville Area School District, from
1
Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
2
Where the Board renders its own fact-findings, “it is the Board’s findings, not the referee’s,
that are subject to our review.” Allen v. Unemployment Comp. Bd. of Rev., 638 A.2d 448, 450 (Pa.
Cmwlth. 1994). The facts as found by the Board are conclusive on appeal as long as the record,
(Footnote continued on next page…)
September 12, 2018 to January 15, 2021, with a final hourly pay rate of $11.85.
(Finding of Fact “F.F.” No. 1.) “[C]laimant has a 16-year-old daughter with special
needs and an individualized education plan [(IEP)].” (F.F. No. 2.) Due to having
suicidal tendencies, the daughter cannot be left alone. (Id.) From September 2, 2020
to November 21, 2020, the daughter attended school in-person. (F.F. No. 3.)
Following Thanksgiving break, the daughter had virtual in-home learning until
January 15, 2021 due to the pandemic. (F.F. No. 4.) Beginning January 18, 2021,
the daughter was required to attend school in-person every other day. (F.F. No. 5.)
Consequently, Claimant sent a January 13, 2021 email to the
Superintendent stating:
I am requesting a leave of absence without pay from
January 18th through the end of March (until the end of
the 3rd marking period) or until we come back to school
full time in[-]person with everyone before that time. In
the mean time [sic] if a program would be reinstated
similar to the [Family First Corona Response Act, Pub. L.
No. 116-127, 134 Stat. 178 (2020)] FFCRA,[3] I will
rescind my request for leave without pay.
(Certified R. “C.R.,” Item No. 8, Claimant’s Hr’g Docs., Ex. C-1 at 46) (footnote
added). The Superintendent responded:
The District plan is to have students return to the buildings
on January 18th in a hybrid model. We have required all
employees to work from the building unless there were
in its entirety, contains substantial evidence to support those findings. Chapman v. Unemployment
Comp. Bd. of Rev., 20 A.3d 603, 608 (Pa. Cmwlth. 2011). “Substantial evidence is relevant
evidence that a reasonable mind might consider adequate to support a conclusion.” Popoleo v.
Unemployment Comp. Bd. of Rev., 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001).
3
Claimant testified that she had participated in FFCRA the prior year but that it was no longer
available. (May 18, 2021 Hr’g, Notes of Test. “N.T.” at 7 and 15; Certified R. “C.R.” at 69 and
77.)
2
special circumstances that had to be approved by the
[S]uperintendent. Once any students are in the building[,]
the expectation is for you to return to work full-time.
Leave of absence without pay will not be approved.
(Id.)
In response, Claimant submitted a January 14, 2021 letter of resignation
stating:
Please accept this letter as my intent to resign at the close
of business on Friday, January 15, 2021.
Thank you for the opportunity to work with the employees
and children at the . . . District. I have enjoyed my time
for the past 16 years as a substitute aide and as a full[-]time
aide. I have found working with the children with special
needs very rewarding.
Unfortunately, COVID has affected my family situation
big time this year. I have a special needs child in school,
she attends every other day and really needs my guidance.
I also have other children that go to school daily and every
other day. My main goal has always been to be a mother
first. In these times many of us have had to choose
between family and career. I am choosing my family.
In the future I look forward to working at the District by
being put on the sub list again and per our conversation on
the phone I would like to receive my sick pay January 4
through January 15.
(Id. at 47.)
Subsequently, Claimant made a claim for unemployment compensation
benefits. The Department of Labor and Industry found her to be ineligible for
benefits under Section 402(b) of the Law. On appeal, the referee held a telephonic
hearing at which Claimant acted pro se and Employer was represented by counsel.
Employer had two witnesses available to testify, the Superintendent and the District
3
Accountant/Human Relations Coordinator, but presented only the Superintendent’s
testimony. The referee affirmed the denial of benefits. Before the Board, North
Penn Legal Services submitted a letter brief on Claimant’s behalf. The Board issued
its own findings of fact, affirming the referee’s denial of benefits. Claimant’s
petition for review to this Court followed.
A claimant who voluntarily quits bears the burden of proving
necessitous and compelling cause for leaving her job. Brunswick Hotel & Conf. Ctr.,
LLC v. Unemployment Comp. Bd. of Rev., 906 A.2d 657 (Pa. Cmwlth. 2006).
Specifically, a claimant must establish that “(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.” Id. at 660. A determination as to whether
necessitous and compelling cause for leaving employment exists is a question of
law, subject to our plenary review. Johnson v. Unemployment Comp. Bd. of Rev.,
869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant challenges Finding of Fact Number 9, that before quitting
Claimant neither informed the Superintendent of the daughter’s suicidal tendencies
and inability to stay home alone nor requested leave under the Family and Medical
Leave Act (FMLA),4 and Finding of Fact Number 10, that Claimant never advised
the Superintendent that she was willing to work every other day in accordance with
the daughter’s in-person school schedule. Even examining the testimony in the light
most favorable to Employer as the prevailing party and giving it the benefit of any
4
29 U.S.C. §§ 2601, 2611-2620, 2631-2636, 2651-2654.
4
inferences that can logically and reasonably be drawn from the evidence,5 we
conclude that the record, in its entirety, does not contain substantial evidence to
support these findings.
As the Board found, Claimant has a teenage daughter who has special
needs and an IEP and who cannot be left alone due to suicidal tendencies.6
Claimant’s testimony is undisputed that she advised the Superintendent of the
daughter’s issues and that she needed to stay home with her. That testimony
provides:
When I talked to [the Superintendent] on the phone, I
know we talked about a death that happened because of
COVID and the family and how my child needed me at
home and we were [sic] suicidal, but she was getting help
and still needs that one-on-one, like she needs someone
around. And I just wish now that she would have referred
to me or talked to me about an FMLA that I could have
taken. I asked but no one ever even – well I didn’t ask
about that. I only said about if there’s any other programs
or if I could do anything.
(C.R., Item No. 11, May 18, 2021 Hr’g, Notes of Test. “N.T.” at 17; C.R. at 79.)
Moreover, it is undisputed that the Superintendent was aware of the IEP
and that she actually reviewed it. The Superintendent testified:
[T]here’s a section in an [IEP] for students who are 14 and
older regarding what we call transition and that is skills to
help them move from school-age to adulthood, and in
those there are three areas. There’s post-secondary
5
Rodriguez v. Unemployment Comp. Bd. of Rev., 174 A.3d 1158, 1163 (Pa. Cmwlth. 2017).
6
It is within the Board’s province to determine credibility and evidentiary weight. Oliver v.
Unemployment Comp. Bd. of Rev., 5 A.3d 438 (Pa. Cmwlth. 2010). This Court may not re-evaluate
the Board’s factual determinations. Bell v. Unemployment Comp. Bd. of Rev., 921 A.2d 23, 26 n.4
(Pa. Cmwlth. 2007).
5
education, employment, and independent living. I found
that under independent living . . . the team determined that
the daughter demonstrated age-appropriate living skills
and no independent living outcome would be addressed as
part of the transition plan at that time. So that was repeated
a few times within the IEP. But it was saying that she had
independent living skills.
(N.T. at 16; C.R. at 78.) However, despite the fact that the IEP indicated that the
daughter had independent living skills, the Superintendent did not testify as to the
date of the IEP or when the team last updated it. Given the fact that the daughter
attended school in-person from only September to November 2020, the team may or
may not have had an opportunity to update the IEP to incorporate the challenges of
the pandemic and their effect on the daughter. Consequently, it is not clear that the
team’s conclusions were accurate as of the date that the Superintendent accessed the
IEP. In addition, the fact that the Superintendent took it upon herself to review the
IEP indicates at least some uncertainty as to whether the daughter was capable of
staying home without adult supervision. Importantly, having independent living
skills is not inconsistent with, and does not in any way negate, the danger posed by
the daughter’s suicidal tendencies. While one may not need help with life skills,
such as making a sandwich, dressing oneself, etc., a suicidal person may still need
supervision to prevent self-harm.
In addition, Claimant had no reason to believe that the Superintendent
would not approve her request for unpaid leave given the fact that her prior request
for unpaid leave was approved. The December 2020 email exchange provides:
[Claimant:] Since we are going to remote learning til
January 15 and the FFCRA program will be expiring at the
end of December, I am requesting a leave without pay
from January 4 to the 15 [2021]. If the FFCRA program
6
would be reinstated or if a similar program is created, I
will rescind my request for leave without pay.
[Superintendent:] Amy, at this time there has not been any
plan to extend FFCRA which ends on Dec. 31, 2020. You
may take days without pay. Hopefully things can go back
to normal soon.
(C.R., Item No. 8, Claimant’s Hr’g Docs., Ex. C-1 at 35) (emphasis added). This
email exchange also indicates that the Superintendent was aware that when the
District implemented remote learning, Claimant needed leave time. Thereafter,
when a hybrid schedule was announced, Claimant was compelled to request a longer
unpaid leave of absence as described in the aforementioned January 2021 email
exchange at issue. As noted, Claimant requested unpaid leave from January 18, 2021
through the end of March 2021 “or until we come back to school full time in[-]person
with everyone before that time.” (Id. at 46.)
As for Finding of Fact Number 10, that Claimant never advised the
Superintendent that she was willing to work every other day in accordance with the
daughter’s in-person school schedule, we note Claimant’s testimony that she asked
the Superintendent whether “there’s any other programs or if I could do anything.”
(N.T. at 17; C.R. at 79.) Claimant’s query as to whether there was anything she
could do arguably included working out a solution in accordance with her daughter’s
schedule. In addition, notwithstanding Claimant’s acknowledgement that she did
not specifically ask the Superintendent about the FMLA, Claimant definitely asked
about programs and whether there was anything she could do in order to remain
employed. (Id.)
Finally, Claimant argues that her leave request was tantamount to an
application under the FMLA, thereby triggering Employer’s obligation to issue her
a mandatory notice of rights and obligations under the FMLA. In support, she cites
7
Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 949 (Pa.
Cmwlth. 2004),7 a willful misconduct case. Pertinent here, we observed that a
claimant must notify the employer that leave is necessary to care for a serious
medical condition but he or she need not expressly request FMLA leave in order to
trigger an employer’s obligation. Id. at 948. In other words, an employer’s
obligation is triggered when it acquires knowledge that an employee’s leave may be
for an FMLA-qualifying reason.
Here, Employer did not contradict Claimant’s testimony that she
informed the Superintendent of the daughter’s needs thereby providing Employer
with sufficient information to trigger its obligation, at a minimum, to make further
inquiries of her regarding purported grounds for eligibility under the FMLA.
Consequently, Claimant made reasonable efforts to preserve her employment by
way of a request for unpaid leave and/or via her query as to whether there was
anything she could do in order to remain employed. Employer is not an
unsophisticated employer, it had unfettered access to the daughter’s confidential
records, and Claimant had worked there for sixteen years.
Accordingly, we conclude that Claimant met her burden of proving that
she had necessitous and compelling cause for her voluntary quit and, therefore,
reverse.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
7
In Eshbach, this Court held that the claimant’s failure to report her absence did not constitute
willful misconduct where she had a reasonable belief that she was on FMLA leave on the date in
question because she had provided the employer with sufficient information to make it aware that
she needed FMLA-qualifying leave and the employer merely told her to report to it once her
daughter gave birth and to provide a doctor’s excuse before returning to her employment.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amy L. Crane, :
Petitioner :
:
v. : No. 1301 C.D. 2021
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 15th day of August, 2023, the order of the
Unemployment Compensation Board of Review is hereby REVERSED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita