              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


St. Clair Hospital,                            :
                              Petitioner       :
                                               :
                       v.                      :   No. 2607 C.D. 2015
                                               :   Argued: November 16, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE JULIA K. HEARTHWAY, Judge
                 HONORABLE JOSEPH M. COSGROVE, Judge




OPINION BY
JUDGE COHN JUBELIRER                               FILED: February 2, 2017


       St. Clair Hospital (Employer) petitions for review of the November 18,
2015, Order of the Unemployment Compensation Board of Review (Board)
reversing the Decision of a Referee to deny Katherine A. Johnson (Claimant)
unemployment compensation (UC) benefits. The Board concluded that Claimant
was not barred from receiving UC benefits by Section 402(b) of the
Unemployment Compensation Law (UC Law)1 because she established a
necessitous and compelling reason for voluntarily terminating her employment.

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
Because we conclude that Claimant did not take all reasonable and necessary steps
to preserve her employment, we reverse.
      Claimant worked for Employer as a part-time communications specialist
from November 26, 2012 until June 10, 2015. (Board Decision, Findings of Fact
(FOF) ¶ 1.) Claimant’s position is staffed at all times during the day and night.
(Id. ¶ 3.) Until January 2015, Claimant only worked during the day and a co-
worker assumed the night shift. (Id.) After the co-worker left her employment in
January 2015, Employer informed Claimant and the other “employees that they
would be required to rotate working the night shift so that no one employee had to
be on night shift for an extended period of time.” (Id. ¶ 4.) Claimant requested
that she not be scheduled for night shifts and provided Employer with
documentation from her physicians on a medical condition that precluded her from
working the night shift. (Id. ¶ 5.) Thereafter, Employer informed Claimant that it
would “not provide accommodations of any kind.” (Id. ¶ 6.)
      Claimant continued to request an accommodation so that she could remain in
her position working only the day shift. (Id. ¶ 7.) On April 15, 2015, Employer’s
human resources department emailed Claimant a list of 132 open positions with
Employer that would not require Claimant to work night shifts. (Id. ¶ 8; R.R. at
48a-51a.) Employer asked Claimant to look at the list of open positions and told
Claimant that it would be happy to discuss which ones do not require night shifts.
(R.R. at 47a.) Employer also told Claimant where to find the job descriptions, and
that Claimant should call human resources with any questions. (Id.) Claimant did
not call. (FOF ¶ 11.) Employer repeatedly sent Claimant letters asking her to call
and subsequently specified two jobs from the larger list of openings for which it
appeared that Claimant could be qualified, would not include night shifts, and had



                                          2
a comparable compensation rate to Claimant’s current position. (Id. ¶¶ 9-10; R.R.
62a-63a.) Although Claimant applied for a position that was not on the list and for
which she was not qualified, Claimant did not call human resources or apply for
any of the open positions identified by Employer. (FOF ¶¶ 7, 11.) Claimant
resigned from her position on June 10, 2015. (Id. ¶ 11.)
       Claimant filed a claim for UC benefits, which the Local UC Service Center
granted under Section 401(d)(1) of the UC Law, 43 P.S. § 801(d)(1),2 and Section
402(b) of the same. Employer appealed. After a hearing held on July 29, 2015,
the Referee concluded that Claimant was not ineligible for UC benefits under
Section 401(d)(1), but ineligible under Section 402(b) of the UC Law because
Claimant quit her employment without contacting Employer about available
positions. (Referee Decision at 2-3.)
       Claimant appealed to the Board.               The Board reversed, concluding that
Claimant was not ineligible for benefits under Section 402(b) of the UC Law
because:

       There is no dispute that, at the time of her separation, [C]laimant had
       adequate health reasons to justify quitting, that she informed
       [E]mployer of her health-related problem, and that she requested an
       accommodation. There is also no dispute that [E]mployer repeatedly
       informed [C]laimant that it would not accommodate her request not to
       work the night shift because it was considered an essential function of
       her position. [E]mployer did not give [C]laimant a firm offer of other
       2
           Section 401(d)(1) of the UC Law provides, in relevant part:

       Compensation shall be payable to any employe who is or becomes unemployed,
       and who--
       ...
       (d)(1) Is able to work and available for suitable work . . .

43 P.S. § 801(d)(1).



                                                 3
       alternative employment that would not require her to work the night
       shift. Rather, [E]mployer only presented [C]laimant with other
       opportunities that [C]laimant may have been qualified for and that
       [C]laimant could apply for that would not require her to work at night.
       Thus, because a firm offer of alternative employment was not given to
       [C]laimant, and [C]laimant had adequate health reasons for quitting
       that [E]mployer knew about, she had a necessitous and compelling
       reason for quitting.

(Board Decision at 3.) This appeal follows.
       On appeal,3 Employer argues that the Board erred in determining that
Claimant had a necessitous and compelling reason for voluntarily terminating her
employment because Claimant did not take all necessary and reasonable steps to
preserve her employment. Employer further argues that the Board misapplied the
“firm offer” doctrine as used in this Court’s UC jurisprudence by justifying its
award of benefits based on its determination that Employer did not give Claimant a
“firm offer.”
       Section 402(b) of the UC Law provides, in relevant part:

       An employe shall be ineligible for compensation for any week-- . . .
       (b) In which h[er] 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:
       Provided, That a voluntary leaving work because of a disability if
       the employer is able to provide other suitable work, shall be
       deemed not a cause of a necessitous and compelling nature[.]

43 P.S. § 802(b) (emphasis added). The claimant has the burden of proving that
she had a necessitous and compelling cause for voluntarily terminating her

       3
         This Court’s 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
were supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014).



                                             4
employment. PECO Energy Co. v. Unemployment Comp. Bd. of Review, 682
A.2d 58, 60 (Pa. Cmwlth. 1996). A necessitous and compelling cause is that which
“results from circumstances which produce pressure to terminate employment that
is both real and substantial, and which would compel a reasonable person under the
circumstances to act in the same manner.” Taylor v. Unemployment Comp. Bd. of
Review, 378 A.2d 829, 832-33 (Pa. 1977). To meet this burden, the claimant must
generally demonstrate that she took “all necessary and reasonable steps to preserve
the employment relationship.” PECO Energy Co., 682 A.2d at 61.
      Employer and the Board disagree as to the steps an employee and employer
must take to preserve the employment relationship in a medical condition case. In
general, a medical condition that limits an employee’s ability to perform work
duties can provide a necessitous and compelling reason to quit one’s employment.
Genetin v. Unemployment Comp. Bd. of Review, 451 A.2d 1353, 1355 (Pa. 1982).
Yet, “since it was not the intent of the [UC Law] to provide health and disability
benefits for an ill employee who is not physically able and available for
participation in the work force” an employee who voluntarily leaves employment
may receive UC benefits only if the employee is able to work and available for
suitable work. Id. In such situations, the employee is obliged to communicate his
or her medical problem to the employer, but is not required to attempt “to initiate
or effectuate the transfer to more suitable work.” Id. at 1356. Thus, to establish
that a medical condition is a necessitous and compelling reason for the voluntary
termination of one’s employment, a claimant must:          (1) establish, through
competent evidence, the existence of a medical condition; (2) inform the employer
of the condition; and (3) be able and available to work if a reasonable




                                        5
accommodation can be made. Id. Further, it is not necessitous and compelling if
“the employer is able to provide other suitable work.” 43 P.S. § 802(b).
       Employer relies on this Court’s decision in Nolan v. Unemployment
Compensation Board of Review, 797 A.2d 1042 (Pa. Cmwlth. 2002), to support its
position that employees who are limited by a medical condition must remain
proactive and take all reasonable and necessary steps to preserve the employment
relationship.4 In Nolan, the claimant was employed with the Pennsylvania Liquor
Control Board (PLCB) when she aggravated a pre-existing medical condition that
prevented her from fully performing her duties. Id. at 1044. After receiving notice
of her condition, PLCB told the claimant that she “must retire from [her] position.”
Id. (internal quotation marks omitted). The claimant was also informed that should
she wish to pursue other employment with the Commonwealth, the State Civil
Service Commission (Commission) would assist her, but that she first must
complete a Civil Service Application. Id. The claimant did not complete an
application or contact the Commission. Id. at 1045.
       The claimant applied for UC benefits, which were granted by the Office of
Employment Security “on the basis that there were no positions that could
accommodate the limitations caused by her medical condition.” Id. The employer
appealed. After a hearing, a referee determined that she was ineligible for benefits
under Section 402(b) because she voluntarily left her employment. Id. The Board
affirmed and so did this Court. Notwithstanding the fact that PLCB required the


       4
         Employer also relies upon this Court’s decisions in PECO Energy Co. and Teti v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 2369 C.D. 2013, filed Oct.
17, 2014), to support its position. Because neither case involves an employee who voluntarily
left her employment due to a medical condition, these cases are neither applicable nor
persuasive.



                                             6
claimant to retire from her current position, we concluded that PLCB offered the
claimant a reasonable accommodation by presenting the claimant with other
employment opportunities within the Commonwealth. Id. at 1046. “By electing
not to complete the civil service application, [c]laimant foreclosed the possibility
that she could remain employed by the Commonwealth, thus failing to take all
reasonable and necessary steps to preserve her employment.” Id. Although there
was not a firm offer, we said that “the fact that a job is not guaranteed does not
amount to cause of a necessitous and compelling nature to justify a quit.” Id.
      The Board’s argument in response relies exclusively on the Pennsylvania
Supreme Court’s decision in Genetin. The claimant in Genetin was employed as a
truck driver when he took a leave of absence due to his medical condition.
Genetin, 451 A.2d at 1354. The claimant was unable to resume his duties as a
truck driver and was assigned to a position as a sweeper. Id. The claimant
voluntarily terminated his employment and applied for UC benefits. Id. A referee
found the claimant ineligible for benefits based on a determination that the
claimant failed to show cause of a necessitous and compelling nature. Id. The
Board and this Court affirmed.
      On appeal to the Supreme Court, the Supreme Court defined the question as:
“what is required of an employee who elects to terminate employment for health
reasons if he wishes to maintain entitlement to unemployment compensation
benefits.” Id. The Supreme Court noted that this Court’s precedent at the time
held that an employee “must attempt to initiate or effectuate the transfer to more
suitable work” if she is to be eligible for benefits. Id. at 1356. It was this
“unwarranted imposition of responsibility upon the employee” that led the
Supreme Court to reverse. Id. The Supreme Court reasoned that “[t]he availability



                                         7
of an employment position, the duties expected to be performed by one serving in
that capacity, and the desirability of that individual for service in that capacity are
managerial judgments over which the employee has no control.” Id. The Supreme
Court viewed this Court’s insistence that an “employee[] initiat[e] the quest for an
alternative position” as “a meaningless ritual that does not further the objectives of
the [UC Law].” Id. Because the Board did not assess whether the employer
offered the claimant suitable work in light of the claimant’s medical condition, the
Supreme Court remanded the matter for additional fact finding. Id. Yet, the
Supreme Court further noted that “in the event such an opportunity was proposed
to [a claimant] and he declined to avail himself of it, a finding of ineligibility under
section 402(b)(1) would then be appropriate.” Id. Thus, the Court recognized that
a claimant cannot decline to take reasonable steps to preserve her employment.
      Genetin stands for the proposition that an employee who can no longer
perform his or her duties due to a medical condition need not “initiate the quest”
for a more suitable position. Id. at 1356. Yet, neither Genetin, nor any other
binding case interpreting Section 402(b) of the UC Law, requires employers to
present to the employee a firm offer of employment in an alternative position.
After the employer initiates the quest and proposes an opportunity for suitable
alternative employment, the employee with the medical condition cannot simply sit
on her hands. As is required in unemployment compensation cases, to receive
benefits, an employee must “take all necessary and reasonable steps to preserve the
employment relationship.” Nolan, 797 A.2d at 1046. Like in Nolan, Claimant
here was forced to leave her position because Employer would not make an
accommodation for her medical condition. Also like Nolan, Claimant was not
required to initiate a quest for an alternative position with Employer, but was



                                           8
presented by Employer with a proposal, consisting of alternative options along
with an action that was necessary to preserve her employment; in Nolan, to fill out
an application, here, to call human resources.      Claimant failed to take any
meaningful step to preserve her employment, thus foreclosing the possibility of
remaining employed. After being presented with two positions with comparable
salary, Claimant simply was asked to call Employer’s human resources department
to discuss, and she did not.
      The Board would like us to distinguish Nolan because, in Nolan, PLCB
would have identified the positions for which claimant was qualified, if the
claimant had submitted an application, and here, Employer required Claimant to
identify the positions. We disagree. While Employer initially asked Claimant to
look at the positions listed, Employer stated that it would be happy to discuss the
positions, and followed-up with Claimant by identifying two specific positions that
appeared to meet her qualifications. (R.R. at 47a, 62a-63a.) Thus, Employer
initiated the quest for a more suitable position, identified two positions within
Claimant’s qualifications, and signaled to Claimant its willingness to enter into a
collaborative process to discover the most suitable position. (R.R. at 62a-63a.) By
choosing to not even call Employer after it identified the two positions, Claimant
did not take all reasonable and necessary steps to preserve her employment and,
therefore, did not meet her burden of proving that she had cause of a necessitous
and compelling reason to leave her employment.
      Accordingly, we conclude that Claimant is ineligible for UC benefits
pursuant to Section 402(b) of the UC Law and reverse the Order of the Board.


                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge


                                        9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


St. Clair Hospital,                        :
                           Petitioner      :
                                           :
                      v.                   :   No. 2607 C.D. 2015
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


                                        ORDER


             NOW, February 2, 2017, the Order of the Unemployment
Compensation Board of Review, entered in the above-captioned matter, is hereby
REVERSED.



                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

St. Clair Hospital,                           :
                                              : No. 2607 C.D. 2015
                             Petitioner       : Argued: November 16, 2016
                                              :
                      v.                      :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                             Respondent       :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge


DISSENTING OPINION
BY JUDGE WOJCIK                                           FILED: February 2, 2017


                I join in the well-reasoned dissenting opinion of Judge Cosgrove. I
write separately, however, to stress that the jobs identified by the employer in this
case are only a possible suitable accommodation for the claimant’s medical
condition and that the claimant is only disqualified from receiving benefits under
Section 402(b) of the Unemployment Compensation Law1 “if the employer is able
to provide other suitable work . . . .” Because the record in this case lacks


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
sufficient evidence demonstrating that the employer is able to provide such suitable
work under Section 402(b), unlike the majority, I would affirm the order of the
Unemployment Compensation Board of Review.             Accordingly, I respectfully
dissent.




                                      MICHAEL H. WOJCIK, Judge


President Judge Leavitt joins in this Dissenting Opinion.
Judge Cosgrove joins in this Dissenting Opinion.




                                     MHW - 2
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


St. Clair Hospital,                     :
                      Petitioner        :
                                        :
             v.                         :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 2607 C.D. 2015
                 Respondent             :   Argued: November 16, 2016



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge



DISSENTING OPINION
BY JUDGE COSGROVE                           FILED: February 2, 2017

             As the Majority opinion runs counter to Genetin v. Unemployment
Compensation Board of Review, 451 A.2d 1353 (Pa. 1982), I must dissent. In
Genetin, the Supreme Court held that once an employee has communicated a
medical problem to the employer “and explained [his] inability to perform [his]
regularly assigned duties, an employee can do no more… As long as the employee
is available where a reasonable accommodation is made by the employer, that is
not inimicable to the health of the employee, the employee has demonstrated the
good faith effort to maintain the employment relationship required under the
[Law].” Id. at 1356.
             In this case, there is no question that such communication was made.
The difference of opinion seems to rest on which side next has the greater
responsibility. The Majority suggests that Claimant, in this case, was provided a
large list of potential jobs - 132 in number, with Employer ultimately narrowing
this to two - and asked to contact human resources.          For her part, Claimant
specifically applied for a different position not identified on this list, which cannot
be seen as anything other than a clear indication of her “good faith effort to
maintain the employment relationship...” Genitin, 451 A.2d at 1356. However,
because Claimant never contacted human resources nor applied for one of the
myriad of jobs (or the sub-species of two) which Employer had presented, the
Majority suggests Claimant failed to fulfill her obligation under the Law and is
thus precluded from receiving benefits.
              What is more important under the Genetin rationale, however, is what
steps Employer did (or did not) take. As Claimant clearly indicated her desire to
“maintain the employment relationship … it was then incumbent upon the
[E]mployer to provide suitable work.” 451 A.2d at 1356 (emphasis added). No
such action was taken by Employer, nor can the presentation of a list of 132 jobs,
or the singling out of one, two, or ten possible jobs, satisfy the mandate required by
Genetin. There is nothing subtle about the Supreme Court’s command that an
employer in a case such as this must “provide” work appropriate to the employee
and her particular situation. Whether this is to be couched in the term “firm offer”
or some other language, there can be little doubt that the steps taken by Employer
in this case do not satisfy Genetin. As the Board below got it right, I am compelled
to dissent.


                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge

President Judge Leavitt and Judge Wojcik join in this dissent.

                                       JMC - 2
