Concordia of the South Hills v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Concordia of the South Hills, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 602 C.D. 2022
Respondent : Submitted: April 6, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 17, 2023
Concordia of the South Hills (Employer) petitions for review of the
May 18, 2022 order of the Unemployment Compensation Board of Review (Board)
that reversed a referee’s decision and concluded claimant was not ineligible for
benefits under section 402(b) of the Unemployment Compensation Law (Law),1
which provides that a claimant shall be ineligible for benefits in any week in which
her unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature. Upon review, we affirm.
I. Background
Beginning in April 2014, Judith Solomich (Claimant) worked for
Employer as a part-time guest services receptionist. See Board Decision and Order
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
dated May 18, 2022 (Board Decision) at 1, Findings of Fact (FF) No. 1. Following
the onset of the COVID-19 pandemic, Claimant’s supervisor directed Claimant to
take guests’ temperatures upon their arrival. See Board Decision at 1, FF No. 2.
This responsibility made Claimant uncomfortable, as she was not medically trained.
See Board Decision at 1, FF No. 2. Concerned that visitors and other staff members
were not practicing proper social distancing pursuant to COVID-19 requirements,
Claimant placed a sign at her workstation requesting that others observe appropriate
social distancing. See Board Decision at 1, FF Nos. 4 & 5. Claimant communicated
her safety concerns to her supervisor and requested a transfer to a different
department or a kitchen department with less social contact.2 See Board Decision at
1, FF No. 6. Claimant’s supervisor lacked the authority to transfer Claimant but did
not direct Claimant to bring her concerns to Employer’s Human Resources (HR) or
otherwise inform Claimant of an alternative procedure to report her concerns and/or
to request a transfer. See Board Decision at 1-2, FF No. 7. By letter dated July 13,
2020 (Claimant Letter), Claimant advised Employer that she was retiring and left
her employment based on what she perceived were unsafe working conditions. See
Board Decision at 21, FF Nos. 8 & 9; see also Claimant Letter, Certified Record
(CR) at 15.
Claimant thereafter applied for unemployment compensation (UC)
benefits, explaining in her Internet Initial Claims Form (Claim Form) that she “was
moved from regular job to risk job[,]” and that she quit3 for “C[OVID –] 19, [h]ealth
2
Employer had not informed Claimant of specific rules or procedures to be followed to
report issues or concerns regarding her work conditions or to request an accommodation. See
Board Decision at 1, FF No. 3.
3
Claimant indicated on the Claim Form that she “retired.” See Claim Form at 2; CR at 8.
Later, in a cover letter that accompanied her Petition for Appeal from the UC Service Center’s
2
reasons.” Claim Form; CR at 9. Employer responded to the UC Service Center’s
Employer Questionnaire Separation Information request, explaining that Claimant
had voluntarily retired for personal reasons as evidenced by the Claimant Letter. See
Employer Questionnaire and Separation Information, CR at 12-21. The UC Service
Center denied Claimant’s UC claim by Notice of Determination mailed on
December 18, 2020, ruling her ineligible for benefits under section 402(b) of the
Law. See Notice of Determination; CR at 23-25. Claimant timely appealed to a
referee and a hearing was held on February 22, 2021. See Notes of Testimony,
February 22, 2021 (NT); CR at 71-85. At the hearing, Claimant proceeded pro se
and testified on her own behalf. See NT at 5-9; CR at 76-80. Employer also
participated and presented testimony at the hearing.4 See NT at 1-14; CR at 72-85.
Based on the testimony and documentary evidence presented,5 the referee affirmed
the decision of the UC Service Center, finding Claimant ineligible for benefits under
section 402(b) of the Law, and denying Claimant benefits. See Referee’s
Decision/Order at 1-3; CR at 87-89.
Claimant appealed to the Board. See Petition for Appeal from
Referee’s Decision/Order; CR at 93-114. After reviewing the record and the
Referee’s Decision/Order, the Board determined that Claimant met her burden of
proving that she left work for cause of a necessitous and compelling nature and
determined that Claimant was not ineligible for UC benefits under section 402(b) of
Notice of Determination denying her UC claim, Claimant explained that she “inadvertently put
down retirement rather than quitting when I gave notice of leaving my employment.” See Claimant
Letter to UC Service Center; CR at 31.
4
Employer was represented at the hearing by its Human Resource Manager, Cathy Cicco,
and presented the testimony of Wendy Kohler, its Front Desk Supervisor. See NT at 1-2 & 7-8.
5
Prior to taking testimony, the referee entered into evidence without objection documents
relevant to Claimant’s UC benefits application. See NT at 3.
3
the Law. See Board Decision. Therefore, the Board reversed the Referee’s Decision
and granted Claimant UC benefits. See id. at 2. Employer then petitioned this Court
for review.6
II. Issues
On appeal, Employer contends that the Board erred by reversing the
referee’s determination that Claimant was ineligible for UC benefits under section
402(b) of the Law. See Employer’s Br. at 2, 6-10. Employer claims that Claimant
failed to carry her burden to demonstrate that she reasonably attempted to preserve
her employment and that the Board’s finding that Claimant established a compelling
basis for her resignation is therefore not supported by substantial evidence. See
Employer’s Br. at 6-10. Employer is not entitled to relief.
III. Discussion
Initially, we note that
the Board, not the referee, is the ultimate fact finding body
and arbiter of credibility in UC cases. Questions of
credibility and the resolution of evidentiary conflicts are
within the discretion of the Board and are not subject to
re-evaluation on judicial review. The Board . . . may reject
even uncontradicted testimony if it is deemed not credible
or worthy of belief. We are bound by the Board’s findings
so long as there is substantial evidence in the record, taken
as a whole, supporting those findings.
Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Rev., 173 A.3d 1224, 1227-
28 (Pa. Cmwlth. 2017) (internal citations, quotations, and brackets omitted).
6
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
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Rev., 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).
4
Section 402(b) of the Law provides that an employee will 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).
“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 Rev., 700 A.2d 594, 596 (Pa. Cmwlth. 1997).
“A claimant who voluntarily terminates [her] employment has the
burden of proving that a necessitous and compelling cause existed.” Solar
Innovations, Inc. v. Unemployment Comp. Bd. of Rev., 38 A.3d 1051, 1056 (Pa.
Cmwlth. 2012). An employee who claims to have left her employ for a necessitous
and compelling reason must prove:
(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 & Conf. Ctr., LLC v. Unemployment Comp. Bd. of Rev., 906 A.2d
657, 660 (Pa. Cmwlth. 2006). This Court has explained that, in a COVID-related
case where an employee has a concern about the utilization of inadequate safety
measures, or fears related to her health, or both, the burden to make a reasonable
effort to preserve employment requires an employee to give notice to the employer
as to her concerns and health conditions and to allow the employer an opportunity
to modify the employee’s work conditions. See Lundberg v. Unemployment Comp.
5
Bd. of Rev. (Pa. Cmwlth., No. 29 C.D. 2021, filed Oct. 14. 2021),7 slip op. at 3. “This
is the case even where there is a real and serious safety concern, or where a[n
employee] has a medical condition which endangers her.” Id. (first citing Iaconelli
v. Unemployment Comp. Bd. of Rev., 423 A.2d 754, 756 (Pa. Cmwlth. 1980), then
citing St. Clair Hosp. v. Unemployment Comp. Bd. of Rev., 154 A.3d 401 (Pa.
Cmwlth. 2017)). “Once [a concern is] communicated, an employer must have a
reasonable opportunity to make accommodations with respect to the work conditions
and/or medical condition.” Id. (citing Blackwell v. Unemployment Comp. Bd. of
Rev., 555 A.2d 279, 281-82 & n.6 (Pa. Cmwlth. 1989)).
As the prevailing party below, Claimant is entitled to the benefit of all
reasonable inferences drawn from the evidence on review. See Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Claimant’s testimony in the instant matter reveals that Claimant
harbored genuine fears regarding dangers presented to her by the COVID-19
pandemic. See NT at 5-9 & 11-12; CR at 76-80 & 82-83. Claimant explained that
she is asthmatic and had concerns for her health when asked, in her role as Guest
Services Receptionist, to take temperatures of persons entering the building. See NT
at 5-6; CR at 76-77. She feared Employer’s COVID-19 prevention protocols were
not being appropriately observed. See NT at 5; CR at 76. Claimant presented her
supervisor with multiple requests to be transferred from her position to one with less
risk of possible exposure to COVID-19, even to the kitchen, if necessary, but her
request was not honored. See NT at 6-8; CR at 77-79. Further, Claimant explained
that she was never instructed to either contact HR regarding a transfer or instructed
7
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be
cited for their persuasive value.
6
on any protocols or procedures beyond speaking with her supervisor by which she
was to request a transfer. See NT at 6-8; CR at 77-79.
Based on this testimony, the Board found that
[C]laimant credibly testified that she communicated her
safety concerns to her supervisor and asked to be
transferred to the “kitchen.” However, the supervisor did
not direct [C]laimant to go to HR. Nor did the [E]mployer
inform [C]laimant of the proper procedure to request a
transfer or report unsafe working conditions. Thus,
[C]laimant’s efforts to communicate her issues to her
supervisor prior to quitting were sufficient. [E]mployer
did not address [C]laimant’s problem or offer her an
accommodation.
Board Decision at 2.
Based on this record, we conclude that substantial evidence existed to
support the Board’s necessary findings of fact that Claimant met her burden of
proving that she left work for cause of a necessitous and compelling nature. See
Board Decision at 2. We are therefore bound by this finding. See Waverly Heights,
173 A.3d at 1228. Because Claimant communicated her issues and concerns to
Employer, but Employer failed to accommodate Claimant’s issues or to instruct her
how to otherwise properly request a transfer, the Board did not err in concluding that
Claimant had cause of a necessitous and compelling nature to terminate her
employment. See Lundberg. Accordingly, we affirm the Board’s Decision reversing
the Referee’s Decision/Order and determining that Claimant was not ineligible for
UC benefits under section 402(b) of the Law.
7
IV. Conclusion
For the foregoing reasons, we affirm the Board Decision.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Concordia of the South Hills, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 602 C.D. 2022
Respondent :
ORDER
AND NOW, this 17th day of August, 2023, the May 18, 2022 order of
the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge