           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eugene Albert Snyder, Jr.,                    :
                                              :
                            Petitioner        :
                                              :
                     v.                       : No. 737 C.D. 2017
                                              : Submitted: November 13, 2017
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge (P)
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: February 8, 2018



              Eugene Albert Snyder, Jr. (Claimant) petitions for review of the May
12, 2017 order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s decision and held that Claimant is ineligible for unemployment
compensation benefits pursuant to Section 402(b) of the Unemployment
Compensation Law (Law).1 We affirm.
              Claimant worked for Titusville Area Hospital (Employer) as an
orthopedic physician assistant from February 28, 2016, through November 30, 2016.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any
week in which his unemployment is due to his voluntarily leaving work without cause of a
necessitous and compelling nature.
On August 25, 2016, Lee Clinton, Employer’s chief executive officer, met with
Claimant and informed him that his services for the collaborating orthopedic
physician were not generating enough revenue to support his full-time position at
the hospital. Clinton offered Claimant two additional duties – supervision of cardiac
stress tests or serving as a primary care physician assistant – that, when coupled with
his existing orthopedic duties, would allow Employer to retain Claimant’s services.
On December 1, 2016, Clinton and Marybeth Reszkowski, Employer’s human
resources manager, met with Claimant and advised him that because he declined the
offers for additional duties, Employer could not retain his services and his position
was eliminated. Findings of Fact (F.F.) Nos. 1-4; 11.
             Claimant filed a claim for benefits and the local service center granted
benefits. Employer appealed. A referee held a hearing on February 7, 2017.
Claimant appeared and Reszkowski and Clinton testified on behalf of Employer.
             Claimant testified that he understood the August 25th conversation with
Clinton to be an open-ended discussion about ways to increase his productivity
because, at its current level, it did not support his salary. He stated that he told
Clinton at the time that his preference would be to stay in orthopedics and that if
there was a way to increase his productivity in that role that it would be in Claimant’s
best interest to maintain his orthopedic skills.         Claimant testified that the
conversation ended there and that he had no further discussion with Clinton.
Claimant asserted that Clinton never informed him that his job would be in jeopardy
if he did not accept the new duties. Notes of Testimony (N.T.) at 4.
             Clinton testified that at the August 25, 2016 meeting, he offered
Claimant two additional duties because he hoped to maintain Claimant’s full-time
employment. Clinton stated that Claimant was not interested in taking on the


                                           2
additional duties and expressed his desire to remain a full-time orthopedic physician
assistant. Clinton said that he instructed Claimant to bring him alternative ideas for
generating additional revenue, but three months passed without any further
discussions.    During his testimony, Clinton presented two documents of the
annualized net revenue and work Relative Value Unit (RVU) production for both
Claimant and his collaborating physician, which showed that Claimant was working
at a level below the 25th percentile of all orthopedic physician assistants according
to the Medical Group Management Association (MGMA). Clinton explained that
this indicated that there was not enough production to justify Claimant’s
employment and said that he showed Claimant these documents during their
discussion on August 25, 2016. N.T. at 5-7; Employer Exhibit 1.
               Clinton also stated that Claimant never asked if the additional duties
were still available during the December 1st meeting. He testified that a few weeks
after Claimant was informed that his position had been eliminated, Claimant called
and expressed a willingness to perform the additional duties if Employer would
reinstate him. Clinton stated that he declined to reinstate Claimant at that time. N.T.
at 7-8.
               Reszkowski testified that she and Clinton met with Claimant on
December 1, 2016, and presented him with a letter indicating that because the
revenue generated by his position was insufficient to support the cost, his position
was being eliminated. She further stated that during the discussion, they pointed out
to Claimant that he would have been provided with any training necessary to perform
the additional duties previously offered. Reszkowski testified that the additional
duties offered would have allowed Claimant to work the same schedule for the same
salary and benefits. She stated that Claimant declined these duties based on them


                                           3
being outside his orthopedic expertise, but offered no alternative options to increase
revenue while he continued to serve in a strictly orthopedic capacity. N.T. at 5.
               The referee found that Clinton made it clear to Claimant that there was
no full-time orthopedic physician assistant position available and that Claimant
would have the same schedule, pay, and benefits if he accepted one of the additional
duty options offered. The referee further found that Employer offered Claimant
training to ensure that he would feel comfortable performing cardiac stress tests.
The referee also found that Claimant declined both additional duty options, which
prevented Employer from retaining his services. F.F. Nos. 5-11.
               The referee first concluded that Claimant’s rejection of reasonable
work amounted to voluntary separation. The referee also found that Claimant failed
to act with ordinary common sense or make a good faith effort to preserve his
employment. Thus, the referee determined that Claimant failed to establish a
necessitous and compelling reason for leaving his employment and was ineligible
for unemployment benefits under Section 402(b).
               On appeal, the Board determined that Claimant was ineligible for
unemployment benefits under Section 402(b), adopting and incorporating the
referee’s findings and conclusions. Claimant now appeals to this Court.2
               Claimant first asserts that the Board erred in analyzing his eligibility
for benefits under Section 402(b), instead of Section 402(e) of the Law.3 Claimant

       2
          Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Kirkwood
v. Unemployment Compensation Board of Review, 525 A.2d 841, 843-44 (Pa. Cmwlth. 1987).
        3
          43 P.S. §802(e). Section 402(e) provides that an employee shall be ineligible for
compensation for any week in which his unemployment is due to his discharge from work for
willful misconduct connected with his work.


                                                 4
asserts that the August 25th conversation with Clinton concluded on an open-ended
note. He argues that while Clinton offered him several options to increase his
productivity and asked him to bring back any new ideas for increasing his
productivity, Clinton never informed him that a failure to modify his job would
jeopardize his employment. According to Claimant, he continued to work for
several months until he was abruptly told that his position was eliminated. Claimant
maintains that he did not voluntarily separate from employment but was terminated
by Employer.4        Consequently, Claimant argues that the Board should have
determined whether he was discharged for willful misconduct and that his failure to
immediately accept the proposed modification to his work duties did not amount to
an act of willful misconduct.5
               Whether a claimant’s separation from employment is a voluntary
termination or a discharge is a question of law fully reviewable by this Court.
Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d
217, 224 (Pa. Cmwlth. 2012). “It is a claimant’s burden to prove that his separation


       4
        Claimant relies on Nolan v. Unemployment Compensation Board of Review, 797 A.2d
1042, 1045 (Pa. Cmwlth. 2002), in which we explained:

               An employee who resigns, leaves, or quits employment without
               action by the employer has voluntarily terminated his employment.
               Conversely, it is well-settled that an employer’s use of language will
               be interpreted as a discharge when it possesses the immediacy and
               finality of a firing, even if specific words such as “fired” or
               “discharged” are not used. (Citations omitted).

       5
         “Willful misconduct has been defined as: (1) a wanton and willful disregard of the
employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the
standards of behavior that an employer rightfully can expect from its employees; or (4) negligence
that manifests culpability, wrongful intent, or evil design, or an intentional and substantial
disregard of the employer’s interests or the employee’s duties and obligations.” Adams v.
Unemployment Compensation Board of Review, 56 A.3d 76, 78 (Pa. Cmwlth. 2012).
                                                 5
from employment was a discharge.” Key v. Unemployment Compensation Board of
Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). If a claimant proves he was
discharged, then the burden to prove that the discharge was the result of willful
misconduct falls to the employer. Id. at 412-13. However, “[w]hen a claimant’s
conduct is not consistent with a desire to remain employed, we have held in the past
that he has, in effect, voluntarily left his employment.” Check v. Unemployment
Compensation Board of Review, 423 A.2d 1140, 1141 (Pa. Cmwlth. 1981).
“Claimants who, while employed, refuse to accept an offer of continued employment
are deemed to have quit their position, and are thus subject to Section 402(b).”
Hospital Service Association of Northeastern Pennsylvania v. Unemployment
Compensation Board of Review, 476 A.2d 516, 518 (Pa. Cmwlth. 1984) (emphasis
in original).
                Here, the Board found that Clinton expressly informed Claimant in their
August 25th conversation that Claimant’s position was no longer available without
modification to his duties to increase productivity; in essence, that a full-time
orthopedic physician assistant position was unsustainable. The Board credited
Clinton’s testimony that he explained this circumstance to Claimant in their August
25, 2016 conversation. Claimant admitted that he did not accept either of the duty
modifications offered.       The Board also credited Clinton’s testimony that he
requested that Claimant come to him with ideas for ways to increase productivity
that would allow him to remain a full-time orthopedic physician assistant, and that
Claimant failed to do so. Because Claimant did not take any action necessary to
continue his employment, we agree that his separation from employment was




                                            6
voluntary and the Board did not err in analyzing Claimant’s eligibility under Section
402(b) of the Law.6
              Alternatively, Claimant argues that if this Court finds that he
voluntarily terminated his employment, he had a necessitous and compelling reason
for the separation. Claimant asserts that Employer’s request that he perform duties
outside his orthopedic training made him uncomfortable and he worried about his
ability to comply with the required standards of conduct for services outside his
expertise, particularly in a field where the safety of patients is involved.
              In order to be eligible for benefits, a claimant who voluntarily
terminates his employment bears the burden of proving that necessitous and
compelling reasons motivated the decision. Accu-Weather, Inc. v. Unemployment
Compensation Board of Review, 634 A.2d 818, 820 (Pa. Cmwlth. 1993). Although
the Law does not define the terms “necessitous and compelling,” this Court has held
that an employee who claims to have left his employment for a necessitous and
compelling reason must prove 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 [his] employment.

Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board
of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). “An employer’s unilateral

       6
          Claimant continues his argument by asserting that the Board should have determined that
he was not ineligible for unemployment compensation benefits pursuant to Section 402(e) because
there is no evidence that he engaged in willful misconduct. Because we have determined that the
Board did not err in determining that Claimant voluntarily terminated his employment, this
argument need not be addressed.
                                               7
imposition of a real and substantial change in the terms and conditions of
employment provides a necessitous and compelling reason to leave work.”
Philadelphia Housing Authority v. Unemployment Compensation Board of Review,
29 A.3d 99, 101 (Pa. Cmwlth. 2011). In addition, a claimant’s reasonable belief that
his professional integrity would be jeopardized by the circumstances of his
employment may be necessitous and compelling cause to voluntarily quit.
Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126, 1130
(Pa. Cmwlth. 1998).
            Claimant relies on Fitzgerald in arguing that Employer’s proposed
modification was an impermissible unilateral change, that he proved the
reasonableness of his actions, and that he made a reasonable effort to maintain his
employment. We disagree.
            In Fitzgerald, the claimant worked as a full-time unit manager for two
floors of a nursing home where she supervised eight staff members. Id. at 1129-30.
She also enjoyed weekends and holidays off. Id. The supervisor informed her that
her position as a unit manager was being eliminated and offered her a position as a
house supervisor. Id. In that role, the claimant would be responsible for the
supervision of all five floors and 20 staff members and the claimant would be
required to work on alternating weekends and holidays. Id. The claimant quit,
contending that she was not qualified to provide the necessary quality of care, she
was concerned about resident safety, and she could lose her nursing license if she
accepted a position she was not competent to handle.         Id. at 1127-28.    The
employer’s witnesses corroborated the claimant’s testimony that she conveyed her
concerns to the employer before ultimately resigning. Id. at 1130. In overruling the
Board’s decision to deny benefits, this Court concluded that it was reasonable for


                                         8
the claimant to believe her professional integrity was jeopardized by the
circumstances of her employment and that she expressed her concerns to the
employer before quitting. Id.
             However, this matter is clearly distinguishable from Fitzgerald. The
claimant in Fitzgerald provided extensive testimony about the additional duties that
she would have had in the alternative position and how the additional duties would
jeopardize her nursing license. She also expressed concern regarding her ability to
handle the different levels of care and activity that took place on each floor and
maintain the necessary quality of care. The claimant’s new position would have
dramatically changed her work schedule and days off. She explicitly told her
concerns to her employer.
             Here, Claimant would have maintained the same work schedule, pay,
and benefits. Claimant did not express concerns that the new responsibilities would
create any safety issues for patients until his appeal to the Board. In fact, Claimant
testified that he told Employer that his desire was to remain in orthopedics because
maintaining his orthopedic clinical skills “would be in my best interest.” N.T. at 4
(emphasis added). At no point in his testimony did Claimant express concern that
taking on additional duties would endanger patients or that he would be at risk of
violating any statute, regulation, or code of ethics. Neither Claimant nor Employer
presented evidence that Claimant conveyed concerns about patient safety or legal
violations to Employer during the August 25th or December 1st meetings. Moreover,
following the elimination of his position, Claimant contacted Employer and agreed
to perform the additional duties if Employer would reinstate him; however there is
no evidence that he expressed any concern regarding patient safety or legal
violations at that time. Upon careful review of the record, we conclude that there is


                                          9
substantial evidence to support the Board’s findings and that the Board did not err
in concluding that Claimant is ineligible for unemployment compensation benefits
pursuant to Section 402(b) of the Unemployment Compensation Law.
            Accordingly, the Board’s order is affirmed.




                                      MICHAEL H. WOJCIK, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eugene Albert Snyder, Jr.,               :
                                         :
                         Petitioner      :
                                         :
                  v.                     : No. 737 C.D. 2017
                                         :
Unemployment Compensation                :
Board of Review,                         :
                                         :
                         Respondent      :

                                      ORDER


            AND NOW, this 8th day of February, 2018, the order of the
Unemployment Compensation Board of Review, dated May 12, 2017, is
AFFIRMED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
