B.U. Smith v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryna U. Smith, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 522 C.D. 2021
Respondent : Submitted: March 11, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 26, 2022
Bryna U. Smith (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) April 19, 2021
order reversing the Referee’s decision and denying Claimant UC benefits under
Section 402(b) of the UC Law (Law).1 Claimant presents one issue for this Court’s
review: whether the UCBR’s findings of fact were supported by substantial
evidence. After review, this Court affirms.
UPMC Home Health Care (Employer) hired Claimant as an
occupational therapist on May 29, 2018. On March 19, 2020, Claimant began an
approved leave of absence to provide care for her mother. Although Claimant is her
mother’s primary care provider, her mother resides with Claimant’s father and
brother. The family decided to have Claimant provide primary care to Claimant’s
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
mother because of Claimant’s education and experience with providing similar care.
Claimant did not return to work from her leave of absence when it expired on June
11, 2020. Claimant asked Employer if she could return to work on an as-needed
basis, but Employer declined the request. Claimant chose to resign in order to
continue providing her mother’s primary care.
Claimant applied for UC benefits on June 14, 2020. On October 29,
2020, the Scranton UC Service Center determined that Claimant was ineligible for
UC benefits under Section 402(b) of the Law. Claimant appealed, and a Referee
held a hearing on December 14, 2020. On December 18, 2020, the Referee reversed
the UC Service Center’s determination. Employer appealed to the UCBR. On April
19, 2021, the UCBR reversed the Referee’s decision and denied Claimant UC
benefits under Section 402(b) of the UC Law. Claimant appealed to this Court.2
Initially,
[w]hether an employee has cause of a necessitous and
compelling nature to quit employment is a legal
conclusion subject to appellate review. In order to show
necessitous and compelling cause, the claimant must
establish that: 1) circumstances existed which produced
real and substantial pressure to terminate employment; 2)
like circumstances would compel a reasonable person to
act in the same manner; 3) she acted with ordinary
common sense; and 4) she made a reasonable effort to
preserve her employment.
Stugart v. Unemployment Comp. Bd. of Rev., 85 A.3d 606, 614 (Pa. Cmwlth. 2014)
(emphasis omitted) (quoting Comitalo v. Unemployment Comp. Bd. of Rev., 737
2
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
2
A.2d 342, 344 (Pa. Cmwlth. 1999) (citation and quotation marks omitted; emphasis
added)).
Claimant argues that the UCBR erred by reversing the Referee’s
decision and denying Claimant UC benefits because the UCBR’s findings of fact
were not supported by substantial evidence.
The law is well[ ]established:
[T]he [UCBR] is the ultimate fact-finder in
[UC] matters and is empowered to resolve all
conflicts in evidence, witness credibility, and
weight accorded the evidence. It is
irrelevant whether the record contains
evidence to support findings other than
those made by the fact-finder; the critical
inquiry is whether there is evidence to
support the findings actually made. Where
substantial evidence supports the [UCBR’s]
findings, they are conclusive on appeal.
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Rev[.], 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (emphasis
added; citations omitted).
HPM Consulting v. Unemployment Comp. Bd. of Rev., 185 A.3d 1190, 1194 (Pa.
Cmwlth. 2018) (footnote omitted). “Substantial evidence is relevant evidence upon
which a reasonable mind could base a conclusion.” Sipps v. Unemployment Comp.
Bd. of Rev., 181 A.3d 479, 484 (Pa. Cmwlth. 2018) (quoting Sanders v.
Unemployment Comp. Bd. of Rev., 739 A.2d 616, 618 (Pa. Cmwlth. 1999)).
“In determining whether a finding of fact is supported by
substantial evidence, the Court is required to give the
party in whose favor the decision was rendered ‘the
benefit of all reasonable and logical inferences that
may be drawn from the evidence of record.’” Allegheny
Cnty. Off. of Child., Youth & Fam[.] v. Dep’t of Hum.
Servs., 202 A.3d 155, 164 (Pa. Cmwlth. 2019) (quoting
S.T. v. Dep’t of Pub. Welfare, Lackawanna Cnty. Off.,
Child., Youth & Fam. Servs., 681 A.2d 853, 856 (Pa.
3
Cmwlth. 1996)). “Mere speculation or conjecture is
insufficient to support a factual finding, but where there
exists the ability to draw reasonable and logical inferences
from evidence that is presented, including testimony, a
conclusion so derived will be sufficient, even if it may not
be the only possible conclusion.” W. Penn Allegheny
Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour),
251 A.3d 467, 475 (Pa. Cmwlth. 2021).
Hauck v. Unemployment Comp. Bd. of Rev., ___ A.3d ___, ___ (Pa. Cmwlth. No.
1351 C.D. 2020, filed Feb. 23, 2022), slip op. at 13 (emphasis added).
Claimant specifically contends that Findings of Fact Nos. 7, 8, and 9
were not supported by substantial evidence. Finding of Fact No. 7 states: “Claimant
chose to resign because she wanted to continue providing primary care to her
mother.” Certified Record (C.R.) at 83.
When asked the reason that she left her employment, Claimant testified:
I felt forced to leave my job because I was not being given
the [personal protective equipment (]PPE[)] that I needed
to protect my family member who is at high risk and who
I am a caregiver for whom I was given -- I was awarded
[leave pursuant to the Family and Medical Leave Act3
(]FMLA[)], that I am a primary caregiver to my mother
who needs my assistance 24/7 when I am not working
as needed. I made that clear to [] Employer that I was
very concerned about not being able to be protected in
March of 2020, when the pandemic was - when the
pandemic surfaced. And I worked with people in close
proximity in their homes which are unsanitized
environments, with elderly individuals, and I was being
told I understand that the [Center for Disease Control and
Prevention (]CDC[)] at that time was . . . [.]
C.R. at 52, Notes of Testimony, Dec. 14, 2020 (N.T.) at 6 (emphasis added).
In addition, Claimant related:
C[laimant’s] L[awyer:] And tell the [Referee] about the
care that you give your mother.
3
29 U.S.C. §§ 2601, 2611-2620, 2631-2636, 2651-2654.
4
C[laimant:] I have a mentally ill and physically ill
mother with respiratory conditions whom I have to be
available for 24/7 days of the week throughout the rest
of my life because I am the only person that can care for
her in the manner in which she needs care for, and that was
stated in my FMLA applications. I don’t want to say
anymore because I feel like I’m not supposed to.
C.R. at 53, N.T. at 7 (emphasis added).
Further, when asked on cross-examination whether it was her choice to
care for her mother, Claimant declared:
No, it is not my choice. There is a -- and I’m sure that
[Human Resources] has it. I’ve been approved [sic]
FMLA [leave]. My mother’s psychiatrist has, you know,
gone -- has stated that I am the primary caregiver to her
health and mental health needs. I am the person that
has to be there to take care of her physically and
emotionally because my father is unable to do it
because he is not there to do it. I don’t have any other
help. She has no other family other than me to do that for
her in Pittsburgh, and that has . . .
....
[a]nd my FMLA was approved based upon that.
C.R. at 56, N.T. at 10 (emphasis added).
Claimant’s father, Arthur Smith (Smith), recalled:
E[mployer’s] L[awyer:] Thank you. So, [] Smith, did
you, your [sic] – and your son and daughter, did you all
agree that your daughter will be the caregiver for your
wife?
....
E[mployer’s] L[awyer:] Were you -- did you all make the
decision together?
[Smith:] Yes. My daughter had the background and the
necessity to do what a daughter would do for her family,
and she was best qualified.
C.R. at 59-60, N.T. at 13-14.
5
Because the above-quoted testimony is “relevant evidence upon which
a reasonable mind could base [the] conclusion[,]” Sipps, 181 A.3d at 484 (quoting
Sanders, 739 A.2d at 618), that “Claimant chose to resign because she wanted to
continue providing primary care to her mother[,]” substantial evidence supported
Finding of Fact No. 7. C.R. at 83.
Finding of Fact No. 8 reflects: “[E]mployer provides proper [PPE] to
its staff members, which includes a surgical mask.” C.R. at 84. Finding of Fact No.
9 further states: “If the staff member is near a person who is positive for COVID-19
or had possible exposure to a positive person, the staff member is provided additional
PPE, consisting of an N95 mask, gown, gloves, and eye protection of either a face
shield or goggles.” Id.Claimant’s supervisor, Alicia Demchak (Demchak), testified:
E[mployer’s] L[awyer:] What type of PPE did the
Claimant (sic) offer to [] Claimant in her position?
[Demchak:] So, at [Employer], we have a whole system-
wide team that coordinates their [sic] efforts with our
Wolff Center along with CDC guidelines to come up with
our PPE recommendation. So, every day, when treating
patients who were not known exposures or COVID-
positive, all staff members were provided a surgical mask
to wear which was according to guidelines. If patients
were COVID-positive or had a known exposure, they will
be provided additional PPE, which included a N95 mask,
gown, gloves and eye protection, which would be goggles
or [a] face shield.
E[mployer’s] L[awyer:] Do you know if, in [] Claimant’s
case, all the PPE was offered when necessary?
[Demchak:] Yes, it was.
C.R. at 61, N.T. at 15.
Because the above-quoted testimony is “relevant evidence upon which
a reasonable mind could base [the] conclusion[,]” Sipps, 181 A.3d at 484 (quoting
6
Sanders, 739 A.2d at 618), that “[E]mployer provides proper [PPE] to its staff
members, which includes a surgical mask[,]” and “[i]f the staff member is near a
person who is positive for COVID-19 or had possible exposure to a positive person,
the staff member is provided additional PPE, consisting of an N95 mask, gown,
gloves, and eye protection of either a face shield or goggles[,]” substantial evidence
supported Findings of Fact Nos. 8 and 9. C.R. at 84.
Claimant also asserts that the UCBR’s conclusion that Claimant failed
to prove that she sought every reasonable alternative to preserve her employment
was not supported by substantial evidence.
The UCBR determined that Claimant was disqualified from receiving
UC benefits under Section 402(b) of the Law, reasoning:
[C]laimant asserts that she left work because []
[E]mployer did not provide adequate PPE and because she
was the primary care provider for her mother. The
[UCBR] addresses both asserted reasons for her departure.
....
First, the [UCBR] does not credit [] [C]laimant that
inadequate PPE was a motivating factor to leave her
employment. Second, [] [C]laimant acknowledged that
she sought to return in a “causal [sic] position” presumably
on an as-needed basis.[4] Given her willingness to return
in at least a limited capacity, it is unlikely that PPE was
truly a motivating factor in her failure to return to work.
Moreover, it is evident that [] [C]laimant had a continued
need to care for her mother. Therefore, the [UCBR]
addresses this reason as the basis for her separation.
[] [C]laimant testified that she provided for her mother’s
health and mental care. [] [C]laimant offered limited
information as to the nature of her mother’s medical needs.
Further, [] [C]laimant acknowledged that her mother
resides with both her father and brother. [] [C]laimant
4
When asked: “[D]id you ask your Employer, the current Employer, to go on part-time?”
Claimant responded: “I did, and casual.” C.R. at 54, N.T. at 8.
7
offered limited information as to why these individuals
could not provide care to her mother,[5] or why some
external care would be impossible, inadequate, or
otherwise unsuitable for her mother. [] [C]laimant
testified that it was a personal and family choice that she
would provide care for her mother because of her
education and experience.
In considering the totality of the evidence presented, the
[UCBR] concludes that [] [C]laimant has not satisfied her
burden. While [] [C]laimant and her family may have
preferred to have [] [C]laimant provide primary care to []
[C]laimant’s mother, [] [C]laimant failed to prove that she
sought every reasonable alternative to preserve her
employment.[6] Therefore, [] [C]laimant has not shown
that she voluntarily left work for cause of a necessitous
and compelling nature.
C.R. at 85.
Giving Employer “the benefit of all reasonable and logical inferences
that may be drawn from the evidence of record,” as we must, this Court holds that
substantial evidence supported the UCBR’s findings and conclusions. Hauck, ___
A.3d at ___, slip op. at 13 (quoting Allegheny Cnty., 202 A.3d at 164). Accordingly,
because Claimant quit her job without a necessitous and compelling reason, the
UCBR properly concluded Claimant was ineligible for benefits under Section 402(b)
of the Law.
Moreover,
[t]he purpose of UC is to protect against “the hazards of
unemployment” by providing “compensation for loss of
wages by employes during periods when they become
5
When asked: “[I]is there a reason why your brother and your father were not qualified to
take care of your mother as the primary caregiver?” Claimant responded: “Yes. They both work
demanding hours.” C.R. at 58, N.T. at 12.
6
This Court acknowledges that Claimant is required to prove that “she made a reasonable
effort to preserve her employment.” Stugart, 85 A.3d at 614 (quoting Comitalo, 737 A.2d at 344
(citation and quotation marks omitted; emphasis added)). Based on its review of the evidence, this
Court concludes that Claimant did not do so.
8
unemployed through no fault of their own.” [Section 4
of the Law,] 43 P.S. § 752 (emphasis added). Further,
Section 402(b) of the Law provides, in relevant part, that
a claimant shall be ineligible for benefits for any week
“[i]n which h[er] unemployment is due to voluntarily
leaving work without cause of a necessitous and
compelling nature . . . .” 43 P.S. § 802(b) (emphasis
added). In this case, the UCBR found in Employer’s
favor. The record evidence supports the UCBR’s findings.
Small v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 1109 C.D. 2012, filed
Jan. 9, 2013), slip op. at 3-4.7
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
7
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryna U. Smith, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 522 C.D. 2021
Respondent :
ORDER
AND NOW, this 26th day of May, 2022, the Unemployment
Compensation Board of Review’s April 19, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge