Opinion
No. 1454 C.D. 2011
04-13-2012
Shirley L. Favero, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Shirley L. Favero (Claimant) petitions for review of the July 8, 2011 decision of the Unemployment Compensation Board of Review (Board). The Unemployment Compensation Service Center (Service Center) denied Claimant benefits on the basis of 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). (Record Item No. 8, Notices of Determination (Ineligible w/Overpayment of Benefits & Penalty Weeks) (Notice of Determination).) The Service Center further found Claimant liable for a "fault" overpayment under Section 804(a) of the Law, 43 P.S. §874(a), in the amount of $10,469, because Claimant "failed to report voluntarily quitting employment." (Id.) The Service Center ordered recoupment of the overpayment, and further imposed 21 penalty weeks pursuant to section 801(b) of the Law, 43 P.S. § 871(b). (Id.)
Section 402(b), 43 P.S. § 802(b), provides:
An employe shall be ineligible for compensation for any week -
...
(b) In which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act...
Section 804(a), 43 P.S. § 874(a), provides:
(a) Any person who by reason of [her] fault has received any sum as compensation under this act to which [she] was not entitled shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by [her]...
Section 801(b), 43 P.S. § 871(b), provides:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act ...may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment...
Claimant appealed the Service Center's determination and an evidentiary hearing was held before a referee (Referee). At the hearing, testimony was heard from both Claimant and a representative from Claimant's employer, Zitelli & Brodland, M.D., P.C. (Employer), where Claimant had worked full-time as a medical secretary. In its decision mailed April 14, 2011, the Referee reversed the determination of the Service Center, found Claimant eligible for benefits, and found no overpayment or penalty weeks. (Record Item 14, Referee's Decision/Order, dated 04/14/11 (Benefits Granted: No Overpayment/No Penalty Weeks).)
Employer appealed, and the Board reversed the decision of the Referee, denied benefits pursuant to Section 402(b) of the Law, and imposed the $10,469 fault overpayment and 21 penalty weeks. (Record Item 16, Board's Decision and Order, issued on 07/08/11 (Deny w/Overpayment & Penalty Weeks) (Board's Decision).) Claimant's request for reconsideration was denied, and Claimant appealed to this Court.
Our review is limited to a determination of whether findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights have been violated. 2 Pa. C.S. § 704. Whether an employee's reasons for terminating employment were of a necessitous and compelling nature is a legal conclusion subject to our review. Truitt v. Unemployment Compensation Board of Review, 527 Pa. 138, 589 A.2d 208 (1991). In a voluntary termination case, the claimant has the burden of proving that she left the employment for cause of a necessitous and compelling nature. Ganter v. Unemployment Compensation Board of Review, 723 A.2d 272 (Pa. Cmwlth. 1999). Cause of a necessitous and compelling nature has been defined as circumstances that produce real and substantial pressure to terminate one's employment and that would compel a reasonable person to do the same. Id.
Claimant worked for Employer from 1991 until June 25, 2010. At the Referee's hearing, Claimant testified that she commuted approximately one hour each way to work; she stated that in fall of 2009, she informed Employer that her daughter would be starting kindergarten in September, 2010, and in order to be able to put her on the morning school bus, and pick her up at the bus stop in the afternoon, she needed to amend her work hours. (Record Item 13, Referee's Hearing, Transcript of Testimony (T.T.), at 8-10.) Claimant testified that she offered to work at her job as medical secretary from 9:30 am until 2:30 pm, Monday through Friday; alternatively, she offered to perform various tasks such as helping with office billing, updating manuals, or escorting patients, on a part-time basis. (T.T., at 11.) After Employer notified Claimant that no part-time work would be available to her, she submitted a letter of resignation. (T.T., at 7.) In response to questions from the Referee, Claimant testified that her husband was unable to assist her because he worked varying "shifts," and no family members lived close enough to provide child care. (T.T., at 12.) Employer's representative testified that Claimant was a "top-notch medical secretary," but stated that the office structure was such that only a full-time secretary could meet the needs of the practice. (T.T., at 13.)
Claimant filed for unemployment benefits, online, in October, 2010, and received benefits until March 5, 2011. Her claim record indicates that she stated "lack of work," identified on the form as code "02," as her reason for separation. (Record Item 1, Claim Record.) Employer filed a request for relief from charges, and the Notice of Determination denying benefits was issued on March 15, 2011, with findings of fact indicating that Claimant "voluntarily quit because of unknown reasons," and "there was insufficient information provided to indicate whether the Claimant had a necessitous and compelling reason for voluntarily leaving the job." (Notice of Determination.)
The record shows that Employer faxed a letter to the Service Center on March 3, 2011, enclosing a copy of Claimant's letter of resignation, noting that Employer had filed its request for relief from charges on November 2, 2010, and requesting that the Service Center expedite its review. (Record Item 2, Employer's Letter to Service Center Inquiring on Status of its Request for Relief of Charges w/Attachments, faxed on 03/03/11.)
The Service Center "Claimant's Questionnaire" form, mailed March 7, 2011, included a cover letter to Claimant stating that if Claimant's response was not received by March 14, 2011, eligibility would be determined based upon available information. (Record Item 4, Service Center Correspondence Requesting Separation Information mailed to Claimant & Employer on 03/07/11 (Unanswered).) Although Claimant's completed "Claimant's Questionnaire" was signed and dated March 10, 2011, and bears the Service Center's time stamp indicating it was received by the Service Center on March 14, 2011, Claimant's "Claimant's Questionnaire" also bears a sticker indicating it was received after the Notice of Determination was written. (Record Item 5, Claimant Questionnaire, dated 03/10/11 (Received After Determination Written).)
The Referee found that "because there was no one else, either in her family or among her neighbors, who was available to take her child to and from the bus stop everyday," Claimant "had no choice but to leave her job once she found out that part-time work was unavailable." (Referee's Decision/Order.) The Board's Decision, however, made findings of fact (F.F.) different from those of the Referee, stating as follows:
6. The claimant decided that once her child started public school, the claimant no longer wanted her child to attend day care.(Board's Decision at 1-2, F.F.¶¶ 6-7, 17.)
7. The claimant decided that she wanted to put her child on and off the school bus and did not want her child to attend wrap around day care.
.....
17. The claimant has not alleged that either she or her spouse would have any financial difficulty paying for wrap around day care.
The Board concluded that Claimant "deliberately mislead and misinformed the Department and the Referee with regard to the availability of wrap around day care in order to collect benefits." (Board's Decision, at 3.)
On appeal, Claimant avers that the Board erred as a matter of law when it relied upon findings of fact (that Claimant could have obtained "wrap around day care" child care services) that are unsupported by substantial evidence contained within the record.
Upon review of the transcript of testimony from the Referee's hearing, we note that at no time was the subject of outside, or non-family provided child care ever raised. Neither the Referee nor Claimant's counsel questioned Claimant about the possibility of outside child care. However, in its appeal from the decision of the Referee, Employer attached a letter to the Board, noting that it had checked daycare options in Apollo, PA, where Claimant resides, and reporting that at least three facilities in the area provided daycare services to guide children on and off the bus to all the area schools. The letter further stated that Claimant had worked full-time for over four years with her child in daycare a majority of that time, and argued that with available child care as an option, Claimant cannot claim a necessitous and compelling reason to have resigned from her position. (Record Item 15, Employer's Petition for Appeal from Referee's Decision w/Attachments, dated 04/26/11.)
In Truitt v. Unemployment Compensation Board of Review, 509 Pa. 628, 589 A.2d 208 (1991), our Supreme Court addressed the issue of child care as a necessitous and compelling reason to quit. In Truitt, the claimant quit her job working a late night shift after making inquiries of her sisters, former babysitters, and a daycare center in an effort to find replacement care for her two children, who had been previously cared for by her then-ailing mother. The Supreme Court, in granting benefits, held that in light of all of claimant's efforts, "[t]here is nothing more that we can or should ask of an employee before that employee terminates his or her employment." Truitt, 527 Pa. at 143, 589 A.2d at 210.
This Court determined, in Shaffer v. Unemployment Compensation Board of Review, 928 A.2d 391 (Pa. Cmwlth. 2007), that a claimant's child care issues did not constitute a necessitous and compelling reason to terminate her employment where the Board found that although she investigated one daycare facility, which proved not to be cost effective, she failed to present evidence regarding additional efforts made to address the child care 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. In Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa. Cmwlth. 2000), we noted that this Court has consistently required that claimants prove that they explored alternative child care arrangements before terminating employment in order to care for small children, and claimants must establish that they exhausted all other alternative child care arrangements, such as a concerted effort to find another babysitter or find a suitable daycare center. Id. at 71-72.
We find, sub judice, that substantial evidence exists to support the Board's finding that once her child started public school, Claimant wanted to be available to put her child on the school bus, and meet her child at the bus stop after school, and therefore did not want to put her child in wrap around daycare. Here, the Referee questioned Claimant about relatives who might be available to help her, but failed to inquire about babysitters, neighbors, or daycare services that might be available. Indeed, the Referee characterized Claimant's testimony as to why she left her employment as "her need to take her daughter to the bus stop in the morning and pick her up again in the afternoon." There is simply no evidence that Claimant exhausted alternative child care arrangements, or made any effort at all to explore other possibilities besides securing the services of a family member.
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Compensation Board of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
Conversely, Employer asserted, in its appeal from the Referee's decision, that at least three viable daycare options existed, and Claimant's child had previously been in daycare. We find that the Board did not err in concluding that Claimant made a decision that once her child started public school, she would undertake to care for the child before and after school, and properly found that Claimant left work without cause of a necessitous and compelling nature. Based on the standards applied by our Supreme Court in Truitt, and by this Court in Shaffer and Beachem, as well as our review of the record, we must affirm the denial of benefits to Claimant.
Claimant also contests the Board's finding of a fault overpayment and penalty weeks. The Board found that Claimant deliberately made a false statement regarding the circumstances relating to the conclusion of her employment. Claimant argues this finding was unsupported by substantial evidence contained within the record. We agree with Claimant.
It is undisputed that in her online application, Claimant's response indicated "lack of work" as her reason for separation. However, in her appeal from the Notice of Determination, Claimant explained this action:
"I am being told the discrepancy is because I said "lack of work". My interpretation of this was because there was no part-time position available for me so there was no work. My employer states I quit because I gave the letter of resignation. I felt I had to give a formal letter stating my last day of employment."(Record Item 9, Claimant's Petition for Appeal from Determination w/Attachments, dated 03/21/11.) In her "Claimant's Questionnaire," Claimant clearly checked off "Quit" in response to the question, "Did you quit your job or take a leave of absence?" In the section provided for further explanation, she responded that she requested part-time hours due to childcare issues starting in fall, 2010, and was told there was no part-time position available.
At the Referee hearing, Claimant was questioned about her application for unemployment benefits, and again, she answered that she had explained that she needed part-time hours, and part-time was not available to her. Claimant testified as follows with regard to her separation from employment:
Referee: And how did you come to be separated from your employment? Were you discharged, were you laid off, or did you quit?(T.T., at 7.)
Claimant: There was no part-time work available.
Referee: Well, you resigned then?
Claimant: Yes, I...
Referee: All right.
Claimant: ...feel I was forced to.
We have stated that the word "fault" within the meaning of Section 804(a) of the Law connotes "an act to which blame, censure, impropriety, shortcoming or culpability attaches...." Greenawalt v. Unemployment Compensation Board of Review, 543 A.2d 209, 211 (Pa. Cmwlth. 1988) (quoting Cruz v. Unemployment Compensation Board of Review, 531 A.2d 1178, 1180 (Pa. Cmwlth. 1987)). Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. Greenawalt. Our review of the record finds no basis for concluding that Claimant's statements were knowingly or intentionally misleading, and no other evidence supporting the Board's finding of a fault overpayment. At every opportunity, Claimant explained her reason for claiming "lack of work" on her online application, and clearly stated that she had voluntarily resigned her full-time position after Employer failed to offer part-time employment. Accordingly, we affirm the Board's decision as to the denial of benefits, but we reverse as to the finding of fault on the part of Claimant. Benefits paid to Claimant for the weeks following her voluntary quit are a nonfault overpayment subject to recoupment under Section 804(b) of the Law, 43 P.S. §874(b)(1).
This section provides, in part:
Any person who other than by reason of [her] fault has received with respect to a benefit year any sum as compensation under this act to which [she] was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to [her] with respect to such benefit year, or the three-year period immediately following such benefit year...--------
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 13th day of April, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed, to the extent it denied benefits to Claimant, and reversed to the extent that it ordered recoupment under Section 804(a) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L., (1937), 2897, as amended, 43 P.S. §874(a), and imposed penalty weeks under Section 801(b), 43 P.S. §871(b). Benefits paid to Claimant for the weeks following her voluntary quit are a nonfault overpayment subject to recoupment under Section 804(b), 43 P.S. §874(b)(1).
/s/_________
JAMES GARDNER COLINS, Senior Judge