          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brittany Marie Christian,                  :
                            Petitioner     :
                                           :
             v.                            :   No. 1041 C.D. 2018
                                           :   Submitted: December 14, 2018
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: January 18, 2019

             Brittany Marie Christian (Claimant), representing herself, petitions for
review from an order of the Unemployment Compensation Board of Review (Board)
that affirmed a referee’s decision finding her ineligible for unemployment
compensation (UC) benefits under the Unemployment Compensation Law1 (UC
Law). The Board denied Claimant UC benefits under Section 402(b) of the UC Law,
43 P.S. §802(b), based on her voluntary resignation from employment without a
necessitous and compelling reason. Upon review, we affirm.


                                    I. Background
             Claimant worked for two months for United Healthcare (Employer) as
a customer service representative answering consumer telephone inquiries. Most of
that time consisted of training, after which Claimant and other trainees transitioned

      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§751-919.10.
to fielding calls from consumers. During training, Claimant expressed stress and
anxiety about her anticipated duties answering phone calls.


             After working on the telephone answering calls twice, Claimant began
calling off work every day. About two weeks later, she stopped calling in. Upon
not hearing from Claimant for a week, Employer mailed her a warning letter stating
it would terminate her employment if she did not respond to the warning letter.


             After the warning letter was mailed, but before Claimant received it,
she called and left a telephone message for her supervisor, explaining the telephone
work was causing her extreme anxiety, asking whether there was a different job she
could perform, and stating that if not, she was resigning. Because Claimant indicated
in the message that she was not returning, Employer directed Claimant’s supervisor
not to respond to Claimant’s telephone message. Claimant did not attempt to contact
Employer after receiving the warning letter.


             Claimant applied for UC benefits. A UC Service Center (Department)
denied benefits pursuant to Section 402(b) of the UC Law, finding Claimant
voluntarily quit her job without a necessitous and compelling reason.


             Claimant appealed the Department’s determination, and a referee held
a hearing. At the hearing, Claimant stated she received treatment for anxiety and
depression at various times over a number of years before beginning work with
Employer. She testified the telephone job with Employer caused her extreme
anxiety and a return of her depression, constituting a necessitous and compelling



                                         2
reason for her resignation. However, Claimant acknowledged she did not seek
medical attention for her returning symptoms prior to resigning. She did not provide
Employer with any medical restrictions or documentation of her anxiety. She did
not request any medical leave or accommodation from Employer prior to the
telephone message in which she resigned. During the two-week period when she
was calling off work each day, Claimant did not give any reason why she was not
coming to work.


             Claimant’s former supervisor testified Claimant expressed nervousness
about the telephone work but never stated she had a problem that prevented her from
doing the job. In fact, Claimant performed the duties assigned to her and was doing
such a good job that her supervisor expected her to become a top employee once she
fully transitioned out of training.


             Regarding other possible work for Employer, Claimant testified she
asked several different people whether there was other work she could perform.
However, she did not identify any of those people. Moreover, Claimant explained
that as her job was in a call center, she believed there was no other type of work to
perform, so she did not apply for any other position with Employer.


             After the hearing, the referee issued a decision affirming the
Department’s determination.       The referee found Claimant voluntarily resigned
because she was stressed about the job. However, Claimant did not provide
Employer with any medical restrictions that prevented her from performing her
assigned job duties. The referee concluded Claimant failed to produce sufficient



                                          3
evidence to sustain her burden of showing a bona fide illness prevented her from
performing her job. Claimant also failed to prove notice to Employer of any medical
restrictions, or a reasonable effort to preserve her employment prior to resigning.
Therefore, the referee found Claimant did not sustain her burden of showing a
necessitous and compelling reason for quitting her job.2


               Claimant appealed to the Board, which affirmed, adopting the referee’s
findings and conclusions.


                                             II. Issue
               On appeal,3 Claimant insists she did have a necessitous and compelling
reason to resign because Employer denied her an alternate position after she



       2
          Claimant also alleges she was “humiliated,” “laughed at,” and “criticized” by the referee
and Employer’s counsel at the hearing when she stated she was applying for Social Security
Disability benefits because of her anxiety and depression. Pet’r’s Br. at 10. The hearing transcript
fails to support this averment.
         When Claimant expressed that she was becoming confused because she felt counsel and
the referee were “coming at” her in relation to her disability application, Notes of Testimony (N.T.)
at 17, the referee explained he was simply trying to determine Claimant’s ongoing ability to work,
a prerequisite to eligibility for UC benefits. Because inability to work is a prerequisite for
receiving disability benefits, the referee needed to explore that issue in the hearing. The transcript
does not reveal any inappropriate conduct by the referee.
         Claimant also alleges Employer’s counsel made insulting comments to her when the
referee was out of the room. Such conduct, if it occurred, would of course be highly reprehensible.
However, the record does not indicate what conversation, if any, took place in the referee’s
absence.

       3
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth.), appeal
denied, 97 A.3d 746 (Pa. 2014).



                                                  4
explained her anxiety and depression issues.4 The Board counters that Claimant
failed to sustain her burden of demonstrating either a medical condition or sufficient
notice of such a condition.


                                        III. Discussion
               A claimant seeking UC benefits after voluntarily resigning bears the
burden of proving she had necessitous and compelling reasons for quitting. Kelly v.
Unemployment Comp. Bd. of Review, 172 A.3d 718 (Pa. Cmwlth. 2017). She must
prove she acted with ordinary common sense and made reasonable efforts to
preserve her employment before deciding to quit. Id. Whether a claimant had
necessitous and compelling reasons for resignation is a question of law subject to
plenary review by this Court. Id.


                                    A. Medical Condition
               A medical condition that limits an employee’s ability to perform her
job may provide a necessitous and compelling reason to resign. St. Clair Hosp. v.
Unemployment Comp. Bd. of Review, 154 A.3d 401 (Pa. Cmwlth. 2017) (en banc).
To demonstrate that a medical condition is a necessitous and compelling reason for
the voluntary resignation, “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 accommodation can
be made.” Id. at 405.




       4
          Claimant also argues that Section 402 of the UC Law, which she mistakenly designates
as 43 P.S. §402, has been repealed. As the Board correctly explains, the Purdon’s Pennsylvania
Statutes citation for Section 402 of the UC Law is 43 P.S. §802. That section has not been repealed.


                                                 5
             Here, Claimant argues she met all three requirements to demonstrate a
medical condition constituting a necessitous and compelling reason for resigning.
The Board responds that Claimant failed to sustain her burden of proof concerning
the first two requirements.


                       1. Existence of a Medical Condition
             Regarding the existence of a medical condition, Claimant insists she
did not resign because of stress, as found by the referee and the Board, but because
of severe anxiety and depression. However, the Board, adopting the referee’s
findings and conclusions, determined the record contained insufficient evidence to
demonstrate any medical condition that prevented Claimant from performing her
work duties for Employer. Bd. Op., 6/25/18; Referee’s Dec., 4/19/18, at 2.


             Claimant does not point to any record evidence of her alleged medical
condition. In her brief, she asserts she “would often hyperventilate and could not
breathe when it was time to take calls.” Pet’r’s Br. at 9. The record does not contain
this averment, much less any competent evidence to support it. Claimant’s other
assertions in her brief are merely conclusory averments, with no citations to any
record evidence that her job was impacting her health and her medical issues were
preventing her from performing her work duties.           Id.   Moreover, Claimant
acknowledged that she sought neither medical care for her alleged condition nor
medical documentation of any such condition prior to resigning. Notes of Testimony
(N.T.) at 9, 17. Further, the undisputed evidence demonstrated Claimant was
performing well, thus refuting any suggestion that her alleged condition was
preventing her from performing her job. N.T. at 15, 18-19, 22, 33. As the finder of
fact, the Board properly concluded the record was insufficient to sustain Claimant’s

                                          6
burden of proof that Claimant had a medical condition that prevented her from
performing her work duties for Employer.


                           2. Notification of Employer
             Claimant also contends her former supervisor “was well aware” that
Claimant suffered from “extreme anxiety and depression.” Pet’r’s Br. at 9. Again,
Claimant cites no record support for this bare averment. In fact, her former
supervisor testified that although she knew Claimant was nervous about starting to
work on the telephones, she was not made aware of any actual medical condition.
N.T. at 19-21. The Board properly concluded Claimant failed to meet her burden on
this issue as well.


             Thus, because Claimant failed to sustain her burden of proof regarding
two of the required elements, the Board correctly determined Claimant failed to
establish a medical condition constituting a necessitous and compelling reason to
resign.


                  B. Reasonable Efforts to Preserve Employment
             The Board also determined Claimant failed to sustain her burden of
proving she made reasonable efforts to preserve her employment before resigning.
Bd. Op; Referee’s Dec. at 2. On appeal, Claimant disputes this conclusion. She
asserts that she asked on multiple occasions whether there were other positions
available, but her requests to work in a different department were denied. However,
she points to no record evidence in support of her position.




                                          7
             In fact, the record contains no evidence demonstrating such requests,
other than Claimant’s vague statement that she asked “different people” about other
possible positions. N.T. at 8. She did not identify those people either by names or
job titles, id.; the record does not indicate whether they were in positions enabling
them to grant Claimant’s alleged requests or even to provide her with information.
Moreover, Claimant acknowledged that because she believed there would be no jobs
in a call center other than working on the telephone, she did not actually apply for
any other positions. Id.


             The Board properly determined Claimant failed to demonstrate she
made a reasonable effort to preserve her employment.


                                  IV. Conclusion
             Based on the foregoing, we agree with the Board’s determination that
Claimant failed to sustain her burden of demonstrating a necessitous and compelling
reason for resigning from her employment. Therefore, we affirm the Board’s order
denying UC benefits.




                                       ROBERT SIMPSON, Judge




                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brittany Marie Christian,                  :
                            Petitioner     :
                                           :
            v.                             :   No. 1041 C.D. 2018
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :



                                         ORDER

            AND NOW, this 18th day of January, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                          ROBERT SIMPSON, Judge
