Opinion
No. 1136 C.D. 2011
03-05-2012
Courtney B. Barthelemy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Courtney B. Barthelemy (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts as found by the Board are as follows:
1. The claimant was last employed as a full-time associate by Carpenter, McCadden & Lane from May 2008 at a final rate of $62,000 per year. Her last day of work was September 29, 2010.
2. The claimant became pregnant and had a due date of October 14, 2010.
3. The claimant informed the employer of her pregnancy and asked about the employer's maternity leave policy.
4. The employer's maternity leave policy allows for six weeks off for a regular delivery and eight weeks off for a C-section, including any time off prior to birth.
5. The claimant was aware of the employer's maternity leave policy.
6. Due to complications, the claimant's doctor took her off work effective September 30, 2010.
7. By letter dated September 30, 2010, the employer approved the claimant for maternity leave through November 10, 2010, for a regular delivery or November 28, 2010, for a C-section.
8. By letter dated October 4, 2010, the claimant told the employer that her doctor tentatively released her to return to work six to eight weeks post-partum.
9. By letter dated October 14, 2010, the employer reiterated its maternity leave policy to the claimant of six weeks including pre-natal leave and that the claimant was required to return to work on November 11, 2010. The letter also asked the claimant to confirm her intent to return to work on that date.
10. By letter dated October 19, 2010, the claimant informed the employer that her post-partum appointment was scheduled for November 19, 2010, and only after that time would she consider returning to work.
11. The claimant did not return to work on November 11, 2010, nor did she contact the employer.
12. On November 19, 2010, following her post-partum appointment, the claimant sent the employer an e-mail requesting clarification relative to her remaining vacation days. She stated that, following the employer's response, she would advise it of her return to work date.
13. On November 19, 2010, the employer responded by e-mail that maternity leave cannot be extended with vacation days and that the claimant should advise it when she was returning to work. The claimant did not receive this e-mail because it was automatically forwarded to the employer.
14. On Sunday, November 21, 2010, the claimant went into the employer's offices and noticed that she had no work in her office.
15. The claimant sent the employer an e-mail stating that she cannot be productive if she has no work.
16. Later that evening, the employer forwarded to the claimant the missing November 19, 2010, e-mail.
17. In a separate e-mail, the employer again explained to the claimant that she had been expected to return to work on November 11 or 29, 2010, as per its maternity policy, depending on her manner of delivery. The employer stated that it assumed that the claimant had been released to return to work by her doctor and asked what date the claimant would return.
18. The claimant's return e-mail indicated that she delivered vaginally. The claimant did not indicate to the employer whether she had been released to return to work or as of what date.
19. The claimant did not return to work on November 22 or 23, 2010.
20. The claimant did not contact the employer.
21. By letter dated November 23, 2010, the employer terminated the claimant's employment for, in part, abandonment of employment.
22. The claimant voluntarily quit her employment by failing to return to work following a leave of absence.
23. Continuing work was available to the claimant had she not quit.Board Opinion, May 6, 2011, (Opinion), Findings of Fact Nos. 1-23 at 1-3.
The Board determined:
The Board resolves the conflicts in testimony in favor of the employer and finds the testimony of the employer to be credible.
Here, the employer's maternity leave policy allows for six weeks off, including any time off prior to delivery. Pursuant to the policy, the employer approved the claimant time off through November 10, 2010. Despite the employer's policy and the claimant's knowledge of the policy, the claimant decided that she did not want to return until after her post-partum appointment on November 19, 2010. The claimant made no attempt to speak to the employer to work out when she would return.
Nonetheless, following the November 19, 2010, post-partum appointment, the claimant sent the employer an e-mail that merely stated that she saw her doctor and she would give a return to work date only after the employer clarified remaining vacation days.
Admittedly, the claimant did not receive the return November 19, 2010, e-mail from the employer, but the claimant still made no effort to contact the employer directly. On November 21, 2010, the claimant sent the employer another e-mail stating that she needed work to be productive, but without yet giving the employer a return to work date. The employer responded by forwarding the missing e-mail, again reiterating its maternity leave policy, and again asking the claimant if she had been released and when she would return to work. The claimant's return e-mail merely stated that she had delivered vaginally, still without informing the employer whether she could return to work or when. The
claimant failed to return to work or contact the employer on November 22 or 23, 2010.Opinion at 3-4.
The Board finds that, as evidenced by her actions and inaction, the claimant had no intention of returning to work. The claimant's testimony to the contrary is rejected. The employer was willing to have the claimant return even after she ignored its maternity leave policy, but the claimant never gave the employer a return to work date, never returned to work, and never made any direct contact with the employer. The claimant's separation from employment was voluntary.
. . . .
The claimant maintained that she had been terminated, which this Board has rejected. The claimant has not proven that she had a necessitous and compelling reason to quit.
Claimant contends that she did not voluntarily quit her job when she remained on maternity leave for seven weeks at the direction of her physician and with the approval of Carpenter, McCadden & Lane, LLP's (Employer) short term disability carrier.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995). Mere dissatisfaction with one's working conditions is not a necessitous and compelling reason for terminating one's employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982).
In Kassab Archbold & O'Brien v. Unemployment Compensation Board of Review, 703 A.2d 719 (Pa. Cmwlth. 1997), this Court addressed a similar issue. Kathleen Siko (Siko) worked as a paralegal for the law firm, Kassab Archbold & O'Brien (KAO). On July 24, 1996, Siko delivered a memorandum to her supervisor which stated that she would return to work ten weeks after her maternity leave began. Siko did not receive a response from her supervisor. Because of complications with her pregnancy, Siko began her maternity leave on August 15, 1996. She gave birth on September 10, 1996. KAO believed that Siko had six weeks of maternity leave from the date of delivery so that her last day of maternity leave was October 21, 1996. On October 22, 1996, KAO's firm administrator attempted to contact Siko by telephone to ascertain whether she would return to work that day. Siko had changed her telephone number and the administrator failed to reach her. When Siko did not appear for work, the managing partner of KAO sent her a letter and informed her that because she did not come to work on her scheduled return date and did not communicate with KAO, KAO treated her actions as a resignation. Kassab, 703 A.2d at 720.
After she received the letter, Siko became upset because she believed that she was not due to return to work until October 28, 1996. She contacted her husband who called the administrator to inquire why his wife was forced to return to work before her ten week leave period ended. The administrator informed Siko's husband that the firm's policy was to allow six weeks of maternity leave. Siko's husband requested that the managing partner contact him. Siko's husband did not tell the administrator that Siko planned to return to work on October 28, 1996. The managing partner did not contact Siko's husband. Siko sent the managing partner a letter and stated that she had not been given a specific date to return to work, she did not intend to resign, and she considered herself terminated. Kassab, 703 A.2d at 720.
Siko applied for unemployment compensation benefits. The Board affirmed the referee's determination that Claimant was eligible for benefits because she had not committed willful misconduct. Kassab, 703 A.2d at 720-721.
KAO petitioned for review with this Court and argued that Siko voluntarily quit her employment without a necessitous and compelling reason. This Court reversed:
A claimant has the burden of proving that her separation from employment was a discharge. . . . An employee who is on maternity leave and has been told to report to work or face discharge has a duty to act prudently and take reasonable steps to preserve her employment or she may be considered to have voluntarily terminated her employment. . . .Kassab, 703 A.2d at 721.
Even though Claimant [Siko] testified at the hearing that she was given ten weeks of leave and that entitled her to return to work on October 25, 1996, the Referee determined that her ten week leave of absence actually required her to return to work on October 25, 1996. Claimant [Siko] never contacted her Employer [KAO] anytime after she went on maternity leave to tell it she would be returning to work on October 28, 1996, rather than on October 24th or 25th and she failed to return to work on either of those dates. Additionally, upon receiving the firm's letter extending her leave an extra day before being terminated, she had her husband respond to the firm's letter rather than personally calling the firm Administrator as the letter instructed to explain the situation. While her husband did call, he never told the Administrator when Claimant [Siko] intended to come back to work. Claimant's [Siko] response was to send a letter on October 24th, one day before her scheduled return date, stating that she considered herself terminated as of October 25, 1996. Claimant [Siko] could have easily called her Employer [KAO] and attempted to clear up the confusion but chose not to do so. As such, she made no attempt to preserve her position with the firm and voluntarily terminated her employment. (Citations omitted).
Here, Claimant was informed that Employer's maternity leave policy was six weeks for a regular delivery and eight weeks off for a C-section. Employer informed Claimant by letter dated September 30, 2010, that maternity leave for Claimant was approved for Claimant through November 10, 2010, for a regular delivery. Claimant responded by stating that her doctor would release her to return to work six to eight weeks after the birth of her baby. Employer again notified Claimant that she was required to return to work on November 11, 2010, with a regular delivery and requested that Claimant notify it if she planned to return to work on that date. Claimant informed Employer by letter dated October 19, 2010, that her post-partum doctor's appointment was scheduled for November 19, 2010, and she would not consider returning to work until after that. Claimant did not return to work on November 11, 2010. On November 19, 2010, after her doctor's appointment, Claimant emailed Employer to inquire about her remaining vacation days and stated, "Following your response I will advise of my proposed return to work date." Email from Claimant, November 19, 2010, at 1. Two days later Claimant contacted Employer after she went to her office on a Sunday night and found no work waiting for her. By email, Employer again reiterated that Claimant was scheduled to return to work on November 11, 2010, for a regular delivery, and asked what date Claimant would return. She did not state when or if she would return to work. She did not return to work in the next two days. On November 23, 2010, Employer terminated Claimant in part for abandoning her employment.
As in Kassab, Claimant was given a date to return to work following the completion of her maternity leave as established by Employer. She neither returned to work by that date nor informed Employer when she would return. Like Siko in Kassab, Claimant could have cleared up any confusion and spoken with Employer but did not. Much of Claimant's argument is devoted to topics which the Board did not address and make findings upon, and which did not play a part in the Board's decision. Claimant does argue that she was prepared to return to work on November 22, 2010. However, she did not do so and did not notify Employer when she would return. The Board did not err when it determined Claimant made no attempt to preserve her employment and abandoned her job.
Claimant also contends that she had a necessitous and compelling reason for terminating her employment because she was following doctor's orders to remain off work. When a claimant does not raise an issue in the petition for review and then argues the issue in the brief, this Court has declined to consider the issue. Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164 (Pa. Cmwlth. 1991). A review of Claimant's petition for review with this Court reveals that she did not raise this issue. Therefore, it is waived. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 5th day of March, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge