P. Wright v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Wright, :
Petitioner :
:
v. : No. 982 C.D. 2020
: SUBMITTED: April 16, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 27, 2021
Claimant, Pamela Wright, 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 affirm.
The relevant facts as found by the referee, which the Board adopted and
incorporated in their entirety, are as follows.2 From May 2018 to January 2020,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
2
Where the referee’s findings are supported by the record, the Board may adopt them. See
Bowers v. Unemployment Comp. Bd. of Rev., 402 A.2d 308 (Pa. Cmwlth. 1979).
Claimant worked full-time as a patient care coordinator for Employer, Cosmetic and
Plastic Surgery Center, at a final hourly rate of $18.54. (Finding of Fact “F.F.” No.
1.) Formerly diagnosed with cancer, Claimant’s current diagnoses were bone loss
and severe anxiety. (Id., Nos. 2 and 3.) In April 2019, Claimant’s treating physician
issued a recommendation requiring her to have two “movement breaks” throughout
the day. (Id., No. 4.) Claimant advised Employer of her physician’s
recommendation and it permitted her to take the required breaks. (Id., Nos. 6 and
7.) Additionally, Employer assigned Claimant tasks requiring movement whenever
possible such as taking out the trash when there was no custodian available and
returning misdelivered items to the proper recipients. (Id., No. 8.) In October 2019,
Claimant resigned from her position stating that her last day of work would be
January 3, 2020, and that she was fulfilling her long-held desire to live in Lancaster
County for a quality-of-life change and proximity to family. (Id., Nos. 11 and 12.)
Subsequently, Claimant applied for unemployment compensation
benefits, which the Altoona Unemployment Compensation Service Center granted.
Employer appealed, asserting that Claimant resigned voluntarily even though there
was available work for her. After a hearing at which Employer’s office manager and
Claimant, with counsel, appeared by telephone and testified, the referee reversed.
On appeal, the Board affirmed. Claimant’s petition for review to this Court
followed.3
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).
3
The determination of 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).
2
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. Where an alleged health reason is
involved, a claimant is required to: (1) present competent evidence that at the time
of separation, adequate health reasons existed that justified the voluntary quit; (2)
prove that she informed the employer of the health problem before leaving; and (3)
demonstrate that she was able and available to perform work which was not inimical
to her health, if a reasonable accommodation was made by the employer. Ridley
Sch. Dist. v. Unemployment Comp. Bd. of Rev., 637 A.2d 749, 752 (Pa. Cmwlth.
1994). A failure to meet any of these requirements warrants ineligibility. Id.On appeal, Claimant argues that she acted reasonably under the
circumstances in quitting due to health reasons. Maintaining that she provided
Employer with sufficient notice of her health difficulties, the accommodation that
she needed, and a physician’s note, Claimant argues that Employer failed to
accommodate her health needs and actively discouraged her from taking movement
breaks. Accordingly, Claimant argues that the Board erred in determining that she
failed to establish necessitous and compelling cause for her voluntary quit.
Claimant’s position is without merit. The Board resolved any conflicts
in the evidence in Employer’s favor.4 Notwithstanding the fact that Employer’s
office manager never saw the physician’s note that Claimant claimed to have left on
It is within the Board’s province to determine credibility and evidentiary weight. Oliver v.
4
Unemployment Comp. Bd. of Rev., 5 A.3d 438 (Pa. Cmwlth. 2010).
3
the manager’s desk,5 Employer nonetheless permitted Claimant to take the required
breaks and even assigned her tasks whereby she could get up and move.
Additionally, the office manager testified that Claimant never indicated what more
she wanted as an accommodation.6 (May 13, 2020, Hr’g, Notes of Testimony “N.T.”
at 30 and 39; Certified R. “C.R.” at 127 and 136.) Claimant bore the burden of
proving that she adequately advised Employer of her health problems before she
voluntarily quit, and, accordingly, was required to provide enough information to
Employer to afford appropriate accommodation. See Lee Hosp. v. Unemployment
Comp. Bd. of Rev., 637 A.2d 695 (Pa. Cmwlth. 1994) (holding that a claimant must
communicate his or her health issues to an employer and that constructive notice
does not apply).
Claimant in her resignation letter did not mention her health issues.
Instead, she referenced only her lifelong desire to move to Lancaster County for
purposes of family proximity and an improvement to her quality of life. (May 13,
2020, Hr’g, Emp.’s Ex. 10.) In addition, Claimant acknowledged that she did not
orally advise Employer that she was resigning for health reasons.7 As the office
manager testified with respect to Claimant’s reasons for leaving:
5
(May 13, 2020, Hr’g, Notes of Test. “N.T.” at 28, 29, and 34; Certified R. “C.R.” at 125,
126, and 131.)
6
Even the physician’s note was somewhat vague in that it merely provided as follows: “Please
allow Pamela to have two movement breaks during the day.” (Id. at 13; C.R. at 110.) In addition
to a lunch break, Claimant construed the recommendation as “walking up and down the stairs a
few times.” (Id. at 14; C.R. at 111.)
7
The relevant colloquy is as follows:
R [Referee] Okay, ma’am. . . . Did you specifically tell anybody
from the Employer that you were leaving for health reasons?
(Footnote continued on next page…)
4
In the letter, [Claimant] stated that it was to move to
Lancaster, be closer to family, and said better quality of
life. Verbally, she had told me that one of her children had
gotten married recently, and that she wanted to move
closer to them, and . . . it’s been, like, a lifelong dream for
her to be living closer to the Lancaster area and to be close
to her children. So that she wanted to do that, and she
would need to do that, and so that’s the, the only
explanation she provided to me at all.
(May 13, 2020, Hr’g, N.T. at 27-28; C.R. at 124-25.)
Finally, Claimant acknowledged that she provided Employer with the
physician’s note in April 2019, submitted her resignation letter in October 2019, and
worked for several more months until January 3, 2020. (Id. at 22-23; C.R. at 119-
20.) Affording Employer as the prevailing party the benefit of any inference that
can logically and reasonably be drawn from the record,8 this timetable suggests that
C [Claimant] No, that wasn’t stated in my note.
R And did you tell them orally that you were leaving for health
reasons?
C Yes, they knew that I was speaking. . .
R Don’t tell me what they knew, ma’am. Tell me what you told
them, if anything, as to why you were leaving. Did you. . .
C I’m going to say that it was in my, my resignation letter, just for
a better quality of life.
R All right.
C And. . .
R You didn’t actually tell anybody like [the office manager] or
anybody else from the Employer look, I have to leave because of my
health?
C That’s correct.
(May 13, 2020, Hr’g, N.T. at 11; C.R. at 108.)
8
Middletown Twp. v. Unemployment Comp. Bd. of Rev., 40 A.3d 217, 223 (Pa. Cmwlth.
2012).
5
there were no circumstances present that produced substantial pressure for Claimant
to voluntarily terminate her employment.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Wright, :
Petitioner :
:
v. : No. 982 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 27th day of July 2021, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita