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Kelly v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

October 17, 2017

Lori A. Kelly, Petitioner
v.
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

          ROBERT SIMPSON, Judge

         Lori A. 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).[1] 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.

         I. Background

         In this 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.

         Eventually, 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.

         Claimant 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.

         The Board also found Claimant developed a contentious relationship with her immediate supervisor, HSTB Assistant Director Susan Kelly (Supervisor).

         Eventually, 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.

         Thereafter, 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.

         Claimant 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.

         Claimant 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.

         Following 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.

         Employer 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.

         Claimant 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.

         When 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.

         On July 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 position.

         Although 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 ...


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