WATKINS v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW (2012)

Petitioner Suzette Watkins (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the decision of an Unemployment Compensation Referee (Referee) and denied Claimant unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law).¹ For the reasons set forth below, we affirm on alternative grounds.

Claimant was employed by Colonial Intermediate Unit 20 (Employer) as a full-time special education teacher, beginning January 26, 2011. (Reproduced Record (R.R.) at 1a.) Following an unpaid leave from employment, Claimant filed a claim for unemployment compensation benefits. (Certified Record (C.R.), Item No. 2.) On June 3, 2011, the Allentown UC Service Center (Service Center) issued a Notice of Determination and denied Claimant benefits under Section 402(b) of the Law. (C.R., Item No. 8.) Claimant appealed the determination. (C .R., Item No. 9.)

On September 8, 2011, the Referee conducted a hearing. (R.R. at 7a.) The issue before the Referee was whether Claimant had a necessitous and compelling reason to leave her employment. (Id. at 2.) The Referee concluded that Claimant failed to establish a necessitous and compelling reason for voluntarily terminating her employment, and, therefore, the Referee affirmed the determination of the Service Center. (Id. at 3a.) In so doing, the Referee issued the following findings of fact:

1. The claimant was last employed full-time as a special education teacher at a residual treatment center by Colonial Intermediate Unit 20 from January 2006 at a final rate of pay of $53,000 a year and her last day of work was March 7, 2011.

2. Twelve years ago, the claimant was diagnosed with a brain tumor and underwent surgery in 2005 with no complications.

3. In November 2008, the claimant began experiencing pain on the left side of her face and was diagnosed with Trigeminal Neuralgia caused by nerve deterioration in her face.

4. The Trigeminal Neuralgia (TN) causes the claimant to experience a range of pain from mild twitches to intense pain, lasting a few seconds to longer durations in an unpredictable pattern.

5. In November 2008, the claimant informed her supervisor about the TN diagnosis.

6. In March 2010, the claimant requested an accommodation to receive assistance in completing time sensitive paperwork and in meeting required deadlines.

7. The employer accommodated the claimant's request by allowing the master teacher to assist the claimant when needed.

8. In April 2010, the claimant went out on a medical leave of absence for the remainder of the 2009/2010 school year.

9. In August 2010, the claimant returned for the 2010/2011 school year and continued to work through January 2011 with the same medial accommodation where the master teacher kept the claimant organized, meeting deadlines as needed.

10. In late January 2011,[2] the claimant's medical condition flared up and the claimant requested a second leave of absence under the Family Medical Leave Act.[3] The claimant did not qualify for Family Medical Leave because she did not work the required hours in 2010.

11. The employer arranged a 20–day leave of absence beginning February 7, 2011, expecting the claimant to return on March 7, 2011.

12. The claimant returned to work on March 7, 2011 as scheduled.

13. Prior to her return, on March 4, 2011, the claimant sent an e-mail to the Director of Human Resources indicating, in part, “As a result of this deterioration, I am no longer physically able to conduct the entirety of my administrative responsibilities on a daily basis.” ․ “I am asking that you provide accommodations under the ADA [4] of 1990, excuse me from full administrative tasks, and replace these duties with an alternative task within my limitations.” The claimant asked the employer to provide her with [Employer's] suggested accommodations within two weeks or March 18, 2011.

14. On March 8, 2011, the Director of Human Resources met with the claimant to clarify the claimant's request for accommodations.

15. At the end of the meeting, the employer informed the claimant that she could not return to work until she was cleared by her doctor as able to perform all the essential functions of her job duties including the administrative duties such as creating lesson plans, IAPs and progress monitoring reports.

16. The claimant provided a second FMLA document completed by her primary care physician on March 7, 2011 which indicated that the claimant was able to perform her job functions but that [she] may need accommodations including assistance from co-workers in complex administrative tasks, reduction in hours or change in assignment.

17. On April 29, 2011, the claimant's doctor e-mailed a letter to the employer indicating that the claimant is capable of performing all duties of her job, however, she may need to be absent from work for treatment or to have assistance with certain tasks that are made more difficult by severe pain.

18. On August 12, 2011, the claimant contacted the employer about returning to work for the 2011–2012 school year and was informed that she needs a doctor release to return to work showing that she can do all essential duties of the job.

19. The claimant has not returned to work and is currently on unpaid leave.

20. Continuing work is available to the claimant with the March 2010 accommodations.

(R.R. at 1a–2a (emphasis added).)

Claimant appealed to the Board. (C.R., Item No. 22.) The Board adopted the Referee's findings of fact, with the amendment noted above, and affirmed the decision of the Referee. In so doing, the Board determined that Claimant's request that Employer eliminate all of her administrative duties was not indicated as a restriction by her doctor. (C.R., Item No. 27.) Thus, because Claimant did not provide Employer with any medical documentation indicating that she was unable to perform any administrative duties, she did not meet her burden. (Id.)

Claimant now petitions this Court for review. On appeal,⁵ Claimant makes the following arguments: (1) the Board erred in concluding that she voluntarily quit her employment, and (2) alternatively, if the Board did not err in determining that her cessation of employment was voluntary, it erred when it concluded that she did not establish a necessitous and compelling reason to quit.

As for Claimant's argument that the Board erred in concluding that she voluntarily quit her employment, Claimant maintains that the evidence establishes that her separation from employment was not voluntary, and, thus, the Board should have placed the burden on Employer to prove “willful misconduct” instead.⁶ Whether a claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to review by this Court and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa.Cmwlth.1996). A claimant seeking unemployment compensation benefits bears the burden of establishing either that (1) his separation from employment was involuntary or (2) his separation was voluntary but he had cause of a necessitous or compelling nature that led him to discontinue the relationship. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa.Cmwlth.2004). In other words, in order to be eligible for unemployment compensation benefits, the claimant bears the burden of proving separation from employment, whether voluntary or involuntary. See Bowman v. Com., Unemployment Comp. Bd. of Review, 410 A.2d 422, 423 (Pa.Cmwlth.1980). A finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave his employment. Spadaro, 850 A.2d at 859. On the other hand, to be interpreted as a discharge, the employer's language must possess the immediacy and finality of a firing. Charles v. Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa.Cmwlth.1989).

Initially, we note that Claimant does not challenge the Board's factual findings, and, thus, they are binding on appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167, 1169 (Pa.Cmwlth.1997.) Here, the Board found that following her leave of absence, Claimant resumed work on March 7, 2011, as scheduled. (R.R. at 2a.) At that time, however, Employer told Claimant that she could not return to work until she provided Employer with a doctor's note that indicated that she was capable of performing all essential duties of the job. (Id.) Accordingly, Claimant gave Employer a medical document that provided that Claimant was able to perform her job functions, but that she “may need accommodations including assistance from co-workers in complex administrative tasks, reduction in hours or change in assignment.” (Id.) Claimant's doctor also sent Employer an e-mail that provided that Claimant was capable of performing all duties of her job, but that she “may need to be absent from work for treatment or to have assistance with certain tasks that are made more difficult by severe pain.” (Id.) On August 12, 2011, Claimant contacted Employer about returning to work for the 2011–2012 school year, but Employer maintained that Claimant still needed a doctor's release showing that she can perform all essential duties of the job. (Id.) The Board found that continuing work is available to Claimant with the March 2010 accommodations. (C.R., Item No. 27.)

The fact that Claimant attempted to resume work and to provide Employer with the requested medical clearance establishes that she did not have a conscious intention to leave her employment. Nevertheless, Employer's language also did not possess the immediacy and finality of a firing when Employer told Claimant that she still needed a doctor's release before she could return to work. The fact that Employer continued to refuse to allow Claimant to resume work reveals that Employer was unsatisfied with the provided medical documentation. These findings, however, indicate that Claimant can still return to work as soon as she provides Employer with a doctor's note that satisfies Employer's request.

Moreover, the Board found that Claimant is currently on an unpaid leave. (Id.) An unpaid leave of absence, where continuing work is still available, is not synonymous to a termination from employment. Thus, Claimant has failed to meet her burden of proving that there was any separation from employment at all.

Because Claimant has failed to establish that there was a separation from employment, we do not need to address Claimant's alternative argument that she had cause of a necessitous and compelling nature to voluntarily quit her employment. Accordingly, we affirm the order of the Board on alternative grounds.

ORDER

AND NOW, this 17th day of August, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.

FOOTNOTES

1.  Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Under Section 802(b) of the Law, an employee is ineligible for benefits when an employee voluntarily terminates his employment without cause of a necessitous and compelling nature.

2.  The Referee's finding of fact number 10 initially referenced “June 2011,” but the Board subsequently amended the finding to refer to “January 2011” as the time-period during which Claimant's medical condition flared up and she requested a second medical leave.

3.  29 U.S.C. §§ 2601–2654.

4.  Here, ADA refers to Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.

5.  This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.

6.  Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week “in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.” Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). An employer bears the burden of proving that a claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa.Cmwlth.2008).

OPINION BY Judge BROBSON.