IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clint B. Kephart, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1176 C.D. 2022

Respondent : Submitted: October 10, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: December 15, 2023

Clint B. Kephart (Claimant), pro se, petitions for review of the July 29, 

2022 order of the Unemployment Compensation Board of Review (Board) affirming 

the unemployment compensation appeals referee’s (referee) denial of

unemployment compensation benefits (benefits) under Section 402(b) of the 

Unemployment Compensation Law (Law),1 43 P.S. § 802(b)).2 Upon review, we 

affirm.

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

§ 802(b).

2 Pursuant to Section 402(b) of the Law, “[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).
2

I. Background

In August 2001, Claimant began working for Fahrney Bus Company 

(Employer), which provides bus service to a school district. Certified Record (C.R.) 

at 131. On August 22, 2021, Claimant resigned as bus manager, but agreed to remain 

in Employer’s employ as a bus driver. Id. At the time, federal and state agencies 

and the local school district mandated the use of masks by school bus drivers and 

students. C.R. at 131. Claimant wore a “face covering”3 while working for 

Employer during the 2020-2021 school year but refused to do so the following 

school year. Id. at 132. Claimant provided Employer a doctor’s note stating that he 

was “intolerant to wearing a surgical mask due to [a] medical issue” and requesting 

permission to wear a “modified face covering,” such as “masking mouth with face 

shield.” Id. at 113. Employer acquiesced to Claimant’s request.4 Id. at 131. 

However, Claimant thereafter refused to adhere to this accommodation, asserting it 

was incompatible with the sunglasses necessitated by a prior eye injury. Id. at 132.5 

On September 2, 2021, the school district related to Employer that Claimant was not 

wearing a mask, and Employer informed Claimant the same day that he would not 

3 Claimant testified that he wore a face mask during the 2020-2021 school year. C.R. at 

109.

4 The doctor’s note provided by Claimant to Employer stated that the “[p]atient is intolerant 

to wearing a surgical mask due to [a] medical issue. Please allow [him] to wear a modified face 

covering (ex: masking mouth with face shield).” C.R. at 113.

5 Employer stated in the Basic Claim Information form that Claimant “indicated that [he] 

was not going to wear a mask, period!” C.R. at 9.
3

be permitted to drive a school bus without also wearing a “face covering.”

6

 C.R. at 

104 & 131. September 2, 2021 was Claimant’s last day of work for Employer.

7

 Id. 

The Pennsylvania Department of Labor & Industry, Office of 

Unemployment Compensation Benefits (Department), denied Claimant benefits on 

the basis that he “left [his] employment because of personal or other reasons,” 

concluding that Claimant’s “separation from employment was not warranted” and 

that Claimant “did not exhaust all alternatives prior to quitting [his] job.” C.R. at 61 

(citing Section 402(b) of the Law, 43 P.S. § 802(b)). Claimant appealed the denial, 

asserting that he “wrongfully lost [his] job.” Id. at 72. 

In May 2022, the referee conducted a telephonic hearing in which both 

Claimant and Employer participated. See C.R. at 94 & 131. The following day, the

referee affirmed the Department’s denial of benefits under Section 402(b) of the 

Law, 43 P.S. § 802(b). See C.R. at 131-34. Highlighting Employer’s instruction 

that Claimant would not be permitted to drive without wearing a face covering, the 

referee determined that Claimant “chose” to disregard Employer’s requirement and 

that continuing work would have been available in the event of Claimant’s

compliance. Id. at 132. The referee further noted that Claimant obeyed the mask 

mandate during the 2020-2021 school year. Id. Moreover, the referee pointed out

that the doctor’s note submitted by Claimant to Employer stated that Claimant was 

able to wear a face shield. Id. The referee also underscored the fact that “[C]laimant 

did not attempt an alternative face covering such as a face shield prior to leaving his 

6 Claimant acknowledged in his benefits questionnaire that he “[w]as told that [he was] not 

allowed to operate [a] school bus without a mask.” C.R. at 22.

7 The record does not indicate whether Claimant did not return or tried to return without a 

mask and was sent home. In either case, our analysis and conclusion are the same.
4

employment.”8 Accordingly, the referee concluded that Claimant voluntarily quit 

absent necessitous and compelling cause.9 Id. 

8 The Basic Claim Information Form contains the following statement from Employer:

[T]he school district we contract with along with the [Pennsylvania] 

Department of Health require face coverings while driving a school 

bus. For [i]ndividuals who provide a doctor’s note, reasonable 

accommodations would be made. Suggested accommodations from 

wearing a face covering while students are present are as follows: 

All drivers are expected to wear the face covering properly . . . while 

students are loading and unloading (walking by the driver). While 

driving the employee could lower the face covering below the nose. 

If necessary, the next level of accommodation would be below the 

mouth with the expectations that while students are loading and 

unloading they pull the face covering back up. A face shield was 

also suggested as a possible accommodation. This individual 

provided a doctor’s note dated 9/3/2020 which . . . suggested a 

modified face covering (mask over mouth with a face shield).

C.R. at 8-9. Employer subsequently testified that “there [was] no accommodation available for

someone who flat out refuse[d] to wear the mask.” Id. at 104. 

Claimant testified that “most of the time” he wore a mask during the 2020-2021 school 

year it covered only his chin, and that although he attempted to pull the mask up whenever children 

walked by, “it created such mental anguish[ that he] felt . . . unsafe driving.” C.R. at 109. Claimant 

further testified that he was “diagnosed with [post-traumatic stress disorder], and it caused extreme 

emotional stress for [him] to wear [a] mask.” C.R. at 106. Thus, Claimant maintained that he was 

“unable to wear a mask.” Id. at 107. We note, however, that the doctor’s note provided by 

Claimant to Employer requested masking his mouth while wearing a face shield. Id. at 113. 

9 The referee further stated that “[e]ven if [she] considered . . . Section 402(e) of the Law, 

the outcome would not change and [] [C]laimant would be ineligible under [that provision] as 

well.” C.R. at 132 (citing 43 P.S. § 802(e) (providing that [a]n employe shall be ineligible for 

compensation for any week . . . [i]n which his unemployment is due to his discharge . . . from work 

for willful misconduct connected with his work”).
5

Claimant appealed to the Board, which affirmed by order dated July 29, 

2022.

10

 See C.R. at 141-42 & 150. The Board adopted and incorporated the referee’s 

findings and conclusions, and further found that “[C]laimant voluntarily left his 

employment because he disagreed with . . . [E]mployer’s policy and refused to wear 

a face shield at work.” Id. at 150. The Board also denied Claimant’s request for a 

remand hearing to offer additional evidence, determining that “the parties had the 

opportunity for a full and fair hearing,” that “[t]he record [was] sufficiently complete 

to enable the Board to reach its decision” and that “[C]laimant ha[d] not advanced a 

legally sufficient reason for the granting of a remand hearing.” Id. at 150-51. 

II. Issues

Before this Court,11 Claimant argues that the Board erred in affirming 

the denial of benefits. See Claimant’s Br. at 12-14. Claimant contends that the 

“evidence was not weighed evenly” and, further, that he is “[n]ot sure all evidence 

was even looked at[.]” Id. at 12. Claimant asserts that his “initial application for 

10 Claimant stated the following in his appeal form:

I wish to submit further evidence[] that even though there was a 

doctor’s note[] giving an ‘example’ of an accommodation, that does 

not necessarily mean that WAS the accommodation. As well as[] 

when I had the phone call with Richard Linder, [Employer’s 

President and Chief Executive Officer,] he did not offer a 

conversation about any other options available, including 

accommodations that he offered other drivers in his employ.

C.R. at 24 & 141-42. 

11 This Court’s review is limited to a determination of whether substantial evidence 

supported necessary findings of fact, whether errors of law were committed, or whether 

constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Rev., 87 A.3d 1006, 

1009 n.2 (Pa. Cmwlth. 2014).
6

benefits . . . wasn’t reviewed upon appeal, which specified more reasons than just a 

mask” for “stepp[ing] down.” Id. Claimant also maintains that he complained in 

his application for benefits that Employer was short staffed, which created “immense 

pressure and duress.” Id. Further, Claimant contends that “[o]nce [his] wife’s job 

was at issue,” it made him “just want to give up.” Id.

Moreover, Claimant contends that “[E]mployer came before Labor[ &]

Industry[ and] created false documents, along with false testimony.” Claimant’s Br. 

at 12 (citing Transcript of Testimony, 5/16/22 at 7-17). Claimant also contends that 

his request for the opportunity to provide “rebuttal testimony from [first-hand]

witnesses” at a remand hearing was denied.12 Id. Thus, Claimant maintains that the 

Board erred by “not reviewing the [t]ranscript and allowing a [r]emand [h]earing, so 

a proper order/decision could be reached.” Id. Further, Claimant alleges that a 

conversation with Employer regarding “suggested options for masks . . . never took 

place.” Id. Claimant also contends that “if [he] had been offered a ‘reasonable 

accommodation’ per Title 7, Section 12,13 that would have addressed [his] eye injury 

and breathing issues, [he] would have absolutely been willing to try a chin shield.”

14

 

12 Claimant alleges in the “Summary Argument” portion of this brief that he “requested a 

remand hearing . . . to present witnesses that know the truth,” as “these options were not 

[available].” Claimant’s Br. at 11. Claimant further asserts that “[w]hen he became aware of 

possible testimony those witnesses were intimidated and they became fearful for their jobs, 

because they saw [him] and [his] wife lose [their] jobs.” Claimant’s Br. at 11.

13 Claimant presumably cites Title VII of the United States Code, but it is unclear what 

specific provision he means to cite.

14 In the portion of his appellate brief titled “Summary Argument (Pa[.]R.A.P. 2118),” 

Claimant alleges he informed Employer that he could not wear a mask or full face shield “due to 

glare on injured eye.” Claimant’s Br. at 9. Claimant maintains that “[i]f [Employer] was truly 

offering all these options, the chin shield (forbidden) would have saved [his] job, as [he] could 

wear sunglasses and have the ability to breathe.” Claimant’s Br. at 11. Claimant fails to specify
7

Claimant’s Br. at 13. Claimant insists that “[he] was never offered these ‘reasonable 

accommodations,’” and that “[i]t is incumbent on [] [E]mployer to have these

discussions with well[-]qualified employees.” Id.

Accordingly, Claimant requests that the Court “overturn[]” this case 

due to “duress and falsification of evidence and testimony by [E]mployer.” Id. at 

14. Alternatively, Claimant asks this Court to remand the matter for a hearing to 

permit “an impartial [j]udge [to] allow witnesses and decide this case fairly based 

upon the preponderance of the evidence.”15 Id.

The Board counters that Claimant voluntarily quit to avoid compliance

with Employer’s face-covering requirement. See Board’s Br. at 11-12 (citing 

Greenray Indus. v. Unemployment Comp. Bd. of Rev., 135 A.3d 1140 (Pa. Cmwlth. 

2016)). The Board maintains that Claimant’s purported inability to wear a face 

covering did not constitute necessitous and compelling cause to separate from 

Employer, highlighting Employer’s approval of Claimant’s doctor’s note requesting 

use of a face shield as an alternative to the mask requirement. See id. at 12-15. 

Further, the Board asserts that it did not err in denying Claimant’s request for a 

remand hearing, as the parties had the opportunity for a full and fair hearing. Id. at 

17-19.

the difference between a chin shield and a face shield; presumably, a chin shield is shorter than a 

face shield.

15 Confusingly, Claimant requested that “a [r]emand [h]earing with witnesses be scheduled 

before this Commonwealth Court.” Claimant’s Br. at 14 (emphasis added). 
8

III. Discussion

We agree that the Board did not err in affirming the denial of benefits

on the basis that Claimant lacked necessitous and compelling cause to quit.

16

 The 

Board adopted the referee’s findings that Employer informed Claimant he would be 

unable to drive a bus without wearing a face covering and that Claimant refused to 

comply. C.R. at 131-32. The Board further found that “[C]laimant voluntarily left 

his employment because he disagreed with [] [E]mployer’s policy and refused to 

wear a face shield at work.” Id. at 150.

17

 Claimant failed to challenge these factual 

16 “A claimant who voluntarily terminates his employment has the burden of proving that 

a necessitous and compelling cause existed.” Solar Innovations, Inc. v. Unemployment Comp. Bd. 

of Rev., 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012); see 43 P.S. § 802(b). An employee who claims

to have left his employ for a necessitous and compelling reason must prove:

(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 & Conf. Ctr., LLC v. Unemployment Comp. Bd. of Rev., 906 A.2d 657, 660 (Pa. 

Cmwlth. 2006). “Whether a claimant had cause of a necessitous and compelling nature to quit a 

job is a conclusion of law subject to review by this Court.” Warwick v. Unemployment Comp. Bd. 

of Rev., 700 A.2d 594, 596 (Pa. Cmwlth. 1997).

17 Richard Linder testified as follows:

[On September 2, 2021,] I received information from the school 

district, involving . . . [Claimant] . . . supposedly not wearing a mask 

while . . . driving. At that point, I made the point to talk to [him], 

and that’s when [he] informed me that, no, [he was] not wearing a 

mask. And I went through the whole litany of what’s expected. That 

you have to do this, and there’s accommodations available to [him], 

and [he] still said [he] would not wear the mask. And at that point I 

just made the statement that, well, until you are prepared to wear the 

mask, you can’t drive. . . . [Claimant] just didn’t want to wear one.
9

findings; thus, “they are conclusive on appeal.” Gibson v. Unemployment Comp. 

Bd. of Rev., 760 A.2d 492, 494 (Pa. Cmwlth. 2000); see also Claimant’s Br. at 12 

(conceding that he “stepped down” from employment). 

This Court has held that “[m]ere dissatisfaction with one’s working 

conditions is not a necessitous and compelling reason for terminating one’s 

employment.” Spadaro v. Unemployment Comp. Bd. of Rev., 850 A.2d 855, 860 

(Pa. Cmwlth. 2004) (citing McKeown v. Unemployment Comp. Bd. of Rev., 442 A.2d 

1257 (Pa. Cmwlth. 1982)); see also Creason v. Unemployment Comp. Bd. of Rev., 

554 A.2d 177, 179 (Pa. Cmwlth. 1989) (“It is well settled that a disagreement with 

employer policy . . . do[es] not constitute necessitous and compelling reasons for 

voluntarily terminating employment.”). Moreover, despite testifying that he 

discussed his medical exemption with Employer “many times,”18 the referee found 

that Claimant nevertheless failed to demonstrate that he exhausted all alternatives 

prior to quitting. See C.R. 106; Porco v. Unemployment Comp. Bd. of Rev., 828 

A.2d 426, 428 (Pa. Cmwlth. 2003) (explaining that a claimant must establish that he 

first “exhausted all alternatives in order to preserve the employment relationship” in 

order to demonstrate necessitous and compelling cause justifying a voluntary quit).

Accordingly, we agree with the Board that Claimant’s desire to avoid 

compliance with Employer’s directive that employees wear a face covering while 

driving a school bus did not constitute a necessitous and compelling reason to 

voluntarily quit. Cf. Greenray Indus., 135 A.3d at 1142-46 (holding that claimants’ 

refusal to sign a nondisclosure agreement following employer’s ultimatum that 

C.R. at 104.

18 As stated above, however, Claimant inconsistently asserted in his brief that a discussion 

regarding “options for masks . . . never took place[.]” Claimant’s Br. at 12.
10

continued employment was contingent upon signing did not constitute necessitous 

and compelling cause to resign, where “[t]he [a]greement that [the c]laimant[s] 

w[ere] required to sign was not a substantial unilateral change in the conditions of 

[their] employment that would have placed real and substantial pressures on a 

reasonable person in [their] circumstances to quit,” noting that the [a]greement did 

not change [the c]laimant[s’] rate of pay, nor did it change [their] job 

responsibilities”); Shrum v. Unemployment Comp. Bd. of Rev., 690 A.2d 796, 798 

(Pa. Cmwlth. 1997) (affirming the Board’s denial of benefits on the basis that 

claimant lacked necessitous and compelling cause to quit, where claimant refused to 

comply with employer’s requirement to sign confidentiality agreement); Fayette 

Cnty. v. Unemployment Comp. Bd. of Rev., 479 A.2d 1153, 1155 (Pa. Cmwlth. 

1984), aff’d sub nom. Snyder v. Unemployment Comp. Bd. of Rev., 502 A.2d 1232 

(Pa. 1985) (holding that a claimant lacked necessitous and compelling cause to 

voluntarily quit her employment, where she rejected her employer’s ultimatum to 

refrain from seeking public office in order to maintain employment, reasoning that 

“[h]er resignation was a deliberate rejection of the employment conditions that 

proscribed her candidacy”).

IV. Conclusion 

For the foregoing reasons, we affirm.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

Judge McCullough concurs in the result only.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clint B. Kephart, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1176 C.D. 2022

Respondent :

O R D E R

AND NOW, this 15th day of December, 2023, the July 29, 2022 order 

of the Unemployment Compensation Board of Review is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge