M. Havrilchak v. UCBR , 133 A.3d 800 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michele Havrilchak, :
Petitioner :
:
v. : No. 1054 C.D. 2015
: Submitted: October 30, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: December 14, 2015
Michele Havrilchak (Claimant), representing herself, petitions for
review from the order of the Unemployment Compensation Board of Review
(Board) that determined she was ineligible for unemployment compensation (UC)
benefits pursuant to Section 402(b) of the UC Law (Law) (voluntary quit).1
Claimant contends the Board erred in determining she quit without cause of a
necessitous and compelling nature. She argues her medical condition precluded her
from returning to full-time employment. Discerning no error below, we affirm.
I. Background
Claimant worked for Physician’s Health Alliance-Scranton Quincy
Clinic (Employer) as a medical technician from 2011 until September 2014 when
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
she took leave for her pregnancy. Originally, her leave was scheduled to end in
November 2014. She requested extended leave, which Employer granted through
early January. When her physician released her to return to work, Claimant
requested to return to work in a part-time capacity. Employer had no part-time
positions available, and it offered her only a full-time position. Claimant refused to
return to work in a full-time capacity. As a result, Employer issued a letter advising
that Claimant’s refusal to return to work on a full-time basis ended the employment
relationship.
Upon receiving Employer’s letter, Claimant filed for UC benefits,
which the service center denied. She then appealed to a referee who held a hearing.
Employer did not appear at the hearing. Claimant testified on her own behalf.
The referee affirmed the denial of UC benefits, reasoning Claimant did
not establish a necessitous and compelling reason to quit. The referee made the
following pertinent findings:
5. [Claimant] delivered her child on October 18, 2014.
6. [Claimant] requested extended leave [beyond November
28, 2014,] and was granted such.
7. On January 3, 2015, [Claimant] was released by her doctor
to return to work.
8. [Claimant] requested to return on a part-time basis, rather
than return to a full-time position.
9. [Employer] offered [Claimant] her full-time position, but
[Claimant] refused.
2
Referee’s Dec., 3/18/15, Findings of Fact (F.F.) Nos. 5-9. Claimant appealed to
the Board.
The Board affirmed the referee, adopting her findings and conclusions.
In addition, the Board found Claimant requested to return to part-time work “if
only for several weeks, in order to acclimate to a schedule with her new baby, as she
did when her second child was born. [Employer] informed [Claimant] that no part-
time work was available in that office. [Claimant] chose to quit rather than return to
her full-time position.” Bd. Op., 5/12/15, at 1. Thus, the Board concluded Claimant
did not establish grounds for a voluntary quit under Section 402(b) of the Law.
Claimant now petitions for review.
II. Discussion
On appeal,2 Claimant argues the Board erred in determining that she
quit her employment. She contends Employer terminated her despite her
willingness to return to work. She also claims she did not have the opportunity to
explain her medical condition to her supervisor before she was terminated.
A determination of whether a claimant’s separation from employment
was a voluntary resignation or a discharge is made by examining the totality of the
facts surrounding the claimant’s termination of employment. Pa. Liquor Control
2
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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d
1288 (Pa. Cmwlth. 2013).
3
Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124 (Pa. Cmwlth. 1994).
We make this determination based on the Board’s findings. Id.Additionally, a claimant may not “unilaterally change the terms of
[her] employment from full-time to part-time employment.” Senkinc v.
Unemployment Comp. Bd. of Review, 601 A.2d 418, 420 (Pa. Cmwlth. 1991).
This Court also holds that “mere discontent with wages, hours and working
conditions is not adequate to cause a necessitous and compelling reason for an
employee to quit.” Brunswick Hotel & Conference Ctr., LLC v. Unemployment
Comp. Bd. of Review, 906 A.2d 657, 663 (Pa. Cmwlth. 2006).
Based on the totality of the circumstances, we reject Claimant’s
characterization of her separation as a termination from employment. Notably,
Claimant admitted she restricted her work hours “voluntarily.” Certified Record
(C.R.), Item No. 2 (Initial Claim). In addition, Claimant explained that because
Employer allowed her to return to work part-time after she had her second child,
“when [her] third child was born[,] [she] was hoping and expecting to return to
work at a part time basis[,] [u]ntil [she] could become acclimated to the new
routine of [her] life.” Id. Also, during her interview with the service center,
Claimant admitted she did not return to work full-time “because I needed to get
acclimated to my new life schedule.” C.R., Item No. 5 (Oral Interview).
Further, Claimant repeatedly acknowledged that Employer “made [her]
aware that there is no part[-]time position available for [her].” C.R., Item No. 2;
see also C.R., Item No. 5 (stating “I asked to return [part-time] and they told me
4
that they had no [part-time] work for me.”). Thus, Claimant was aware of the
consequences when she refused to return to work on a full-time basis.3
Because Employer offered Claimant full-time employment, which she
refused, the totality of the circumstances reflect a voluntary quit, not a termination.
Id.; see Andrevich v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 658
C.D. 2010, filed March 7, 2011) (unreported), 2011 WL 10843696 (claimant’s
refusal to return to work full-time after maternity leave constitutes a voluntary
quit). As a consequence, Claimant is ineligible for benefits unless she can
establish a necessitous and compelling reason for leaving her employment.
Section 402(b) of the Law provides that an employee 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 ….”
43 P.S. §802(b). The question of whether a claimant has a necessitous and
compelling reason to terminate employment is a question of law reviewable by this
Court. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217(Pa. Cmwlth. 2012).
3
Moreover, the Board’s findings are supported by substantial evidence. Claimant’s
statements in her submissions, like the “claimant questionnaire,” the “internet claim form,” and
the “initial interview form,” constitute party admissions that are admissible as an exception to the
hearsay rule. Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606 (Pa. Cmwlth. 2014);
see also Direnna v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 754 C.D. 2014,
filed February 20, 2015) (unreported) (upholding Board decision crediting admissions in
claimant’s submissions). “[A]dmissions constitute independent evidence of themselves and are
therefore capable of independently providing competent evidence to support the findings of the
Board.” Unemployment Comp. Bd. of Review v. Houp, 340 A.2d 588, 591 (Pa. Cmwlth. 1975).
5
An employee who claims to have left employment for a necessitous
and compelling reason bears the burden of proof. Id. To prove a necessitous and
compelling reason for leaving employment, a claimant must demonstrate the
following: (1) circumstances existed that 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 (Pa.
Cmwlth. 2012). An employer has no burden of proof in a voluntary quit case.
Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth.
2005).
Here, Claimant asserts that a medical condition precluded her from
returning to work full-time. In her questionnaire, Claimant stated she left
Employer for health reasons. C.R., Item No. 2. Specifically, she stated she had
“post-partum depression anxiety;” as her work limitations she stated “part[-]time
until acclimated.” Id.A claimant has the burden to establish a medical condition as a
compelling reason to leave work. Genetin v. Unemployment Comp. Bd. of
Review, 451 A.2d 1353 (Pa. 1982). Part of that burden involves submitting
documentation substantiating a claimant’s medical condition to her employer.
Bonanni v. Unemployment Comp. Bd. of Review, 519 A.2d 532 (Pa. Cmwlth. 1986).
6
Here, the record contains no indication that Claimant was unable to
return to work full-time based on medical necessity. To the contrary, Claimant
admitted her doctor released her to return to work on January 3, 2015. Referee’s
Hr’g, Notes of Testimony (N.T.), 3/16/15, at 5. The record is devoid of any
testimony by Claimant that she was unable to return to work full-time for a
medical reason. Indeed, Claimant consistently framed her request in terms of
preferences, not necessity. See N.T. at 6 (Claimant testified she “wanted that
couple of weeks to get – two weeks even, just to get into the routine again.”).
Also, Claimant did not submit any documentation to Employer about
her medical condition to establish the necessity for a part-time position. Bonanni.
Thus, Claimant did not establish her alleged medical condition as a necessary and
compelling justification for leaving employment. Id.Further, Claimant offered no other grounds for concluding that her quit
was involuntary. Significantly, Employer allowed Claimant to remain at home three
more weeks after her physician released her to return to work. During that period,
Claimant communicated with various supervisors and a representative of human
resources. In fact, Claimant spoke to a human resources representative on January
27, 2015, the day before she received the letter from Employer stating that if she
could not return to full-time, then it had no position for her. See C.R., Item No. 7
(Letter). Despite having an additional three weeks to acclimate, Claimant was still
unwilling to return to work full-time on January 27, 2015. N.T. at 7 (“I was ready,
like, not full time at that point.”). Such conduct was not consistent with a desire to
remain employed. Monaco v. Unemployment Comp. Bd. of Review, 565 A.2d
7
127, 130 (Pa. 1989) (when claimant was “offered a real choice between
alternatives and chose to leave [her] employment” the separation was voluntary).
Based on our review of the record, Claimant did not meet her burden
of proving a necessitous and compelling reason to quit. See Solar Innovations.
First, Claimant did not show substantial pressure to end her employment. Further,
Claimant also did not make a reasonable effort to preserve her employment.
Knowing part-time work was not available, she chose to separate from Employer
rather than to try to return to her prior full-time position. Monaco. By refusing
Employer’s offer of full-time employment, Claimant did not take the steps
necessary to remain employed. Id. Claimant’s personal preference to acclimate to
a part-time schedule before returning full-time does not constitute necessitous and
compelling cause.
In short, the record supports the Board’s findings that Claimant did
not prove a necessitous and compelling reason to quit. In turn, these findings
support the Board’s determination of ineligibility.
III. Conclusion
Based on the forgoing, we affirm the Board’s order determining
Claimant ineligible for UC benefits under Section 402(b) of the Law.
ROBERT SIMPSON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michele Havrilchak, :
Petitioner :
:
v. : No. 1054 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 14th day of December, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge