               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Solomon Dancey,                                :
                      Petitioner               :
                                               :   No. 964 C.D. 2017
              v.                               :
                                               :   Submitted: December 8, 2017
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :



BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: February 14, 2018


              Solomon Dancey (Claimant) petitions, pro se, for review of the July 12,
2017 order of the Unemployment Compensation Board of Review (Board) which
affirmed a referee’s decision and order denying unemployment compensation
benefits to Claimant pursuant to section 402(b) of Pennsylvania’s Unemployment
Compensation Law (Law).1




       1
         Section 402(b) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(b). Section 402(b) of the Law states that a claimant is ineligible for
compensation for any week in which his unemployment is due to voluntarily leaving work without
cause of a necessitous and compelling nature.
                              Facts and Procedural History
               Claimant worked part time as a house manager for Gaudenzia House
(Employer) from February 29, 2016, through February 26, 2017. (Certified Record
(C.R.) at Item No. 9, Notes of Testimony (N.T.), 5/1/17, at 4-5; Finding of Fact (F.F.)
No. 1.)
               The incident in question began when Claimant was working an 11:00
p.m. to 7:00 a.m. shift. Claimant observed a client moving towards the facility’s
dining area after permissible hours. When asked by Claimant, the client admitted
that he did not have authorization from the facility’s nurse.2 Claimant tried to
prevent the client from using the juice machine in the dining area, and, in response,
the client allegedly grabbed a cup, smashed it on the floor, and pushed a table across
the floor. Claimant asserts that the client, while walking away, made “lewd and
malicious statements” about Claimant. Claimant responded to the alleged verbal
assault by making a statement to the effect of, “[Y]ou’re only saying that now
because you’re in here. Other than that, if it wasn’t for this job, if you said that to
me, I would rip your head off.” (C.R. at Item No. 9, N.T., 5/1/17, at 6; F.F. No. 3.)
               Shortly thereafter, other clients began asking Claimant about the
incident. Claimant noticed that the client had exited the facility and was pacing
outside. After he was unable to reach his director by phone, Claimant called the
clinical director, Robin Lee, to inform her that the client had exited the building.

       2
          Claimant’s brief explains that, during a prior shift, he observed the same client eating
various snacks in the dining room area outside of the permissible hours. At that time, Claimant
informed the client that he needed to return to his floor because he was in violation of the rules.
When the client stated that he needed to eat or drink because he was having a diabetic episode,
Claimant explained that the client could not be granted special privileges and, instead, needed to
obtain special authorization from the facility’s nurse. Claimant then recorded the incident in the
clinical staff’s logbook so that it could be appropriately addressed by staff the next day.
(Claimant’s brief at 9.)
                                                2
When Ms. Lee arrived at the facility, she spoke with the client. Meanwhile, other
clients told Claimant that they were going to tell the other staff members that
Claimant threatened the client. (Id. at 7.) When Ms. Lee was finished meeting with
the client, the client formally apologized to Claimant, and Claimant assumed the
incident was fully resolved. (Id. at 8.)
               On February 27, 2017, Claimant met with the director, Warren
Hodgkiss. (C.R. at Item No. 9, N.T., 5/1/17, at 14.) At the meeting, Claimant
admitted that he threatened the client during the incident. (Id. at 9.) Mr. Hodgkiss
informed Claimant that he sent a report of the incident to his “boss,” and would be
submitting the report to Employer’s human resources department. (F.F. No. 4.) Mr.
Hodgkiss explained to Claimant that, while he did not have the authority to terminate
him, the human resources department might opt to do so. (F.F. No. 5.) Ultimately,
Claimant resigned in lieu of discharge to protect his work record. (F.F. No. 6.)
               On March 23, 2017, Claimant filed for unemployment compensation
benefits. (C.R. at Item No. 1.) On April 7, 2017, the Pennsylvania Department of
Labor and Industry issued its Notice of Determination finding Claimant ineligible
for unemployment compensation benefits pursuant to section 402(b) of the Law.
(C.R. at Item No. 5.) Claimant appealed the Department’s determination. (C.R. at
Item No. 6.)
               After holding a hearing on May 1, 2017, the referee issued a decision
and order dated May 9, 2017, which affirmed the Department’s determination. (C.R.
at Item No. 10.) Claimant timely appealed the referee’s decision to the Board. (C.R.
at Item No. 11.) On July 12, 2017, the Board issued its decision affirming the
referee’s May 9, 2017 decision and order. (C.R. at Item No. 12.)
               Claimant timely filed a petition for review with this Court.


                                           3
                                         Discussion
              On appeal,3 Claimant argues that (1) the Board erred in finding that he
intentionally terminated his employment with Employer; and (2) he was denied due
process because Employer failed to investigate the incident and because he was not
reprimanded in any way before Employer indicated that he may be terminated.
              Section 402(b) of the Law provides that “[a]n employe shall be
ineligible for compensation for any week—(b) In which his 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 . .
. .” 43 P.S. §802(b).
              Under section 402(b) of the Law, a claimant who voluntarily quits his
employment bears the initial burden of proving that he did so for necessitous and
compelling reasons. Wert v. Unemployment Compensation Board of Review, 41
A.3d 937, 940 (Pa. Cmwlth. 2012). Specifically, a claimant must demonstrate that
(1) circumstances existed which produced pressure to terminate employment that
was both real and substantial; (2) such circumstances would compel a reasonable
person to act in the same manner; (3) the claimant acted with ordinary common
sense; and (4) the claimant made a reasonable effort to maintain his employment.
Id. “[W]e must examine the circumstances surrounding each claimant’s departure
on an individual basis, so as to understand what exigencies he faced at the time he
decided to separate from employment.” Petrill v. Unemployment Compensation
Board of Review, 883 A.2d 714, 715 (Pa. Cmwlth. 2005) (quoting Pacini v.


       3
         On appeal, our scope of review is limited to determining whether constitutional rights
have been violated, whether an error of law has been committed, and whether findings of fact are
supported by substantial evidence. Torres-Bobe v. Unemployment Compensation Board of
Review, 125 A.3d 122, 126 n.3 (Pa. Cmwlth. 2015).
                                               4
Unemployment Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth.
1986)).


                      Voluntary vs. Constructive Discharge
             First, we address Claimant’s argument that he did not voluntarily
terminate his position with Employer; rather, he contends that he was constructively
discharged, having been forced to resign to prevent termination and to protect his
work record. Claimant asserts that, during his meeting with Mr. Hodgkiss, it became
clear that he did not have the support of the director and was not presented with any
option other than termination under the circumstances.
             We addressed a similar scenario in Charles v. Unemployment
Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). There, the
claimant argued that he voluntarily quit his job to avoid termination for violation of
his employer’s attendance policy. The claimant submitted that, when he requested
a layoff, his manager responded by telling him that “there [was] nothing, there [was]
no way that he could do anything for [him], he said the only thing that [claimant]
could do was [to] take three days off and get fired.” Id. The Court held that the
mere possibility of termination is insufficient to constitute constructive discharge;
rather, “[a]n employer’s language must possess the immediacy and finality of a
firing in order for that language to be interpreted as discharge.” Id. In that case, we
explained that the director’s statement to the claimant “did not compel [him] to leave
his job,” and that the claimant did not determine whether he would, in fact, be
terminated before he voluntarily quit. Id. Thus, “[w]here an employee resigns in
order to avoid the chance of being fired, that employee is deemed to have voluntarily




                                          5
quit.” Id. (citing Scott v. Unemployment Compensation Board of Review, 437 A.2d
1304 (Pa. Cmwlth. 1981)) (emphasis added).
               Similarly, in the case before us, we find that the director’s statement to
Claimant at the February 26 meeting fails to possess the requisite “immediacy and
finality” to constitute a discharge.           Rather, his words merely suggested that
Employer’s human resources staff could or may terminate Claimant because of the
verbal altercation with the client. At the May 1, 2017 hearing before the referee, Mr.
Hodgkiss testified, “[T]he essence of the conversation was that I can probably go for
termination because that’s what often happens in this kind of case but [Claimant is]
welcome to resign as well and in that way avoid having anything on the record.”
(C.R. at Item No. 9, N.T., 5/1/17, at 14.) Mr. Hodgkiss testified that, if Claimant
chose not to resign, a written corrective action would have been submitted to the
human resources department, and Claimant would have been suspended pending the
results of an investigation. (Id.) However, it is undisputed that Mr. Hodgkiss,
regardless of his recommendation of discharge, did not have the actual authority to
terminate Claimant’s employment. (F.F. No. 5.) Claimant testified that, although
he felt he was in a “no win situation,” it was his choice to resign. For these reasons,
we conclude that the Board’s determination that Claimant voluntarily terminated his
employment with Employer, and was not constructively discharged, is supported by
substantial evidence.4


       4
         At the beginning of the May 1, 2017 hearing, the referee expressly stated that, “[b]ecause
the determination indicated there was a conflict regarding the nature of the separation, the parties
were notified in writing that the voluntarily leaving provisions of [s]ection 402(b) and the
discharge provisions of 402(e) will be considered in determining the Claimant’s eligibility for
benefits.” As the Board explained in its determination and order dated July 12, 2017:



                                                 6
                    Cause of Necessitous and Compelling Nature
              Having determined that Claimant voluntarily quit his job with
Employer, we must now consider whether Claimant met his burden of establishing
that his voluntary termination resulted from a cause of necessitous and compelling
nature. Charles, 552 A.2d at 729. Claimant asserts that the desire to preserve his
work record constitutes a necessitous and compelling cause. We disagree.
              To establish a cause of necessitous and compelling nature, a claimant
must show that the pressure to resign was real and substantial. In this case, the record
contains no evidence to suggest that Claimant faced such real and substantial
pressure. We explained that employer’s statement to Claimant—that the incident
would be reported to the human resources department and that Claimant may
ultimately face termination—did not possess the immediacy and finality of a firing.
It follows, then, that this statement, by itself, did not rise to the level of “real and
substantial” pressure to resign.
              Further, Claimant failed to demonstrate that he made a reasonable effort
to maintain his employment. Mr. Hodgkiss testified that, had Claimant not resigned
at the February meeting, the incident would have been forwarded to the human
resources department, at which time Claimant would have been suspended pending
the results of an investigation. Claimant did not allow this process to unfold. While

              If an employee resigns to avoid an imminent discharge, the
              separation will be treated as a firing and eligibility will be
              determined under [s]ection 402(e) of the Law. If an employee
              resigns to avoid a mere possibility of dismissal, the separation will
              be considered as voluntary and eligibility will be determined under
              [s]ection 402(b) of the Law.

(Board’s op. at 2.) Therefore, because we find that Claimant voluntarily terminated his
employment, it is not necessary for us to consider the Claimant’s eligibility for benefits under
section 402(e) of the law.
                                               7
termination was certainly a possible outcome of any investigation, such an
investigation may have resulted in a lesser form of discipline, which could have
allowed Claimant to maintain his position with Employer. In fact, Employer
presented an email dated April 6, 2017, suggesting that termination was not
necessarily forthcoming, stating, “After going through our records, I have no
documentation that shows Mr. Dancey on a ‘Last Chance Agreement’ so from my
knowledge he was not in [l]ieu of being discharged.” (C.R. at Item No. 3.) Finally,
Claimant admitted Mr. Hodgkiss neither told him to resign, nor terminated him;
rather, he felt he had to resign in order to avoid termination and preserve the
possibility of return to work for Employer after earning an advanced degree. Thus,
we find that the record contains substantial evidence to support the Board’s
determination that Claimant did not voluntarily resign based upon a cause of a
necessitous and compelling nature.


                                     Due Process
            Finally, Claimant argues that Employer violated his due process rights
because the director intended on terminating him without an investigation. On the
contrary, Mr. Hodgkiss’ testimony expressly indicates that, had Claimant not
resigned, the matter would have been directed to the human resources department
for an investigation. Therefore, we find any due process argument to be without
merit.


                                     Conclusion
            Because Claimant’s termination of employment was voluntary, and
because he did not meet his burden of establishing that this voluntary termination


                                         8
was due to a necessitous and compelling reason, we cannot conclude that the Board
erred in affirming the referee’s decision and order finding Claimant ineligible for
unemployment compensation benefits under section 402(b) of the Law.
            Accordingly, the Board’s order is affirmed.




                                            PATRICIA A. McCULLOUGH, Judge




                                        9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Solomon Dancy,                        :
                 Petitioner           :
                                      :    No. 964 C.D. 2017
           v.                         :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


                                  ORDER


           AND NOW, this 14th day of February, 2018, the order of the
Unemployment Compensation Board of Review, dated July 12, 2017, is affirmed.




                                          PATRICIA A. McCULLOUGH, Judge
