IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daryl Yingling, :

Petitioner :

: No. 127 C.D. 201 9
v. : : Argued : December 10 , 201 9 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE McCULLOUGH FILED: February 2 8 , 2020

Daryl Yingling (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) dated January 8, 2019, affirming the decision of a refe ree denying him benefits under S ection 402(b) of the Unemployment Compensation Law (Law). 1 The Board concluded that Claimant failed to establish a necessitous and compelling reason to voluntarily terminate his employment. Upon review, we reverse.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §802(b) (relating to voluntary separation from employment without cause of a necessitous and compelling nature).2 Background Claimant, a resident of the Commonwealth, worked for Blinn College (Employer) , locat ed in Austin, Texas, from October 23, 2017, until June 29, 2018, as
a full

- time apartment manager. (Certified Record (C.R.) at Item No s . 1, 2, 9 , Finding s of Fact (F.F.) No. 1.) Claimant voluntarily resigned from his employment , and thereafter filed for unemployment compensation benefits. (C.R. at Item No s

. 2, 9, Notes of Testimony (N.T.) at 10; F.F. No. 27.) The l ocal s ervice c enter determined that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). (C.R. at Item No. 5.) Claimant timely appealed the local service center’s
determination and a hearing was subsequently held by a referee on October 5, 2018 , to consider whether Claimant had a necessitous and compelling reason for terminating his employm ent. (C.R. at Item No s . 8, 9.)

Claimant and Tiffany Jenkins (Ms. Jenkins), Employer’s Director of
Human Resources , testified at the hearing. Claimant testified that when he accepted the job he was told that he was expected to work Monday through Friday, 8:00 a.m. to 5:00 p.m., and that a n assistant apartment manager (Assistant Manager ) would work Sunday through Thursday from 3:00 p.m. to 12:00 a.m. ( N.T. at 10; F.F. No. 2.) Claimant explained that he was responsible for m anaging seven apartment buildings, which totaled 338 rooms and housed 338 students . ( N.T. at 11; F.F. No. 4.) Further, Claimant explained that he was also in charge of seven student staff members (res ident assistants). (N.T. at 10; F.F. Nos. 3, 4.) Cla imant was also responsible for managing the student population within each of the buildings, checking students in and out, replacing lost keys, responding to emergencies and crises, being on

- call, mediating conflicts with residents, responding to complaint s, managing violations, preparing biweekly supervisory reports and weekly3

maintenance reports, completing daily walk

- throughs, working with custodial staff, and helping students. (N.T. at 11; F.F. Nos. 6, 8.)

Claimant testified that he understood that the Assistant Manager would split the duties with him and would be responsible for h elping with any excess
workload , maintenance requests, weekly meetings with staff members, and managing staff members. (N.T. at 13

- 14.) Claimant testified that he was to ld at the beginning of his employment that a full

- time Assistant Manager would be hired. (N.T. a t 13.) Claimant also explained that he asked his supervisor , Kayla Batterton (Ms. Batterton), w hen the Assistant Manager would be hired both before he arrived for his first day of work and on his first day of employment , and several more times in October, November, and December of 2017. Id

. Claimant testified , however, that an Assistant Manager was never hired. ( N.T. at 13; F.F. No. 5.) Claimant stated that he
asked Ms. Batterton for assistance in performing his responsibilities , but that he was not given assistance as she believed that he did not need help performing his jo b duties. (N.T. at 14

- 15; F.F. No. 7.) Claimant stated that he felt that the l ack of help

was negatively affecting him. Id

.

Claimant explained that during the 2018 spring break he asked Ms.
Batterton to discuss his situation. Id . Claimant testified that Ms. Batterton was not willing to do anything to remedy the situation

. Id

. Claimant testified that he then complained to H uman R esources , and was referred to Ms. Jenkins and spoke to her on April 18, 2018 . ( N.T. at 17; F.F. No. 14.) He testified that he told Ms. Jenkins
about his concerns regarding his t roublesome working conditions , health

- related4

issue s , and problems arising from the fact that an Assistant Manager was not hired. (N.T. at 17, 27.) 2

Claimant explained that Ms. Jenkins told him that she would address the
issues with Ms. Batterton and Peter Rivera (Mr. Rivera) , the Director of Residence
L ife. (N.T. at 17; F.F. No. 17. ) Claimant explained that as of May 3, 2018 , his
situation was improving . ( N.T. at 18; F.F. No. 18.) However, Claimant testified that the improvement did not last , and shortly thereafter his working conditions
deteriorated because he was not given any help after two staff members quit . (N.T. at 18; F.F. No. 20.) He explained that he complained again to Ms. Batterton, who told him that there was plenty of help and that he did not need an y more assistance. Id

. Claimant testified that he then complained to Ms. Jenkins again on May 21, 2018 , about the difficult working conditions and that he felt like a slave, had no free time,
and had continuing health issues. Id . Ms. Jenkins suggested that he raise the iss ues with his supervisors directly, and if that did not resolve the situation to bring his
concerns to the executive leadership of h is department. (N.T. at 19, 34; F.F. No. 21

. )

Claimant testified that he spoke to Mr. River a about hi s working conditions, but Mr. Rivera did not address his concerns

. Id

. Claimant explained that the lack of help and unsuccessful meetings made him feel like he did not have a

2 As an aside, Claimant testified that the working conditions were affecting his health. Specifically, he testified that he had severe asthma and that the humidity was affecting him. (N.T. at 15.) He also testified that he was experiencing gastrointestinal issues. (N.T. at 16.) Despite Claimant’s complaints to Employer about his medical conditions, he testified that he never provided any documentati on, nor filled out any American s with Disabilities Act (ADA), 42 U.S.C. §§12101

- 12213 , accommodation paper work when he requested the golf cart from Ms. Batterton. (N.T. at 22.) Ms. Jenkins testified that Claimant did not make her aware of his health issues nor did he provide any medical documentation. (N.T. at 30

- 31 ; F.F. Nos. 11, 13, 16.) However, Ms. Jenkins explained that Employer had in place a specific proce ss by which Claimant could have requested an accommodation. (N.T. at 38

- 39.)5

chance to address his concerns and that nothing would change. ( N.T. at 19

- 21.)
Claimant explained that b y that time, he est imated he was working 70

- 80 hours a week. ( N.T. at 21.) In Claimant’s last meeting with Mr. Rivera, on June 25, 2018,
Claimant was again upset, but was told “you better work your butt off or this is not the right job for you.” ( N.T. at 22 ; F.F. No. 22.) Claimant was subsequently advised by Ms. Batterton that he was required to work on Sunday July 3, 2018 , in order to check students in and out, and would not be provided additional help . (N.T. at 24 ; F.F. No. 24.) Claimant explained that because he was required to work on July 3 and was not getting any assistance or relie f from his supervisors or H uman R esources , he
decide d to quit. (N.T. at 25.) Before he resigned, Claimant a ttempted to contact M s. Jenkins; however, because she was not in the office, he spoke with another human resources employee, Margaret Hoaty (Ms. Hoaty) , who advised him to write a resignation letter. (N.T. at 24; F.F. Nos. 25, 26.) On June 29, 2018, Claimant resigned fro m hi s position. (N.T. at 24.) He explained that , a lthough he intended to tell Ms. Jenkins why he was resigning , she was not in the office and so he resigned without telling her. Id

.

Ms. Jenkins testified that Claimant complained to her about his working
conditions. (N.T. at 31.) With respect to the Assistant Manager not being hired, Ms.
Jenkins stated that Claimant told her he felt misled because he was told that an Assis tant Manager would be hired, however, one had not been hired

. Id

. Ms. Jenkins
testified that Employer had attempted to hire an Assistant Manager and actually
started the process of interviewing candidates. ( N .T. at 31.) She explained , however , that in early October 2017 , Employer determined that its search had failed and
decided t o repurpose the position. (N.T. at 32.) She testified that she was unaware if anyone told Claimant the position would not be filled. Id

.6

Regarding Claimant’s other complaints, Ms. Jenkins testified that most of Claimant’s complaints revolved around h is cla i ms of lack of support and lack of appreciation. (N.T. at 32.) She stated that after her meeting with Claimant on April 18, 2018, she spoke with the vice chancellor of student services , who then spoke with
Mr. Rivera. Id

. She testified that she subsequently spoke with Claimant on May 3, 2018, and he told her that he had notice d some improvement. (N.T. at 33.) However, she explained that Claimant contacted her again on May 21, 2018, and told her that
his situation had wors ened . (N.T. at 34.) Ms. Jenkins stated that she told him to speak to his supervisor s directly. Id

. Ms. Jenkins explained that Claimant attempted to contact her before he resigned, but that she was out of the office so she did not respond. Id

. The re feree made the following , pertinent, findings of fact:

2. When [] Claimant accepted the position, he understood that he would be working Monday through Friday, 8 [a.m.] to 5[p.m.] and an [ Assistant Manager ] would be hired to work Sunday through Thursday, 3 [p.m.] to 12[a.m.]

.
3. Claimant was also advised that he would have college staff, [and] resident assistants [that] he would be supervising.

4. There were seven apartment buildings with a total of 338 rooms and 338 students.

5. Employer did not hire an [ Assist ant Manager ] and [] Claimant questioned his supervisor, [Ms. Batterton ] , regarding the position.

6. Claimant was responsible at the winter break to close down each apartment and get the key from each student and to review the rooms while the students were between terms.7

7. When [] Claimant asked his supervisor for help, he was advised [that] he did not ne ed help.

8. Claimant’s job also involved daily walk[

- ]arounds.

* * *

10. Claimant’s request to use the golf cart was denied.

11. Employer was not made aware that [] Claimant was requesting to use the golf cart for medical reasons.

12. Claimant advised [] Employer he wanted to use the golf cart due to walking distance.

13. Claimant did not provide any medical documents to [] Employer listing limitations or restrictions and did not notify [] Employer of any health issues.

* * *

16. When [] Claimant spoke wit h [Ms. Jenkins] on April 18, 2018, he did not advise her of any health issues, he said his request to use the golf cart due to walking distance was denied, he felt misled regarding the Assistant Manager position and many of his complaints centered around t he lack of support from [Mr. Rivera ].

17. [Ms. J enkins] spoke with [] Claimant’s supervisor [Ms. Batterton ] and [Mr. Rivera] regarding [] Claimant.

18. A few weeks later, [Ms. Jenkins] reached out to [] Claimant and they met in her office on May 3, 2018, at

w hich time [] Claimant indicated that things appeared to be getting better.

19. Claimant did the close down for the end of the school year.

20. On May 21, 2018, [] Claimant sent an email indicating [that] things were getting worse.8

21. [Ms. Jenkins] advised [] Claimant to speak with [Ms. Batterton ] and [Mr. Rivera], directly.

22. On June, 25, 2018, [] Claimant met with [Mr. Rivera] and was upset after the conversation.

* * *

24. Claimant received an email from [Ms. Batterton] advising him that he would need to work on July 3, 2018, for incoming students and the football team.

25. On June 29, 2018, [] Claimant at tempted to contact [Ms. Jenkins] but was advised she was out for the week.

26. Claimant informed Ms. Hoaty that he wanted to resign and
s he requested that he provide a resignation in writing.

27. Claimant provided a resignation which stated, in part, “Ms. Batterton [,] I need to resign from Blinn College effective immediately.”

28. Claimant was asked to complete a written Exit Interview.

29. Claimant did not lis t a reason for his decision to leave Blinn College on the Exit Interview.

(F.F. Nos

. 2

- 8, 10

- 13, 16

- 22, 24

- 29 .) The referee concluded that Claimant resigned due to working conditions. ( Referee’s Decision at 3. ) The referee determined that Employer failed to hire an Assistant Manager , which affected the number of hours Claimant worked, but that Claimant worked the entire year without an Assistant Manager , and thus, Claimant’s working conditions had not changed by the time that he resig ned

. Id . The referee credited Employer’s testimony that Claimant did not provide Employer with medical documentation with regard to his health issues. Id

. Further, the referee explained that the last incident on July 3 caused Claimant to end9

his employ ment voluntarily. Id . Finally, the referee concluded that Claimant did not provide a specific reason for his separation in his resignation nor did he speak to M s. Jenkins before he resigned. (Referee’s Decision at 4.) Thus, the referee determined
that Claimant did not establish a ne cessitous and compelling reason for quitting , act with ordinary common sense, or make a good faith effort to preserve his employment.
Id

. Claimant subsequently appealed to the Board. (C.R. at Item No. 11.)
The Board inc orporated by reference the referee’s findings and conclusions. Id

. The Board affirmed the referee’s decision
, finding that Claimant quit once he was informed he had to work on July 3, 2018, and that Claimant failed to request any accommodation paper work to use the golf cart for his medical condition. (C.R. at Item No. 14.) Based on this, the Board found that Claimant failed to establish a necessitous and compelling reason to voluntarily quit his employment. Id

. Moreover, the Board rejected Claimant’s argument that he had a necessitous and compelling reason due to a substantial and unilateral change in his employment because Claimant worked the entire school year without the Assistant Manager , and thus, there was no change in employment causing him to v oluntarily resign. Claimant now petition s this Court for review.

Discussion On appeal, 3 Claimant pu rports to raise numerous issues. H owever, in essence, the sole question before this Court is whether Claimant has successfully

3 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Ellis v. Unemployment Compensation Board of Review , 59 A.3d 1159, 1162 n.2 (Pa. Cmwlth. 2013). “ [S]ubstantial evidence is such relevant evidence as a reasonable (Footnote continued on next page...)10

prove n that he had a necessitous and compelling reason to voluntarily terminate his employment. At issue, specifically, is whether Claimant satisfied elements one, three, and four of the Brunswick Hotel test for demonstrating that he had a necessitous and compe lling reason for ending his employment. The Brunswick Hotel test provides as follows: “ (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the sa me 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)

. In support
of his position , Claimant argues that there was a substantial and unilateral change to
his employment agreement, that Claimant was unaware of the unsuitable working
conditions when he started the job, that Employer deceived Claimant as to t he conditions of his employment, and that Claimant acted with common sense and made
reasonable effor ts to preserve his employment. He also argues that his medical condition constituted a necessitous and compelling reason to quit.

Claimant explains that he agreed to work full

- time Monday through Friday from 8:00 a.m. to 5:00 p.m . He argues that he was told before he was hired that he would have help from an A ssistant M anager who would work Sunday through Thursday from 3 :00 p.m. until 12 :00 a.m

. Cl aimant argues that the Assistant Manager was never hired, and he was therefore required to work over 70 hours a
(continued...)
mind might accept as adequate to support a conclusion.” Chartiers Community Mental Health and Retardation Center v. Unemployment Compensation Board of Review , 134 A.3d 1165, 1170 (Pa. Cmwlth. 2016).11

week including weekends. Claimant maintains that the failure to hire an Assistant Manager and the excess workload constituted a substantial uni lateral change in his employment. Claimant also argues that the working conditions caused him to experience problems with his health. 4

Claimant argues that where an employee is unaware of unsuitable working conditions upon hire , good cause to termina te employment exists . Claimant
maintains that he had a necessitous and compelling reason to quit because he was
unaware of the co nditions of his employment when he accepted the job. Specifically, although he was told an Assistant Manager would be hired to assist him in his

4 Initially, we resolve whether Claimant’s alleged medical problems constituted a necessitous and compelling re ason to quit

. With regard to medical condition s , we have stated:

In general, a medical condition that limits an employee’s ability to perform work duties can provide a necessitous and compelling reason to quit one’s employment. Genetin v. Unemployment Compensation Board of Review , [] 451 A.2d 1353, 1355 ( [Pa.] 1982). In such situations, the employee is obliged to communicate his or her medical problem to the employer, but is not required to attempt “to initiate or effectuate the transfer to more suitab le work.” Id . at 1356. Thus, to establish that a medical condition is a necessitous and compelling reason for the voluntary termination of one ’ s employment, 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

. St. Clair Hospital v. Unemployment Compensation Board of Review , 154 A.3d 401, 405 (Pa. Cmwlth. 2017). In finding Employer’ s testimony more credible, the Board found that Claimant did not communicate his medical condition to the employer. On appeal, w e are precluded from disturbing this finding. See Cambria County Transit Authority (“CamTran”) v. Unemployment Compensation Bo ard of Review , 201 A.3d 941, 947 (Pa. Cmwlth. 2019). Thus, we are left to review the other circumstances that Claimant alleges constituted a necessitous and compelling reason to quit

.12

responsibilities, he was not given the help nor working the hours he was promised

. Relatedly, Claimant argues that because he was told an Assistant Manager would be hired, and one was never hired, Employer deceived him as to the basic co nditions of his employment.

Finally, Claimant argues he used common sense and took reasonable efforts to preserve his employment by repeatedly complaining about his working conditions and discussing his employmen t problems with his supervisors

. He argues that throughout the eight

- month time period he made an acceptable effort to preserve
his employment because he lodged a continual protest against his working conditions.

In response, the Board argues that there was no evidence that a
substantial and unilateral change to Claimant’s employment agreement occurred
because , for the entire time Claimant was employed, he did not work with an Assistant M anager. Moreover, the Board argues that Claimant did not take reasonable steps to preserve his employm ent because he d id not speak with Ms. Jenkins, or the vice chancellor , before he resigned. Lastly , the Board argues that Claimant did not prove that his efforts would have been futile in bringing further complaints to Employer.

Terminating Employment fo r Necessitous and Compelling Reasons

We begin with a brief overview of the general principles of what
constitutes a necessitous and compelling reason for terminating one’s employment
under the Law. Section 402(b) of the Law provides that an employee sha ll be ineligible for unemployment compensation benefits for any week in which he or she voluntarily left his or her employment without a necessitous and compelling reason. 43 P.S. § 802(b). “Whether an employee has a necessitous and compelling reason to13

voluntarily quit employment is a question of law fully reviewable by this Court.”
Brunswick Hotel , 906 A.2d at 661. A claimant who voluntarily terminates his or her employment bears the burden of proving that a necessitous and compelling cause
existed. Pe trill v. Unemployment Compensation Board of Review , 883 A.2d 714, 716 (Pa. Cmwlth. 2005).

As noted, a n employee who claims to have left employment for a necessitous and compelling reason must prove that “ (1) circumstances existed which produced real and s ubstantial 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. ” B runswick Hotel , 906 A.2d at 660

.

A. Whether Circumstances Existed which P roduced a Real and Substantial P r essure to Terminate Employment Our jurisprudence requires a c laimant to show that circumstances existed which produced real and substantial pressure to terminate employment

. Id

. “ The circumstances producing pressure to leave must be both real and substantial. ” Philadelphia Housing Authority v. Unemployment Compensation Board of Review , 29 A.3d 99, 101

- 02 (Pa. Cmwlth . 2011) (emphasis in original) (citing PECO Energy Company v. Unemployment Compensation Board of Review, 682 A. 2d 49, 51 n.1 (Pa. Cmwlth. 1996)). “It is well

- settled that an employer ’ s imposition of a substantial unilateral change in the terms of employment cons titutes a necessitous and compelling cause for an employee to terminate h[is] employment.” Morgan v. Unemployment Compensation Board of Review , 108 A.3d 181, 187

- 88 (Pa. Cmwlth

. 2015) (citing A

–

Positive Electric v. Unemployment Compensation Board of Review
, 654 A.2d 299, 302 (Pa. Cmwlth. 1995)). Whether a change is “ so substantial as to14

warrant necessitous c ause for terminating employment ” must be determined on a case by case basis. Brunswick Hotel , 906 A.2d at 660. “[S]ubstantiality is measured by the impact on the employee, and whether the change involves any real ‘difference’ in employment conditions.” McCarthy v. Unemployment Compensation Board of
Review , 829 A.2d 1266, 127 2 (Pa. Cmwlth . 2003)

. Our law is clear that “ [m]ere dissatisfaction with one ’ s working conditions does not constitute cause of a necessitous and compelling nature for terminating one ’ s employment. ” Mazur v. Unemployment Compensation Board of Review , 193 A.3d 1132, 1135

- 36 (Pa.
Cmwlth . 2018) (em

phasis in original) (quoting Brunswick Hotel
, 906 A.2d at 660 )

. The facts of this case demonstrate a substantial and unilateral change in
the terms of Claimant’s employment that placed a real and substantial pressure on him to voluntarily terminate his employment , thus , satisfying the first element of the
Brunswick Hotel test

. The agreed terms of employment between Claimant and Employer clearly stated that Claimant was to work Monday to Friday from 8 a.m. to 5 p.m. , with the help of an Assistant Manager. (F.F. No. 1.) However, Employer did not hire an Assistant Manager. (F.F. No. 5.) The Assistant Manager was supposed to be hired to help Claimant with excess workloads, maintenance requests, weekly meetings, and s taff management ; however, because an Assistant Manager was never hired, Claimant was left to perform all of the responsibilities alone. Claimant was left to manage 7 buildings, 338 rooms, and 338 students without the help of an Assistant Manager. (F.F. N o s . 3

- 5.) Specifical ly, Claimant was responsible for managing
student check

- ins and check

- outs , responding to routine and emerge ncy situations
within the building and between students, preparing reports, and managing the building s generally . ( N.T. at 11 ; F.F. No s . 6, 8.) These working conditions persisted for the entire duration of Claimant’s employment. Claimant was required to work 70

-15

80 hours a week, nearly double the time he was hired to work. Being required to work nearly double the hours Claiman t was hired to work, without assistance Employer promised him, is a substantial and unilateral change in employment conditions which occurred after he accepted the job

. This case is not one of mere dissatisfaction with working conditions, but demonstrates a meaningful departure
from the stated terms of employment

. 5

W e find our decision in Lewis v. Unemployment Compensation Board of
Review (Pa. Cmwlth. , No. 2065 C.D. 2011, filed October 1, 2012) (unreported) to be
both persuasive and instructive. 6 In Le wis , the claimant worked as a social services director for a nursing home. S lip op. at 1. The claimant explained that she performed four different roles (admissions coordinator, social worker, discharge planner, and case manager) , which were typically fi lled by two or three different employees. Id

. at 2. The claimant had worked with a part

- time assistant, but for financial reasons, her
assistant was terminated. Id

. An assistant was not rehired and the claimant assumed
the workload of her previous assistant , which increased her responsibilities

. Id

. The claimant repeatedly advised her employer about the overwhelming conditions she
faced because of the increased responsibilities. Id

. The employer did not provide the
claimant with the assistance that she requested and , therefore, she resigned. Id

. The
claimant believed that she did not receive adequate assistance. Id

. at 5. The Board
denied the claimant benefits. Id

. at 3. We concluded that the record reflected more than “mere dissatisfactio n with working conditions,” and that the claimant’s

5 As detailed below, Claimant brought these concerns to Employer on nu merous occasions and was not offered any relief.

6 Lewis is an unreported opinion. Under section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).16

increased workload was a substantial and unilateral change in her employment
conditions

. Id

. at 6.

T his Court’s decision in Broadus v. Unemployment Compensation Board of Review , 544 A.2d 1098 (Pa. Cmwlth. 1988) also provides guidance. There, the claimant was employed at a personal care home , where s he worked with a full

- time supervisor during the day. Id

. at 1099. Subsequently, the claimant’s supervisor was discharged and the claimant was al so asked to perform the supervisor’s duties un til a new supervisor was hired. Id

. C laimant was dissatisfied with her increased responsibilities and, specifically, having to do the work of two people. Id . After two weeks, the claimant asked why a replac ement had not been hired. Id

. at 1100.
Because of her dis satisfaction and because a full

- time day supervisor was not hired, the claimant resigned. Id

. We concluded that the claimant experienced a substantial unilateral change in her employment conditio ns because she was required to run the personal care home by herself. Id

.

The instant matter is similar to Lewis . Like the claimant in Lewis , Claimant face d a dramatically increased work load because of a lack of assistance. Because the Assistant Manager was never hired, Claimant was required to perform all of the duties alone, which resulted in him working nearly double the hours he was
hired to work

. Similar to Lewis , Claimant requested help and asked when the
Assistant Man ager would be hired. Like the claimant in Lewis , Claimant repeatedly
advised E mployer of the overwhelming conditions. Claimant brought his complaints to Ms. Batterton, Mr. Rivera, and Ms. Jenkins on numerous occasions. However, as
in Lewis , Employer ign ored Claimant’s requests for help and refused to provide assistance. Thus, like Lewis , we conclude , here, that the dramatic increase in17

Claimant’s workload, caused by a lack of assistance
, constitute d a substantial change in his employment and caused a re al and substantial pressure to end his employment.

Moreover, like the claimant in Broadus , Claimant informed Employer of
his dissatisfaction with his working conditions and asked when a replacement would
be hired. The claimant in Broadus waited approximately two months before resigning because of the unsatisfactory working conditions, while Claimant , over the course of eight months, continually asked and attempted to improve hi s situation

. Thus, Broadus supports the conclusion that , because Clai mant worked without assistance for eight months and was overwhelmed by the magnitude of his responsibilities , he was justified in terminating his employment.

The Board also concluded that there could not have been a substantial unilateral change in Claima nt’s employment situation because he worked under the
same conditions for the entirety of his employment

. W e disagree.

Once an employee has accepted the terms of employment, it is assumed that the conditions of employment are acceptable. Speck v. Unem ployment Compensation Board of Review , 680 A.2d 27, 30 (Pa. Cmwlth. 1996). “ [An] [e] mployee may not later assert that dissatisfaction with those terms constitutes a necessitous and compelling reason, unless there has been a chan ge in the employment
condit ions [,] the employee was deceived by the employer [,] or the employee was reasonably unaware of the unsuitable conditions when he accepted the position.” Id. However, the claim of being deceived or being unaware of employment conditions can only go so far; “once an employee has accepted new employment terms, he ha s admitted to their suitability[], and therefore any later
di ssatisfaction with those terms,[] would not constitute cause of a necessitous and18

compelling nature.” Romao v. Unemployment Compensation Board of Review , 443 A.2d 1217, 1218 (Pa. Cmwlth. 1982) (citations omitted).

Here, when Claimant accepted his position he was unaware of the unsuitable conditions of his employment because he was specifically told by Employer , before he was hired, and th roughout most of his employment that he
would receive assistance from an Assistant Manager. However, an Assistant Manager was never hired. Clearly, these were not the working conditions to which Claimant had initially agreed . Moreover, t he findings of fact demonstrate that , throughout the duration of his employment , Claimant lodged a continual protest as to his working conditions. Thus, there was a substantial unilateral change to the employment agreement by Employer which Claimant did not accept, as e videnced by his continual complaints about his working conditions. B ased on t he foregoing, we
conclude that circumstances existed which produced real and substantial pressure to terminate employment

.

B. Whether Claimant acted with Ordinary Common Sense and Made a Reasonable Ef fort to Preserve his Employment Because we conclude that Claimant has satisfied element one of the
Brunswick Hotel test, w e turn to whether Claimant has met element s three and four

. E lements three and four of the Brunswick Hotel test require Claimant to prove that he (a) acted with ordinary common sense, and (b) made a reasonable effort to preserve
his employment. 7

7 The second elem ent of the Brunswick Hotel test, which requires a claimant to prove that the circumstances which created a substantial and real pressure to terminate his employment would compel a reasonable person to act in the same manner , is unaddressed by either party

. However, to the extent analysis is necessary, we conclude that a reasonable person would have felt compelled to act in the same manner.19

“Claimants have the duty to take all necessary and reasonable steps to preserve employment.” Anchor Darling Valve Co. v. Unemployment Compensation Board of Review , 598 A.2d 647, 649 (Pa. Cmwlth. 1991). A claimant bears the
burden of proving that he took all necessary and reasonable steps to preserve the employment relationship. PECO Energy Co. v. Unemployment Compensati on Board of Review , 682 A.2d 58, 61 (Pa. Cmwlth. 1996). A claimant must communicate the offending conduct to his employer prior to voluntarily quitting. Moskovitz v. Unemployment Compensation Board of Review , 635 A.2d 723, 724 (Pa. Cmwlth. 1993). “ If th e employer promises to take action to alleviate the problem, good faith requires that the employee continue worki ng until or unless the employer’ s action proves ineffectual. ” Craighead

- Jenkins v. Unemployment Compensation Board of
Review , 796 A.2d 1031, 1 034 (Pa. Cmwlth . 2002) (citing Donaldson v. Unemployment Compensation Board of Review , 434 A.2d 912 (Pa. Cmwlth. 1981 ) ).
When offered a possible solution to the necessitous and compelling condition, a claimant may not speculate that the proposed change is unsuitable; he must give the arrangement a chance in an attempt to preserve his employment. Monaco v. Unemployment Compensation Board of Review , 565 A.2d 127, 131 (Pa. 1989) (denying benefits where two employees speculated that their new pay structure would be unsatisfactory but did not give the new pay structure a chance before terminating their employment ). Failing to attempt an empl oyer’ s new proposed arrangement to alleviate the necessitous and compelling condition will not support a find ing that the employer’ s modifications were unreasonable. Unangst v. Unemployment Compensation Board of Review , 690 A.2d 1305, 1308 (Pa. Cmwlth. 19 97) (holding that a claimant did not prove the job modifications were unreasonable and rose to the level that would compel a reasonable person to terminate her employment where she20

did not attempt the new position offered to her and merely speculated that her workload would be increased). We conclude , here, that based on the facts that the Board found to be credible, Claimant met his burden of proving that he acted with ordinary common sense and made reasonable efforts to preserve his employment.

As expl ained above, Claimant was faced with real and substantial pressure to terminate his employment. In the face of this pressure, Claimant took the following steps to p reserve his employment. Claimant asked his supervisor , Ms.
Batterton , when the Assistant M anager would be hired. (F.F. No. 5.) Claimant asked Ms. Batterton for help, but she advised him that he d id not need any help. (F.F. No. 7.) Claimant told Ms. Jenkins on April 18, 2018, that he felt misled regarding the Assistant Manager position and that he was not getting support from Mr. Rivera. (F.F. No. 16.) Ms. Jenkins later spoke with Ms. Batterton and Mr. Rivera regarding
Claimant. (F.F. No. 17.) A few weeks later , on May 3, 2018, Claimant and Ms. Jenkins met in her office, and at that time C laimant indicated that things appeared to be getting better. (F.F. No. 18.) However, o n May 21, 2018, Claimant sent an email indicating that his situation had worsened . (F.F. No. 20.) Ms. Jenkins then advised Claimant to speak with Ms. Batterton an d Mr. Rivera directly. (F.F. No. 21.) On June 25, 2018, Claimant spoke with Mr. Rivera and was upset a fter the conversation. (F.F. No. 22.) Claimant received an email from Ms. Batterton advising him that he would
need to work on July 3, 2018. (F.F. No. 24.) O n June 29, 2018, Claimant attempted to contact Ms. Jenkins, but was unsuccessful as she was out for the week. (F.F. No. 25.) Claimant info rmed Ms. Hoaty that he wanted to resign, and she requested that he put his r esignation in writing. (F.F. No. 26.) Cl aimant resigned in writing. (F.F. at No. 27.) Thus, we accept, as we must , that these are all facts found by the Board to
be credible.21

O ver the course of Claimant’s employment, Employer failed to alleviate
the issues that Claimant raised regarding his w orking conditions. Claimant reached out to his supervisors and human resources perso n nel on numerous occasions in an attempt to preserve his employment. Yet, instead of being helped, Claimant was told that he did not need help, and his conditions did not improve

. These facts illustrate that Claimant acted with ordinary common sense and acted reasonably in preserving his employment ; the Board’s conclusion to the c ontr ary is not in accordance with the
law

. Our disposition in Brunswick Hotel is similar to the instant matter . In
Brunswick Hotel , the claimant was employed as a comptroller. 906 A.2d at 659. The business changed hands, and th e new employer informed the claimant that it would
make heal th insurance benefits available and her employment would remain the

same. Id

. Prior to the change of ownership, the claimant was provided with a total benefit package completely funded by the employer. Id

. The claimant c ontinually
asked about her health insurance benefits

. Id

. However, t he employer did not provide health insurance, and the claimant voluntarily ended her employment because
of the continued lack of health benefits. Id

. at 660. The c laimant worked for ei ght
months without health insurance. Id

. at 663. This Court concluded that the Board correctly determined that claimant made a reasonable effort to preserve her employment by waiting eight months to receive health benefits. Id

. at 662.

Our decision in Mauro v. Unemployment Compensation Board of
Review , 751 A.2d 276, 278 (Pa. Cmwlth. 2000) also provides guidance

. In Mauro , the claimant worked as a carpenter/foreman. Id

. At his job interview the claimant told his employer, in essence, that he was a sin gle parent with a child who was at daycare during the day , and thus, his work schedule needed to coincide with his22

daughter’s daycare schedule. Id

. Furthermore, the claimant told the employer that he could work at one location, but not “all over.” Id

. However, only a few days into the claimant’s employ ment, the employer required him to work longer hours at different
locations. Id

. Before he quit, the claimant asked his employer if “ something [] could
be worked out ” between him and the employer because of his daughter’s daycare
schedule. Id

. The Board denied the claimant benefits because the claimant did not request a specific change in his work hours when he quit. Id

. at 279. This Cour t concluded that the Board erred, and reversed its decision. Id

. We explained that , based on the facts as found by the Board, the claimant had taken reasonable steps to preserve his employment when he asked if something could be worked out between
him and his employer. Id

.

Here, over the course of eight months, Cl aimant was even more diligent than the employee in Brunswick Hotel in attempting to preserve his employment. The findings of fact in this case illustrate a more detailed exchange between Claimant
and Employer than the employee in Brunswick Hotel and her e mployer. Instead of sitting idly for eight months and merely ask ing questions as to when he would receive a benefit, Claimant actively participated in improving his situation by speaking with his supervisors and seeking assistance from human resources per sonnel on multiple
occasions

. 8 Moreover, Claimant’s effort to preserve his employment was greater than
the claimant in Mauro . The claimant in Mauro attempted to resolve the situation with his employer a single time, whereas, Claimant attempted numerous times t o remedy the problem situation. Thus, we conclude that the Board’s decision is not in

8 This decision should not be construed as prescribing a requirement that a claimant make a specific number of attempts to speak with his or her superiors to preserve his or her employment.2 3

accordance with the l aw, because Claimant acted with common sense and reason in attempting to preserve his employment situation.

T he Board also argues that , al though Claimant had concerns about his job, he did not express his continued concerns to Ms. Jenkins or to the vice chancellor of his department. Moreover, the Board argues that Claimant did not prove that speaking to these individuals would have been fut ile because , when Claimant spoke with them before, his situation improved , albeit briefly. We disagree.

Although common sense and reasonable effort include informing a supervisor or other management of dissatisfaction, Moskovitz , 635 A.2d at 724, a
claim ant may be excused from reporting problem atic work conditions if he or she reasonably believed that reporting would have been futile. Martin v. Unemployment Compensation Board of Review , 749 A.2d 541, 544 (Pa. Cmwlth. 2000); s ee also Devon Preparatory Sch ool v. Unemployment Compensation Board of Review (Pa.
Cmwlth. , No. 1298 C.D. 2018, filed July 15, 2019) (unreported) slip op. at 9 ; Serrano v. Unemployment Compensation Board of Review , 149 A. 3d 435, 440 (Pa. Cmwlth. 2016). 9 We disagree with the Board’s a rgument, and conclude that i t would have been futile for Claimant to bring his concerns to the vice chancellor or Ms. Jenkins.
As the credited facts demonstrate , Claimant complained on numerous occasions over an eight

- month period to his direct supervisors and nothing changed. When he

9 Mauro is also instructive on the point of futility. In Mauro , when the c laimant asked if anything could be worked out between him, employer, and his daughter’s daycare, he was told that “you got to do what you got do to” by his employer. Mauro , 751 A.2d at 279. We concluded that this statement supported the conclusion that the clai mant’s efforts in pursuing the matter further would have been futile. Id

. This supports our conclusion on futility because Claimant spoke to Employer numerous times, and received no help, whereas, the claimant in Mauro only spoke to his employer once. M oreover, Claimant was told that he had better “work [his] butt off or this is not the right job for [him].” ( N.T. at 22 ; F.F. No. 22.)24

complained to Ms. Jenkins , his situation improved only temporarily , but then
worsened soon after . He again complained to his direct supervisors , and again, nothing changed. Given Employer’s past fa ilure to remedy Claimant’s complaints,

a nother complaint would have been a futile exercise , the Board’s argument to the contrary is incorrect as a matter of law

. 10

Conclusion
Claimant has satisfied the Brunswick Hotel test. Summarily, Claimant
has show n that there was real and substantial pressure to voluntarily terminate his employment because of the drastically increased work load and that he acted with ordinary common sense and reason in attempting to preserve his employment.

Accordingly, the order of the Board, dated January 8, 2019 , is reversed

.

________________________________ PATRICIA A. McCULLOUGH, Judge

10 The Board argues that under Keller v. Unemployment Compensation Board of Review (Pa. Cmwlth., Nos. 790 & 791 C.D. 2016, filed March 29, 2017) (unreported) , the failure to inform an employer that its efforts at improving a work situation have been ineffectual are fatal to a claimant’s case. Although we do not question the soundness o f our decision in Keller , it is readily distinguishable from the present facts. Keller concerned a situation where the claimant complained to his employer a single time about allegedly harassing working conditions. Slip op. at 6. However, after the hara ssing behavior allegedly continued, the claimant did not complain to his employer again. As explained at length above, this case presents a scenario where Claimant complained to Employer on numerous occasions, and thus , it is factually distinguishable.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daryl Yingling, :

Petitioner :

: No. 127 C.D. 2019
v. : : Unemployment Compensation : Board of Review, :

Respondent :

ORDER

AND NOW, this 2 8 th day of February , 2020 , the order of the Unemployment Compensation Board of Review , dated January 8, 2019 , is
reversed

.

________________________________ PATRICIA A. McCULLOUGH, Judge