Opinion
No. 394 C.D. 2013
08-22-2013
Linda L. Rogers-Watson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Linda L. Rogers-Watson (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), dated January 15, 2013, denying her request for reconsideration of the Board's order, dated December 5, 2012. By its earlier order dated December 5, 2012, the Board affirmed the Unemployment Compensation Referee's (Referee) decision, which, in part, denied Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), relating to voluntary separation without cause of a necessitous and compelling nature. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant filed for unemployment compensation benefits after voluntarily quitting her position with University of Pennsylvania Health System (Employer). The Philadelphia UC Service Center (Service Center) issued a determination finding Claimant ineligible for benefits under Section 402(b) of the Law but eligible for benefits under Section 401(d)(1) of the Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a Referee conducted a hearing. Following the hearing, the Referee issued a decision, in which he also determined Claimant to be ineligible for unemployment compensation benefits. (C.R., Item No. 9.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Section 401(d)(1) of the Law provides:
Compensation shall be payable to any employe who is or becomes unemployed and who [i]s able to work and available for suitable work. . . .
At the hearing before the Referee, Employer presented the testimony of Nancy Dougherty, Managing Director of Patient Financial Services. Claimant presented the testimony of Therine Cannady, a former co-worker of Claimant. Claimant also testified on her own behalf.
Ms. Dougherty testified that Claimant came to her and expressed concerns about Employer's office environment. (C.R., Item No. 8 at 9.) Ms. Dougherty testified that she immediately reported Claimant's concerns to Employer's Environmental Service Department, and Employer immediately, aggressively cleaned the area. (Id.) Ms. Dougherty also testified that Employer's Safety Management Department had an air quality and environmental assessment performed in February of 2011. (Id.) Ms. Dougherty testified that Employer's office passed the assessment. (Id. at "Employer's Ex. 1.") Ms. Dougherty also testified that Employer shampooed the carpets and furniture, cleaned the ceiling, and scheduled a detailed three day-a-week cleaning. (Id. at 10.) Ms. Dougherty testified that Employer passed another air quality assessment in May 2012. (Id. at "Employer's Ex. 2.")
Claimant testified that she began experiencing health issues shortly after commencing employment with Employer. (Id. at 4.) Claimant testified that she experienced headaches, breathing problems, and multiple infections. (Id.) Claimant also testified that her doctor diagnosed her with asthma. (Id.) Claimant testified that her symptoms were worse when she was in Employer's office because the office environment was unclean. (Id.) Claimant testified that the office was not properly ventilated after Employer put in an air conditioning unit. (Id. at 5.) Claimant testified that, after multiple doctors' visits, her doctor told her that her illness would not be resolved if she continued working at Employer's office. (Id.) Claimant testified that, after meeting with her doctor, she resigned from her employment with Employer due to health issues. (Id.) Claimant also testified that since she resigned from her position with Employer, her health has improved. (Id.) Ms. Cannady, a former co-worker of Claimant, testified that Employer did not properly clean the vents in the office where she and Claimant worked. (Id. at 8.) Ms. Cannady also testified that the air conditioner was not properly ventilated. (Id.)
The Referee made the following findings of fact:
1. The claimant last worked for the University of Pennsylvania Health System from January 5, 2009 until April 20, 2012 as a Cashier in a full time position at a final hourly rate of $17.81.
2. During the course of the claimant's employment the claimant became concerned about
environmental issues in the Cashier's office and she spoke to her supervisor about this towards the end of 2010 or in early 2011 and the supervisor requested that the employer conduct an air quality assessment and also study the area to see whether there were any environmental hazards.
3. The report indicated that environmental levels were adequate although it also recommended that the physical plant properly connect a supplemental air conditioning unit so that it could not be disconnected.
4. During the course of the claimant's employment the claimant consulted a physician although the claimant never provided the employer with any medical documentation indicating that the claimant's work environment was hazardous.
5. During this period the claimant was diagnosed with a chronic sinus infection and the claimant had other medical issue[s] that were not related to her work environment.
6. After the claimant spoke to her supervisor, the managing director of Patient Financial Service[s], the supervisor contacted the HR Department and also met with the Environmental Service Department, which cleaned the area after which the Safety Management Department also studied the air quality in the claimant's work area.
7. The employer also ensured that there would be a regular schedule for the shampooing of carpeting, cleaning of the ceiling, and a thorough cleaning of [the] office several times a year in addition to routine maintenance.
8. In 2012 the claimant was off two days because of illness but eventually on April 20, 2012 the claimant submitted her resignation letter in which the claimant cited poor work environment as one of the reasons for her resignation.(C.R., Item No. 9.)
Based upon those findings, the Referee concluded that Claimant was ineligible for benefits under Section 402(b) of the Law. (Id.) The Referee reasoned that Claimant did not present medical evidence as to why her symptoms were attributable to her work environment and not the result of other causes. (Id.) The Referee reasoned that although Claimant introduced a medical letter dated February 23, 2012, that letter failed to reference the work environment as the potential cause of Claimant's illnesses. (Id.) The Referee reasoned that the Employer credibly testified that Claimant's work environment was acceptable and within normal parameters. (Id.) The Referee concluded that as a lay person Claimant was unable to testify credibly that Employer's work environment caused her medical problems. (Id.) The Referee found Claimant ineligible under Section 402(b) because Claimant failed to establish credibly a necessary and compelling reason for voluntarily terminating her employment. (Id)
Claimant appealed to the Board. The Board affirmed the Referee's decision and adopted the Referee's findings and conclusions by order dated December 5, 2012. (C.R., Item No. 20.) Claimant filed a request for reconsideration with the Board, (C.R., Item No. 21), but she did not file a timely petition for review of the Board's December 5, 2012 order with this Court. Claimant requested reconsideration on the basis that the Board erred in concluding that she resigned without cause of a necessitous and compelling nature, because her doctor advised her to resign due to the environmental conditions in her office, which allegedly caused her illness. The Board denied Claimant's request for reconsideration by order dated January 15, 2013, noting that its order dated December 5, 2012 "stands as final." (C.R., Item No. 23.)
Claimant filed a pro se letter with the Court on February 15, 2013, and filed a perfected petition for review on March 14, 2013. By order dated August 10, 2013, this Court held that Claimant's petition for review is untimely to the extent that it seeks to challenge the merits of the Board's decision dated December 5, 2012, but the appeal is timely (based upon the February 15, 2013 filing date) to the extent that it seeks to challenge the Board's order denying reconsideration, dated January 15, 2013. On appeal, therefore, we may consider only Claimant's appeal of the Board's denial of reconsideration. See Muehleisen v. State Civil Svc. Comm'n., 443 A.2d 867, 869 (Pa. Cmwlth. 1982), affirmed, 501 Pa. 335, 461 A.2d 615 (1983).
On appeal from the Board's order denying reconsideration, Claimant essentially argues that the Board erred in failing to find that she resigned due to her doctor's determination that the hazardous condition of her work environment exacerbated her illness in light of the evidence she presented in the form of photographs of the office area where she worked and doctor's notes. Claimant argues that the Board erred in failing to conclude that the damage to her health as a result of the environment at her office constitutes a necessitous and compelling reason to resign her employment.
The Board may grant a request for reconsideration or rehearing when good cause to do so exists. 34 Pa. Code §101.111(b). In determining if good cause exists, the Board considers if the party requesting the reconsideration "has presented new evidence or changed circumstances or whether [the Board] failed to consider relevant law." Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). There is no good cause for reconsideration where the party seeks reconsideration to introduce additional factual evidence that it could have presented earlier in the proceedings. Georgia-Pacific Corp. v. Unemployment Comp. Bd. of Review, 630 A.2d 651, 662 (Pa. Cmwlth. 1993). The Board may not grant reconsideration merely to revisit credibility issues. Ensle, 740 A.2d at 780. Because the decision to grant or deny a request for reconsideration is a matter of administrative discretion, the Court's review is limited to a determination of whether the agency committed an abuse of discretion. Keith v. Dep't of Pub. Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). An abuse of discretion occurs if the agency decision demonstrates evidence of bad faith, fraud, capricious action, or abuse of power. J.A.M. Cab Co., Inc. v. Pa. Pub. Util. Comm'n, 572 A.2d 1317, 1318 (Pa. Cmwlth. 1990). The party asserting such abuse of discretion has the burden of proving that it occurred. Pa. State Ass'n of Twp. Supervisors v. State Ethics Comm'n, 499 A.2d 735, 737 (Pa. Cmwlth. 1985).
Claimant does not properly present her questions as whether the Board abused its discretion in denying her request for reconsideration. Rather, Claimant essentially advances arguments challenging the Board's decision on the merits. We again reiterate that the Board's decision on the merits is not before the Court, as Claimant failed to timely appeal that order. Nevertheless, we will do our best to consider Claimant's arguments as they relate to the question properly before us.
In her brief, Claimant directs the Court to several letters from her doctor to support her contention that she resigned due to her doctor's recommendation, including a medical letter, dated July 11, 2012, which date is after the date of the hearing before the Referee. At the hearing before the Referee Claimant provided a doctor's letter dated November 22, 2010; however, this letter did not allege that Claimant's work environment caused her illness. (C.R., Item No. 8 at "Claimant's Ex. 2.") Claimant attached a separate doctor's letter, dated December 14, 2012, to her request for reconsideration, which stated that Claimant's symptoms were likely due to the environmental factors at the site of her employment. (C.R., Item No. 21.) Claimant, however, does not explain why she did not or could not provide a doctor's note explaining that her symptoms were exacerbated by her work environment during the hearing before the Referee. The Board, therefore, did not abuse its discretion by denying reconsideration to allow Claimant to introduce additional evidence in the form of her doctor's December 14, 2012, letter.
Moreover, Claimant's argument that the Board erred in not finding that she resigned due to her doctor's determination that the hazardous condition of her work environment exacerbated her illness, in essence, challenges the Board's credibility determination as to the reason for her resignation. As stated above, the Board cannot grant reconsideration to revisit credibility issues.
Because the Board cannot grant reconsideration to revisit credibility issues and Claimant does not establish why she was unable to provide at the Referee's hearing a doctor's note addressing the alleged hazardous work environment and its relation to her illness, we find no abuse of discretion by the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 22nd day of August, 2013, the order of the Unemployment Compensation Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge