                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Line,                                 :
                      Petitioner            :
                                            :   No. 731 C.D. 2015
               v.                           :
                                            :   Submitted: September 11, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                     FILED: November 25, 2015


               James Line (Claimant) petitions, pro se, for review of the April 1, 2015
order of the Unemployment Compensation Board of Review (Board) which affirmed
a referee’s determination that Claimant was ineligible for benefits under section
402(b) of the Unemployment Compensation Law (Law).1
               Claimant was employed by Beacon Light Behavioral Health (Employer)
as a family-based mental health professional from July 5, 2008, until his last day of
work on September 29, 2014. The local service center found that Claimant was
ineligible for benefits because he voluntarily quit his employment without informing

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
Employer of his reason for leaving.       Claimant appealed, asserting that he had
necessitous and compelling reason to leave his employment.           The matter was
assigned to a referee, who held a hearing on November 24, 2014. Claimant, who by
then had obtained new employment, participated by telephone, and Employer offered
the testimony of three witnesses.
             Claimant testified that he was required to submit a family-based
enactment video that satisfied state requirements in order to maintain his position
with Employer. Claimant said that his first video, submitted in February of 2014,
failed to pass state regulations. (Notes of Testimony (N.T.) at 13.) Claimant stated
that after his first video did not pass state requirements, he met with his supervisor,
Aimee Kaple, and a state representative on May 21, 2014, to discuss necessary
improvements that he could make in his videos. (N.T. at 17.) Claimant testified that
he continued to submit videos to Kaple throughout the summer of 2014, but Kaple
did not feel that they satisfied the state requirements and did not send any of those
videos to the state. Claimant stated that he sought help in passing the regulatory
requirements from both Kaple and another supervisor. (N.T. at 9.) According to
Claimant, his requests for help were largely ignored, and Kaple’s advice was vague
and fruitless. (N.T. at 13.)
             Claimant testified that after his requests for help and the videos he
submitted were ignored, he sent an email to Kaple in August 2014 explaining that he
had concerns about his employment. Claimant stated he was called into Kaple’s
office on August 28, 2014, and expected that he would meet with Kaple alone about
his videos or work. Claimant said that, instead, he met with both Kaple and Nate
Gressel, Employer’s vice president of children’s services, and he was given a written
warning for failing to submit a passing video. Claimant testified that portions of the



                                          2
warning were inaccurate, including the statement that he failed to seek help regarding
the video. According to Claimant, he consistently sought help, and he even took the
lead in creating the video when his partner was absent from work for sixteen days.
Claimant testified that he asked Kaple and Gressel what would happen if he failed to
complete a passing video, but they gave him only vague responses. Claimant said
that their answers greatly concerned him; Claimant feared that he would never pass
the video requirements, giving Kaple and Gressel reason to push him out of the
company. (N.T. at 10.) Claimant stated that Kaple wanted Claimant out of the
agency and, toward that end, she continuously failed to send his videos to the state.
(N.T. at 17.)
                Claimant also testified that he had applied for several different positions
within the agency. He said that it became evident during the August 28th meeting
with Kaple and Gressel that he would not be hired in any other position, and he
believed that it was only a matter of time until he was discharged. According to
Claimant, Gressel told him that Kaple had described him as, “not cut out for this type
of work,” which increased Claimant’s concern that his employment was in jeopardy.
(N.T. at 18-19.)
                Claimant said that he feared that his employment would be terminated,
although he admitted that neither Kaple nor Gressel told him he would be discharged
during the August 28th meeting.          Claimant stated that he did not want to risk
discharge by failing another video, so he submitted his resignation the day after the
August 28th meeting. Claimant noted that he complied with Employer’s requirement
to give thirty days’ notice. (N.T. at 11-12.)
                Claimant testified that while he continued working, he received a second
written warning and a five-day suspension during a September 2, 2014 meeting with



                                              3
Kaple because he failed to submit a passing video. Claimant stated that, during this
meeting, Kaple told him that if he did not submit a passing video by October 3, 2014,
he would be discharged. Claimant explained that he did not believe he could satisfy
the video requirements and he left his employment as planned on September 29,
2014. (N.T. at 12.)
               Kaple testified that during the May 21, 2014 meeting, Claimant was
made aware that he had three months to resubmit a video and that, contrary to
Claimant’s testimony, she offered Claimant training in his weak areas. Kaple stated
that shortly after they met in May, Claimant told her that he was no longer going to
try to satisfy the state video criteria. Kaple said that she and Claimant subsequently
looked into other fields of employment within Employer’s facility and that she
continued to offer Claimant support for his video. (Record Item Number 2 at 27;
N.T. at 20.)
               Kaple acknowledged that Claimant submitted numerous videos through
the summer of 2014, but she said he did not make it known that he wanted a video
submitted to the state until August 29, 2014. Kaple testified that she and another
supervisor reviewed the video on August 29th and found that it did not demonstrate
necessary skills. (N.T. at 20.)
               Kaple stated that when she met with Claimant on September 2, 2014, she
offered him training in Pittsburgh, which he attended. Kaple testified that following
the training, Claimant submitted a video on September 25, 2014. Kaple said that she
did not review that video because Claimant resigned on September 29, 2014. (N.T. at
20.)
               Gressel testified that during the August 28th meeting, he voiced concern
about Claimant’s inability to submit a passing video. Gressel said that there was



                                            4
discussion of Claimant’s desire to be transferred within the company but that
Claimant did not explicitly request a transfer during the meeting. Gressel testified
that he did not hear anything else from Claimant regarding concern for his
employment before or after Claimant resigned. (N.T. at 26-27.)
            The referee accepted the testimony of Employer’s witnesses as credible
and rejected Claimant’s testimony that he exhaustively attempted to maintain his
employment. The referee’s decision set forth the following relevant findings of fact:

            2. Due to state regulations, the claimant was required to
            complete and submit a video of a family-based enactment
            that received a passing grade in accordance with
            regulations, in order to maintain his certification.

            3. The claimant submitted a video sometime in the spring of
            2014; however, that video did not pass regulations.

            4. On May 21, 2014, the employer met with the claimant
            and advised him that his video had not passed the
            requirements, and gave the claimant three additional months
            to re-submit a video that passed the requirements.

            5. The employer discussed with the claimant the areas of
            struggle he had with the video, and offered training and
            assistance to the claimant in order to complete the video
            requirement.

            6. On June 30, 2014, the claimant notified his supervisor via
            email that he would not be attempting to satisfactorily
            complete the video, as he believed he was unable to do so.

            7. In the June 30, 2014, email, the claimant notified his
            supervisor that he intended to continue working in his
            position and intended to seek employment elsewhere within
            the company.

            8. On August 28, 2014, the claimant was given a written
            warning for failing to complete the video within the three-



                                          5
            month timeframe the employer had given the claimant in
            May 2014.

            9. During the August 28, 2014, meeting, the employer gave
            the claimant until August 31, 2014, to properly complete
            the video, or else the claimant would receive a five-day
            suspension.

            10. On August 29, 2014, the claimant submitted a letter of
            resignation to the employer, documenting that his last day
            of employment would be September 29, 2014.

            11. The claimant also submitted a video on August 29,
            2014, which did not pass regulations.

            12. On September 2, 2014, the claimant was given a written
            warning and five-day suspension for failing to submit a
            passing video.

            13. The claimant was suspended without pay effective
            Friday, September 5, through Thursday, September 11,
            2014, due to failure to complete video.

            14. In the September 2, 2014, written warning, the claimant
            was advised that he would be discharged from employment
            if he failed to submit a passing video by October 3, 2014.

            15. The claimant voluntarily terminated the employment
            effective September 29, 2014, due to his belief that he was
            unable to pass the video requirement.

(Findings of Fact Nos. 2-15.)
            The referee found that when Claimant submitted his letter of resignation
on August 29, 2014, he only faced the possibility of a five-day suspension if he failed
to submit a passing video. The referee also found that Claimant was never faced with
imminent discharge, only the possibility of discharge if he failed to satisfy the video
requirements. Additionally, the referee concluded that Claimant did not show that he




                                          6
made an exhaustive effort to maintain his employment,2 in that he did not establish
that he was incapable of properly completing the video requirement but rather chose
to voluntarily terminate his employment in lieu of continuing to work on the video.
Consequently, the referee held that Claimant failed to meet his burden of
demonstrating necessitous and compelling cause to quit his employment and was
ineligible for benefits under section 402(b) of the Law. Claimant appealed to the
Board, which affirmed the referee’s decision and adopted and incorporated the
referee’s findings and conclusions.
              On appeal to this Court,3 Claimant argues that the Board erred in
concluding that he failed to establish a necessitous and compelling reason to resign
from his employment. Under section 402(b) of the Law, a claimant who voluntarily
terminates his employment has the burden to demonstrate that he did so due to cause
of a necessitous and compelling nature.                   First Federal Savings Bank v.
Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth.
2008). Whether an employee has cause of a necessitous and compelling nature to
quit employment is a legal conclusion subject to appellate review.                     Brown v.
Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth.
2001).     In order to show necessitous and compelling cause, the claimant must
establish that: circumstances existed which produced real and substantial pressure to

       2
          Although Claimant does not raise this issue, we note that in order for a claimant to show
necessitous and compelling cause under section 402(b), the claimant must have made a reasonable
effort, but not an exhaustive effort, to maintain his employment. See, e.g., Brown v. Unemployment
Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001).

       3
         Our scope of review is limited to determining whether Constitutional rights were violated,
whether errors of law were committed, or whether necessary findings of fact were supported by
substantial evidence. Doyle v. Unemployment Compensation Board of Review, 58 A.3d 1288, 1291
n.2 (Pa. Cmwlth. 2013).



                                                7
terminate the claimant's employment; like circumstances would compel a reasonable
person to act in the same manner; the claimant acted with ordinary common sense;
and the claimant made a reasonable effort to preserve his or her employment. Id.

            Claimant argues that he had necessitous and compelling cause to leave
his employment because he feared that his discharge was imminent.            Where a
claimant resigns in order to avoid an imminent discharge, the Board may properly
treat the claimant’s separation from employment as a discharge and analyze the
claimant’s eligibility for unemployment benefits under section 402(e) of the Law, 43
P.S. §802(e). Pennsylvania Liquor Control Board v. Unemployment Compensation
Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). However, a claimant who
resigns under circumstances indicating only a possibility of a discharge is considered
to have voluntarily resigned. Id. Whether a claimant was discharged or voluntarily
resigned is a question of law to be determined based on the facts found by the Board.
Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa.
Cmwlth. 1996). The claimant bears the burden of proving that the separation was a
discharge and not a voluntary resignation. Id.
            In this case, the facts as found by the Board are similar to those before
the Court in Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770
(Pa. Cmwlth. 1996), and Rizzitano v. Unemployment Compensation Board of Review,
377 A.2d 1060 (Pa. Cmwlth. 1977). The claimant in Rizzitano worked as a repairman
for a trucking company. For several weeks, the claimant’s employer had been urging
the claimant to increase productivity or face the possibility of being replaced.
According to his testimony, the claimant did his best but was unable to meet his
employer’s demands.       Shortly thereafter, the claimant voluntarily quit his
employment because he believed that his inability to increase productivity would


                                          8
result in his discharge. The Board held that the claimant was ineligible for benefits
under section 402(b) of the Law, and this Court affirmed. We observed that the
record clearly established that the claimant could have continued to work for the
employer. We held that “[t]he fact that the claimant might have been discharged at
some time in the future, near or distant, [did] not justify his terminating his
employment when he did.” Rizzitano, 377 A.2d at 1061.
            We reached a similar result in Fishel. The claimant in Fishel was a
substitute teacher who received an unsatisfactory performance evaluation.          The
claimant then met with the school principal to create objectives and goals for the
claimant’s career. A few months after this meeting, the claimant received a second
unsatisfactory performance evaluation.        Subsequently, the school administrator
placed the claimant on leave without pay and advised her that he would recommend
to the school board that she be dismissed. The claimant voluntarily resigned.
            A referee determined that the claimant had resigned under real and
substantial pressure and that she was not ineligible for benefits under section 402(b).
However, the Board found that the claimant resigned prematurely because only the
school board had authority to fire her and such action was not a foregone conclusion.
Accordingly, the Board reversed the referee’s decision, and this Court affirmed,
holding that the administrator’s action did not establish that the claimant faced
imminent discharge. We concluded that the claimant resigned to avoid the possibility
of termination by the school board and did not demonstrate necessitous and
compelling cause for voluntarily terminating her employment.
            We conclude that the facts as found by the Board in this case are similar
to those in Fishel and Rizzitano and that application of those decisions compels the
same result here. Claimant did not establish that he faced imminent discharge at the



                                          9
time of his resignation, and, therefore, the Board properly decided this matter under
section 402(b) of the Law.
             Claimant argued that the August 28, 2014 meeting was Employer’s “way
of moving [him] out … and [he] wasn’t going to . . . have a termination on [his]
record. It was too much of a chance, so [he] submitted [his] resignation ….” (N.T. at
10-11.) However, as the circumstances existed on August 28th, if Claimant failed to
complete a satisfactory video by August 31st, he faced a possible disciplinary
suspension, not a termination. Indeed, Claimant admitted that termination was not
discussed during the August 28th meeting. (N.T. at 12.) Thus, at the time Claimant
submitted his resignation, he was not facing imminent discharge, and the Board
properly found that he voluntarily left his employment without necessitous and
compelling reason. Fishel; Rizzitano.
             Claimant also challenges the Board’s determination that he failed to
make a reasonable effort to preserve his employment prior to resigning. However,
the Board rejected Claimant’s testimony in this regard. Additionally, the record
reflects that in June 2014, Claimant sent an email to Kaple stating that he would no
longer work toward creating a passing video and instead would focus his efforts on
finding a new position within the company.         (N.T. at 18.)   Although Claimant
continued to produce videos throughout the summer, it was not until August 29 th that
he provided Kaple with a video for state submission; at this point, Claimant faced a
suspension if he did not produce a passing video. (N.T. at 20.) Further, other than
forwarding an email, Claimant did not contact Gressel regarding his employment
concerns. (N.T. at 26.)   Thus, the record contains substantial evidence to support
the Board’s findings that Claimant failed to exhaust all alternatives prior to quitting,
as required to prove a necessitous and compelling cause for terminating employment



                                          10
under section 402(b). Porco v. Unemployment Compensation Board of Review, 828
A.2d 426, 429 (Pa. Cmwlth. 2003).
            Accordingly, we affirm.



                                      ________________________________
                                      PATRICIA A. McCULLOUGH, Judge




                                      11
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Line,                           :
                   Petitioner         :
                                      :    No. 731 C.D. 2015
              v.                      :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


                                  ORDER


              AND NOW, this 25th day of November, 2015, the order of the
Unemployment Compensation Board of Review, dated April 1, 2015, is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
