           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Angelus Convalescent Center,            :
                       Petitioner           :
                                            :
             v.                             : No. 943 C.D. 2015
                                            : Submitted: November 20, 2015
Unemployment Compensation                   :
Board of Review,                            :
                    Respondent              :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                              FILED: December 17, 2015


             The Angelus Convalescent Center (Employer) petitions for review of an
order of the Unemployment Compensation Board of Review (Board) affirming the
Referee’s finding that Theresa L. Wagner (Claimant) was not ineligible for
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law)1 because she demonstrated a necessitous and compelling

      1
        Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §§751–914. Section 402(b) of the Law provides, in pertinent
part:

             An employe shall be ineligible for compensation for any week—

(Footnote continued on next page…)
(continued…)

                                               ***

                      (b) In which his 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:
              And provided further, That no employe shall be deemed to be
              ineligible under this subsection where as a condition of continuing in
              employment such employe would be required to join or remain a
              member of a company union or to resign from or refrain from joining
              any bona fide labor organization, or to accept wages, hours or
              conditions of employment not desired by a majority of the employes
              in the establishment or the occupation, or would be denied the right of
              collective bargaining under generally prevailing conditions, and that
              in determining whether or not an employe has left his work
              voluntarily without cause of a necessitous and compelling nature, the
              department shall give consideration to the same factors, insofar as
              they are applicable, provided, with respect to the determination of
              suitable work under section four (t): And provided further, That the
              provisions of this subsection shall not apply in the event of a stoppage
              of work which exists because of a labor dispute within the meaning of
              subsection (d). Provided further, That no otherwise eligible claimant
              shall be denied benefits for any week in which his unemployment is
              due to exercising the option of accepting a layoff, from an available
              position pursuant to a labor-management contract agreement, or
              pursuant to an established employer plan, program or policy:
              Provided further, That a claimant shall not be disqualified for
              voluntarily leaving work, which is not suitable employment to enter
              training approved under section 236(a)(1) of the Trade Act of 1974.
              For purposes of this subsection the term “suitable employment”
              means with respect to a claimant, work of a substantially equal or
              higher skill level than the claimant’s past “adversely affected
              employment” (as defined in section 247 of the Trade Act of 1974),
              and wages for such work at not less than eighty per centum of the
              worker’s “average weekly wage” (as defined in section 247 of the
              Trade Act of 1974).

43 P.S. §802(b).


                                                 2
cause for resigning from her position. For the reasons that follow, we affirm the
Board’s order granting Claimant unemployment compensation benefits.


                                         I.
            Employer terminated Claimant’s employment in November 2012, but
reinstated her on August 1, 2014, as a part-time housekeeper. She was subject to
Employer’s drug-testing policy which provided:

            Action for dismissal will be subject to review by the
            administration through an exit interview. Included among,
            but not limited to, serious offenses which may result in
            dismissal without advance notice are the following:

            …use of narcotics or refusing test (we test for illegal
            substances either/or upon hire or randomly thereafter)….


(Reproduced Record [R.R.] at 94a.)


            Upon rehire, Claimant underwent a drug test on August 1, 2014, which
yielded negative results. Between August and September 2014, Claimant was asked
to undergo random drug testing on several additional occasions, with the last request
being made on September 24, 2014. On this date, Claimant was advised that she
could undergo the testing or go home, but refused testing because she believed she
was being harassed.


                                         II.
            Claimant filed an application for benefits with the Unemployment
Compensation Service Center (Service Center), which determined that Claimant was
not ineligible for unemployment benefits under Section 402(b) of the Law, 43 P.S.

                                         3
§802(b),2 because she satisfied her burden of proving a necessitous and compelling
reason for voluntarily resigning, namely, that she was subjected to unfair treatment.
The Service Center also found that Claimant exhausted all alternatives prior to
quitting employment insofar as she informed Employer of her reason for leaving,
with the reasonable expectation that Employer could have provided an alternative to
resolve the situation. Employer appealed to the Board, contending that “Claimant
refused to take [a] random drug test and walked off the job.” (R.R. at 18a.)


              Before the Referee,3 Claimant testified that she first worked for
Employer as a janitor in 2012 but was terminated from her position in November
2012 when the Director of Nursing, Denise Meyers, accused her of stealing money
from a patient’s room. Claimant stated that she subsequently learned through her co-
workers that other employees had, in fact, been responsible for the theft. Claimant
sought reinstatement, and Employer rehired her as a housekeeper on August 1, 2014,
after which she underwent a drug test on August 8, 2014, which yielded negative
results.



       2
          To establish a necessitous and compelling cause for terminating one’s employment, a
claimant bears the burden of proving 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 ordinary common sense; and, (4) the
claimant made a reasonable effort to preserve her employment.” Brunswick Hotel and Conference
Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth.
2006).

       3
         At the beginning of the hearing, the Referee advised, “The issue in the case is Section
402(b) of the Law, the voluntary leaving section, whether [Claimant] can demonstrate necessitous
and compelling for leaving employment.” (R.R. at 63a.) Neither of the parties objected to or
recharacterized the statement of relevant issues before the Referee.



                                               4
                According to Claimant, she was assigned to work on the first floor and
was expressly advised not to make contact with Ms. Meyers. Nonetheless, on August
11, 2014, Ms. Meyers approached Claimant and requested that she undergo an
additional drug test. In response, Claimant testified that she consulted her direct
supervisor, Brian Johnson, who advised that Claimant need not undergo a second
drug test and assured her that he would discuss the issue with Ms. Meyers.


                Still, Claimant testified that on August 18, 2014, Ms. Meyers again
asked Claimant to submit to a drug test, after which Claimant consulted Supervisor
Johnson a second time. She stated that as before, Supervisor Johnson instructed her
not to take the test and advised that he would speak to Yvonne Rose, Employer’s
Administrator. Around this time, Claimant also recalled that Ms. Meyers instructed
Claimant to work upstairs and while doing so, Ms. Meyers advised Claimant and the
other housekeepers present that money had gone missing again.


                Claimant stated that on September 24, 2014, Ms. Meyers asked Claimant
a third time to submit to a drug test, after which Claimant consulted Supervisor
Johnson. In response to an inquiry regarding the advice he provided, Claimant
detailed:

                      He told me he was going to go upstairs and talk to
                her about it and to go back to work and that’s what I did.
                And about 20 minutes later, he came back downstairs and
                he said well, I can’t do anything with this issue now and I
                don’t know what else to do. You can either go home or
                clock out—clock out and go home and wait until [Rocco
                Tarasi, Employer’s Executive Director] comes in.


(Id. at 67a.)

                                            5
              Based upon this advice, Claimant clocked out and went home but
returned to Employer’s facility later that day with her husband to discuss the situation
with Executive Director Tarasi because “[she] was tired of being harassed.” (Id.)
Specifically, she explained:

                    I was just tired of [Ms. Meyers] bothering me when I
              was doing my duties and doing my work and I didn’t
              understand why she kept singling me out to take a drug test
              when I was told that I wouldn’t have to deal with that after
              we took the first test.


(Id.)


              During her conversation with Executive Director Tarasi, Claimant
informed him of Ms. Meyers’ numerous prior requests that Claimant submit to
random drug testing. She explained that she refused to take the test sought that day
because she felt as though she was “being singled out and harassed” and believed that
Ms. Meyers “was just trying to get [Claimant] fired, period, because she didn’t want
[her] there.” (Id. at 68a.) According to Claimant, Executive Director Tarasi was
previously unaware of the situation but did not offer to undertake any action in
response to Claimant’s complaints and, therefore, Claimant resigned because she
“can’t work like this…being treated this way.” (Id.) She indicated that Ms. Meyers
never offered a reason regarding why Claimant had been selected for the additional
random drug tests during her first month of employment, despite the fact that her
initial test yielded negative results.


              During cross-examination, Claimant admitted that on September 24,
2014, Executive Director Tarasi also asked her to take a drug test but she refused and

                                           6
resigned, providing Employer with a letter stating her reasons for doing so. She also
stated that she attempted to pursue reasonable alternatives to remain employed by
advising Supervisor Johnson of the situation and following his directives.


               Claimant also presented the testimony of her husband, William Wagner,
who accompanied Claimant during her September 24th meeting with Executive
Director Tarasi. He testified that Executive Director Tarasi advised him that the drug
testing was random but that Ms. Meyers was responsible for making the random
selections.    According to Mr. Wagner, Executive Director Tarasi did not know
whether Ms. Meyers made the selections in front of anyone else. He failed to
produce a written policy during the meeting and did not offer Claimant an alternative
to undergoing the testing.


               Employer offered a copy of its written drug-testing policy as well as a
list of current employees who were subjected to random drug testing in 2014, the
dates of those tests, and a list of individuals who Employer referred to outside
agencies for testing.4 Further, Executive Director Tarasi testified that during his
meeting with Claimant on September 24th, she refused his repeated requests to submit




       4
           With regard to the list, Executive Director Tarasi stated that he printed the list the day of
the hearing and altered it that morning by blackening the last names of the individuals appearing on
it. He also explained that between September 24, 2014, and the day of the hearing, he added names
and removed others from the list. Additionally, before the hearing, he made a handwritten note on
the list, indicating that Employer requested that Claimant submit to an initial test, but that the test
had to be rescheduled because Claimant went home sick. Executive Director Tarasi further
admitted that he could and had, in fact, manually altered the document to remind himself of
pertinent facts.



                                                   7
to drug testing without providing a reason for her refusal but did not dispute that
Claimant underwent prior drug testing upon her rehire.


                With regard to Employer’s drug-testing policy, Executive Director
Tarasi stated that Employer did not terminate Claimant, but rather, Claimant resigned.
Nonetheless, Executive Director Tarasi admitted that Claimant could have been
terminated for refusing the test. Moreover, Executive Director Tarasi admitted that as
per Employer’s policy, Employer can test an employee at the time she is hired or
randomly thereafter, but that regardless, Claimant was tested at the time of her hire
and thereafter.       Claimant’s counsel posed the following line of questioning to
Executive Director Tarasi:

                CL: So in other words, she was put through both options
                instead of the one option of being tested either at the time of
                hire or random, didn’t she?

                EW1: She was asked to take another test.

                CL:   Sir…

                EW1: Correct.

                CL: And in fact, your policy basically only says that
                you’re either tested at the time of hire or randomly, doesn’t
                it?

                EW1: Okay.


(Id. at 82a.)


                Employer also introduced the testimony of Ms. Meyers, who stated that
Employer began randomly drug testing its employees in January 2014. Pursuant to

                                              8
its policy, she explained that Employer tests its employees on or around their date of
hire and randomly thereafter. She advised that testing is not limited to a single
instance. Moreover, she disputed Claimant’s testimony that she asked Claimant to
submit to three drug tests following her initial test from August to September 2014,
admitting that such a practice would be “uncommon.” (Id. at 85a.) She denied being
involved in the random selection process, stating that, instead, she asks the registered
nurse on duty and certified nursing assistant supervisor to select individuals for
testing.   With respect to Claimant’s prior termination, Ms. Meyers denied any
involvement.


             In rebuttal, Claimant testified that on September 24, 2014, Ms. Meyers
“got off the elevator with another lady that works in—works under her and she told
her—[Ms. Myers] threw me the drug test and said you have to take a drug test.” (Id.
at 92a.) Ms. Meyers disputed this statement.


             Based upon the testimony and evidence presented at the hearing, the
Referee determined that Claimant satisfied her burden of establishing that she had a
necessitous and compelling reason for voluntarily leaving work with Employer
pursuant to Section 402(b) of the Law, 43 P.S. §802(b). Noting that “[C]laimant
elected to go home, serving to resign employment,” the Referee credited Claimant’s
testimony, finding that between August and September 2014, she was asked to submit
to drug testing on several occasions, which Employer admitted was unusual. (R.R. at
104a.) The Referee explained that although Claimant brought the matter to the
attention of Executive Director Tarasi with an explanation of why she found
Employer’s final request inappropriate, Executive Director Tarasi advised Claimant
to submit to the test or go home, resulting in Claimant’s resignation.


                                           9
             Moreover, the Referee reasoned:

                    Although it is clear that the [C]laimant violated a
             directive, the Referee does not find the directive to have
             been reasonable. The Referee finds the [C]laimant credible
             in her testimony that she was directed to undergo five drug
             tests within a one month period. There was no testimony to
             dispute that of the [C]laimant, in which she credibly
             asserted that she had not ever tested positive for drugs
             within her period of employment with this entity.

                   The Referee finds that the [C]laimant acted in the
             manner of a reasonable and prudent person by electing to
             resign rather than to submit to another drug test without
             good cause. The [C]laimant’s burden of proof has been
             met. Benefits are granted.


(Id. at 104a.)


             Employer appealed to the Board, claiming that:

             [E]mployer’s policy indicates that random drug tests may
             be performed. There is no requirement for a cause to
             request a random drug test …[and]… no limit on the
             number of random tests or interval between random tests.
             Claimant refused ALL requests for a random drug test and
             voluntarily quit rather than take a second drug test.
             Regardless of how recently a previous test was taken, an
             employee must follow the employer’s policy.


(Id. at 110a.) Employer did not, however, challenge the Referee’s determination that
Claimant resigned from her position.




                                         10
              After the Board issued an initial decision which it subsequently vacated,5
the Board affirmed the Referee’s order determining that Claimant was not ineligible
for benefits under Section 402(b) of the Law, reasoning that after Claimant was
subjected to the initial drug test on August 8, 2014, “[Ms.] Meyers, a supervisor,
asked the [C]laimant to undergo random drug tests” on August 11, August 18, and
September 24, 2014, all of which Claimant reported to Supervisor Johnson, with the
final request culminating in Executive Director Tarasi’s directive that Claimant
submit to the test or quit. (Id. at 136a.) In resolving the conflicting evidence in favor
of Claimant, the Board reasoned:

              Although the [E]mployer’s policy allows for random
              testing, the [E]mployer failed to explain why the [C]laimant
              would be asked to undergo additional random drug testing
              just weeks after returning a negative drug test. The Board
              discredits the [E]mployer’s argument that the [C]laimant
              was properly selected for drug testing under the
              [E]mployer’s random testing policy provision.            The
              [E]mployer’s [E]xecutive [D]irector, Mr. Tarasi,
              acknowledged that it would be unusual for an employee to
              be selected for random drug testing less than one month
              after the employee passed a drug test administered upon
              being rehired.


(Id. at 138a.)


       5
          Initially, the Board adopted and incorporated the Referee’s decision, determining that
because Claimant complied with random drug testing on four occasions within a one-month period
and then was asked to take an additional test, Claimant took reasonable steps to preserve the
employment relationship by reporting the problem to the Executive Director. After this order was
issued, Employer filed a motion for reconsideration on the basis that Claimant did not, in fact,
comply with subsequent requests for drug testing. The Board granted the motion and subsequently
vacated its initial order and remanded the matter to resolve the factual discrepancy.



                                              11
               The Board further determined that by reporting each request to
Supervisor Johnson and attempting to discuss the final request with Executive
Director Tarasi, Claimant took reasonable steps to preserve the employment
relationship, emphasizing that “under these circumstances, even one additional and
unfounded drug testing request, so soon after the initial drug test, would constitute
harassment and cause of a necessitous and compelling nature to quit, particularly
after [Supervisor] Johnson and [Executive Director] Tarasi chose not to remedy the
situation.” (Id.) This appeal followed.6


                                                III.
                                                 A.
               Employer’s primary argument before this Court is that the Board erred
by determining that Claimant was eligible for benefits under Section 402(e.1) of the
Law7 because Employer developed a clear substance abuse policy authorizing the
dismissal of employees who refuse drug tests and complied with this policy in
dismissing Claimant from employment.                   Conversely, Claimant suggests that



       6
         Our review is limited to determining whether the Board’s findings of fact are supported by
substantial evidence in the record, whether errors of law were committed, whether agency
procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment
Compensation Board of Review, 633 A.2d 1150, 1153 (Pa. 1993). We have defined “substantial
evidence” as such “relevant evidence that a reasonable mind might consider adequate to support a
conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n.3
(Pa. Cmwlth. 2013).

       7
          Section 402(e.1) disqualifies employees from receiving benefits for weeks in which
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.” Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by
Section 3 of the Act of December 9, 2002, P.L. 1330, as amended, 43 P.S. §802(e.1).


                                                 12
Employer waived this argument by failing to assert Section 402(e.1) of the Law as a
basis for denying benefits below. We agree with Claimant.


             Before the Referee, Executive Director Tarasi expressly stated that
Employer did not terminate Claimant, but rather, Claimant resigned. He further
testified that although Employer’s policy enabled it to dismiss an employee for failure
to submit to random drug testing, the policy did not require dismissal and, in this
case, a decision regarding dismissal was not made because Claimant walked off the
job. At all times relevant to this action, Employer has maintained that Claimant
resigned, but it now seeks to change its legal theory by attempting to contend that she
was terminated for refusing to take a drug test. Because, by its plain language
Section 402(e.1) of the Law applies only in contexts where an employee is discharged
or suspended and such an argument was not raised in any of the proceedings below,
Employer is foreclosed from raising it here.             See Schaal v. Unemployment
Compensation Board of Review, 870 A.2d 952, 95455 (Pa. Cmwlth. 2005) (“A
claimant waives review of an issue by failing to raise it before the referee when he
had an opportunity to do so.”). Further, even if we were to address the issue, the
uncontested evidence offered by both parties provides substantial support for the
Board’s finding that Claimant resigned from her position.


                                            B.
             Employer also contends that the Board erred “because there is no legal
authority to support the Board’s position that there is a maximum frequency [with
which] an employer can administer random drug tests to an individual, [or] that more
than one request over a period of 54 days pursuant to an established random drug
testing policy is ‘unreasonable.’” (Br. of Petitioner, at 4.)


                                            13
             Employer’s argument mischaracterizes the Board’s finding. The Board
did not hold that there exists a maximum frequency with which an employer may
perform random drug testing; rather, it determined that Claimant’s selection for
testing was not random and that even one unfounded request for drug testing under
such circumstances justified Claimant’s resignation.        The case of whether an
employee duly selected pursuant to an employer’s random testing procedure may be
subjected to more than one test in one to two months’ time is a different issue than
that before us today.


                                          C.
             Additionally, Employer claims that the Board erred in disregarding the
chart Employer presented which summarized the names of employees subjected to
drug testing and the dates on which those tests occurred. While this argument may be
germane to Employer’s previous argument that other employees, like Claimant, were
asked to submit to numerous drug tests, it is irrelevant to this appeal. As we stated
above, the Board did not determine that employees could not be subjected to more
than one test, but instead found that Claimant was not randomly selected for testing in
accordance with Employer’s policy.         Because the Board determined that the
additional testing requests were unfounded in the first instance, it is of no import how
many founded tests other employees underwent. Essentially, Employer seeks to
challenge the Board’s factual determination that Ms. Meyers’ requests to Claimant
were not bona fide requests as per Employer’s random drug testing policy by
showing that other employees were subjected to similar, repeated requests. However,
such issues of credibility and evidentiary weight are within the sole discretion of the
fact-finder. See Eduardo v. Unemployment Compensation Board of Review, 434
A.2d 215, 217 (Pa. Cmwlth. 1981).


                                          14
            Accordingly, we affirm the Board’s decision that Claimant is not
ineligible for unemployment compensation benefits pursuant to Section 402(b) of the
Law, 43 P.S. §802(b), because the finding that she had a necessitous and compelling
reason for resigning from her position is supported by substantial evidence.




                                               DAN PELLEGRINI, President Judge


Judge McCullough dissents.




                                          15
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Angelus Convalescent Center,    :
                Petitioner          :
                                    :
             v.                     : No. 943 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                 Respondent         :




                                   ORDER


             AND NOW, this 17th day of December, 2015, the order of the
Unemployment Compensation Board of Review in the above-referenced matter is
affirmed.




                                       DAN PELLEGRINI, President Judge
