          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brenner Car Credit,            :
                               :
                    Petitioner :
                               :
            v.                 : No. 956 C.D. 2019
                               : Submitted: May 12, 2020
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: July 9, 2020


             Brenner Car Credit (Employer) petitions for review of the order of the
Unemployment Compensation Board of Review (Board) reversing a referee’s
determination and holding that Tammy L. Bowerson (Claimant) is not ineligible
for benefits under Section 402(b) of the Unemployment Compensation Law
(Law).1 We affirm.
             Claimant worked for Employer as a title clerk from September 10,
2018, to March 5, 2019. During that period, she accrued numerous absences. In

      1
         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 provides that an employee shall be ineligible for
compensation for any week in which her unemployment “is due to voluntarily leaving work
without cause of a necessitous and compelling nature.”
late February 2019, Claimant notified Employer that she was scheduled to undergo
surgery on March 7, 2019, and she asked Employer for four to six weeks’ leave.
               Employer denied her request at a meeting two days before the
scheduled operation.        Employer advised Claimant that it could not hold her
position open if she took time off for surgery and did not indicate that alternative
work would be available to her.             Claimant left the office angrily and made
disparaging remarks about Employer.
               On Claimant’s internet initial claims form, she indicated that she left
her position for health reasons, took a leave of absence, and was told that if she did
so, her services would no longer be required.2 Reproduced Record (R.R.) at 10a.
Employer’s questionnaire states that Claimant was not eligible for medical leave
and that she quit her employment. The local job center determined that Claimant
was ineligible for benefits under Section 402(b) of the Law. R.R. at 24a.
               Claimant appealed. Both parties were represented by counsel at the
referee’s hearing.3 Claimant testified she believed Employer had terminated her
employment because it was unable to accommodate her request for medical leave.
Claimant stated that on February 15, 2019, she informed Lorie Wilson, her
manager, that she would need four to six weeks’ medical leave to have surgery.
On February 20, 2019, Claimant emailed Shannon Kryscio, Employer’s Human
Relations/office manager, advising that she was scheduled to undergo surgery on
March 7, 2019, and would be unable to work for four to six weeks.                             She

       2
          For unemployment compensation purposes, a leave of absence is considered a voluntary
quit for the period of the leave. Reproduced Record at 8a.

       3
         The hearing notice stated that the specific issues to be considered included Sections
402(b) (voluntary quit), 402(e) (willful misconduct), (3) (fault, to non-work related conduct), and
401(d)(1) and (2) (ability and availability for suitable work). R.R. at 31a.


                                                2
subsequently discussed her need for surgery with Kryscio during a meeting on
February 25, 2019.      Claimant said Kryscio offered to investigate whether
Employer had an extended leave policy, telling Claimant that she would review the
employee handbook and possibly consult with an attorney. However, Kryscio did
not provide Claimant any further information.
            Claimant stated she told Kryscio it might be possible for her to come
back to work in less than four weeks. She said she also advised Kryscio she would
see if the surgery could be postponed. Claimant stated that she asked her doctor,
but he told her that because of her family history of cancer it was imperative to
have the surgery as planned. Claimant acknowledged that she did not get back to
Kryscio with that information. R.R. at 75a-76a.
            Claimant testified that there was no subsequent conversation about her
scheduled surgery, and she assumed that her medical leave had been approved until
she was told otherwise during a meeting with Kryscio and Scott Friends,
Employer’s general manager, on March 5, 2019.          Claimant said Kryscio and
Friends advised her that if she chose to have the surgery, her services would not be
required after March 6, 2019.
            Claimant stated that she left the office, went to her desk, and started
packing her belongings. About ten minutes later, Kryscio came over and told
Claimant that she could work the remainder of the day and the next day, and was
not being fired. According to Claimant, she responded that when she was told her
services would no longer be needed, she understood that her employment had been
terminated. R.R. at 73a.
            Kryscio testified that she, not Lorie Wilson, was Claimant’s direct
supervisor, and had clarified that with Claimant on prior occasions.        Kryscio


                                         3
estimated that Claimant had been absent 20 to 22 times during the course of her
employment. She explained that Claimant worked as Employer’s only title clerk,
which was an essential position in Employer’s business.
            Kryscio stated that Claimant requested a leave of four to six weeks,
with a possibility of returning to work sooner. She noted that under Employer’s
policy, paid leave was available only to employees with more than a year of
service.
            Kryscio added that employees could take unpaid time off, with prior
approval, and that a limit on unpaid time off was determined on a case-by-case
basis, depending in part on the importance of the employee’s role to the business.
R.R. at 82a. Kryscio acknowledged that she told Claimant she would explore
leave options and that she did not give Claimant an answer about her request for
leave until the meeting on March 5, 2019. R.R. at 88a.
            Kryscio testified that she and Friends met with Claimant on March 5,
2019, intending to advise Claimant that leave was not available and see if Claimant
could postpone the surgery. If Claimant was able to postpone the surgery, Kryscio
and Friends would discuss performance improvement issues with her. Kryscio
emphasized that Claimant would have maintained her employment with Employer
if Claimant had postponed the surgery. Subsequently, Kryscio clarified that if
Claimant proceeded with the surgery, Employer could not have kept Claimant’s
position open for her, and Employer did not discuss the possibility that continuing
work might be available for Claimant in a different position.
            Kryscio stated that after she and Friends told Claimant she was not
eligible for leave, Claimant voluntarily quit her employment.        According to
Kryscio, Claimant said she had been fired, but Kryscio told Claimant she could


                                         4
continue working.      As Claimant left the building, she was yelling, using
obscenities, and saying that she had sabotaged her recent work. R.R. at 85a.
             Friends testified that the March 5, 2019 meeting was very short and
that Claimant left it abruptly. He stated that Employer followed up on Claimant’s
comments regarding sabotaged work; the referee sustained Claimant’s objection to
further testimony on that issue. R.R. at 93a.
             The referee affirmed the job center’s determination that Claimant was
ineligible for benefits under Section 402(b). The referee found that Claimant
voluntarily left her employment and did not act with ordinary common sense or
make a good faith effort to preserve her employment. However, the referee made
no findings concerning Claimant’s need for surgery or the availability of work.
R.R. at 114a-16a.
             Claimant appealed to the Board, which reversed the referee’s
decision. The Board issued the following findings:
             1. [Claimant] was last employed as a title clerk by
             [Employer] from September 10, 2018, at a final rate of
             $16.50 an hour and her last day of work was March 5,
             2019.
             2. [Claimant] had a history of absenteeism during her
             short tenure with [Employer].

             3. [Claimant] was hospitalized for mental health issues
             from February 16-20, 2019, and returned to work on
             February 25, 2019.

             4. [Claimant] informed [Employer’s] HR/office manager
             by email on February 20 or 21, 2019, that she had been
             scheduled for a medical procedure on March 7, 2019,
             requiring her to be out of work for approximately 4-6
             weeks, although she was pushing for two weeks, and
             advised that she would be in contact with the doctor to
             see if the surgery date [could] be pushed forward.

                                         5
5. On February 25, 2019, [Claimant] sent another email
to the HR/office manager, listing upcoming dates and
procedures; this listing identified Claimant’s procedure
for March 7 as a hysterectomy and advised of a post-
operative doctor’s appointment on March 15. [Claimant]
promised to contact the manager on Monday, March 18
with an anticipated return-to-work date.

6. [Claimant’s] doctor recommended this procedure
because she had lesions previously removed from her
cervix and cancer was very high in her family history.
The need for this procedure was not caused by or related
to [Claimant’s] work with [Employer].

7. [Claimant] also discussed this procedure with the
HR/office manager on February 25. The manager
informed [Claimant] that she was not eligible for [leave
under the Family and Medical Leave Act, 29 U.S.C.
§s2601-2654], but promised to check to see if
[Employer] had an extended leave policy, to possibly
consult with [Employer’s] attorney, and to get back to
[Claimant].

8. [Claimant’s] doctor advised her that the surgery was
imperative, when she asked about a postponement.
However, [Claimant] never got back to the HR/office
manager with this information. On the other hand, the
manager never responded to [Claimant] regarding her
request for leave until March 5, 2019, two days before
[Claimant’s] scheduled surgery. Under [Employer’s]
leave policies, an employee must be with the
organization for one year to receive vacation pay or paid
time off. Similarly, individuals must be employed for
one year to be eligible for FMLA or disability leave.

9. On March 5, 2019, [Claimant] met with the HR/office
manager and [Employer’s] general manager. [Claimant]
was informed at this meeting that [Employer] could not
approve her leave and hold her position open for 4-6
weeks; and if she decided to continue with the surgery,



                           6
                her benefits would continue until the end of the month at
                which point she could elect [coverage under] COBRA.[4]

                10. [Claimant] could have maintained her employment if
                she postponed her scheduled surgery. Had she done so,
                [Employer] would have presented her with a performance
                improvement plan at the March 5 meeting.

                11. [Claimant] stormed out of the office where this
                meeting was held, began yelling, belittled [Employer],
                packed up her belongings, and announced she was
                leaving.

                12. [Claimant] voluntarily quit her employment because
                [Employer] was unable to accommodate her leave
                request.

Board’s Findings of Fact Nos. 1-12.
                The Board recognized that Claimant had the burden to show
necessitous and compelling cause to voluntarily terminate her employment. The
Board credited Claimant’s testimony regarding her need for the surgical procedure
that potentially required her to be off work for four to six weeks. The Board noted
that Claimant communicated with Employer about the surgery. When Claimant
told Employer she would ask about postponing her surgery, Employer inferred that
the surgery was elective. However, Claimant’s doctor strongly advised her not to
postpone the procedure. Board’s Finding of Fact No. 8. Claimant did not inform
Employer of that fact, and Employer did not advise Claimant that she could not
take any medical leave, until the meeting on March 5, 2019. Board’s 6/21/2019
Decision at 3.



        4
            The Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§1161-
1169.


                                             7
             The Board concluded that Claimant voluntarily quit her employment
because she was given a choice of postponing imperative surgery or losing her job
and that those circumstances presented necessitous and compelling cause for
Claimant to voluntarily leave her employment. Additionally, the Board concluded
that evidence concerning Claimant’s conduct as she was leaving the office,
including her comments that she had sabotaged her work, was not relevant to her
eligibility for benefits because Employer insisted that Claimant was not discharged
but voluntarily quit her employment.
             Finally, the Board noted that Employer may be eligible for relief from
charges under these facts, but “that issue was not before the Board at this
juncture.” Board’s 6/21/2019 Decision at 3. The Board added: “The Department
may wish to investigate [Claimant’s] ability and availability for suitable work
beginning March 7, 2019, the date of [Claimant’s] scheduled surgery, which
was expected to keep her out of work 4-6 weeks.”             Id. at 4 (emphasis in
original).

                                        Discussion
             Initially, we note that a person is ineligible for unemployment benefits
under Section 402(b) of the Law if she voluntarily terminates her employment
without cause of a necessitous and compelling nature. The claimant bears the
burden of proving necessitous and compelling cause. Dopson v. Unemployment
Compensation Board of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009).
Necessitous and compelling cause “results from circumstances which produce
pressure to terminate employment that is both real and substantial, and which
would compel a reasonable person under the same circumstances to act in the same
manner.” Philadelphia Parking Authority v. Unemployment Compensation Board

                                         8
of Review, 654 A.2d 280, 282 (Pa. Cmwlth. 1995) (quoting Taylor v.
Unemployment Compensation Board of Review, 378 A.2d 829, 832-33 (Pa. 1977)).
Whether a claimant has a cause of a necessitous and compelling nature to
voluntarily leave her employment is a question of law subject to this Court’s
review. Pennsylvania Gaming Control Board v. Unemployment Compensation
Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012).
             Additionally, the Board is the ultimate fact-finder in unemployment
matters and is empowered to resolve all conflicts in the evidence, witness
credibility, and weight accorded to the evidence. Ductmate Industries, Inc. v.
Unemployment Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
It is irrelevant whether the record contains evidence to support findings other than
those made by the fact-finder; the critical inquiry is whether there is evidence to
support the findings actually made. Id. Where substantial evidence supports the
Board’s findings, they are conclusive on appeal. Id. In addition, we must examine
the testimony in the light most favorable to the party in whose favor the Board
ruled, giving that party the benefit of all logical and reasonable inferences from the
testimony. Id.
             On appeal to this Court,5 Employer first argues that the Board erred in
holding that Claimant demonstrated necessitous and compelling cause to leave her
employment because Claimant failed to take reasonable steps to preserve her
employment relationship. More specifically, Employer complains that Claimant
did not provide Employer any medical documentation confirming the need for

      5
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Rodriguez v. Unemployment Compensation Board of Review,
174 A.3d 1158, n.5 (Pa. Cmwlth. 2017).


                                            9
surgery. However, Employer does not contend that Claimant needed medical
evidence to satisfy her burden of proof, and we have repeatedly held that a
claimant’s testimony and/or documentary evidence is competent to establish the
existence of a medical condition.            Philadelphia Parking Authority v.
Unemployment Compensation Board of Review, 1 A.3d 965, 969 (Pa. Cmwlth.
2010); Goettler Distributing Inc. v. Unemployment Compensation Board of
Review, 508 A.2d 630, 631-32 (Pa. Cmwlth. 1986). Additionally, Employer did
not ask Claimant to provide documentation to support her request for leave, and
Employer does not suggest how medical documentation would have alleviated the
problem of filling Claimant’s position.        Ultimately, Employer’s evidence
demonstrates that Employer was aware of Claimant’s scheduled surgery, and
Employer    offered   no   evidence   that   Claimant    declined   any   proposed
accommodation.
            Although Employer acknowledges that medical problems can provide
cause of a necessitous and compelling nature to voluntarily terminate employment,
Employer maintains that the accommodation Claimant requested was an absence
from work, which is not the type of accommodation contemplated by the courts in
cases such as Genetin v. Unemployment Compensation Board of Review, 451 A.2d
1353 (Pa. 2009). Employer points to the Supreme Court’s observations in Genetin:

            Clearly, medical problems can provide a cause of a
            necessitous and compelling nature. However, since it
            was not the intent of the [Law] to provide health and
            disability benefits for an ill employee who is not
            physically able and available for participation in the work
            force, it must also appear that the employee is able to
            work and be available for suitable work. See section
            401(d).
451 A.2d at 1356 (quotation and citations omitted).

                                        10
             The Court in Genetin clarified the burden of proof under Section
402(b), i.e., that where a claimant advises the employer of a physical malady, it is
incumbent on the employer to provide suitable work. If such an opportunity is
offered to the claimant and she declines it, a finding of ineligibility under section
402(b)(1) would then be appropriate. The Supreme Court determined that the
record in Genetin was insufficient for purposes of applying that standard. The
Court also noted that the referee had not ruled on the employer’s claim of
ineligibility under Section 401(d) (concerning a claimant’s ability and availability
for suitable work) and determined that if the claimant was not ineligible under
Section 402(b), the employer would be entitled to a determination under Section
401(d). The Court held that remand was necessary to address those issues.
             In making this argument, Employer appears to conflate issues relevant
to Sections 402(b) and 401(d). Here, the requested leave was temporary and of
undetermined duration. In fact, Claimant told Employer that she would contact
Employer with an expected return to work date after her check-up on March 15,
2019. Claimant attempted to submit a document showing that she was released to
return to work on that date, nine days after the surgery, but the referee sustained
Employer’s objection to its admission on the ground that it was dated after
Claimant’s separation from employment. R.R. at 67a-68a. Although Employer
argues that the Board ignored evidence that Claimant would not have been
available for work if her request for leave had been granted, Employer prevented
the introduction of such evidence during the hearing. Again, Employer does not
assert that it offered Claimant any accommodation, such as unpaid leave or an
opportunity to work remotely, or that it indicated to Claimant that alternative work
would have been available after her surgery.


                                         11
             Finally, Employer asserts that Claimant’s conduct while she was
leaving was so insubordinate as to disqualify her for benefits due to willful
misconduct. However, the Board correctly rejected this argument. An employer
seeking to disqualify a claimant based on willful misconduct must first establish
that the claimant was discharged for the conduct alleged. Section 402(e) of the
Law, 43 P.S. §802(e). At the referee’s hearing, Claimant testified that she believed
she had been discharged, but the Board credited Employer’s testimony to find she
voluntarily quit in order to undergo surgery.


                                    Conclusion
             The Board credited Claimant’s testimony concerning her need for a
surgical procedure that potentially required her to be off work for four to six
weeks. The Board further noted Claimant’s communications with Employer about
the surgery. Ultimately, the Board determined that Claimant voluntarily quit her
employment because she was given a choice of postponing imperative surgery or
losing her job.
             Claimant’s testimony constitutes substantial evidence supporting the
Board’s findings. Those findings in turn support the Board’s conclusion that
Claimant met her burden to prove necessitous and compelling cause to voluntarily
leave her employment. The Board properly held that Claimant is not ineligible for
benefits under Section 402(b) of the Law.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge

                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brenner Car Credit,            :
                               :
                    Petitioner :
                               :
            v.                 : No. 956 C.D. 2019
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                              ORDER


            AND NOW, this 9th day of July, 2020, the order of the
Unemployment Compensation Board of Review, dated June 21, 2019, is
AFFIRMED.

                                __________________________________
                                MICHAEL H. WOJCIK, Judge
