             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin L. Emery,                                 :
                              Petitioner        :
                                                :
               v.                               :    No. 1907 C.D. 2017
                                                :    Submitted: May 11, 2018
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: August 1, 2018


               Petitioner Robin L. Emery (Claimant) petitions pro se for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed an Unemployment Compensation Referee’s (Referee) determination that
Claimant was ineligible for benefits under Section 402(b) of the Unemployment
Compensation Law (Law), relating to voluntary quit without cause of a necessitous
and compelling nature.1 For the reasons set forth below, we now affirm the Board’s
order.


         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, in part, that a claimant “shall be ineligible
for compensation for any week” in which the claimant’s “unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.”
             Claimant was employed by Twin Trees Inc. (Employer) as a direct
support professional. She worked for Employer from March 5, 2010, through
March 13, 2017. On March 13, 2017, Employer selected Claimant for random drug
testing. Claimant’s employment ended after she refused to participate in the drug
test. Claimant subsequently filed for unemployment compensation benefits.
             On May 15, 2017, the Erie UC Service Center (Service Center) issued
a Notice of Determination, finding Claimant ineligible for benefits. (Certified
Record (C.R.), Item No. 6.) The Service Center determined that Claimant had
initiated the separation, and it denied her benefits under Section 402(b) of the Law.
(Id.) Claimant appealed the decision of the Service Center. (C.R., Item No. 7.)
             On June 26, 2017, a Referee conducted a hearing. (C.R., Item No. 10.)
During the hearing, Claimant testified to the circumstances surrounding her
separation from employment. John King (King), Employer’s Chief Executive
Officer, appeared to represent Employer, and Becky Miscovich (Employer’s
Witness), a program specialist and Claimant’s direct supervisor, appeared as a
witness for Employer. (Id. at 1, 7.)
             At the hearing, Claimant sought to establish that she did not voluntarily
quit her job and that, in reality, Employer discharged her from employment.
Claimant testified that she had ingested marijuana and concluded that she would fail
the drug test. (Id. at 4-5.) Claimant testified that, after refusing the drug test,
Employer told her that she was discharged. (Id. at 4.) Claimant further testified that
she loved her job and would not have left something that she loved. (Id. at 5.)
Claimant explained that she admitted to Employer that she could potentially fail the
drug test because she expected Employer to provide drug treatment assistance and
permit Claimant to keep her job. (Id. at 4-5.)


                                          2
             Employer’s Witness testified that she informed Claimant that Employer
selected Claimant for a random drug test, but Claimant refused the test, stating she
would fail the test because she used marijuana the preceding weekend. (Id. at 7.)
Employer’s Witness testified that she asked Claimant to reconsider refusing to take
the drug test. (Id. at 7.) Employer’s Witness testified that, after explaining to
Claimant that a refusal to take the drug test would mean termination of her
employment, Claimant stated that she would have to quit, gathered her belongings,
and left the office. (Id.) Employer’s Witness further testified that she did not have
the authority to fire an employee. (Id.) That power belonged solely to King in his
capacity as Employer’s Chief Executive Officer.         (Id.)   Employer’s Witness
explained that Employer maintains its drug policy because it cares for the most
vulnerable members of society, who require attentive staff. (Id. at 11.)
             The Referee affirmed the determination of the Service Center and made
the following relevant findings of fact:
             1.    The claimant was employed by Twin Trees
                   Inc. as [a] direct support professional. Her period
                   of employment was March 5, 2010 through
                   March 13, 2017.
             2.    The employer provides services for vulnerable
                   populations.
             3.    The employer maintains a policy, of which the
                   claimant was aware, which provides for random
                   drug testing and that refusal to be tested will result
                   in termination of employment.
             4.    The claimant was selected for random drug testing.
             5.    The claimant had ingested marijuana the preceding
                   weekend and concluded that she would fail the test.
             6.    The claimant refused the test, noting that she would
                   fail.
             7.    The claimant indicated to the employer that her
                   therapist had encouraged her to smoke marijuana.
                                           3
               8.     The claimant was asked whether she had a
                      prescription for marijuana and she indicated that she
                      did not.
               9.     The employer encouraged the claimant to undergo
                      the test, noting that her job was at stake, and she
                      declined.
               10.    The claimant notified the employer that she was
                      quitting her position.

(C.R., Item No. 11.)
               The Referee, in affirming the Service Center’s determination,
concluded that Claimant was ineligible for benefits under Section 402(b) of the Law,
because she voluntarily quit her employment without cause of a necessitous and
compelling nature. (Id.) The Referee reasoned that the testimony and evidence
indicated that Claimant quit her employment when asked to take the drug test. (Id.)
The Referee concluded that quitting when confronted with a drug test is not a
necessitous and compelling cause for voluntarily quitting employment. (Id.) In the
alternative, the Referee concluded that if Employer had discharged Claimant from
employment, she would still have been ineligible for benefits because “she violated
a reasonable policy by refusing a drug test.”2 (Id.)
               Claimant      appealed     the       Referee’s   decision     to    the   Board.
(C.R., Item No. 12.) The Board adopted and incorporated the Referee’s findings and
conclusions, and it affirmed the Referee’s decision. (C.R., Item No. 13.) Claimant
then petitioned this Court for review.

       2
          We note that Section 402(e.1) of the Law, Act of December 5, 1936, Second Ex. Sess.,
P.L. (1937) 2897, as amended, 43 P.S. § 802(e.1), provides that a claimant shall be ineligible for
benefits for any week “[i]n which his unemployment is due to discharge or temporary suspension
from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s
established substance abuse policy, provided that the drug test is not requested or implemented in
violation of the law or of a collective bargaining agreement.”


                                                4
              On appeal to this Court,3 Claimant argues that substantial evidence does
not exist to support a finding that she quit her employment. Claimant also argues
that because she did not voluntarily quit her job, the Board erred as a matter of law
in concluding that she was ineligible for benefits pursuant to Section 402(b) of the
Law.
              First, we will address Claimant’s argument that substantial evidence
does not exist to support the Board’s finding that she voluntarily quit her job. We
interpret this argument as a challenge to finding of fact number 10, which provides:
“The claimant notified the employer that she was quitting her position.” (C.R., Item
No. 11.) Substantial evidence is defined as “relevant evidence upon which a
reasonable mind could base a conclusion.” Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any logical and reasonable inferences that can be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a
whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831
(Pa. 1977). The Board’s findings of fact are conclusive on appeal so long as the
record taken as a whole contains substantial evidence to support them. Penflex, Inc.
v. Bryson, 485 A.2d 359, 365 (Pa. 1984).



       3
         This Court’s standard 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.

                                               5
             Here, Employer’s Witness testified that on March 13, 2017, Employer
informed Claimant that she was selected for a random drug test, but Claimant refused
to participate in the test. (C.R., Item No. 10 at 7.) Employer’s Witness explained
Employer’s policy—i.e., refusal to participate in a drug test would result in
termination of employment—to Claimant. (Id.) Claimant responded by stating that
she had to quit, collected her belongings, and left the premises. (Id.) Employer’s
Witness also testified that King is the only person with the authority to terminate an
employee. (Id.) In an unemployment case, it is well-settled that the Board is the
ultimate fact finder and is, therefore, entitled to make its own determinations as to
witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of
Review, 501 A.2d 1383, 1386 (Pa. Cmwlth. 1985). Questions of credibility are not
subject to re-evaluation on judicial review. (Id. at 1388.) The Board is also
empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp.
Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). “The fact that [the petitioning
party] may have produced witnesses who gave a different version of the events, or
that [the petitioning party] might view the testimony differently than the Board is
not grounds for reversal if substantial evidence supports the Board’s findings.”
Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa.
Cmwlth. 1994). Here, the testimony of Employer’s Witness provides substantial
evidence to support the finding that “[t]he claimant notified the employer that she
was quitting her position.” (C.R., Item No. 11.) The fact that Claimant offered a
different version of the facts does not alter our analysis.
             Next, we will address Claimant’s argument that the Board erred in
concluding that she was ineligible for benefits pursuant to Section 402(b) of the Law
because she did not voluntarily quit her employment.          Whether a claimant’s


                                           6
separation from employment is the result of a voluntary action or a discharge is a
question of law subject to review by this Court and must be determined from a
totality of the facts surrounding the cessation of employment. Key v. Unemployment
Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A claimant seeking
unemployment compensation benefits bears the burden of establishing that her
separation from employment was involuntary. Spadaro v. Unemployment Comp.
Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). Where an employee, without
action by the employer, leaves or quits work, the employee’s action is considered
voluntary under the law.      Roberts v. Unemployment Comp. Bd. of Review,
432 A.2d 646, 648 (Pa. Cmwlth. 1981).
            We must reject Claimant’s argument that the Board erred in concluding
that she was ineligible for benefits under Section 402(b) of the Law because she did
not voluntarily quit her employment. As discussed above, the Referee and Board
accepted as credible Employer’s Witness’s testimony that Claimant told her
supervisor that she had to quit, gathered her belongings, and left. We, again, note
that this finding is supported by substantial evidence. Based on that finding, the
Board did not err when it held that Claimant voluntarily quit her employment.
            Nevertheless, pursuant to Section 402(b) of the Law, a claimant who
voluntarily quits her employment may be eligible for unemployment compensation
benefits if she voluntarily quit for cause of a necessitous and compelling nature.
Whether a claimant had cause of a necessitous and compelling nature for leaving
work is a question of law subject to this Court’s review. Wasko v. Unemployment
Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant who
voluntarily quits her employment bears the burden of proving that necessitous and
compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd.


                                         7
of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364
(Pa. 1999). In order to establish cause of a necessitous and compelling nature, a
claimant must establish that: (1) circumstances existed that produced real and
substantial pressure to terminate employment; (2) like 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 preserve her
employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264
(Pa. Cmwlth. 2008). Quitting employment due to the possibility of firing does not
constitute a necessitous and compelling reason for voluntarily quitting one’s
employment. Ganter v. Unemployment Comp. Bd. of Review, 723 A.2d 272, 275
(Pa. Cmwlth. 1999).
               Claimant has not established a necessitous and compelling reason to
quit her job. Here, Claimant quit rather than risk termination for a failed drug test
for using marijuana.4         Thus, Claimant has not established a necessitous and
compelling reason to voluntarily quit her job. The Board, therefore, did not err when


       4
          Claimant also appears to argue that the drug test was improper, though her argument is
unclear and underdeveloped. For an employee to establish a necessitous and compelling reason to
voluntarily quit employment, the employee must have made a reasonable effort to preserve
employment. Claimant did not mention the alleged issue to Employer when she refused to take
the drug test. If Claimant had a concern regarding the testing procedure, she could have attempted
to discuss the concern with Employer. Claimant did not. Thus, Claimant cannot establish that she
made a reasonable effort to preserve her employment. On the other hand, if Employer had
terminated Claimant’s employment rather than Claimant having quit, then whether the drug test
was in compliance with the law would have been relevant to our analysis, provided that Claimant
had properly preserved the issue for our review. The Board, however, did not find that Employer
terminated Claimant’s employment. Section 402(e.1) of the Law, therefore, does not apply, and
Claimant’s argument must fail. Further, Claimant did not raise this issue before the Referee or in
her appeal to the Board. Claimant, therefore, has waived the issue. See Pa. R.A.P. 1551(a)
(providing that, except in limited circumstances not applicable to this matter, “[n]o question shall
be heard or considered by the court which was not raised before the government unit”).

                                                 8
it concluded that Claimant failed to establish cause of a necessitous and compelling
nature for voluntarily leaving her employment.
            Accordingly, we affirm the order of the Board.




                                         P. KEVIN BROBSON, Judge




                                         9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin L. Emery,                     :
                     Petitioner     :
                                    :
           v.                       :   No. 1907 C.D. 2017
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 1st day of August, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
