         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen M. Scavillo,                        :
                                             :
                     Petitioner              :
                                             :
              v.                             : No. 2723 C.D. 2015
                                             : Submitted: May 20, 2016
Unemployment Compensation                    :
Board of Review,                             :
                                             :
                     Respondent              :



BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                       FILED: September 29, 2016

              Kathleen M. Scavillo (Claimant), pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board) holding that
she is ineligible for unemployment compensation benefits under Section 402(b) of
the Unemployment Compensation Law (the Law)1 because she voluntarily quit her
job without a necessitous and compelling reason. We affirm, but on different
grounds from those on which the Board based its denial of benefits.


1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. §
802(b). Section 402(b) provides, in relevant part, that “[a]n employe shall be ineligible for
compensation for any week… [i]n which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature ….” Id.
             Claimant was employed by Children of America (Employer) as a part-
time assistant teacher in its Warminster, Pennsylvania child care facility from July
2009 until August 5, 2015. (Record Item (R. Item) 12, Board Decision and Order
Finding of Fact (F.F.) ¶1.) On July 20, 2015, an infant in the room where Claimant
worked had four episodes of diarrhea, and Claimant asked Employer to call the
child’s parent and send the child home. (Id. F.F. ¶3; R. Item 8, Referee’s Hearing
Transcript (H.T.) at 4-5.) The next day, July 21, 2015, the child returned to
Employer’s facility and continued to have numerous episodes of diarrhea, some of
which were sufficiently severe as to require full clothing changes. (R. Item 12,
Board Decision and Order F.F. ¶¶4-5; R. Item 8, H.T. at 4-5.) Claimant requested
that Employer send the child home, but Employer allowed the child to remain at its
facility because the parent had given Employer a doctor’s note stating that the child
“may return to day care with loose stools.” (R. Item 12, Board Decision and Order
F.F. ¶¶4, 6 and Discussion at 2; R. Item 8, H.T. at 5-6, 11-12, 15-16 & Employer
Ex. 1.)
             Claimant gave notice on July 22, 2015 that she was resigning her
employment effective August 5, 2015 because she believed that Employer’s
allowing the child to return while he had diarrhea created a health risk for other
children and the staff and that Employer violated its policy on when sick children
may return to the facility. (R. Item 12, Board Decision and Order F.F. ¶¶8-9 and
Discussion at 2; R. Item 8, H.T. at 4-6, 12; R. Item 3, Service Center Ex. 7,
Resignation Letter.) Claimant also complained to Employer that other children
were having diarrhea.     (R. Item 12, Board Decision and Order F.F. ¶6 and
Discussion at 2; R. Item 8, H.T. at 7, 12.) Employer checked its daily records and
found other cases of diarrhea, but did not conclude that the other cases of diarrhea


                                         2
were connected to the child in question. (R. Item 12, Board Decision and Order
F.F. ¶7 and Discussion at 2; R. Item 8, H.T. at 12-14, 16-17.)
               Claimant applied for unemployment benefits, and on August 25, 2015,
the Department of Labor and Industry’s Office of Unemployment Compensation
Benefits (Department) issued a determination that Claimant was ineligible for
benefits because she had voluntarily quit her employment without a necessitous
and compelling reason. Claimant appealed, and the Referee conducted a hearing at
which Claimant and two Employer representatives, the director of the Warminster
child care facility and a supervisor of Employer’s Pennsylvania child care
facilities, testified.
               At the Referee hearing, Claimant testified that Employer, over her
objection, allowed an infant who had four diarrhea diapers on July 20, 2015 to
come back the next day and remain at the child care facility despite having seven
additional instances of diarrhea on the second day and needing five full changes of
clothing in those two days. (R. Item 8, H.T. at 4-6.) Claimant testified that she
made clear to the director and assistant director of the Warminster child care
facility her concerns that allowing the child to remain at the facility created a
health risk for the other children and the staff, that they did nothing in response,
and that other children began to have diarrhea. (Id., H.T. at 5-7.) Claimant also
testified that it was her understanding that Employer’s policy required that an
infant with three or more instances of diarrhea must be sent home and could not
return until he was symptom-free for 24 hours and that Employer was not
enforcing its policy. (Id., H.T. at 4-5.) Claimant admitted that she did not attempt
to speak to anyone else at Employer who could override the director’s decision
because she felt that the people in Employer’s upper management “do not really


                                         3
take care of their employees” and “don’t care what their employees think.” (Id.,
H.T. at 7-8.) Claimant also admitted that she did not ask to be assigned to a
different room. (Id., H.T. at 9-10.)
             Employer’s     witnesses did not dispute Claimant’s testimony
concerning the child’s diarrhea or that he was permitted to remain at its facility in
that condition.   Rather, Employer’s witnesses testified that Employer’s policy
permitted a child to return, even though not symptom-free, if a note from a
pediatrician was provided stating that he could return to day care, and introduced
in evidence the July 21, 2015 doctor’s note on the basis of which it allowed the
child to return. (R. Item 8, H.T. at 11-12, 15-16 & Employer Ex. 1.) This doctor’s
note did not diagnose the cause of the diarrhea or state that it was noninfectious,
but merely stated that the child “was evaluated in my office on 7/14/2015 for the
following condition(s): Upper respiratory infection teething” and that “He/She
may return to school on 7/21/2015. He may return to day care with loose stools.”
(Id., Employer Ex. 1.) Employer’s witnesses admitted that after July 20, 2015,
other children were sent home because they had diarrhea. (Id., H.T. at 13-14, 16-
17.) Employer’s director testified that Claimant would have been assigned to a
different room that would not expose her to the child if Claimant had requested,
but that “I didn’t think to ask her” because Claimant “just was mad that we
accepted the child back.” (Id., H.T. at 12.) Employer’s Pennsylvania child care
facilities supervisor testified that Claimant could have contacted her, two other
supervisors above her or Employer’s human relations department about the
decision to permit the child to return with diarrhea. (Id., H.T. at 18.)
             On October 1, 2015, the referee issued a decision reversing the
Department’s determination and holding that Claimant was eligible for benefits


                                           4
because Employer’s failure to address the health and safety concerns that she
raised constituted a necessitous and compelling reason for resigning her
employment. (R. Item 9, Referee’s Decision and Order.) Employer appealed the
referee’s decision to the Board.
               On November 23, 2015, the Board issued a decision making its own
findings of fact and stating that “[t]he decision of the Referee is affirmed,” but
ruling that Claimant was ineligible for benefits under Section 402(b) of the Law.
(R. Item 12, Board Decision and Order at 3.) In its decision, the Board found
credible Claimant’s testimony concerning the severity of the child’s diarrhea,
found that the child was permitted to return and remain at Employer’s facility
despite continuing diarrhea, and found that Claimant complained to Employer
about the situation. (Id. F.F. ¶¶3-6 and Discussion at 2.) The Board, however, also
found that Employer’s policy permitted an infant with diarrhea to return with a
doctor’s note even if symptoms continued and that because a doctor’s note was
provided, permitting the child to return did not violate that policy. (Id. F.F. ¶¶2, 4
and Discussion at 2.)2           The Board held that because Claimant “has not
demonstrated how the employer failed to follow its policy,” Claimant had not
shown a necessitous and compelling reason for leaving her job with Employer.




2
  The Board also stated that Employer after checking its records “found no conclusive evidence
of illness in the classroom.” (R. Item 12, Board Decision and Order at 2.) To the extent that this
statement suggests a finding that Employer did not find other cases of diarrhea, it is unsupported
by the record, as both Claimant and Employer’s witnesses testified that other children were sent
home with diarrhea following the child’s return to the classroom. (R. Item 8, H.T. at 7, 9, 13-14,
16-17.)


                                                5
(Id. Discussion at 2.) Claimant has filed the instant petition for review appealing
the Board’s order to this Court.3
              Claimant argues that Employer’s allowing a child with severe diarrhea
to return and remain at its child care facility where she worked created a risk of
infecting her and the other children at the facility and that this safety concern
constituted necessitous and compelling circumstances for leaving that employment.
A claimant seeking benefits after voluntarily quitting her job has the burden to
demonstrate that she had a necessitous and compelling reason for doing so. Mathis
v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth.
2013); Green Tree School v. Unemployment Compensation Board of Review, 982
A.2d 573, 577 (Pa. Cmwlth. 2009); Fitzgerald v. Unemployment Compensation
Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998).                      To prove a
necessitous and compelling reason for leaving employment, the claimant must
show circumstances that produced real and substantial pressure to terminate
employment and would compel a reasonable person to act in the same manner, and
that she acted with ordinary common sense in quitting her job and made a
reasonable effort to preserve her employment.            Mathis, 64 A.3d at 299-300;
Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d
1031, 1033 & n.3 (Pa. Cmwlth. 2002); Fitzgerald, 714 A.2d at 1129. Whether or
not a claimant had a necessitous and compelling cause for leaving employment is a




3
  Our review is limited to determining whether necessary findings of fact are supported by
substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 297 n.6
(Pa. Cmwlth. 2013).



                                             6
question of law subject to this Court’s plenary review. Mathis, 64 A.3d at 300;
Fitzgerald, 714 A.2d at 1129.
            Working conditions that subject both the claimant and others to safety
hazards can constitute necessitous and compelling reasons for leaving
employment. Green Tree School, 982 A.2d at 577; Rapid Pallet v. Unemployment
Compensation Board of Review, 707 A.2d 636, 638-39 (Pa. Cmwlth. 1998);
Fleeger v. Unemployment Compensation Board of Review, 528 A.2d 264, 267 (Pa.
Cmwlth. 1987). The mere fact that the claimant is afraid is not sufficient; the
safety risk must be objectively real to constitute a sufficient reason for resigning
from one’s job.    Green Tree School, 982 A.2d at 578 (resignation because
employer eliminated position at school that claimant viewed as essential to safety
was not for necessitous and compelling circumstances where only safety evidence
was claimant’s personal opinion, claimant had ties to the individual whose position
was eliminated, and claimant did not wait to see whether school staffing would be
adequate after the change). In contrast, this Court has held that necessitous and
compelling reasons for leaving employment exist where the claimant has shown
that she raised an objectively legitimate safety concern with her employer and that
the employer refused to address that safety issue. Fitzgerald, 714 A.2d at 1128-30
(nurse showed necessitous and compelling circumstances for resignation where
employer assigned her responsibilities beyond her skills that she believed would
endanger patients); Rapid Pallet, 707 A.2d at 638-39 (employer’s failure to repair
unsafe condition of truck was necessitous and compelling circumstances for
quitting job); Fleeger, 528 A.2d at 267 (directing truck driver to violate federal
safety regulations limiting the amount of driving, if proven, “would automatically




                                         7
supply the employee with legitimate safety concerns that would justify leaving
such employment”).
             The facts found by the Board and the undisputed evidence in the
record could support a conclusion that there was a genuine safety risk for Claimant
and the children in her care. While Employer had a doctor’s note, that note stated
only that the child could return with “loose stools” and did not state that the child’s
severe diarrhea was not infectious or attribute it to a non-infectious cause that
would not pose a risk of transmitting disease to other children and caregivers. The
Board’s finding that Employer did not violate its policy does not constitute a
determination that Claimant failed to show a genuine safety risk. The issue here is
not whether Employer adhered to its policies, but whether Claimant showed a
safety hazard that warranted terminating her employment.
             However, as noted above, the claimant must also show that she made
a reasonable effort to preserve her employment. Green Tree School, 982 A.2d at
579; Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042,
1046-47 (Pa. Cmwlth. 2002); Craighead-Jenkins, 796 A.2d at 1033. Therefore,
even where there is a real and serious safety concern, the claimant must make a
reasonable attempt to seek protection from the danger before resigning from her
job. Department of Corrections v. Unemployment Compensation Board of Review,
547 A.2d 470, 474 (Pa. Cmwlth. 1988); Iaconelli v. Unemployment Compensation
Board of Review, 423 A.2d 754, 756 (Pa. Cmwlth. 1980); Mackanic v.
Unemployment Compensation Board of Review, 390 A.2d 884, 886 (Pa. Cmwlth.
1978). If alternative work arrangements are possible that could solve the safety
issue, quitting without even exploring such arrangements does not constitute a
reasonable attempt to preserve employment and bars the claimant from receiving


                                          8
benefits. Department of Corrections, 547 A.2d at 474; Iaconelli, 423 A.2d at 756-
57; Mackanic, 390 A.2d at 886. Likewise, quitting without pursuing channels
provided by the employer for complaining about unacceptable working conditions
does not satisfy the requirement that the claimant make reasonable efforts to
preserve employment. St. Barnabas, Inc. v. Com., Unemployment Compensation
Board of Review, 525 A.2d 885, 887-88 (Pa. Cmwlth. 1987); Iaconelli, 423 A.2d at
756-57 & n.1.
              Here, Claimant could not meet her burden of showing that she made
reasonable efforts to preserve her employment.4 Claimant not only did not ask
Employer to remove her from exposure to the hazard, she gave Employer no
opportunity to offer an accommodation, as she resigned almost immediately.
Immediately announcing an intent to resign without making any effort to determine
whether the safety hazard can be eliminated does not constitute a reasonable effort
to preserve employment. Green Tree School, 982 A.2d at 579. Moreover, while
Claimant fully brought the problem to the attention of the assistant director and
director of the facility, she resigned without attempting to contact Employer’s
human relations department and the director’s superiors to resolve the situation,
even though Employer provided those channels of complaint.
              Because Claimant failed to show that she made reasonable efforts to
preserve her employment, she could not satisfy her burden of showing necessitous




4
  Although the Board did not find that Claimant’s efforts to preserve her employment were
inadequate, this Court may affirm on other grounds where affirmance is required for a reason
different from that relied on below. Sloane v. Workers’ Compensation Appeal Board (Children’s
Hospital of Philadelphia), 124 A.3d 778, 786 n.8 (Pa. Cmwlth. 2015); Kutnyak v. Department of
Corrections, 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000).


                                             9
and compelling circumstances for resigning. Accordingly, we affirm the Board’s
denial of benefits.



                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge




                                     10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen M. Scavillo,               :
                                    :
                  Petitioner        :
                                    :
            v.                      : No. 2723 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                  Respondent        :

                               ORDER


            AND NOW, this 29th day of September, 2016, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                                  ____________________________________
                                  JAMES GARDNER COLINS, Senior Judge
