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St. Clair Hospital v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

February 2, 2017

St. Clair Hospital, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

          Argued: November 16, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE

         St. Clair Hospital (Employer) petitions for review of the November 18, 2015, Order of the Unemployment Compensation Board of Review (Board) reversing the Decision of a Referee to deny Katherine A. Johnson (Claimant) unemployment compensation (UC) benefits. The Board concluded that Claimant was not barred from receiving UC benefits by Section 402(b) of the Unemployment Compensation Law (UC Law)[1] because she established a necessitous and compelling reason for voluntarily terminating her employment. Because we conclude that Claimant did not take all reasonable and necessary steps to preserve her employment, we reverse.

         Claimant worked for Employer as a part-time communications specialist from November 26, 2012 until June 10, 2015. (Board Decision, Findings of Fact (FOF) ¶ 1.) Claimant's position is staffed at all times during the day and night. (Id ¶ 3.) Until January 2015, Claimant only worked during the day and a coworker assumed the night shift. (Id.) After the co-worker left her employment in January 2015, Employer informed Claimant and the other "employees that they would be required to rotate working the night shift so that no one employee had to be on night shift for an extended period of time." (Id ¶ 4.) Claimant requested that she not be scheduled for night shifts and provided Employer with documentation from her physicians on a medical condition that precluded her from working the night shift. (Id ¶ 5.) Thereafter, Employer informed Claimant that it would "not provide accommodations of any kind." (Id ¶ 6.)

         Claimant continued to request an accommodation so that she could remain in her position working only the day shift. (Id ¶ 7.) On April 15, 2015, Employer's human resources department emailed Claimant a list of 132 open positions with Employer that would not require Claimant to work night shifts. (Id ¶ 8; R.R. at 48a-51a.) Employer asked Claimant to look at the list of open positions and told Claimant that it would be happy to discuss which ones do not require night shifts. (R.R. at 47a.) Employer also told Claimant where to find the job descriptions, and that Claimant should call human resources with any questions. (Id.) Claimant did not call. (FOF ¶ 11.) Employer repeatedly sent Claimant letters asking her to call and subsequently specified two jobs from the larger list of openings for which it appeared that Claimant could be qualified, would not include night shifts, and had a comparable compensation rate to Claimant's current position. (Id. ¶¶ 9-10; R.R. 62a-63a.) Although Claimant applied for a position that was not on the list and for which she was not qualified, Claimant did not call human resources or apply for any of the open positions identified by Employer. (FOF ¶¶ 7, 11.) Claimant resigned from her position on June 10, 2015. (Id. ¶ 11.)

         Claimant filed a claim for UC benefits, which the Local UC Service Center granted under Section 401(d)(1) of the UC Law, 43 P.S. § 801(d)(1), [2] and Section 402(b) of the same. Employer appealed. After a hearing held on July 29, 2015, the Referee concluded that Claimant was not ineligible for UC benefits under Section 401(d)(1), but ineligible under Section 402(b) of the UC Law because Claimant quit her employment without contacting Employer about available positions. (Referee Decision at 2-3.)

         Claimant appealed to the Board. The Board reversed, concluding that Claimant was not ineligible for benefits under Section 402(b) of the UC Law because:

There is no dispute that, at the time of her separation, [C]laimant had adequate health reasons to justify quitting, that she informed [E]mployer of her health-related problem, and that she requested an accommodation. There is also no dispute that [E]mployer repeatedly informed [C]laimant that it would not accommodate her request not to work the night shift because it was considered an essential function of her position. [E]mployer did not give [C]laimant a firm offer of other alternative employment that would not require her to work the night shift. Rather, [E]mployer only presented [C]laimant with other opportunities that [C]laimant may have been qualified for and that [C]laimant could apply for that would not require her to work at night. Thus, because a firm offer of alternative employment was not given to [C]laimant, and [C]laimant had adequate health reasons for quitting that [E]mployer knew about, she had a necessitous and compelling reason for quitting.

(Board Decision at 3.) This appeal follows.

         On appeal, [3] Employer argues that the Board erred in determining that Claimant had a necessitous and compelling reason for voluntarily terminating her employment because Claimant did not take all necessary and reasonable steps to preserve her employment. Employer further argues that the Board misapplied the "firm offer" doctrine as used in this Court's UC jurisprudence by justifying its award of benefits based on its determination that Employer did not give Claimant a "firm offer."

         Section 402(b) of the UC Law provides, in relevant part:

An employe shall be ineligible for compensation for any week-- . . . (b) In which h[er] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act: Provided, That a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a necessitous and compelling nature[.]

43 P.S. § 802(b) (emphasis added). The claimant has the burden of proving that she had a necessitous and compelling cause for voluntarily terminating her employment. PECO Energy Co. v. Unemployment Comp. Bd. of Review, 682 A.2d 58, 60 (Pa. Cmwlth. 1996). A necessitous and compelling cause is that which "results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 832-33 (Pa. 1977). To meet this burden, the claimant must ...


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