               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. French, Sr.,                        :
                              Petitioner       :
                                               :
                 v.                            :   No. 241 C.D. 2016
                                               :   Submitted: January 27, 2017
                                               :
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: May 18, 2017


                 Petitioner Michael A. French, Sr. (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board), dated
January 12, 2016.          The Board reversed the Referee’s grant of Claimant’s
unemployment compensation benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law),1 relating to voluntary separation




       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
without cause of a necessitous and compelling nature.2 We affirm the Board’s
decision.
               Claimant filed for unemployment compensation benefits after
voluntarily quitting his position as a full-time hand printer for American Process
Lettering (Employer).         The Duquesne Unemployment Compensation Service
Center (Service Center) issued a Notice of Determination, finding Claimant
ineligible for benefits under Section 402(b) of the Law. (Certified Record (C.R.),
Item No. 5.) The Service Center reasoned that Claimant failed to meet his burden
to prove a necessitous and compelling reason for quitting.                    (Id.)     Claimant
appealed the Service Center’s determination, and a Referee conducted an
evidentiary hearing.
               Claimant testified that he suffered severe migraines as a result of a
motor vehicle accident that happened on October 12, 2014. (C.R., Item No. 9
at 4-5.) To help keep his migraines under control, he wore sunglasses. (Id. at 4.)

       2
           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.” 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. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits his employment
“bears the burden of proving that necessitous and compelling reasons motivated that decision.”
Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998),
appeal denied, 794 A.2d 364 (Pa. 1999). 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 his employment. Procito v. Unemployment Comp. Bd. of
Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).




                                                2
He had a doctor’s note to wear sunglasses. (Id.) He offered to show this note to
Employer’s President, Gary Huddell, in February of 2015. (Id. at 6.) He testified
that Employer did not have an issue with him wearing sunglasses until
August 21, 2015, when his immediate supervisor, Tom Weber, told Claimant to
take off his sunglasses. (Id. at 5.) Claimant attempted to show the documentation
to Mr. Weber. (Id. at 7.) Mr. Weber sent him home. (Id.) Before Claimant left,
Mr. Weber told him that Employer would try and find another job that he could do.
(Id. at 12.) After this incident, Claimant testified that he was sent home two
additional times, and he believed he was fired after the third time. (Id. at 6.)
Claimant further testified that Mr. Weber said on the last day that Employer was
unable to find him work, but Mr. Weber requested that Claimant speak to the
owners. (Id. at 13.)
             Mr. Weber and Mr. Huddell testified on behalf of Employer.
Mr. Weber testified that Claimant told him about his migraine headaches. (Id. at
9.) Mr. Weber told Claimant on August 21, 2015, that Claimant could either take
off his sunglasses or go home. (Id. at 10.) Mr. Weber testified that he did not state
that if Claimant did not remove his sunglasses, Claimant could no longer work for
Employer.    (Id.)     On August 24, 2015, Claimant reported to work wearing
sunglasses. (Id. at 10.) Mr. Weber told Claimant that Claimant could not work
with sunglasses because the sunglasses were a safety hazard and created a quality
assurance concern. (Id.) Mr. Weber asked to wear the sunglasses to determine if
Claimant could properly see colors. (Id.) Mr. Weber determined that Claimant
could not see colors properly while wearing the sunglasses. (Id.) Mr. Weber then
sent Claimant home. (Id. at 11.) After Claimant left, Mr. Weber spoke to Mr.
Huddell. (Id.) Mr. Weber and Mr. Huddell determined that Claimant could be


                                         3
moved to his old position in the packaging department. (Id.) Mr. Weber testified
that on August 25, 2015, Claimant reported to the office prior to Claimant’s shift.
(Id.) Claimant was agitated, and Mr. Weber tried to calm him down. (Id.) Mr.
Weber told Claimant to wait for the owners to discuss what job Claimant could do.
(Id. at 11-12.)   Claimant left before the owners arrived.        (Id. at 12.)   Before
Claimant left, Mr. Weber told Claimant that the owners would contact him in order
to work something out. (Id.)
             Mr. Huddell testified that when Claimant was first sent home,
Mr. Huddell asked Mr. Weber to wear the sunglasses to determine if Claimant
could properly perform the job. (Id. at 14). Mr. Huddell further testified that he
discussed with Mr. Weber what other position would be suitable for Claimant
while Claimant was wearing sunglasses.            (Id.)      After Claimant left on
August 25, 2015, Mr. Huddell testified that he and Shelly Aguilera, the Accounting
Human Resources Coordinator, contacted Claimant by email and telephone on the
same day. (Id. at 15.) Mr. Huddell also testified that three days later, he sent a
certified letter to Claimant that stated that Mr. Huddell assumed that Claimant was
not returning to work.     (Id.) Mr. Huddell stated that he wanted to help out
Claimant and find another position that Claimant could do. (Id.) Mr. Huddell
testified that he did not want Claimant to do printing work where he could not see
the quality of the colors because of the sunglasses. (Id.)
             Following the hearing, the Referee issued a decision and order,
reversing the Service Center’s determination. (C.R., Item No. 10.) The Referee
determined that Claimant voluntarily terminated his employment for a necessitous
and compelling reason. (Id.)      The Referee explained that Claimant “had work




                                          4
place restrictions as a result of a head injury which the Employer refused to
immediately accommodate.” (Id.)
            Employer appealed to the Board, which reversed the Referee’s
decision and order. (C.R., Item No. 12.) In so doing, the Board made its own
findings of fact and conclusions of law. The Board made the following findings of
fact:
            1.    The claimant was last employed as a full-time
                  hand printer by American Process Lettering from
                  September 9, 2013, until August 25, 2015, at a
                  final rate of $10.00 per hour.
            2.    The employer’s hand printers use machines to
                  screen print. The hand printer must be able to
                  differentiate between colors, match colors, and
                  check small details for quality assurance purposes.
            3.    Hand printers operate heavy machinery to perform
                  their job.
            4.    In October 2014, the claimant was involved in a
                  serious motor vehicle accident. The claimant
                  sustained a serious head injury.
            5.    As a result of the head injury, the claimant suffered
                  from severe migraines as a result of the accident.
            6.    The employer understood the claimant suffered
                  from severe migraines as a result of the accident.
            7.    The claimant’s doctor recommended that the
                  claimant wear polarized sun glasses to minimize
                  the glare of artificial light and reduce severity of
                  the migraines when a migraine occurred.
            8.    In August 2015, the employer’s plant manager
                  observed the claimant operating screen printing
                  machines while wearing sunglasses.
            9.    The claimant explained that he was wearing the
                  sunglasses to reduce the severity of a migraine.




                                        5
10.   The plant manager tried the claimant’s sunglasses
      on, and determined the polarized lenses affected
      the ability to differentiate between colors.
11.   The plant manager discussed this with the owner,
      who believed wearing sunglasses could be a safety
      hazard and would affect the claimant’s ability to
      differentiate between colors.
12.   On August 21, 2015, the plant manager informed
      the claimant that he had to take his sunglasses off
      while working. The claimant refused to take the
      sunglasses off. The plant manager sent the
      claimant home.
13.   The claimant obtained a doctor’s note to wear
      sunglasses “at the time of these such migraines.”
      The claimant did not give this note to the
      employer.
14.   On August 24, 2015, the claimant was sent home
      because he wore his sunglasses while working.
15.   On August 25, 2015, the claimant reported to work
      wearing sunglasses.
16.   The plant manager advised the claimant that the
      owners wanted to find another position for the
      claimant, possibly in the packaging department,
      because it was not safe for him to wear sunglasses
      while operating printing machinery.
17.   The plant manager asked the claimant to wait in
      the office until the owner arrived to discuss being
      reassigned.
18.   The claimant left before discussing an alternative
      position with the employer.
19.   The employer attempted to reach the claimant to
      discuss other positions that the [sic] claimant could
      perform while wearing the sunglasses, but the
      claimant did not respond to the employer.
20.   The claimant voluntarily terminated his
      employment because he was not allowed to wear
      the sunglasses while working as a hand printer.


                            6
(Id.) The Board reasoned that Claimant did not meet his burden to prove that he
acted in good faith and made a reasonable effort to preserve his employment before
quitting:
               The employer’s plant manager and president credibly
               testified that they attempted to discuss other job
               opportunities with the claimant.           The employer’s
               witnesses explained that they had other positions, such as
               one in the packaging department, where the claimant
               could have been reassigned to. The employer’s witnesses
               explained that the claimant could have performed those
               tasks while wearing his sunglasses because they did not
               require him to operate machinery, or differentiate
               between colors. The employer’s witnesses credibly
               testified that they tried to speak to the claimant about the
               other positions on August 25, 2015, but the claimant left
               before the owner came into work to discuss the problem.
               The employer tried to contact the claimant at least four
               times after August 25, 2015, but the claimant did not
               return its calls. The claimant acknowledged that he did
               not respond to the employer’s attempts to contact him.
               The claimant did not make a good faith effort to preserve
               his employment, or make a reasonable effort to continue
               working when the employer offered an alternative
               solution.
(Id.) The Board, therefore, concluded that Claimant was ineligible for benefits
under Section 402(b) of the Law. Claimant now petitions this Court for review of
the Board’s order.
               On appeal,3 Claimant appears to contest the Board’s decision in two
ways.       First, Claimant essentially argues that the Board’s finding of fact


        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
(Footnote continued on next page…)



                                               7
number 16 is not supported by substantial evidence of record. Second, Claimant
contends that the Board erred as a matter of law in concluding that he did not act in
good faith by making a reasonable effort to preserve the employment relationship
before quitting.
              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 a light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably 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 only 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).
              In an unemployment compensation 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.

(continued…)



supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.




                                            8
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). 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). “Questions of
credibility and the resolution of evidentiary conflicts are within the sound
discretion of the Board, and are not subject to re-evaluation on judicial review.”
Peak, 501 A.2d at 1388.
               We first address Claimant’s argument that the Board’s finding of fact
number 16 is not supported by substantial evidence. Claimant contests the Board’s
finding that the plant manager told him that Employer wanted to find another
position for Claimant because it was not safe for him to wear sunglasses while
operating the machinery. Specifically, Claimant contends that substantial evidence
does not exist because the Board made contrary findings from the Referee. He
states that Employer was aware of his “need for sunglasses since February which
directly contradicts there [sic] assertion that the sunglasses came out all of a
sudden, on August 21, 2015.” (Petitioner’s Br. at 8.) He further argues that if the
owners decided to find an alternative position for him, he should have been sent to
the packaging department directly instead of being asked to wait for the owners.
(Id. at 10.)
               Based on our review of Claimant’s and Employer’s testimony, we
conclude that sufficient evidence exists to support the finding that the plant
manager informed Claimant that the owners wanted to find him a different
position, possibly in the packaging department, due to safety concerns relating to
operating machinery while wearing sunglasses. Specifically, Mr. Weber testified
as follows regarding his conversation with Claimant on August 25, 2015:
               I asked [Claimant] if he’d come to the front office, took
               him to the waiting room and said that the owners will be

                                          9
            in shortly. You can wait here, and we’ll discuss this and
            see if we can work it out and find what job you can do.
            But I can’t have you operate in that position. That’s the
            instructions I was under. He left the building agitated. I
            informed him that I’d have the owners contact him, you
            know, to work something out. At no point in time did I
            terminate him, fire him, or tell him he was not employed
            there. He refused to wait for the owners to arrive.
(C.R., Item No. 9 at 11-12.)    Claimant attempts to show that this finding is
unsupported by substantial evidence merely by pointing to contrary evidence in the
record—i.e., his own testimony. The mere presence of conflicting evidence in the
record is insufficient to show that a finding is not supported by substantial
evidence. See Verizon Pa., Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d
1157, 1162 (Pa. Cmwlth. 2015). Additionally, the Board, not the Referee, is the
ultimate fact-finder in unemployment cases. Peak, 501 A.2d at 1388. As such, the
Board is empowered to resolve the conflicts in evidence. It did so in Employer’s
favor.
            Next, Claimant argues that the Board erred in concluding that he did
not act in good faith to preserve his employment. We do not agree. An employee
in Claimant’s situation must take “reasonable steps to preserve the employment
relationship.” Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1046
(Pa. Cmwlth. 2002).     In order to be eligible for unemployment benefits, an
employee is obligated to seek work with which his disability will not interfere.
Sankey v. Unemployment Comp. Bd. of Review, 425 A.2d 52, 54 (Pa. 1981). An
attempt must be made to perform the alternative work before becoming
unemployed. Kownacki v. Unemployment Comp. Bd. of Review, 335 A.2d 868,
870 (Pa. 1975). Moreover, the burden is on a claimant who asserts a necessitous
and compelling reason for quitting employment to show that the accommodations


                                       10
offered by the employer are inadequate. Taraschi v. Unemployment Comp. Bd. of
Review, 510 A.2d 400, 402 (Pa. Cmwlth. 1986).
            Here, the Board concluded that Claimant did not make a good faith
effort to preserve his employment or make a reasonable effort to continue working
when Employer offered an alternative solution. The Board found that Mr. Weber
and Mr. Huddell credibly testified that they attempted to discuss other job
opportunities with Claimant, but that Claimant left before Mr. Huddell arrived.
(C.R., Item No. 12 at 3.)       Claimant admits that Mr. Weber told him on
August 21, 2015, that Employer wanted to explore if other jobs were available.
(C.R., Item No. 9 at 12.) The Board further found that Employer attempted to
contact Claimant at least four times. (C.R., Item No. 12 at 4.) Employer testified
that they attempted to contact Claimant the same day that he left by cell phone and
email. (C.R., Item No. 9 at 15.) Three days later, Employer sent him a certified
letter, informing him that since he had not returned to work, Employer assumed he
did not intend to return to work. (Id.) These facts clearly demonstrate that
Employer attempted to offer Claimant an alternative position, but that Claimant
rebuffed those attempts. Because Claimant walked out before the meeting with the
owners to discuss accommodating Claimant’s condition, we conclude that
Claimant did not make a good faith effort to preserve his employment. For these
reasons, the Board did not err in concluding that Claimant did not meet his burden
of proof under Section 402(b) of the Law.
            Accordingly, we affirm the Board’s order.



                               P. KEVIN BROBSON, Judge

Judge Cosgrove dissents.

                                        11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. French, Sr.,                  :
                          Petitioner     :
                                         :
            v.                           :   No. 241 C.D. 2016
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :



                                       ORDER


            AND NOW, this 18th day of May, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                P. KEVIN BROBSON, Judge
