IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gloria J. Verno, : Petitioner : : v. : No. 985 C.D. 2013 : Submitted: January 10, 2014 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: January 29, 2014 Gloria J. Verno (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee s denial of emergency unemployment compensation (EUC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) 1 and Section 4001(d)(2) of Title IV of the Emergency Unemployment Compensation 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(b). That section provides, in relevant part, that [a]n employe shall be ineligible for compensation for any week [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature... 43 P.S. 802(b).
Act of 2008 (EUC Act) 2 because Claimant did not have necessitous and compelling reasons for quitting her employment. For the reasons that follow, we affirm. Claimant was employed as a front-desk receptionist with Washington Internal Medicine (Employer) for approximately five weeks. On January 2, 2013, Employer s office manager, Rachel Stainbrook (Stainbrook), met with Claimant to discuss her job performance and the need to follow Employer s practices and 2 Title IV of the Supplemental Appropriation Act of 2008, Pub. Law 110 252, 122 Stat. 2323, 26 U.S.C. 3304 note. Section 4001(b) of the EUC Act provides, in relevant part, that a: State agency will make payments of emergency unemployment compensation to individuals who (1) have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year (excluding any benefit year that ended before May 1, 2007); (2) have no rights to regular compensation with respect to a week under such law or any other State unemployment compensation law or to compensation under any other Federal law; (3) are not receiving compensation with respect to such week under the unemployment compensation law of Canada; and (4) are able to work, available to work, and actively seeking work. Section 4001(d)(2) provides, in relevant part, that [t]he terms and conditions of the State law which apply to claims for regular compensation and to the payment thereof (including terms and conditions relating to availability for work, active search for work, and refusal to accept work) shall apply to claims for emergency unemployment compensation and the payment thereof... 2
procedures. After leaving the office that day and subsequently consulting with her physician, Claimant resigned. Claimant applied for EUC benefits 3 with the UC Service Center, which denied benefits, and Claimant appealed. Before the Referee, Claimant testified that on January 2, 2013, she took several messages but could not send the messages to the doctor without someone checking them first because she was a new employee. She testified that she held onto the messages because both her supervisor and Stainbrook were busy, and that Stainbrook later reprimanded her for doing so. She stated that she then had a meeting with Stainbrook, who informed her that she needed to improve her job performance and attitude. Claimant testified that during that meeting, she told Stainbrook that she did not know whether she could continue her employment due to the stress it caused her. Claimant stated that after leaving the office that day, she consulted with her physician, who advised her to resign because it was causing her to have health problems. Claimant also testified that she was yelled at by other staff members on previous occasions and that she did not receive proper training for her position. 4 Stainbrook testified that she spoke with Claimant on a few occasions regarding Claimant s interaction with patients and attitude with other staff members, but denied yelling at Claimant. She stated that when she hired Claimant, 3 Claimant initially filed an application for regular unemployment compensation benefits effective December 16, 2007, following her separation from a previous employer. 4 Claimant also entered into the record a letter from her doctor advising her to resign and a timeline of events leading up to her resignation. 3
she informed her that training for the position would be hands-on and that Employer s office was very hectic and busy. She further testified that Claimant was aware that she could ask for help with any problems she was having. Stainbrook stated that Claimant called her the day after their January 2, 2013 meeting to inform her that she was quitting because she could not perform the necessary job functions, testifying that Claimant told her she was too afraid [she was] going to mess up and [could not] get the answering of phones and taking messages part of the job. (March 18, 2013 Hearing Transcript at 9). Concluding that Claimant overreacted to what she regarded as unjust criticism and failed to demonstrate that she took appropriate steps to resolve any issues with Employer in order to preserve her employment, the Referee held that Claimant was ineligible for benefits under Section 402(b) of the Law. Claimant then appealed to the Board, which affirmed. In its decision, the Board incorporated the Referee s findings and conclusions and additionally found that Stainbrook credibly testified that she notified Claimant before she was hired that Employer s office was busy and that Claimant never informed her of a medical condition that prohibited her from performing her essential job functions; and that Claimant failed to make any effort to maintain the employment relationship before quitting. Claimant then filed this appeal, 5 in which she essentially argues that she had cause of a necessitous and compelling nature to leave her employment because 5 Our review of the Board s decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact were supported by substantial evidence. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 n.8 (Pa. Cmwlth. 2012). 4
the working conditions at Employer s office were causing her to have medical problems. Whether an employee has a necessitous and compelling reason to voluntarily quit employment is a question of law fully reviewable by this Court. Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 (Pa. Cmwlth. 2011). A claimant who voluntarily terminates his or her employment has the burden of proving that a necessitous and compelling cause existed. Id. It is well-settled that an employee who claims to have left work for a necessitous and compelling reason must prove 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 his or her employment. Id. Medical problems can constitute cause of a necessitous and compelling nature. Karwowski v. Unemployment Compensation Board of Review, 74 A.3d 1179, 1184 (Pa. Cmwlth. 2013). To establish health as a compelling reason for quitting a job, a claimant must: (1) offer competent testimony that adequate health reasons existed to justify termination; (2) have informed the employer of the health problem; and (3) be available, where a reasonable accommodation is made by the employer, for work which is not inimical to his health. Id. We agree with the Referee and Board s conclusion that Claimant failed to prove that she had necessitous and compelling reasons for quitting her employment. The Board found credible Employer s testimony that Claimant never 5
informed Employer of a medical condition that prohibited her from performing her essential job functions. 6 Moreover, as the testimony clearly demonstrates and as the Referee and Board found, Claimant made no effort whatsoever to preserve her employment following the events of January 2, 2013. 7 Accordingly, the order of the Board is affirmed. DAN PELLEGRINI, President Judge 6 In unemployment compensation proceedings, the Board is the ultimate fact-finder, empowered to determine the credibility of witnesses and resolve conflicts in evidence. Lee v. Unemployment Compensation Board of Appeal, 33 A.3d 717, 721 (Pa. Cmwlth. 2011). 7 Claimant also argues that the Referee and Board erred in failing to consider the timeline of events which she presented at the hearing. However, Claimant did not testify regarding many of the alleged incidents in the timeline, and nothing in the timeline demonstrates any attempt by Claimant to preserve her employment prior to quitting. Therefore, Claimant s argument is without merit. 6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gloria J. Verno, : Petitioner : : v. : No. 985 C.D. 2013 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 29 th day of January, 2014, the order of the Unemployment Compensation Board of Review, dated May 2, 2013, at No. B- 551306, is affirmed. DAN PELLEGRINI, President Judge