M.E. Stead v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary E. Stead, :
Petitioner :
:
v. : No. 790 C.D. 2019
: SUBMITTED: December 6, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 7, 2020
Mary E. Stead (Claimant) petitions for review, pro se, of the May 24, 2019
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to deny Claimant unemployment compensation (UC) benefits.
The Board concluded that Claimant was ineligible for UC benefits under Section
402(b) of the Unemployment Compensation Law (Law)1 because she voluntarily
quit her employment without cause of a necessitous and compelling nature. We
affirm the Board’s Order.
Background
Claimant worked as a part-time nanny for Jennifer Hong (Employer) from
January 9, 2017 through January 8, 2019. Bd.’s Finding of Fact (F.F.) No. 1; Notes
of Testimony (N.T.), 3/6/19, at 7. When Claimant began her employment, Employer
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) of the Law provides that an employee shall be ineligible for UC benefits
for any week “[i]n which his [or her] unemployment is due to voluntarily leaving work without
cause of a necessitous and compelling nature.” 43 P.S. § 802(b).
presented and discussed with Claimant a proposed employment agreement (2017
Agreement), which outlined the following details of the position: Claimant would
work as a nanny for Employer’s child (Child), approximately 30 hours per week at
a pay rate of $15.00 per hour, and Employer would provide Claimant three sick days
per year, as well as two weeks’ paid vacation and five paid holidays. Bd.’s F.F. No.
2. The 2017 Agreement also included an addendum stating that Claimant would be
responsible for performing certain household duties, including but not limited to:
unloading and loading the dishwasher; wiping down counters; sweeping; light
mopping; picking up toys and cleaning Child’s room; preparing family dinners and
Child’s meals and snacks; setting up the morning coffee; washing, drying, folding,
and ironing laundry; carrying laundry up and down the stairs; and other
miscellaneous light housekeeping duties. Id. No. 3. Claimant worked under these
conditions until her final day of work. Id. No. 4.2
Employer also employed Claimant, in a capacity separate from the nanny
position, to perform a deep cleaning of Employer’s home on a monthly basis, for
which Employer paid Claimant a $100.00 flat fee. Id. No. 5.
During the last few months of Claimant’s employment, Employer became
concerned with Claimant taking Child outside the City of Pittsburgh, where
Employer resided, to perform personal errands, sometimes without providing
advance notice to Employer. Id. No. 6.
Around 3:30 p.m. on January 8, 2019, Employer met with Claimant to provide
her with an updated employment agreement (2019 Agreement). Id. Nos. 7, 14.
Before this meeting, Employer had given Claimant a pay raise, increasing her pay
rate to $18.90 per hour. Id. No. 8. The 2019 Agreement was substantially the same
2
It is undisputed that the 2017 Agreement was not signed by either Employer or Claimant.
See Record (R.) Item No. 3, Ex. SC-11; N.T., 3/6/19, at 13, 16.
2
as the 2017 Agreement, with the following exceptions: Claimant’s new pay rate
would be $20.00 per hour, but if Claimant needed to conduct personal errands during
work hours with Child, such activities were to be recorded in a daily log book, and
Claimant would receive a reduced pay rate of $10.00 per hour. Id. Nos. 9, 10. The
2019 Agreement also provided for bonuses of up to $50.00 per pay period if
Claimant met the following criteria: give Child a nap, or make a bona fide nap
attempt, each day in Child’s bed; no personal errands during work hours during the
pay period; and no requests to leave early during the pay period. Id. No. 11. The
2019 Agreement also reduced Claimant’s sick days from three days to two days per
year. Id. No. 12.
After Employer presented the 2019 Agreement to Claimant, Claimant stated
that “[i]t looked good.” Id. No. 13. Claimant requested additional time to review
and consider the 2019 Agreement, to which Employer agreed. Id. No. 15.
Three hours later, around 6:30 p.m., Claimant sent a text message to Employer
stating that she reviewed the 2019 Agreement and decided not to continue her
employment. Id. No. 16. In the text message, Claimant stated that she did not want
to go into detail. Id. No. 17. Upon further questioning by Employer, Claimant stated
that she would rather not discuss the matter. Id. Claimant did not communicate any
specific reason for resigning to Employer. Id. No. 18.3
3
In the text message, Claimant stated:
I’d rather not discuss it. I’m very hurt and that whole contract was very
disappointing and made me feel like you question my abilities. Again I would
rather not discuss it. I am unable to work under anything on that contract. I will
find another job quickly and I hope you find someone to[o].
R. Item No. 3, Ex. SC-12.
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Employer was willing to work with Claimant to attempt to address any issues
she may have had regarding the 2019 Agreement. Id. No. 19. Claimant voluntarily
resigned from her employment on January 8, 2019, while continuing work remained
available. Id. No. 20.
Claimant filed a claim for UC benefits, which the local UC Service Center
granted. The Service Center found that: Claimant voluntarily quit her employment
due to significant changes in the terms of hire; Claimant informed Employer of her
reason for quitting; and Claimant exhausted all alternatives before voluntarily
quitting. R. Item No. 5. Thus, the Service Center determined that Claimant was not
disqualified from receiving UC benefits under Section 402(b) of the Law. Id.
Employer timely appealed to the Referee, who held an evidentiary hearing on
March 6, 2019. Both Claimant and Employer appeared pro se and testified, and each
presented one witness. Following the hearing, the Referee reversed the Service
Center’s decision and concluded as follows:
[Claimant] voluntarily resigned her employment due to dissatisfaction
with what the Claimant described as substantial changes to the
employment agreement. Specifically, the Claimant contended that the
Employer attempted to add additional household cleaning duties to her
nanny assignment which were not previously part of the agreement and
that said issue was the precipitating factor in her resignation.
However, the Employer offered [into evidence] a [2017 A]greement
which did list the same household cleaning duties. The Referee
resolves this conflict in favor of the Employer that the Claimant had
been performing said duties during her employment.
In any case, the Claimant failed to act with ordinary common sense and
make a good faith effort to preserve her employment by specifically
identifying the problem she had with the [2019 A]greement to allow the
Employer a reasonable opportunity to address the Claimant’s concerns
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prior to resigning her employment. The Claimant also failed to
establish that doing so would have been futile.
Ref.’s Order, 3/13/19, at 3-4. Therefore, the Referee concluded that Claimant was
ineligible for UC benefits under Section 402(b) of the Law because she voluntarily
quit without cause of necessitous and compelling nature.
Claimant timely appealed to the Board, which adopted and incorporated the
Referee’s Findings of Fact and Conclusions of Law and affirmed the Referee’s
decision. Claimant now petitions this Court for review.4
Analysis
On appeal, Claimant asserts that she established a necessitous and compelling
reason to quit her employment because the record shows that “[E]mployer arbitrarily
and dramatically changed the scope of [Claimant’s] duties and her pay structure.”
Claimant’s Br. at 11. Specifically, she contends that the “drastic” change in her job
duties, as well as the decrease in her pay, produced real and substantial pressure to
terminate her employment. Id. at 12. We disagree.
A claimant who voluntarily terminates her employment has the burden to
establish a necessitous and compelling reason for doing so. Petrill v. Unemployment
Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must
prove that: (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. Brunswick
4
Our scope of review is limited to determining whether the necessary factual findings are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.
5
Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d
657, 660 (Pa. Cmwlth. 2006).
A claimant’s acceptance of a job creates a presumption that the job conditions
are suitable. Miller v. Unemployment Comp. Bd. of Review, 580 A.2d 920, 921 (Pa.
Cmwlth. 1990). However, a claimant can rebut the presumption of job suitability
by proving either that she was deceived about, or was reasonably unaware of, the
unsuitable conditions when she accepted the employment, or that a substantial,
unilateral change in the employment agreement occurred after she accepted the job.
Id. “[A] substantial[,] unilateral change in employment conditions renders the job
unsuitable.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126,
1129 (Pa. Cmwlth. 1998). The claimant must prove that the change was so
unreasonable and burdensome that a reasonable person under such circumstances
would have been compelled to quit. Unangst v. Unemployment Comp. Bd. of
Review, 690 A.2d 1305, 1308 (Pa. Cmwlth. 1997).
In addition, when faced with a change in employment conditions, a claimant
must make a reasonable effort to preserve her employment before voluntarily
quitting. Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181, 188 (Pa.
Cmwlth. 2015) (en banc). The claimant must attempt a new position “to prove that
the job modifications were unreasonable and rose to the level of circumstances
which would compel a reasonable person to terminate employment.” Unangst, 690
A.2d at 1308.
At the hearing, Claimant testified that she and Employer never discussed or
reviewed an employment agreement when she began the position in 2017. N.T.,
3/6/19, at 6, 8, 13. She also testified that, prior to 2019, she was not required to
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perform cleaning or housekeeping duties and her duties were limited to those
pertaining to caring for and cleaning up after Child. Id. at 10.
However, Employer’s testimony and evidence directly contradicted
Claimant’s testimony. With regard to the 2017 Agreement, Employer testified:
[Claimant and I] reviewed [the 2017 Agreement] together [i]n January
of 2017. We went over it. You know, it was a very busy time. I had a
new baby; starting a new job; working through all of the taxes and such
for having an employee in my home. So, in the end, you know, we
didn’t end up signing it. Just missed it as a new [e]mployer. But, we
had a handshake on it and as a result, [Claimant] gave me her
identification, her driver’s license, and agreed to start work under these
agreements.
....
. . . [W]e sa[t] down at the dining room table and went through the
papers together. She told me . . . we checked off . . . which days that
she wanted for paid holidays and how many sick leave days she wanted,
how many weeks of vacation, talking about taking it all together; that’s
what she’s done in the past with . . . families she’s worked for.
Id. at 16. The Addendum to the 2017 Agreement provided that Claimant was
responsible for, inter alia, unloading and loading the dishwasher; wiping down
counters; sweeping; light mopping; picking up toys and cleaning Child’s room;
preparing family dinners and Child’s meals and snacks; setting up the morning
coffee; washing, drying, folding, and ironing laundry; carrying laundry up and down
the stairs; and other miscellaneous light housekeeping duties. Bd.’s F.F. No. 3; R.
Item No. 3, Ex. SC-11.
Claimant’s own testimony was also inconsistent, as she testified that light
housekeeping duties were part of her job throughout her employment. Id. at 12.
When asked whether she and Employer had agreed “on dependent care and light
7
household duties . . . as part of the job,” Claimant replied, “Yeah, and I . . . kept the
house cleaned up.” Id. (emphasis added). Claimant also testified that she objected
to the newly created duties of doing all of the family’s laundry, but she admitted that
she “had been doing laundry since she started” working for Employer. Id. Further,
in her telephone interview with the Department of Labor and Industry, the
interviewer asked Claimant, “[W]hat were the new job duties [in the 2019
Agreement]?” to which Claimant replied, “[U]nload and load the dishwasher,
every[]day. [I] would do this prior to the contract.” R. Item No. 4 (emphasis added).
The Board resolved the conflicts in the evidence in Employer’s favor and
found that Claimant performed housekeeping and cleaning work for Employer
throughout her employment. See Guthrie v. Unemployment Comp. Bd. of Review,
738 A.2d 518, 521 (Pa. Cmwlth. 1999) (stating that the Board is the ultimate
factfinder in UC cases and is empowered to resolve conflicts in evidence, determine
the weight to be accorded the evidence, and determine the credibility of witnesses).
In fact, Claimant acknowledged that her household duties had increased throughout
her employment with Employer. Claimant testified, “[T]here was just a lot of
changes made over the past couple of years and a lot of additional duties added on
that were not nanny-related duties. I’m not going to mop all her floors, change all
her sheets, do all her laundry, take her trash out . . . make her dinner and watch her
kid.” N.T., 3/6/19, at 7. Yet even with these additional household duties, Claimant
continued to work for Employer without objection until Employer presented her with
the 2019 Agreement. See Speck v. Unemployment Comp. Bd. of Review, 680 A.2d
27, 30 (Pa. Cmwlth. 1996) (stating that “once an employee [has] accepted new terms
of employment, it is presumed that the employment is suitable”); see also Monaco
v. Unemployment Comp. Bd. of Review, 565 A.2d 127, 130 (Pa. 1989) (“Mere
8
dissatisfaction with wages or working conditions is not sufficient to establish
necessary and compelling reasons to quit [one’s] employment.”).
Moreover, the Board found that Claimant’s job responsibilities were
substantially the same in both the 2017 and 2019 Agreements and, thus, the 2019
Agreement did not amount to a substantial change in Claimant’s employment terms.
Bd.’s F.F. Nos. 9, 10; see R. Item No. 3., Exs. SC-11, SC-13, SC-14. Claimant’s
new duties included changing the sheets in Employer’s guest bedroom and putting
Child down for a nap in his bed each day, which the Board found to be reasonable.
Bd.’s F.F. No. 11; R. Item No. 3, Ex. SC-13. While the 2019 Agreement contained
a wage reduction for conducting personal errands, it also included an overall pay
increase, as well as a new bonus structure to incentivize Claimant’s performance of
specific tasks. Bd.’s F.F. No. 11; R. Item No. 3, Ex. SC-14.
Furthermore, even if Employer’s 2019 Agreement amounted to a substantial
change in Claimant’s employment conditions, we conclude that Claimant failed to
make a reasonable effort to preserve her employment before quitting. See Morgan,
108 A.3d at 188. The record shows that Claimant did not express any concerns she
had about the new contract with Employer. Employer credibly testified, “[W]e read
through, line by line of the contract. I asked [Claimant] if she had any questions and
if it looked good. She said it looked good and asked to take it home.” N.T., 3/6/19,
at 20. Claimant also did not attempt to work under the new employment terms, but
instead quit three hours after her meeting with Employer. Bd.’s F.F. Nos. 16-18.
When asked if she communicated her concerns to Employer before quitting,
Claimant replied, “No, and the reason is because I already kn[ew] there wouldn’t
have been any kind of a good solution to this. . . .” N.T., 3/6/19, at 27.
9
We agree with the Board that Claimant failed to prove that Employer made
substantial or unreasonable changes to her employment conditions such that she was
compelled to quit. Claimant also failed to make a reasonable effort to preserve her
employment before quitting. Therefore, we conclude that Claimant failed to
establish a necessitous and compelling reason to voluntarily quit her employment
under Section 402(b) of the Law.
Conclusion
Accordingly, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary E. Stead, :
Petitioner :
:
v. : No. 790 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 7th day of February, 2020, the Order of the Unemployment
Compensation Board of Review, dated May 24, 2019, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge