Opinion
No. 1971 C.D. 2010
06-14-2011
Andre Culbreth, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Andre Culbreth (Claimant) petitions for review of the August 10, 2010, order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of a referee disapproving benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). We affirm
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant was employed by Independence Blue Cross (Employer) as an inventory control clerk. (Finding of Fact No. 1.) Prior to September 2009, Claimant began experiencing personal and family difficulties. Claimant was providing assistance to his grandmother, who resides with him, with chores and obtaining groceries. (Findings of Fact Nos. 2, 3.) Claimant also was experiencing health-stress problems that affected his ability to concentrate at work, and he informed his supervisor of the problem. (Findings of Fact Nos. 3, 4.)
Claimant exhausted all of his regular leave and vacation time. Subsequently, Employer gave approval to Claimant to take twelve weeks of leave pursuant to the Family Medical Leave Act (FMLA). (Findings of Fact Nos. 5, 6.) On September 2, 2009, Claimant resigned from his employment, explaining to Employer that family and personal problems made it too difficult for him to continue working. (Finding of Fact No. 8.) (Notes of Testimony (N.T.) at 8.) On the day of his resignation, Claimant had utilized only two weeks of his approved twelve-week FMLA leave. (Finding of Fact No. 6.)
Claimant applied for unemployment benefits, which the local service center denied. The service center concluded that Claimant was not ineligible for benefits under section 402(b) of the Law, but was ineligible pursuant to section 401(d) of the Law, 43 P.S. §801(d), because he was not able and available for work.
The service center found that Claimant quit working for health reasons, and it analyzed Claimant's circumstances under sections 401(d) and 402(b) of the Law as follows:
In situations where the Claimant voluntarily quits due to health problems, the burden is on the Claimant to show that he informed his Employer of his health limitations. It is then the Employer's responsibility to provide suitable work within the Claimant's work limitations. In this case, the Claimant's restrictions were so great that he was unable to accept any type of work. As such, there was no work that the Employer could offer the Claimant. The Claimant sustained his burden of proof and benefits must be allowed under Section 402(b).(Notice of Determination at 1.)
However, the Claimant must also be able and available for suitable work in order to qualify for UC benefits. In this case, the Claimant's restrictions are so great that he was unable to accept any type of work. As such, benefits must be denied under Section 401(d)(1) of the Law.
Claimant appealed, and a referee conducted a hearing on May 24, 2010. Claimant was pro se and the sole witness at the hearing; Employer did not appear. Claimant testified that he resigned from his employment in part because he was caring for his eighty-one year old grandmother, who needed help with daily activities such as getting groceries. (N.T. at 8, 11.) Claimant testified that, if he did not need to get groceries for his grandmother and deal with issues related to her, he would have continued working. (N.T. at 8, 11.) Furthermore, Claimant testified that he was experiencing stress, anxiety, fatigue, and medical problems that prevented him from working. (N.T. at 13-14.) Claimant admitted that he used only two weeks of his twelve-week FMLA leave; he testified that he did not continue working because he "knew his limits" and feared he would eventually start "messing up" to the point where he would be fired. (N.T. at 16.)
After reviewing the evidence, the referee concluded that Claimant was ineligible for benefits pursuant to section 402(b) of the Law. The referee noted that when Claimant resigned he still had ten weeks of FMLA leave available. The referee reasoned that, by not taking advantage of that leave or inquiring whether any other leave was available, Claimant failed to take reasonable and necessary steps to maintain his employment. Accordingly, the referee concluded that Claimant failed to establish necessary and compelling reasons for quitting and was therefore ineligible for benefits.
The referee, however, concluded that Claimant was not ineligible for benefits under section 401(d) of the Law, finding that he was able and available for suitable work during the weeks at issue in the appeal.
The referee also concluded that Claimant received a non-fault overpayment in the amount of $271.00 for the week ending April 3, 2010. Claimant does not contest the non-fault overpayment in this appeal and, accordingly, the issue is not before us.
Claimant appealed to the Board, which affirmed and adopted the referee's findings of fact and conclusions of law.
On appeal to this Court, Claimant contends that the Board erred by concluding that he did not have necessitous and compelling reasons to resign from his job. Claimant asserts that he needed to resign in order to tend to his physical and mental needs and the personal needs of his family.
Our scope of review is limited to determining whether constitutional rights were violated, errors of law were committed, or whether findings of fact are supported by substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124 (Pa. Cmwlth. 2010).
Claimant does not contend that any of the Board's findings are unsupported by substantial evidence. Therefore, the Board's findings are conclusive in this appeal. Salamak v. Unemployment Compensation Board of Review, 497 A.2d 951 (Pa. Cmwlth. 1985).
In order to be eligible for unemployment compensation benefits, a claimant who voluntarily quit his job must establish necessitous and compelling cause. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885 (Pa. Cmwlth. 2001). Necessitous and compelling cause is found where the claimant demonstrates that: circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Id. The question of whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Id.
When a claimant resigns to care for an ill family member, the claimant must show that he attempted to preserve his employment by seeking alternative means of providing care or seeking accommodations from the employer. Draper v. Unemployment Compensation Board of Review, 718 A2d 383 (Pa. Cmwlth. 1998) (stating that a claimant who resigns to care for a sick parent is not entitled to benefits absent evidence that the claimant explored other options less drastic than quitting his job); Robinson v. Unemployment Compensation Board of Review, 532 A.2d 952 (Pa. Cmwlth. 1987) (stating that a claimant who quits working to care for an ill parent must show an attempt to preserve employment by exploring alternative solutions).
In this case, Claimant testified that, but for his need to care for his grandmother and buy her groceries, he would have continued working:
R. ... So if it wasn't for the issues related to your grandmother, would you have continued working?(N.T. at 8, 11.) However, Claimant did not testify that he explored any alternatives less drastic than resigning from his employment to provide care for his grandmother or purchase her groceries. In fact, when the referee asked Claimant why he did not buy groceries after his work hours, Claimant could not articulate an intelligible reason for his inability to do so. (N.T. at 11-12.)
C. Yes.
....
R. ...So if you didn't have to get groceries from the store for [your grandmother], would you have continued working?
C. Yes, definitely.
Although Claimant also testified that he suffered from medical problems related to stress, anxiety, and fatigue, his testimony in this regard was vague and did not identify the precise nature of those alleged problems. More important, Employer accommodated Claimant by granting him twelve weeks of FMLA leave. However, instead of utilizing the full twelve weeks of leave to deal with his medical and family problems, Claimant elected to resign his employment after exhausting only two weeks of his leave. Claimant testified he stopped working before his FMLA leave expired out of fear that his employment would be terminated; however, the Board found Claimant was never informed by Employer that his discharge was imminent. (Finding of Fact No. 10.)
For all of the above reasons, we conclude that Claimant did not sustain his burden of proving a necessitous and compelling need to quit his employment and, therefore, he is ineligible for benefits under section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of June, 2011, the August 10, 2010, order of the Unemployment Compensation Board of Review is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge