Opinion
No. 554 C.D. 2013
10-04-2013
Fajr Flannery, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Fajr Flannery (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that found her ineligible for unemployment compensation (UC) benefits under Section 402(b) of the Unemployment Compensation Law (Law). Claimant states several issues for review. Essentially, Claimant contends the Board erred in determining she quit her employment for personal reasons rather than child care issues; and that she exhausted all her child care options before leaving her employment. Claimant also asserts, contrary to the Board's decision, she initially raised the child care issues before the Department of Labor and Industry's (Department) local UC service center. For the reasons that follow, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(b). Section 402(b) provides "[a]n employe shall be ineligible for compensation for any week ... [i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ...." Id.
Background
The Board found the following facts. Claimant worked for Berks County (Employer) as a part-time licensed practical nurse from May 2006 until her last day of work in September 2012. At the time of her separation, Claimant worked approximately two days per bi-weekly pay period.
Claimant is a single parent of one small child. Her fiancé serves in the military and has been located in Texas for the past two years. In the past, Claimant paid friends to take care of her child when she worked. As of September 2012, Claimant's friends could no longer take care of her child.
On September 16, 2012, Claimant voluntarily quit her employment to relocate to Texas to live with her fiancé. Had Claimant not resigned, continuing work remained available.
Furthermore, Claimant did not discuss her child care issues with Employer before she quit her job or at the time of her resignation. In addition, Claimant did not request extra shifts or an emergency leave of absence prior to quitting her job.
However, Claimant did investigate commercial day care providers. Commercial providers charged $400 per month for part-time care and $800 per month for full-time care. Claimant also investigated governmental programs, but she was financially ineligible for assistance.
Initially, the Department's local UC service center issued a determination denying UC benefits under Section 402(b) of the Law. Claimant appealed.
Following a hearing at which Claimant and Employer presented evidence, the referee reversed the determination of the UC service center and found Claimant not disqualified under Section 402(b). In so doing, the referee credited Claimant's testimony that she voluntarily left her employment to relocate to Texas where her fiancé is able to help her care for her child. Thus, the referee determined Claimant established necessitous and compelling cause for her voluntary quit.
Employer appealed, and the Board reversed. Unlike the referee, the Board rejected as not credible Claimant's testimony that she relocated to be with her fiancé primarily for help with child care. The Board reasoned as follows:
Here, [Claimant] testified that she quit her employment because her friend, who cared for her child was no longer available. [Claimant] also testified that she could not afford commercial day care providers. Based upon the record before the Board, [Claimant] did not inform [Employer] of her day care issues, did not request a leave of absence and did not inquire whether other positions were available to her. Additionally, [Employer] credibly testified that [Claimant] could have requested additional shifts, and in fact, [Claimant] had done so in the past. As such, [Claimant] provided insufficient credible evidence to show that she took reasonable steps to preserve her employment. The Board notes that [Claimant] initially reported to the Department the reason for moving as, 'we are ready to be together and we have been doing long distance relationship for a long time.' [Claimant] testified that she also explained to the Department that
she decided to move because of child care issues. The Board does not find Claimant credible and finds that [Claimant] made a personal choice to move to Texas. Accordingly, [Claimant] failed to show necessitous and compelling cause for quitting her employment.Bd. Op., 3/1/13, at 3. Consequently, the Board ruled Claimant ineligible for UC benefits under Section 402(b) of the Law. Claimant petitions for review.
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).
Issues
Claimant essentially contends the Board erred in determining she voluntarily quit her employment for personal reasons rather than due to her inability to find child care after she lost her private sitter. Claimant further argues she exhausted all her child care options before leaving her employment. Claimant also asserts, contrary to the Board's decision, that she raised the child care issue before the Department in her oral interview and questionnaire.
Discussion
Claimant argues the Board erred in determining she did not have necessitous and compelling cause for her voluntary separation from employment. She asserts she is a single mother with no family to assist her with child care. Claimant further maintains she lost her private sitter and could not afford commercially available day care. Thus, Claimant explained, she voluntarily left her employment to relocate to Texas because her fiancé is able to provide her help with child care. Claimant also points out that the referee found her testimony credible.
Initially, we note, an employee who claims to have left employment for a necessitous and compelling reason bears the burden of proof and must show 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 her employment.Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). The question of whether an employee has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Ganter v. Unemployment Comp. Bd. of Review, 723 A.2d 272 (Pa. Cmwlth. 1999).
In certain cases, an employee's inability to locate suitable child care may provide necessitous and compelling cause for a voluntarily termination of employment. Truitt v. Unemployment Comp. Bd. of Review, 527 Pa. 138, 589 A.2d 208 (1991); Dopson v. Unemployment Comp. Bd. of Review, 983 A.2d 1282 (Pa. Cmwlth. 2009).
However, as noted above, the Board rejected Claimant's testimony that she decided to relocate to be with her fiancé in Texas primarily because of child care issues. Rather, the Board found Claimant made a personal choice to move to Texas to live with her fiancé. Bd. Op., Finding of Fact No. 18. Explaining its credibility determination, the Board observed that Claimant initially stated her reason for moving in with her fiancé as "We are ready to be together and we have been doing long distance relationship for a long time." See Service Center Ex. SC-4: Record of Oral Interview (Certified Record (C.R.) at Item #4).
In addition, Claimant also initially indicated to the Department that she voluntarily quit to follow her spouse. See Service Center Ex. SC-5: Claimant Questionnaire (C.R. at Item #3). Further, when asked if there were economic circumstances beyond her control which caused her to relocate with her spouse, Clamant checked "No." Id.
At the referee's hearing, Claimant stated she had no objection on legal grounds to admission of Exhibits SC-4 and SC-5 into evidence. See N.T. at 4. Nonetheless, Claimant testified she chose to relocate with her fiancé not just because she wanted to be with him but primarily because he supported her financially and he could help her out with child care. See N.T. at 7-8. Claimant further testified her fiancé was her last resort for child care. Id. at 8.
The Board, however, did not accept this testimony as credible. As the final fact-finder in UC cases, the Board is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). To that end, the Board may accept or reject the testimony of any witness, in whole or in part. Grief v. Unemployment Comp. Bd. of Review, 450 A.2d 229 (Pa. Cmwlth. 1982). Further, the Board's credibility determinations are binding on this Court. Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12 (Pa. Cmwlth. 2009).
Also, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Ductmate. In addition, Employer, as the prevailing party before the Board, is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
Therefore, in light of the Board's adverse credibility determination, we hold Claimant failed to meet her burden of showing that she voluntarily quit for necessitous and compelling reasons due to her inability to obtain affordable child care. Truitt; Dopson. An employee's voluntary decision to leave employment based on her personal preference to relocate with a significant other does not constitute necessitous and compelling cause under the Law. Lechner v. Unemployment Comp. Bd. of Review, 639 A.2d 1317 (Pa. Cmwlth. 1994).
Moreover, the Board found Claimant did not discuss her child care issues with Employer prior to her quit. Bd. Op., Finding of Fact No. 12. This finding is supported by Claimant's testimony. See Notes of Testimony (N.T.), 12/3/12, at 6. Claimant's failure to discuss her child care issues with Employer supports the Board's alternate conclusion that Claimant did not make reasonable efforts to preserve her employment. As such, Claimant's failure to make reasonable efforts to preserve her employment provides another ground for the Board's conclusion that Claimant did not establish necessitous and compelling reasons for her voluntary quit. Dopson v. Unemployment Comp. Bd. of Review, 983 A.2d 1282 (Pa. Cmwlth. 2009); Platz v. Unemployment Comp. Bd. of Review, 709 A.2d 450 (Pa. Cmwlth. 1998). --------
For the above reasons, we discern no error in the Board's determination of Claimant's ineligibility under Section 402(b) of the Law. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 4th day of October, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge