L. Harmer v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lorraine Harmer, :
Petitioner :
:
v. : No. 1364 C.D. 2018
: Submitted: May 3, 2019
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: August 22, 2019
Lorraine Harmer (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) denying her claim for
benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43
P.S. §802(b).1 In doing so, the Board affirmed the Referee’s decision that Claimant
failed to offer substantial evidence of a necessitous and compelling reason for
leaving her employment. For the following reasons, we affirm the Board’s order.
Claimant worked full-time for Chester County Intermediate Unit’s
(Employer) Brandywine Virtual Academy as a math teacher beginning on January
14, 2014. Her last day was January 10, 2018. Claimant filed a claim for
unemployment compensation benefits, which the Unemployment Compensation
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b),
which states, in relevant part, that a claimant shall be ineligible for compensation for any week in
which the claimant’s unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.
(UC) Service Center denied under Section 402(b) of the Law. Claimant appealed,
and the Referee held a hearing on May 7, 2018.
At the hearing, Claimant testified on her own behalf. Claimant
explained that she suffered from post-traumatic stress disorder (PTSD) and
fibromyalgia. Her PTSD is often triggered by encounters with male authority
figures. Claimant testified that during a meeting with her supervisor, Charles
Harper, on December 15, 2017, Harper began acting aggressively and yelled at her,
which triggered Claimant’s PTSD. Thereafter, Claimant requested accommodations
pursuant to the Americans with Disabilities Act of 1990 (ADA). 2 On January 10,
2018, Claimant met with a group of Employer’s administrative staff about the
December 2017 incident and her request for accommodations.3 She also provided
Employer with a doctor’s note placing restrictions on her work due to her PTSD and
fibromyalgia.
Claimant testified that when she began feeling unsafe at work, she
considered taking leave pursuant to the Family and Medical Leave Act (FMLA).4
Mark Cottom, President of Employer’s teacher union, told Claimant that FMLA
leave was “off the table.” Notes of Testimony (N.T.), 5/7/2018, at 11; Reproduced
Record at 94a (R.R. ___). More specifically, Cottom informed Claimant that if she
did not resign, Employer would discharge her, which would jeopardize her teaching
certificate. If she took FMLA leave, she could not continue teaching or look for
2
42 U.S.C. §§12101-12213.
3
Claimant testified she faced retaliation from Employer’s Human Resources Department because
of her accommodation requests. On January 11, 2018, Claimant met with an Equal Employment
Opportunity Commission representative to file a claim against Employer for retaliation. She was
unable to file a claim, but later filed one which remained open at the time of the hearing. Board
Adjudication, 9/12/2018, Finding of Fact No. 10; Reproduced Record at 218a (R.R. ___).
4
29 U.S.C. §§2601-2654.
2
other work as her family’s sole provider. Claimant believed she had no other choice
but to resign. Claimant verbally resigned on January 23, 2018. Claimant tried to
rescind her resignation on February 7, 2018, so that she could take FMLA leave.
Iain Strachan, Employer’s Director of Human Resources, testified that
Claimant had submitted five requests for work accommodations under the ADA, all
of which were of a general nature. On January 10, 2018, Strachan met with Claimant
to clarify her requests. For example, Claimant requested an ergonomic workstation,
but her workstation was already ergonomic. Strachan encouraged Claimant to
submit a more detailed request if she needed a different workstation. He further
explained that:
She also asked about, you know, to take time to go to doctor’s
appointments, I said, yes, she can absolutely take time to go to
doctor’s appointments…. She asked to go to aqua fitness in the
morning, that she needed to go to aqua fit classes in the morning
before she can – would have to come to work. I said I needed
more information about that, why it had to be aqua fitness
classes. She said she needed a non-stressful environment. I was
like again, you have to give me some specifics, so I can respond
to them…. She then worked with doctors and gave me some
specifics; all of these accommodations were based on
fibromyalgia. Her original meeting, she had said, she has PTSD
and there was nothing said about PTSD [in the] paperwork on
that.
N.T. 24; R.R. 107a. Strachan was “very surprised” that Claimant decided to resign
because Employer was “working diligently to try and get her back to work and make
accommodations.” N.T. 25-26; R.R. 108a-09a. He became aware through the union
representative that Claimant wanted to rescind her resignation. Strachan testified
that by that point Claimant had abandoned her position because “she hadn’t been to
work since January 10th and she resigned. She left the students. She handed her
3
computer in [on January 24th.] She sent her notice that she was gone.” N.T. 26; R.R.
109a. Employer had hired a substitute teacher to fill Claimant’s position by the time
Claimant tried to rescind her resignation.
The Referee concluded that Claimant failed to establish a necessitous
and compelling reason for leaving her employment and affirmed the UC Service
Center’s determination that Claimant was ineligible for benefits.
Claimant appealed to the Board, which issued its own findings of fact.
The Board credited Employer’s witnesses and found that Claimant intended to
resign. Claimant’s resignation was effective on January 24, 2018, after she wrote to
Employer, used up nearly all of her sick time, accepted other employment and
informed her co-workers that she had resigned. Claimant could not revoke her
resignation. The Board further determined that Claimant did not show that her health
conditions of PTSD and fibromyalgia gave her a necessitous and compelling reason
to resign. Employer granted several of Claimant’s requested accommodations and
was collecting more information from Claimant about others, i.e., her request to go
to aqua fitness classes before work and her request to work half days from home.
Claimant provided some additional information but then resigned two days later,
before Employer could act on her request. The Board concluded that Claimant did
not make a reasonable effort to preserve her employment by resigning precipitately.
Accordingly, the Board affirmed the Referee’s decision to deny benefits. Claimant
petitioned for this Court’s review.
On appeal,5 Claimant argues that the Board erred in determining that
Claimant failed to demonstrate cause of a necessitous and compelling nature for
5
Our review determines “whether constitutional rights were violated, [whether] an error of law
was committed or whether necessary findings of fact are supported by substantial competent
4
voluntarily resigning her employment. Specifically, she argues that she proved a
compelling medical reason to quit her job and made a reasonable effort to preserve
her employment. Claimant also contends that Employer failed to accommodate her
health problems.
This Court has explained that a claimant has a necessitous and
compelling reason for leaving employment when:
(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 & Conference Center, LLC v. Unemployment Compensation Board
of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).
A claimant’s medical condition may create a necessitous and
compelling reason to leave her employment. Lee Hospital v. Unemployment
Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994). To
establish a compelling medical reason to quit, the claimant must: (1) offer competent
testimony that adequate health reasons existed to justify the voluntary termination;
(2) have informed the employer of the health problems; and (3) have been available
to work with reasonable accommodations. Ann Kearney Astolfi DMD PC. v.
Unemployment Compensation Board of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth.
2010). Once a claimant meets this burden, the employer must establish that it made
a reasonable attempt to identify and propose possible accommodations for the
employee’s health problems. Lee Hospital, 637 A.2d at 698.
evidence.” Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298
n.2 (Pa. Cmwlth. 1995).
5
It is undisputed that Claimant suffers from PTSD and fibromyalgia and
that she informed Employer of these conditions. The Board determined that
Claimant requested multiple accommodations and that Employer made some of
these accommodations. For example, Employer allowed Claimant to take breaks
during meetings and allowed her to bring a support person with her to meetings with
her male supervisor. Employer was investigating Claimant’s request to attend an
aqua fitness class before work and to work half days from home, but she quit before
Employer could make a final decision on all of the accommodations. Simply,
Employer lacked complete knowledge of Claimant’s needs, which it needed before
it could grant her requested accommodations. Bonanni v. Unemployment
Compensation Board of Review, 519 A.2d 532, 549 (Pa. Cmwlth. 1986) (explaining
that employer may ask for more specific information as to what claimant can and
cannot do to determine what is a reasonable accommodation). Claimant did not have
a compelling and necessitous reason to quit while Employer was considering her
accommodation requests.
Claimant next argues that she made reasonable efforts to preserve her
employment because she rescinded her resignation. She argues that the Board
placed too much emphasis on her January 22, 2018, email to her union
representative, suggesting that Employer consider January 24, 2018, to be her
effective resignation date if Employer would not approve her request to work from
home.6 Claimant also contends that the Board’s finding that Employer replaced her
6
Claimant’s email to her union representative read, in part, as follows:
I am ready to begin the process of resignation of my BVA math teacher role [and]
I have scheduled a personal day for tomorrow (1/23/18), and would like to request
a resignation as soon as possible – with a possible resignation date of Wednesday
1/24/18. As I only have 1.5 sick days remaining, resignation would need to occur
this week – if Strachan is unable to approve the request to work from home.
R.R. 72a.
6
around January 24, 2018, is not supported by substantial evidence. Claimant further
contends that after she began the resignation process, she learned in a discussion
with her union representative that FMLA leave was a possibility. She immediately
rescinded her resignation so she could request FMLA leave. Claimant asserts that
the foregoing demonstrates a reasonable attempt to preserve her employment.
“An employee who revokes his resignation before the ‘effective date’
of his resignation and before the employer took steps to replace him is entitled to
benefits.” Spadaro v. Unemployment Compensation Review Board, 850 A.2d 855,
859 (Pa. Cmwlth. 2004). Here, the Board found Claimant’s resignation was
effective January 24, 2018, and that Employer had taken steps to replace Claimant.
Board Adjudication, 9/12/2018, at 4; R.R. 220a. These findings are supported by
Claimant’s email to her union representative on January 22, 2018, indicating her
intention to resign as soon as possible. On January 23, 2018, Claimant emailed her
co-workers, informing them that she had resigned and had accepted other
employment. Claimant’s attempted revocation of her resignation did not occur until
February 7, 2018, by which time Employer had hired a substitute to fill Claimant’s
position. Board’s Adjudication, 9/12/2018, Finding of Fact No. 20; R.R. 219a.
Because Claimant’s attempted revocation was not made until after its effective date,
by which time Employer had hired a replacement, Claimant’s resignation was
effective on January 24, 2018. Accordingly, we agree with the Board that Claimant
did not make a reasonable effort to preserve her employment.
For all of the above reasons, we affirm the Board’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lorraine Harmer, :
Petitioner :
:
v. : No. 1364 C.D. 2018
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 22nd day of August, 2019, the order of the
Unemployment Compensation Board of Review dated September 12, 2018, in the
above-captioned matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge