           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan D. King,                  :
                    Petitioner :
                                :
           v.                   : No. 676 C.D. 2017
                                : Submitted: October 27, 2017
Unemployment Compensation Board :
of Review,                      :
                    Respondent :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                    FILED: November 22, 2017


              Susan D. King (Claimant) petitions pro se for review from the order
of the Unemployment Compensation Board of Review (Board) finding her
ineligible for unemployment compensation (UC) benefits under Section 402(b) of
the Unemployment Compensation Law (Law)1 because she voluntarily quit her
employment without a necessitous and compelling reason to do so. For the reasons
that follow, we affirm.


       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) provides, in pertinent part, that “[a]n employe shall be ineligible for
compensation for any week . . . (b) [i]n which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature. . . .” Id.
                                       I.
            Claimant worked for Warren General Hospital (Employer) as a full-
time accounts payable specialist from October 1, 2005, until January 11, 2017. On
December 21, 2016, Claimant submitted a letter of resignation to Julie Jacobs
(Jacobs), Employer’s Chief Financial Officer, stating that she was leaving due to
stress.


            Claimant then applied for UC benefits indicating that she left her
employment for health reasons.    Claimant stated that over the past year, she
experienced an increase in workload and demands for shorter deadlines with no
additional compensation, which caused her anxiety. She further explained:

            I FEEL MY RECENT SUPERVISOR HAS
            UNREALISTIC EXPECTATIONS AND HAS BEEN
            RIDING ME FOR MONTHS, CONSTANTLY
            PICKING AT LITTLE THINGS AND HAS MADE IT
            TEN TIMES HARDER FOR ME TO DO MY JOB
            EFFICIENTLY. MY RECENT EVALUATION WAS
            SO LOW, I WAS PLACED ON PROBATION AND
            GIVEN 60 DAYS TO MEET A DOZEN
            DEFICIENCIES, IN HER OPINION, OR IMMEDIATE
            TERMINATION WOULD RESULT. I ENDED UP AT
            MY DOCTOR SUFFERING FROM RAPID HEART
            RATE, SLEEPLESSNESS, LOSS OF APPETITE,
            BOUTS    OF    UNCONTROLLABLE      CRYING,
            BORDERING ON DEPRESSION. I HAVE BEEN PUT
            ON MEDICATION JUST TO GET THROUGH THE
            DAY. I HAD NO OTHER CHOICE BUT TO RESIGN
            FROM A JOB THAT I HAVE LOVED AND
            PERFORMED EFFICIENTLY FOR OVER TEN
            YEARS DUE TO THE HOSTILE, STRESSFUL
            ENVIRONMENT CREATED BY A SUPERVISOR
            THAT JUST CAME TO MY EMPLOYER THIS PAST
            YEAR.


                                       2
(Record (R.) Item No. 2, Internet Initial Claims dated 1/13/17, p. 4.) Claimant
indicated that she spoke to Jacobs in December about the issues she was having
with her supervisor and she applied for a different job, but she never requested a
leave of absence. The UC Service Center determined Claimant was ineligible for
benefits because she did not exhaust all available alternatives prior to quitting.
Claimant then appealed.


              Before the Referee, Claimant testified that in November 2016, she bid
on a human resources (HR) assistant position outside of her department due to how
her immediate supervisor, Julie Dalton (Dalton), Employer’s Fiscal Manager, was
treating her.2 Several days later, Claimant was called into a meeting with Dalton
and Matthew Franklin, from HR, and was given her performance evaluation.
Claimant testified that she received an overall score of unsatisfactory, was placed
on performance probation and was given 60 days to improve 17 or 18 deficiencies
identified by Dalton.


              Claimant testified that she was devastated by her evaluation, which
was the lowest she ever received in the 10 years she worked for Employer. She
stated that that she could not eat or sleep, was out of control, and was a “mess.”
On December 2, 2016, she went to see her doctor who put her on an antidepressant
for stress, anxiety and depression but he did not place any restrictions on her




       2
          Claimant testified that she later learned that Employer was not going to fill the HR
assistant position right away.




                                              3
employment. On December 21, 2016, Claimant submitted her letter of resignation
stating that she was leaving due to stress.


             Eric Bens, Employer’s Director of Employee Benefits, testified that
Employer was not notified of any work restrictions regarding Claimant and she did
not submit a request for accommodation prior to quitting.


             The Referee found Claimant ineligible for benefits under Section
402(b) of the Law, 43 P.S. § 802(b), because she did not establish a necessitous
and compelling reason for leaving her employment. The Referee determined that
Claimant did not act with ordinary common sense and did not make a good faith
effort to preserve her employment. The Referee noted that while Claimant had
issues with her supervisor and was upset about her evaluation, her doctor did not
advise her to quit; she did not discuss any other issues or concerns with Employer
before turning in her notice; she did not request a leave of absence; and she did not
provide Employer with any restrictions to her employment or request an
accommodation.


             Claimant appealed to the Board which affirmed the decision of the
Referee that Claimant was ineligible for benefits under Section 402(b) of the Law.
In doing so, it found that there was not credible medical evidence that Claimant’s
mental health condition was so severe that it left her no reasonable alternative but
to quit her position. The Board also did not find credible Claimant’s testimony that




                                              4
she was subjected to a hostile work environment. Claimant then filed this petition
for review.3


                                              II.
               Claimant first argues4 that circumstances existed which produced real
and substantial pressure on her to quit because she was being harassed by her
supervisor for a year prior to her resignation. She further argues that a reasonable
person would have reacted in the same manner after being subjected to constant
ridicule of her job performance and knowledge.


               A claimant who voluntarily quits bears the burden of proving, in order
to be eligible for benefits under Section 402(b), that she left her employment for
necessitous and compelling reasons. Fitzgerald v. Unemployment Compensation
Board of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364
(Pa. 1999). To show cause of a necessitous and compelling nature, a claimant
must demonstrate that:         “(1) circumstances existed which produced real and
substantial pressure to terminate employment; (2) such circumstances would
compel a reasonable person to act in the same manner; (3) the claimant acted with


       3
        Our scope of review of the Board’s decision is limited to determining whether an error
of law was committed, constitutional rights were violated, or necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704; Rock v. Unemployment Compensation Board of Review, 6 A.3d 646, 648 n.5 (Pa. Cmwlth.
2010).

       4
        Claimant has not challenged any of the Board’s specific findings of fact and, therefore,
they are conclusive on appeal. Pennsylvania Liquor Control Board v. Unemployment
Compensation Board of Review, 879 A.2d 388, 390 n.4 (Pa. Cmwlth. 2005) (citation omitted).




                                               5
ordinary common sense; and (4) the claimant made a reasonable effort to preserve
her employment.” Brunswick Hotel and Conference Center v. Unemployment
Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006) (citing
Fitzgerald, 714 A.2d at 1129).             Whether a claimant has a necessitous and
compelling reason to voluntarily quit her employment is a question of law subject
to this Court’s plenary review.               Middletown Township v. Unemployment
Compensation Board of Review, 40 A.3d 217, 228 (Pa. Cmwlth. 2012).


               The only evidence relating to alleged harassment by Dalton is
Claimant’s own testimony, which the Board did not find credible.5 Moreover,
mere dissatisfaction with one’s working conditions does not constitute cause of a
necessitous and compelling nature for voluntarily quitting.                 See McKeown v.
Unemployment Compensation Board of Review, 442 A.2d 1257, 1258 (Pa.
Cmwlth. 1982). While Claimant may have been upset with her evaluation and
being placed on probation, this alone does not amount to a necessitous and
compelling cause absent evidence of unjust accusations, abusive conduct or an
intolerable working atmosphere, of which there is none. See First Federal Savings
Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa.
Cmwlth. 2008) (citing Lynn v. Unemployment Compensation Board of Review, 427
A.2d 736, 737 (Pa. Cmwlth. 1981)).




       5
          The Board is the ultimate fact-finder in UC cases, and questions regarding the weight of
evidence and witness credibility are solely within its province. Whitlatch v. Unemployment
Compensation Board of Review, 61 A.3d at 399, n.2 (citing Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). As such, we will not
disturb the Board’s credibility findings on appeal.



                                                6
             In her brief on appeal, Claimant alludes to additional evidence in the
form of emails which she claims support her allegation that she was subject to a
hostile work environment. These documents are not part of the record and, despite
Claimant’s assertions to the contrary, she did not attempt to introduce them as
evidence before the Referee. Based upon our review of the record and the Board’s
credibility determinations, Claimant failed to show an intolerable work
environment or circumstances extreme enough to justify a resignation. See Ann
Kearney Astolfi DMD PC v. Unemployment Compensation Board of Review, 995
A.2d 1286, 1289-90 (Pa. Cmwlth. 2010).


             Claimant also argues that she made a reasonable effort to preserve her
employment by bidding on the HR assistant position and through her willingness
to transfer to another department. She claims that when she was not given a
transfer, she saw “no end in sight” to the situation, especially in light of her health
issues. (Claimant’s Brief at 10.) However, Claimant admits that her doctor did not
advise her to quit or place restrictions on her working conditions, and she did not
ask Employer for or require any specific accommodations. Claimant also failed to
inform HR of her issues with Dalton prior to turning in her letter of resignation,
and she admittedly did not request a leave of absence prior to terminating her
employment. Therefore, Claimant’s argument that she made a reasonable effort to
preserve her employment is without merit.




                                          7
Accordingly, the order of the Board is affirmed.




                                DAN PELLEGRINI, Senior Judge




                            8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan D. King,                  :
                    Petitioner :
                                :
           v.                   : No. 676 C.D. 2017
                                :
Unemployment Compensation Board :
of Review,                      :
                    Respondent :




                                   ORDER


            AND NOW, this 22nd day of November, 2017, the order of the
Unemployment Compensation Board of Review in the above-captioned matter
dated April 21, 2017, at No. B-597014, is hereby affirmed.




                                            DAN PELLEGRINI, Senior Judge
