Opinion
No. 843 C.D. 2011
01-06-2012
Joel Barlow, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Joel Barlow (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that denied his claim for benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. §802(b). The Board affirmed the Referee's determination that Claimant voluntarily quit his job without cause of necessitous and compelling nature. Discerning no error in the Board's adjudication, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides, in relevant part, that an employee is ineligible for compensation when "his employment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. §802(b).
Claimant was employed by a General Motors dealership, Bergey's Inc., (Employer), as a service manager from March 4, 2002, through November 26, 2010. Claimant was required to work 50 hours per week and one Saturday per month. On Monday, November 22, 2010, Claimant e-mailed his supervisor, Mark Clemmer, and requested leave for November 29, 2010, to go hunting and for December 8-15, 2010, to go on vacation. Clemmer denied the request, noting that he had previously warned Claimant that he was taking too much leave and not meeting Employer's minimum hour requirements. On Friday, November 26, 2010, Claimant resigned in a letter stating that his resignation was prompted by Clemmer's decisions with respect to his "situation." Reproduced Record at 16a (R.R. ___).
Claimant filed for unemployment compensation benefits on December 3, 2010, noting that he quit his job for "personal reasons," which he identified as "personal and mental anguish." R.R. 10a. Claimant stated that he had discussed his "situation" with Employer and tried to resolve his "personal and mental issues," to no avail. Id.
Employer responded that Claimant quit because his leave request to go hunting and to take a vacation had been denied. Employer stated that if Claimant had not quit, continuing work would have been available for him. Employer submitted numerous supporting documents, including Claimant's job description; resignation letter; and three disciplinary notices issued to Claimant for failing to meet Employer's 50-hour work-week requirement. The most recent notice, dated November 2, 2010, stated that it was a final warning and that if Claimant did not improve, his employment would be terminated. Employer also provided several e-mails dating back to August 2010, in which Claimant told Clemmer that he was either leaving early or not coming into work for various reasons. Finally, Employer provided several written warnings from Clemmer advising Claimant he needed to start working 50 hours per week and one Saturday per month.
The Unemployment Compensation Service Center (UC Service Center) found Claimant ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). Claimant appealed, and a hearing was held before a referee on February 24, 2011, at which Claimant and Clemmer testified.
Claimant participated in the hearing before the Referee pro se. He is represented by counsel in this appeal.
Claimant testified that he quit his job because of ongoing mental issues involving his marriage. He stated that Clemmer's management style, in light of this "situation," caused a hostile environment, causing him to believe he was about to be fired. Claimant then explained his "situation." He testified that in August 2010, he decided to leave his wife because of her suicidal tendencies. He stated that he apprised Clemmer of this situation.
Claimant explained that both he and his wife were seeing counselors; in addition, his wife was under the care of a psychologist. Claimant testified that when he first spoke to Employer about this situation, he was offered a position with fewer hours. Claimant declined the offer because he believed he could fulfill his job requirements. Claimant admitted that he never requested a leave of absence and acknowledged that he had not been fired by Employer.
Clemmer testified on behalf of Employer. He noted that continuing work was available to Claimant and that he never told Claimant that he was being fired. Clemmer testified that Claimant did not tell him about any mental health issues that had prevented him from meeting the 50-hour work-week and one Saturday per month requirements. However, Clemmer acknowledged that he knew Claimant was having personal issues at home.
The Referee denied Claimant benefits, concluding that Claimant did not have a necessitous and compelling reason to quit. The Referee found that Claimant quit in anticipation of a possible future discharge, which did not constitute good cause for quitting under Section 402(b) of the Law.
Claimant appealed, once again arguing he quit because of personal and mental issues, not because of fear of discharge. The Board affirmed, adopting the Referee's findings of fact and conclusions of law. Claimant now petitions for this Court's review.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Greer v. Unemployment Compensation Board of Review, 4 A.3d 733, 736 n.4 (Pa. Cmwlth. 2010). We must examine the evidence in the light most favorable to the party who prevailed before the Board, giving that party the benefit of any inferences logically and reasonably drawn from the evidence. Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492, 494 (Pa. Cmwlth. 2000).
Claimant's sole argument on appeal is that the Board erred in holding that he resigned without cause of a necessitous and compelling nature. Specifically, Claimant asserts that Employer failed to notify him of his rights under the Family Medical Leave Act (FMLA), 29 U.S.C. §§2601-2654, after being informed of the serious medical issues facing Claimant. Because he did not know of his leave rights, Claimant resigned.
The Board counters that Claimant's FMLA argument has been waived because he did not raise it before the Referee. The Board also contends that even if Claimant's FMLA argument was preserved, it fails because Claimant never asked for a medical leave of absence.
Under Section 402(b) of the Law, an individual is not eligible for unemployment compensation benefits if his unemployment is due to "voluntarily leaving work without cause of a necessitous and compelling nature..." 43 P.S. §802(b). Necessitous and compelling cause to quit occurs when the circumstances produce pressure, both real and substantial, that would compel a reasonable person under the same circumstances to act in the same manner. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691-92 (Pa. Cmwlth. 2003). An employee that voluntarily terminates his employment bears the burden of proving that his voluntary quit was the result of necessitous and compelling reasons. Id. at 692. A health problem may constitute a necessitous and compelling reason, but the claimant must prove by competent evidence that a problem sufficient to justify termination existed at the time he quit. Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991).
Whether one has "cause of a necessitous and compelling nature" to terminate his employment is the ultimate conclusion drawn from the underlying factual findings and, as such, is subject to appellate review. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977).
In the Referee proceeding, Claimant asserted that his mental health issues and marital problems constituted a necessitous and compelling reason to quit. However, Claimant never advanced the claim that his family situation entitled him to FMLA leave or that Employer had failed to notify him of his FMLA rights.
Our Supreme Court has held that "[a]n appellate court does not sit to review questions that were neither raised, tried, nor considered" below. Department of Transportation, Bureau of Driver Licensing v. Boros, 533 Pa. 214, 221-22, 620 A.2d 1139, 1143 (1993). Thus, Claimant waived the FMLA issue. Oaster v. Unemployment Compensation Board of Review, 705 A.2d 507, 508 n.1 (Pa. Cmwlth. 1998) (noting that issue not previously raised by claimant was waived).
Claimant also failed to raise any FMLA issues in his Petition for Review, nor were any such issues fairly comprised therein; thus, even had this issue been raised below it would have been waived on appeal. Tyler, 591 A.2d at 1168 (noting that when claimant fails to include an issue in his petition for review, but addresses it in his brief, this Court has declined to consider it in accordance with Pa. R.A.P. 1513(a)). Similarly, we note that in his Petition for Review Claimant argues (1) that three of the Referee's findings of fact are not supported by substantial evidence; and (2) that the Board erred in concluding Claimant did not have a necessitous and compelling reason to quit. However, neither of these issues are argued in Claimant's brief, as he instead chose to argue that Employer did not meet its requirements under the FMLA. Thus, these arguments are also waived. Id. at 1167 (noting that when a claimant appeals an issue but fails to address it in his brief it is waived). --------
Even if Claimant's FMLA arguments had been preserved, they are of no moment. The FMLA provides an employee with up to twelve work-weeks of leave in order to care for himself or a family member where either faces a serious health condition. 29 U.S.C. §2612(a)(1)(C),(D). However, an employee seeking FMLA leave must provide "at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave." 29 C.F.R. §825.302(c) (emphasis added). The employee need not expressly mention the FMLA. The employee need only state that leave is needed for a qualifying reason. Where the employer needs more information to determine if the leave sought qualifies under the FMLA, it is the duty of the employer to inquire further. Id. Employers are also required to provide an employee seeking leave under the FMLA with written notice detailing the specific expectations and obligations of the employee, and explaining any consequences of failing to meet those obligations. 29 C.F.R. §825.300(c)(1).
Here, the evidence showed that Claimant apprised Employer of his pending divorce caused by his wife's mental health issues. However, this advice did not put Employer on notice that Claimant needed FMLA-qualifying leave. Instead, Claimant rejected an alternative job offer and, on multiple occasions, stated that he could continue to do his job and meet the 50-hour work-week requirement. Claimant's resignation was triggered by Employer's refusal to grant him leave to go hunting and to take a vacation. The stated basis for these leave requests had nothing to do with Claimant's mental health issues. Because Claimant did not request medical leave or inform Employer as to why such leave was needed, his FMLA argument must fail.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of January, 2012, the order of the Unemployment Compensation Board of Review, dated April 26, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge