Lori A. Kelly, Petitioner
Unemployment Compensation Board of Review, Respondent
Argued: September 11, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge
Kelly (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) affirming a
referee's decision denying her unemployment compensation
benefits under Section 402(b) of the Unemployment
Compensation Law (Law). Claimant argues she had necessitous and
compelling reasons for resigning her position with the
University of Pittsburgh (Employer). In particular, Claimant
asserts she resigned because of religious objections to a new
project Employer assigned her to manage, which involved the
collection of fetal tissue from abortions, miscarriages and
fetal autopsies, including those performed at Employer's
Magee-Women's Hospital (Magee). Upon review, we are
constrained to affirm on this record.
case, the Board adopted and incorporated the referee's
findings and conclusions into its decision and order. The
referee found the following facts. Claimant worked for
Employer as a full-time project manager from April 2016 to
July 19, 2016 at a rate of pay of $33 per hour. Claimant
worked in Employer's Health Sciences Tissue Bank (HSTB)
as a project manager. Her job duties included managing
projects involving the collection and distribution of tissue
for research projects. Shortly after the beginning of
Claimant's employment, Employer told Claimant she would
be project manager for a new tissue distribution project
known as the GenitoUrinary Development Molecular Anatomy
Project (GUDMAP). Federal funding for GUDMAP was pending.
Claimant discovered the project would involve the collection
and distribution of fetal tissue. Employer's sources of
fetal tissue included abortions, miscarriages and fetal
autopsies. Claimant's supervisor directed her to develop
an online request tool for researchers' use of the
distribution of tissue samples. Claimant's duties
involved facilitating the distribution of tissue. However,
Claimant's duties did not include the collecting or
packing of samples for distribution.
is Catholic, and the practice of abortion violates her
religious principles. Having learned of Employer's use of
fetal tissue from abortions, Claimant consulted with her
mother, a lay Eucharistic minister, for guidance.
Board also found Claimant developed a contentious
relationship with her immediate supervisor, HSTB Assistant
Director Susan Kelly (Supervisor).
Claimant told Supervisor that she found Supervisor's
frequent contacts with her to be distracting and asked that
Supervisor only communicate with her by email. When
Supervisor wanted to discuss this, Claimant told her that she
would not speak to her without HSTB Director Paul Wood (HSTB
Director) being present. HSTB Director, located at a
different hospital in Pittsburgh, advised Supervisor to ask
the Director of Employee and Labor Relations, Jane Volk
(Labor Director), to intervene instead.
Claimant met with Labor Director and Supervisor. Labor
Director told Claimant that refusing to meet or speak with
Supervisor would be considered insubordinate. Claimant became
upset and told Labor Director that she felt Supervisor was
harassing her and asked that the matter be investigated.
then asked Labor Director for assistance in transferring to
another position. Labor Director told Claimant she was free
to apply for other positions because she was close to the end
of her probationary period. If someone offered Claimant a
position, the matter could be considered at that time.
did not indicate to Supervisor or Labor Director during the
meeting that she had a religious objection to being involved
with a project that utilized the tissue of aborted fetuses.
Employer has a policy of accommodating employees for
religious reasons. Employer's HSTB could have offered
Claimant other projects that did not involve fetal tissue.
The next day, however, Claimant tendered her resignation
letter, which stated she objected to working on a project
that involved the collection and transfer of fetal tissue.
her resignation, Claimant applied for unemployment benefits,
and the Department of Labor and Industry (Department) issued
a notice of determination finding Claimant voluntarily quit
with cause of a necessitous and compelling nature because she
was unaware at hire that she would be working with aborted
fetuses. The Department found this was against Claimant's
religious beliefs. The Department also noted there were no
alternatives to resolve the situation.
appealed. The parties, represented by counsel, each presented
testimony at a referee's hearing. Claimant testified on
her own behalf. Employer presented testimony from Supervisor
and Labor Director.
testified she worked as project manager for GUDMAP, which had
not yet started operations. Prior to the end of April 2016,
Claimant did not know that Employer's HSTB engaged in the
collection of fetal tissue from abortions, including those
performed at Magee. As project manager, Claimant would assign
projects to tissue banks, including those at Magee, which
would collect, store and disperse fetal material. In short,
Claimant would facilitate the movement of fetal tissue and
organs between Employer and other places around the country.
Claimant, who is Catholic and opposed to abortion, learned
that GUDMAP involved the collection of fetal tissue, she
became very distraught. Although Claimant previously worked
for Employer in projects involving human tissue, the projects
used adult human tissue. Upset, Claimant called her mother
for spiritual advice. They prayed together on the phone a
number of times. Claimant, however, continued to remain
involved with GUDMAP and other projects.
19, 2016, prior to GUDMAP becoming an up and running project,
Claimant met with Supervisor and Labor Director to discuss
some personality issues she had with Supervisor. During the
meeting, Claimant asked Labor Director if she could help her
find another position with Employer. However, Labor Director
informed her that she could not change positions during her
probationary period. Employer did not offer Claimant another
Claimant admitted she had a personality conflict with
Supervisor, she would never resign her position for that
reason. To that end, Claimant testified she would have liked
to continue working on her relationship with Supervisor.
See Referee's Hr'g, Notes of Testimony
(N.T.), 10/5/16, at 19; Reproduced Record (R.R.) at 91a.
Nonetheless, Claimant acknowledged she did not inform
Employer of her moral and religious objections to the use of
fetal tissue from abortions. Id. Claimant
characterized her moral and religious feelings as an inner
struggle. Id. Ultimately, when asked by her counsel
whether she would accept another position with Employer if it
offered her ...