M.A. Brown v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Morris A. Brown, :

Petitioner :

:

v. : No. 1397 C.D. 2023

: Submitted: October 8, 2024

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: November 7, 2024

Morris A. Brown (Claimant), pro se, petitions for review of the September 18,

2023 Order of the Unemployment Compensation Board of Review (Board),

affirming a Referee’s determination that Claimant was ineligible for unemployment

compensation (UC) benefits under Section 402(b) of the UC Law1 because Claimant

voluntarily resigned from his employment without a necessitous and compelling

cause. We affirm the Board’s Order.

I. BACKGROUND

In March 2023, Cumberland-Dauphin-Harrisburg Transit Authority d/b/a

rabbittransit (Employer) requested Claimant complete a substance abuse program

1

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§ 802(b).

after it deemed Claimant refused to take a random drug test. (Certified Record (C.R.)

at 34, 39.) Instead, Claimant resigned and applied for UC benefits, which were

initially denied because Claimant’s separation from Employer did not meet the

requirements of Section 402(b) of the UC Law. (Id. at 47, 50.) The Local Service

Center determined, despite continuing employment being available to him, Claimant

chose to resign; thus, Claimant did not qualify for UC benefits. (Id. at 50.) Claimant

timely appealed the determination, and a hearing was held before the Referee on

June 27, 2023, at which Claimant testified as follows.2 (Id. at 64, 77.)

On March 7, 2023, after returning to work following a two-week vacation,

Employer requested Claimant submit to a random drug test. (Id. at 89-91.) During

the test, Claimant did not provide Employer with the requisite quantity of urine. (Id.

at 91.) Claimant testified that he had a medical explanation for his inability to

provide the requisite quantity of urine: Claimant suffered from severe dehydration

associated with diarrhea at the time of the test. (Id. at 90-91.) Before he attempted

the test, Claimant informed both Employer and the nurse performing the test that he

“probably won’t be able to do it” because of his medical condition, i.e., dehydration.

(Id.) On March 10, 2023, Claimant spoke with two doctors. (Id. at 95.) Claimant

testified that the doctors both wrote letters for him, which stated it was impossible

for Claimant to perform the test under his medical condition at the time. (Id.)

However, as Claimant testified, Employer determined Claimant did not provide

adequate documentation to show his medical explanation was a valid medical

excuse, which should have been filed before the test. (Id. at 92, 95.) Thus, per

company policy, Employer deemed Claimant to have refused the random drug test.

(Id. at 93.)

2

The Department of Labor and Industry notified Employer of the hearing; however,

Employer elected not to attend. (C.R. at 86.)

2

Thereafter, Claimant continued to testify, Employer requested Claimant

participate in a substance abuse program.3 (Id. at 93.) When Claimant inquired into

what would happen if he elected not to enroll in the substance abuse program,

Employer informed him he would be “subject to termination.” (Id. at 90, 94.) Rather

than participate in the substance abuse program, Claimant admitted he elected to

voluntarily resign. (Id. at 90.) Claimant further testified that he decided to

voluntarily resign because, if Employer terminated him, he would have lost his

retirement benefits. (Id. at 94.) Further, as Claimant admitted in this testimony,

Claimant did not file a grievance with his union in the required 10-day window to

contest Employer’s decision that Claimant refused the drug test. (Id. at 97.)

Claimant also testified, however, that he was unaware of the grievance process until

after the expiration date for the filing of a grievance. (Id.) Nevertheless, as of the

date of the hearing with the Referee, Claimant testified that he still had not filed any

grievance with his union regarding Employer’s decision. (Id.)

Based upon that testimony, the Referee made the following relevant Findings

of Fact:

2. On March 7, 2023, [] Claimant was selected to take a random drug

test by [] Employer.

3. On March 7, 2023, [] Claimant failed to provide a sufficient quantity

of urine in order to complete the random drug test.

4. [] Claimant did not present [] Employer with any documentation of

a valid medical explanation as to why he could not provide a sufficient

quantity of urine to take the test prior to or immediately following the

random drug test.

3

Employer requested Claimant enroll in the substance abuse program in accordance with

Department of Transportation Regulations. (C.R. at 8, 39.)

3

5. Under [] Employer’s policy, if an employee fails to provide a

sufficient quantity of urine without a valid medical explanation, the

employee is considered to have refused to take the test.

6. On March 27, 2023, [] Employer gave [] Claimant the option to

enroll in a substance abuse program, or be subject to termination as []

Employer considered [] Claimant as refusing to take a random drug test

on March 7, 2023.

7. On March 29, 2023, [] Claimant submitted a voluntary resignation

form to [] Employer citing that his last date of work would be March

30, 2023 because he disagreed with the drug test refusal.

8. Prior to quitting, [] Claimant did not file a grievance in order to

contest [] Employer’s determination that [] Claimant refused to take a

random drug test.

(Referee Decision at 2; C.R. at 106.) In reaching these findings and its conclusion,

the Referee reasoned:

In this case, [] Claimant was given the opportunity to enroll in a

substance abuse program or be subject to termination of employment.

At the hearing, [] Claimant testified that he opted to voluntarily resign

in order to keep his retirement rather than potentially be discharged and

lose his retirement. Although the Referee finds that [] Claimant was

credible that he was subject to termination, his discharge from

employment was not imminent or certain. Additionally, [] Claimant

did not file a grievance in order to contest [] Employer’s decision

regarding the drug test refusal. As such, the Referee finds that []

Claimant’s voluntary resignation was due to uncertainty and

speculation over the future of his job and is therefore not a necessitous

and compelling cause for the voluntary termination of employment.

Accordingly, benefits must be denied under Section 402(b) of the

Pennsylvania UC Law.

(Referee Decision at 2; C.R. at 106.)

Claimant appealed the Referee’s decision, which the Board affirmed on

September 18, 2023. (Board Order.) In its Order, “the Board adopt[ed] and

4

incorporate[d] the Referee’s findings and conclusions.” (Id. at 1.) Consistent with

the Referee, the Board reasoned:

Section 402(b) of the UC Law provides that a claimant shall be

ineligible for [UC] due to voluntarily leaving work without cause of a

necessitous and compelling nature.

....

Since [] [C]laimant voluntarily left employment, the burden rests upon

[C]laimant to show cause of a necessitous and compelling reason for so

doing.

....

The record reflects [] [C]laimant refused to enroll in a substance abuse

program, which subjected him to termination. [] [C]laimant had the

option to challenge [] [E]mployer’s actions by filing a grievance, but

failed to do so before resigning. Considering the availability of the

grievance process, [] [C]laimant’s termination was not imminent. []

[C]laimant has not proven a necessitous and compelling reason for

voluntarily resigning under [Section] 402(b) of the [UC] Law.

(Id. at 2.) Accordingly, the Board affirmed the Referee’s decision and held Claimant

was ineligible for UC benefits. (Id.)

Claimant now petitions for review to this Court.

II. PARTIES’ ARGUMENTS

In his brief to this Court, Claimant sets forth two main arguments. First,

Claimant argues Employer did not follow its own company policies when it refused

to acknowledge Claimant’s medical explanation for the drug test refusal, which

Claimant asserts he supported with documentation from his physicians. Thus,

according to Claimant, if Employer followed its own policies and properly

acknowledged his medical explanation, it would have been unnecessary to

voluntarily resign from his employment. Second, Claimant argues he was unable to

5

file a grievance against Employer with his union until after he enrolled and

participated in the substance abuse program. Therefore, the grievance would be

without merit and would gain him nothing because he would have already taken the

program at his own expense.4

In response, Employer asserts Claimant did not meet his burden to prove he

had a necessitous and compelling reason to voluntarily resign from employment.5

First, Employer argues Claimant faced no real and substantial pressure to resign

when Employer requested he participate in the substance abuse program because,

although he would have been subject to termination if he declined to participate in

the program, Claimant’s termination was not imminent. Second, Employer argues

an objectively reasonable person would not have acted in the same manner as

Claimant because a reasonable person would have taken steps to preserve his

employment, i.e., participate in the substance abuse program or file a grievance

against Employer. Third, Employer argues Claimant did not act with ordinary

common sense because Claimant should have taken a less drastic measure than to

resign in response to Employer’s request. Finally, Employer argues Claimant did

not make reasonable efforts to preserve his employment because he refused to

participate in the substance abuse program and did not file a grievance with his union

against Employer.

4

Although Claimant testified to the Referee that he was unaware of the grievance process

until after its 10-day expiration date, (C.R. at 97), Claimant did not raise that issue in his brief to

this Court.

5

On December 20, 2023, Employer intervened in this proceeding as a matter of course.

Employer, as intervenor, filed a brief with this Court. The Board elected not to file its own brief

because it believed Employer’s brief adequately covered the issues it would have briefed.

6

III. DISCUSSION6

The overarching issue in this matter is whether the Board erred in denying

Claimant UC benefits pursuant to Section 402(b) of the UC Law, which provides, in

pertinent part: “[a]n employe shall be ineligible for compensation for any week . . .

[i]n which his unemployment is due to voluntarily leaving work without cause of a

necessitous and compelling nature[.]” 43 P.S. § 802(b). Accordingly, because

Claimant admittedly resigned voluntarily, the dispositive issue before this Court is

whether the Board erred in its determination that Claimant lacked a necessitous and

compelling reason to voluntarily resign.

Under the UC Law, where a claimant resigns to avoid the possibility of

termination, his resignation is considered a voluntary termination. Smith

v. Unemployment Comp. Bd. of Rev., 261 A.3d 615, 620 (Pa. Cmwlth. 2021). To be

eligible for UC benefits, “a claimant who voluntarily terminates [] employment bears

the burden of proving that necessitous and compelling reasons motivated that

decision.” Fitzgerald v. Unemployment Comp. Bd. of Rev., 714 A.2d 1126, 1129

(Pa. Cmwlth. 1998). To meet this burden, the claimant must establish:

“(1) circumstances existed which 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 [their] employment.” Id. “The

question of whether a claimant had necessitous and compelling reason to terminate

employment is a question of law reviewable by this Court.” Id.

6

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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

7

First, a claimant must prove circumstances existed which produced real and

substantial pressure on the claimant to terminate his employment, and which would

compel a reasonable person to act in the same manner. Id. Uncertainty and

speculation regarding the future existence of employment does not establish the

requisite circumstances to create necessitous and compelling cause for the voluntary

termination of employment. PECO Energy Co. v. Unemployment Comp. Bd. of Rev.,

682 A.2d 58, 61 (Pa. Cmwlth. 1996). For example, in PECO Energy Co., after her

employer announced restructuring plans, a claimant refused to take a test to qualify

for continuing employment, instead opting to voluntarily resign for a benefits

package, because she feared she would not be retained even if she passed the test.

Id. at 61-62. Despite the uncertainty regarding her future employment, this Court

held the claimant did not have a necessitous and compelling cause to voluntarily

resign in part because the fact her employment was not guaranteed did not create the

requisite circumstances to establish such a cause. Id.; see also Peoples First Nat’l

Bank v. Unemployment Comp. Bd. of Rev., 632 A.2d 1014, 1018 (Pa. Cmwlth. 1993)

(“[The c]laimant’s speculative belief that he would be terminated if he did not accept

[the e]mployer’s voluntary enhanced early retirement package is not cause of a

necessitous and compelling nature.”).

Additionally, the claimant “must establish that he acted with ordinary

common sense in quitting his job, that he made a reasonable effort to preserve his

employment, and that he had no other real choice than to leave his employment.”

PECO Energy Co., 682 A.2d at 61 (quoting Stroh-Tillman v. Unemployment Comp.

Bd. of Rev., 647 A.2d 660, 662 (Pa. Cmwlth. 1994)). “Where the claimant has failed

to take all necessary and reasonable steps to preserve the employment relationship,

he cannot demonstrate a necessitous and compelling reason for leaving his job and

8

is ineligible for benefits.” Hohl v. Unemployment Comp. Bd. of Rev., 261 A.3d 622,

627 (Pa. Cmwlth. 2021) (citing PECO Energy Co., 682 A.2d at 61). For example,

in PECO Energy Co., this Court held a claimant did not take all reasonable and

necessary steps to preserve her employment because she precluded any possibility

of doing so when she elected not to take a qualifying test to continue her

employment. 682 A.2d at 61. Similarly, in Drach v. Unemployment Compensation

Board of Review (Pa. Cmwlth., No. 289 C.D. 2011, filed August 31, 2011), slip. op

at 8,7 this Court held the claimant did not take all reasonable and necessary steps to

preserve her employment because she did not file an actual grievance with her union

relating to the reason why she voluntarily resigned.

Here, the Board affirmed the Referee’s decision and held Claimant is

ineligible for UC benefits because Claimant lacked a necessitous and compelling

reason to voluntarily resign from his employment under Section 402(b) of the UC

Law. In reaching its conclusion, the Board reasoned Claimant had the opportunity

to enroll in a substance abuse program or be subject to termination after he refused

to take a random drug test. (Board Order at 2.) In response to this choice, Claimant

opted to voluntarily resign from his employment to retain his retirement benefits

rather than face possible termination and lose the benefits. (See id.; see also Referee

Decision at 2; C.R. at 106.) Further, the Board found Claimant’s termination was

not imminent because of the availability of the grievance process. (Board Order at

2.) At no time before resigning, however, did Claimant file a grievance with his

labor union to contest Employer’s decision regarding his drug test refusal. (Id.)

Accordingly, consistent with the Referee’s decision, the Board concluded Claimant

7

Unreported panel decisions of this Court may be cited for their persuasive value pursuant

to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b), and Section

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

9

did not prove a necessitous and compelling reason for voluntarily resigning and,

therefore, was ineligible for UC benefits. (Id.) We find the Board did not err.

First, Claimant resigned to avoid the possibility of termination. (C.R. at 90-

94.) Thus, Claimant’s resignation is voluntary. See Smith, 261 A.3d at 620.

Essentially, Claimant argues that if Employer followed its own policies and

acknowledged his medical explanation for the drug test refusal, it would have been

unnecessary for him to voluntarily resign. Claimant, however, had the opportunity

to continue his employment by enrolling in the substance abuse program. Instead,

Claimant opted to resign to ensure he received his retirement benefits rather than

face the possibility of termination and lose the benefits if he did not enroll in the

program. Our case law is clear on this point: uncertainty and speculation regarding

the future existence of employment does not establish the requisite circumstances to

create necessitous and compelling cause for the voluntary termination of

employment. PECO Energy Co., 682 A.2d at 61; Peoples First Nat’l Bank, 632

A.2d at 1018. Therefore, similar to PECO Energy Co., despite his uncertainty and

speculation regarding his future employment, Claimant did not have a necessitous

and compelling cause to voluntarily resign. See 682 A.2d at 61.

Moreover, Claimant did not take all reasonable and necessary steps to

preserve his employment for two reasons. First, like the claimant in PECO Energy

Co., Claimant himself precluded any possibility of preserving his employment

because he voluntarily elected to discontinue his employment by not participating in

the requested substance abuse program. See PECO Energy Co., 682 A.2d at 61.

Second, like the claimant in Drach, Claimant did not take all reasonable and

necessary steps to preserve his employment because he did not file a grievance with

his labor union to contest Employer’s decision regarding his drug test refusal. See

10

Drach, slip op. at 8. Although Claimant testified to the Referee he became aware of

the grievance process after its 10-day filing date expired, here Claimant only argues

he was unable to file a grievance with his union until after he participated in the

substance abuse program, which would render the grievance moot because he would

have already taken the program. However, this argument is misplaced because any

grievance filed by Claimant would be to contest Employer’s drug test refusal

decision, not the consequences of said refusal, i.e., the substance abuse program. In

any event, months after he resigned and applied for UC benefits, Claimant still had

not filed any grievance against Employer with his union. (C.R. at 97.) Accordingly,

Claimant did not take all reasonable and necessary steps to preserve his employment

because he could have preserved his employment by either enrolling in the substance

abuse program or filing a grievance against Employer’s drug test refusal decision.

See PECO Energy Co., 682 A.2d at 61; Drach, slip op. at 8.

For these reasons, Claimant did not meet his burden to prove a necessitous

and compelling reason motivated his decision to voluntarily terminate his

employment with Employer. Thus, Claimant is ineligible for UC benefits pursuant

to Section 402(b) of the UC Law.

IV. CONCLUSION

Accordingly, we affirm the Order of the Board.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Morris A. Brown, :

Petitioner :

:

v. : No. 1397 C.D. 2023

:

Unemployment Compensation Board :

of Review, :

Respondent :

ORDER

NOW, November 7, 2024, the Order of the Unemployment Compensation

Board of Review, entered in the above-captioned matter, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge