Opinion
No. 811 C.D. 2014
01-23-2015
Nawar Elmolla, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Nawar Elmolla (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a referee and denied her unemployment compensation (UC) benefits. The Board found Claimant ineligible for UC benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because she voluntarily terminated her employment without cause of a necessitous and compelling nature. Claimant asserts she proved a necessitous and compelling reason to quit as she could no longer afford to work based on the high cost of daycare for her two children. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
I. Background
Claimant worked as a software developer for American Future, Inc. doing business as Progressive Business Publications (Employer) from April 2011 until her last day of work on July 5, 2013. After her separation from employment, Claimant applied for UC benefits, which the local service center denied. Claimant appealed to the referee.
After a hearing, at which only Claimant appeared and testified, the referee determined Claimant was ineligible under Section 402(b) of the Law and affirmed. Claimant then appealed to the Board.
Based on the evidence submitted at the referee's hearing, the Board made the following relevant findings. Claimant worked for Employer full-time at a final rate of $2,120 bi-weekly. In July 2013, Claimant began her maternity leave, which was scheduled to end on September 30, 2013. Claimant investigated daycare providers for her infant and toddler child. The cost of the daycare providers Claimant investigated ranged from $613 to $776 per week for both children. Claimant's husband shares Claimant's expenses and earns $71,000 per year. Claimant has a car payment of $491 per month. Bd. Op., 1/3/14, Findings of Fact (F.F) Nos. 1-5.
The Board is restricted to reviewing the evidence submitted by the referee unless it takes additional evidence under its regulations. Han v. Unemployment Comp. Bd. of Review, 42 A.3d 1155 (Pa. Cmwlth. 2012); 34 Pa. Code §101.106. In her appeal to the Board, Claimant attached various documents, including a chart of alleged monthly earnings and expenses, paystubs, and monthly bills. However, these documents were not submitted at the referee's hearing or admitted as additional evidence by the Board, but they "were inadvertently included in the [C]ertified [R]ecord." Resp't's Br. at 7 n.4; see Certified Record, Item No. 10. Thus, the Board did not consider this extra-record evidence, and it limited its examination to the evidence presented at the referee's hearing.
Claimant requested part-time work or the ability to work from home. However, Employer could not accommodate her request. Claimant chose to quit her employment and stay home with her children. F.F. Nos. 6-7.
The Board determined Claimant made a personal choice to quit her employment and stay home with her children. Although Claimant presented evidence to show the daycare providers she investigated exceeded $600 per week, Claimant did not present credible evidence to show she investigated more affordable daycare providers or in-home babysitters. Further, Claimant presented insufficient credible evidence to show she experienced or would experience financial difficulties if she maintained her employment. Claimant did not show she made every effort to overcome financial difficulties before quitting. The Board concluded Claimant did not meet her burden under Section 402(b) of the Law of showing cause of a necessitous and compelling nature; thus, it denied benefits.
From this decision, Claimant petitions for review. On appeal, Claimant contends the Board erred in determining she did not have a necessitous and compelling reason to leave employment. She claims she could no longer afford to continue working given the high cost of daycare for her two children.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
II. Discussion
As a preliminary matter, Claimant did not challenge any of the Board's findings. Consequently, the Board's findings are conclusive on appeal. Munski v. Unemployment Comp. Bd. of Review, 29 A.3d 133 (Pa. Cmwlth. 2011). Although we are bound by the Board's findings, the question of whether an employee has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
Section 402(b) of the Law provides a claimant is ineligible for compensation benefits for any week in which her unemployment is due to voluntarily leaving work without necessitous and compelling cause. 43 P.S. §802(b). A claimant who voluntarily quits employment carries the burden of proving a necessitous and compelling reason to quit. Du-Co Ceramics Co. v. Unemployment Comp. Bd. of Review, 686 A.2d 821 (Pa. 1996); Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). To meet this burden, a claimant must show:
(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.Solar Innovations, 38 A.3d at 1056.
In certain situations, childcare difficulties may constitute a necessitous and compelling reason for terminating employment. Truitt v. Unemployment Comp. Bd. of Review, 589 A.2d 208 (Pa. 1991); Shaffer v. Unemployment Comp. Bd. of Review, 928 A.2d 391 (Pa. Cmwlth. 2007). Typically, in order to prove a necessitous and compelling reason to quit, a claimant must establish she exhausted all other alternative childcare arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable daycare center. Shaffer; Beachem v. Unemployment Comp. Bd. of Review, 760 A.2d 68 (Pa. Cmwlth. 2000).
In Shaffer, we held that a claimant's childcare issues did not constitute a necessitous and compelling reason to terminate her employment. The claimant investigated only one daycare facility, which proved not to be cost effective. She did not present evidence regarding additional efforts made to address the childcare problems after her employer relocated, "such as securing alternative childcare for her daughter with other daycare facilities ... or having her son enroll in an after school activity or stay with a relative or neighbor before or after school." Id. at 393. Thus, we determined the claimant did not make a concerted effort to find alternative childcare arrangements and maintain her employment.
In addition to childcare problems, a claimant's financial difficulties may constitute a necessitous and compelling reason to quit. See Judd v. Unemployment Comp. Bd. of Review, 496 A.2d 1377 (Pa. Cmwlth. 1985). However, the burden is satisfied "[o]nly when the claimant has done everything in [her] power to alleviate the financial burdens which seemingly compel the decision to leave employment ...." Id. at 1381. We observed, "leaving employment is obviously seldom conducive to bettering one's financial situation." Id.
Here, the Board found Claimant made a personal choice to quit her employment and stay home with her children. F.F. No. 7. Although Claimant presented evidence showing the daycare providers she investigated cost over $600 per week, Claimant did not investigate more affordable daycare providers or in-home babysitters. Thus, she did not exhaust all other alternative childcare arrangements. See Shaffer.
Furthermore, Claimant did not establish an inability to afford childcare. Claimant established daycare would cost a minimum of $613 a week, which amounts to $2452 a month. See Referee's Hr'g, 12/23/13, Notes of Testimony (N.T.) at 4-5; Certified Record (C.R.), Item No. 8, Claimant's Ex. Nos. 1-4. She also established a take-home pay rate of $2,120 bi-weekly, or $4240 per month. N.T. at 4-5; C.R., Item No. 8, Claimant's Ex. No. 6. By quitting her employment, Claimant merely removed the potential childcare expense. Her other household expenses, such as her mortgage and car payment, were not eliminated by her decision to quit. See N.T. at 4; C.R, Item No. 8, Claimant's Ex. No. 5. As a result, quitting her job to take care of her children did not improve her financial situation.
Claimant asserts the documents she sent to the Board with her appeal prove her financial inability to maintain employment. Pet'r's Br. at 4; see C.R., Item No. 10. As these documents were not part of the record before the referee or Board, they cannot be considered on appeal. Pa. Tpk. Comm'n v. Unemployment Comp. Bd. of Review, 991 A.2d 971 (Pa. Cmwlth. 2009). Notwithstanding, review of this extra-record evidence would not compel a different result as the documents do not support Claimant's position that terminating her employment improved her financial situation. To the contrary, the documents show she is financially worse off by her decision to quit. See C.R., Item No. 10. --------
Upon review, Claimant did not prove financial difficulty or lack of daycare affecting her ability to maintain employment. Like the claimant in Shaffer, Claimant determined paying for daycare was not a cost-effective alternative. However, that is not a necessitous and compelling reason to quit. See Shaffer; see also Judd. Thus, the Board did not err in determining Claimant was not eligible for benefits pursuant to Section 402(b) of the Law as she voluntarily terminated her employment without a necessitous or compelling cause.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 23rd day of January, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge