July 24, 2009
EVA M. SANTANA, PETITIONER
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
The opinion of the court was delivered by: Judge Smith-ribner
Submitted: June 19, 2009
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Eva M. Santana, proceeding on her own behalf, petitions for review of the decision of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a Referee denying her benefits under Sections 402(b) and 401(d)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(b) and 801(d)(1). Santana states questions involved of whether the Board erred in finding that there was insufficient evidence to support her allegations concerning her not having anyone to take care of her children and concerning her family's emotional state and whether the Board erred in concluding that she was ineligible for benefits under Sections 402(b) and 401(d)(1).
The Lancaster UC Service Center disapproved benefits under Sections 402(b) and 401(d)(1). After a telephonic hearing on her appeal on October 29, 2008, the Referee found that Santana was employed between February 13, 2002 and August 1, 2008 by Dommels Hotel Management (Employer) as a full-time assistant housekeeping manager at the Marriott in Harrisburg, earning $12.75 per hour. Santana has two children, ages 5 and 12. She voluntarily quit her position to move to Puerto Rico because of alleged childcare issues. Santana was unable to find before and after-school childcare because it was too expensive. Her husband is a truck driver, and his job required him to be away during the hours when childcare was needed. Santana "did not ask the employer to change her scheduled [sic] due to childcare issues." Referee's Decision, Finding of Fact (F.F.) 6. She did ask Employer to have Saturdays and Sundays off, and Employer accommodated her as much as possible, requiring her to work those days only occasionally. Employer "was unaware of any childcare issues until the claimant resigned." Referee's Decision, F.F. 9. Although Santana was qualified for a leave of absence in order to attend to her family and childcare issues under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§2601 - 2654, she did not complete FMLA paperwork. Santana's parents do not need total attention, but she now cleans for them and takes them to doctors' appointments. Continuing work was available, and she was able and available for work as of September 29, 2008.
The Referee noted that Section 402(b) of the Law provides that a claimant shall be ineligible for benefits for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.." Because Santana voluntarily left her job, the burden was on her to show cause of a necessitous and compelling nature. See Procito v. Unemployment Compensation Board of Review, 945 A.2d 261 (Pa. Cmwlth. 2008). Section 401(d)(1) provides that compensation shall be payable to an employee who becomes unemployed and who "[i]s able to work and is available for suitable work[,]" for the purpose of establishing that a claimant is genuinely and realistically attached to the labor force.
The Referee stated that Santana voluntarily quit her job in order to move to Puerto Rico to offer emotional support to her parents and because of her alleged childcare issues. The Pennsylvania courts have held that domestic, familial and marital circumstances may supply justification for voluntary termination where such circumstances necessitate quitting. See Wallace v. Unemployment Compensation Board of Review, 393 A.2d 43 (Pa. Cmwlth. 1978). A claimant's desire to help her ailing parents around the home with general chores is not usually considered to be good cause. See Colachino v. Unemployment Compensation Board of Review, 453 A.2d 72 (Pa. Cmwlth. 1982). Childcare issues may constitute a necessitous and compelling reason to leave one's job. A claimant invoking such a reason must show that she exhausted efforts to find childcare and that she tried unsuccessfully to rearrange her work schedule. See Truitt v. Unemployment Compensation Board of Review, 527 Pa. 138, 589 A.2d 208 (1991).
Here, Santana testified that her parents do not need total attention; therefore, her argument that she moved to Puerto Rico to support her parents emotionally must fail. As for childcare issues, the Referee stated that Employer's witness credibly testified that Employer was unaware of any childcare issues until Santana resigned. Santana had asked to have weekends off, and Employer accommodated Santana the best that it could by requiring her to work weekends only occasionally. The Referee concluded that Santana had not demonstrated that she exhausted all avenues in order to remain employed. Her desire to relocate to care for her parents was a personal one and was disqualifying under Section 402(b) of the Law. Also, Santana testified that she was not available for suitable work until after September 29, 2008; therefore, benefits were denied on that basis under Section 401(d)(1) from the waiting week ending August 16 until September 29. On Santana's appeal, the Board stated that after reviewing the record, it adopted and incorporated the Referee's findings and conclusions, and it affirmed.*fn1
Santana first cites the following enunciation of the standard: In order to show a necessitous and compelling reason to quit, the claimant must show that circumstances existed which produced real and substantial pressure to terminate employment; such circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve her employment.
Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). She asserts that the main reason that compelled her to resign was her family, which needed her time and direct attention due to being in an emotional and depressive state. Her other reason was the lack of a responsible person to look after her minor children during working hours. She looked for alternatives, but finally the one that offered the greatest reliability and confidence was to travel to Puerto Rico. She regarded the emotional stability of her family as the most important thing, and she stated that after arrival in Puerto Rico her daughter needed psychological treatment for depression and anxiety.
She searched for alternatives and solutions including requesting a change in her hours on weekends to take turns with her husband. An after-school program was not available for her son because he was in a pre-scholar program ending at 12:30 p.m., and picking him up late threatened his program benefits. The school where her daughter studied did not have an after-school service; Santana many times picked her daughter up late, which caused her insecurity. Santana explored care centers, but they were very expensive, and she did not find a responsible person to take care of the children. Also, her husband had loads to be delivered in the hours when the children needed to be picked up. She did not complete FMLA paperwork because of lack of guidance and knowledge. In regard to availability, Santana states that she was not available until September 29, 2008 because she was taking steps to register her children at school and taking care of purchasing school materials and checking out the children's vaccinations, medical insurance applications and so forth.
The Board quotes Pa. R.A.P. 2116, which states in part: "No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Here, Santana preserved only questions of law, not the substantial evidence issue, and she failed to raise in her petition for review any challenge to the Board's conclusions under Section 401(d)(1) of the Law. If Santana's first stated question is viewed as raising substantial evidence, the Board points out that she has not challenged any specific finding. The Court agrees on these points. The Board did not discredit her testimony that she could not find childcare -- it made an express finding that she was unable to find before and after-school childcare for her children because it was too expensive. Also, as the Board notes, Santana did not raise any challenge to the Board's conclusions as to Section 401(d)(1) in her petition for review, and she admits in her brief that she was not available for work before September 29, 2008.
The Board argues that it properly concluded that Santana did not have necessitous and compelling cause for quitting. Whether a claimant had such cause is a conclusion subject to appellate review. Staub v. Unemployment Compensation Board of Review. 673 A.2d 434 (Pa. Cmwlth. 1996). When a claimant quits for multiple reasons, each one must be reviewed separately to see if necessitous and compelling cause exists. Hostovich v. Unemployment Compensation Board of Review, 414 A.2d 733 (Pa. Cmwlth. 1980). In Truitt the claimant was a single mother raising two children ages thirteen and nine and working fluctuating shifts. Her regular babysitter, her mother, became unavailable after an injury. Before her next scheduled shift the claimant conducted a search for a replacement, which was unsuccessful. She also informed the employer of her predicament and asked to have her schedule changed to daytime only, but the employer refused. She was not entitled to leave, vacation or sick time. The Court approved benefits, noting that the claimant sought to arrange a different schedule with her employer.
Unlike the claimant in Truitt, Santana never informed Employer about her childcare concerns until she resigned. Thus Employer was not given the opportunity to accommodate Santana, as it had done in the past. In addition, Santana was a long-term employee who was eligible for FMLA leave, which would have enabled a more thorough search for childcare, but she did not take such measures. As for moving to be with her parents, the Board points out that Santana admitted that they were not ill. She simply chose to move back to Puerto Rico to provide emotional support to them and to assist with errands. Although laudable, this would not justify an award of benefits under Section 402(b) of the Law. See Kieley v. Unemployment Compensation Board of Review, 471 A.2d 1345 (Pa. Cmwlth. 1984) (holding that sufficient cause was not shown where the claimant's parents had some physical problems and she performed household duties). Even if Santana's assertion that her family benefitted emotionally from the move is true, Santana failed to take reasonable steps to preserve her employment.
The Court agrees that the Referee and the Board did not err in their disposition of this case. In order to meet the standard enunciated in Collier Stone Co., a claimant must make reasonable efforts to maintain the employment. In Wagner v. Unemployment Compensation Board of Review, 965 A.2d 323 (Pa. Cmwlth. 2009), a claimant working for a contractor in Iraq ultimately left his employment because of pressing domestic concerns at home. The Court agreed that he made reasonable efforts to preserve his employment because he spoke with his manager about the possibility of transferring to a stateside position, but he was told that there were no such jobs available and that, even if there were, he had not yet worked long enough to be eligible for one.
Although Santana's petition for review emphasizes a need to pursue emotional support for her family as her primary reason for moving, at the hearing she emphasized the childcare problem. Santana admitted that she did not talk to Employer about the school days childcare problem. When asked if she requested Employer to adjust her schedule, she stated: "I did in regards to the weekends but as far as starting later, no, I did not." Notes of Testimony p. 9. The Court concludes that the Board correctly applied the law by determining that Santana did not meet her burden to show reasonable efforts to preserve her employment before quitting. Therefore, its order is affirmed.
AND NOW, this 24th day of July, 2009, the order of the Unemployment Compensation Board of Review is affirmed.
DORIS A. SMITH-RIBNER, Judge