IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. French, Sr., :

Petitioner :

:

v. : No. 241 C.D. 2016

: Submitted: January 27, 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: May 18, 2017 

Petitioner Michael A. French, Sr. (Claimant) petitions for review of an 

order of the Unemployment Compensation Board of Review (Board), dated 

January 12, 2016. The Board reversed the Referee’s grant of Claimant’s

unemployment compensation benefits pursuant to Section 402(b) of the 

Unemployment Compensation Law (Law),1relating to voluntary separation 

 

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

§ 802(b).
2

without cause of a necessitous and compelling nature.

2

 We affirm the Board’s 

decision.

Claimant filed for unemployment compensation benefits after 

voluntarily quitting his position as a full-time hand printer for American Process 

Lettering (Employer). The Duquesne Unemployment Compensation Service 

Center (Service Center) issued a Notice of Determination, finding Claimant 

ineligible for benefits under Section 402(b) of the Law. (Certified Record (C.R.), 

Item No. 5.) The Service Center reasoned that Claimant failed to meet his burden 

to prove a necessitous and compelling reason for quitting. (Id.) Claimant 

appealed the Service Center’s determination, and a Referee conducted an 

evidentiary hearing. 

Claimant testified that he suffered severe migraines as a result of a 

motor vehicle accident that happened on October 12, 2014. (C.R., Item No. 9 

at 4-5.) To help keep his migraines under control, he wore sunglasses. (Id. at 4.) 

 

2

Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for 

compensation for any week in which the claimant’s “unemployment is due to voluntarily leaving 

work without cause of a necessitous and compelling nature.” Whether a claimant had cause of a 

necessitous and compelling nature for leaving work is a question of law subject to this Court’s 

review. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 

906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits his employment 

“bears the burden of proving that necessitous and compelling reasons motivated that decision.” 

Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), 

appeal denied, 794 A.2d 364 (Pa. 1999). To establish cause of a necessitous and compelling 

nature, a claimant must establish that (1) circumstances existed that 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 his employment. Procito v. Unemployment Comp. Bd. of 

Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
3

He had a doctor’s note to wear sunglasses. (Id.) He offered to show this note to 

Employer’s President, Gary Huddell, in February of 2015. (Id. at 6.) He testified 

that Employer did not have an issue with him wearing sunglasses until 

August 21, 2015, when his immediate supervisor, Tom Weber, told Claimant to 

take off his sunglasses. (Id. at 5.) Claimant attempted to show the documentation 

to Mr. Weber. (Id. at 7.) Mr. Weber sent him home. (Id.) Before Claimant left, 

Mr. Weber told him that Employer would try and find another job that he could do. 

(Id. at 12.) After this incident, Claimant testified that he was sent home two 

additional times, and he believed he was fired after the third time. (Id. at 6.) 

Claimant further testified that Mr. Weber said on the last day that Employer was 

unable to find him work, but Mr. Weber requested that Claimant speak to the 

owners. (Id. at 13.)

Mr. Weber and Mr. Huddell testified on behalf of Employer. 

Mr. Weber testified that Claimant told him about his migraine headaches. (Id. at 

9.) Mr. Weber told Claimant on August 21, 2015, that Claimant could either take 

off his sunglasses or go home. (Id. at 10.) Mr. Weber testified that he did not state 

that if Claimant did not remove his sunglasses, Claimant could no longer work for 

Employer. (Id.) On August 24, 2015, Claimant reported to work wearing 

sunglasses. (Id. at 10.) Mr. Weber told Claimant that Claimant could not work 

with sunglasses because the sunglasses were a safety hazard and created a quality 

assurance concern. (Id.) Mr. Weber asked to wear the sunglasses to determine if 

Claimant could properly see colors. (Id.) Mr. Weber determined that Claimant 

could not see colors properly while wearing the sunglasses. (Id.) Mr. Weber then 

sent Claimant home. (Id. at 11.) After Claimant left, Mr. Weber spoke to Mr. 

Huddell. (Id.) Mr. Weber and Mr. Huddell determined that Claimant could be 
4

moved to his old position in the packaging department. (Id.) Mr. Weber testified 

that on August 25, 2015, Claimant reported to the office prior to Claimant’s shift. 

(Id.) Claimant was agitated, and Mr. Weber tried to calm him down. (Id.) Mr. 

Weber told Claimant to wait for the owners to discuss what job Claimant could do. 

(Id. at 11-12.) Claimant left before the owners arrived. (Id. at 12.) Before 

Claimant left, Mr. Weber told Claimant that the owners would contact him in order 

to work something out. (Id.)

Mr. Huddell testified that when Claimant was first sent home, 

Mr. Huddell asked Mr. Weber to wear the sunglasses to determine if Claimant 

could properly perform the job. (Id. at 14). Mr. Huddell further testified that he 

discussed with Mr. Weber what other position would be suitable for Claimant 

while Claimant was wearing sunglasses. (Id.) After Claimant left on 

August 25, 2015, Mr. Huddell testified that he and Shelly Aguilera, the Accounting 

Human Resources Coordinator, contacted Claimant by email and telephone on the 

same day. (Id. at 15.) Mr. Huddell also testified that three days later, he sent a 

certified letter to Claimant that stated that Mr. Huddell assumed that Claimant was 

not returning to work. (Id.) Mr. Huddell stated that he wanted to help out 

Claimant and find another position that Claimant could do. (Id.) Mr. Huddell 

testified that he did not want Claimant to do printing work where he could not see 

the quality of the colors because of the sunglasses. (Id.)

Following the hearing, the Referee issued a decision and order,

reversing the Service Center’s determination. (C.R., Item No. 10.) The Referee 

determined that Claimant voluntarily terminated his employment for a necessitous 

and compelling reason. (Id.) The Referee explained that Claimant “had work 
5

place restrictions as a result of a head injury which the Employer refused to 

immediately accommodate.” (Id.) 

Employer appealed to the Board, which reversed the Referee’s 

decision and order. (C.R., Item No. 12.) In so doing, the Board made its own

findings of fact and conclusions of law. The Board made the following findings of 

fact:

1. The claimant was last employed as a full-time 

hand printer by American Process Lettering from 

September 9, 2013, until August 25, 2015, at a 

final rate of $10.00 per hour.

2. The employer’s hand printers use machines to 

screen print. The hand printer must be able to 

differentiate between colors, match colors, and 

check small details for quality assurance purposes.

3. Hand printers operate heavy machinery to perform 

their job.

4. In October 2014, the claimant was involved in a 

serious motor vehicle accident. The claimant 

sustained a serious head injury.

5. As a result of the head injury, the claimant suffered 

from severe migraines as a result of the accident.

6. The employer understood the claimant suffered 

from severe migraines as a result of the accident.

7. The claimant’s doctor recommended that the 

claimant wear polarized sun glasses to minimize 

the glare of artificial light and reduce severity of 

the migraines when a migraine occurred.

8. In August 2015, the employer’s plant manager 

observed the claimant operating screen printing 

machines while wearing sunglasses.

9. The claimant explained that he was wearing the 

sunglasses to reduce the severity of a migraine.
6

10. The plant manager tried the claimant’s sunglasses 

on, and determined the polarized lenses affected 

the ability to differentiate between colors.

11. The plant manager discussed this with the owner, 

who believed wearing sunglasses could be a safety 

hazard and would affect the claimant’s ability to 

differentiate between colors.

12. On August 21, 2015, the plant manager informed 

the claimant that he had to take his sunglasses off 

while working. The claimant refused to take the 

sunglasses off. The plant manager sent the 

claimant home.

13. The claimant obtained a doctor’s note to wear 

sunglasses “at the time of these such migraines.” 

The claimant did not give this note to the 

employer.

14. On August 24, 2015, the claimant was sent home 

because he wore his sunglasses while working.

15. On August 25, 2015, the claimant reported to work 

wearing sunglasses.

16. The plant manager advised the claimant that the 

owners wanted to find another position for the 

claimant, possibly in the packaging department, 

because it was not safe for him to wear sunglasses 

while operating printing machinery.

17. The plant manager asked the claimant to wait in 

the office until the owner arrived to discuss being

reassigned.

18. The claimant left before discussing an alternative 

position with the employer.

19. The employer attempted to reach the claimant to 

discuss other positions that the [sic] claimant could 

perform while wearing the sunglasses, but the 

claimant did not respond to the employer.

20. The claimant voluntarily terminated his 

employment because he was not allowed to wear 

the sunglasses while working as a hand printer.
7

(Id.) The Board reasoned that Claimant did not meet his burden to prove that he 

acted in good faith and made a reasonable effort to preserve his employment before 

quitting:

The employer’s plant manager and president credibly 

testified that they attempted to discuss other job 

opportunities with the claimant. The employer’s 

witnesses explained that they had other positions, such as 

one in the packaging department, where the claimant 

could have been reassigned to. The employer’s witnesses 

explained that the claimant could have performed those 

tasks while wearing his sunglasses because they did not 

require him to operate machinery, or differentiate 

between colors. The employer’s witnesses credibly 

testified that they tried to speak to the claimant about the 

other positions on August 25, 2015, but the claimant left 

before the owner came into work to discuss the problem. 

The employer tried to contact the claimant at least four 

times after August 25, 2015, but the claimant did not 

return its calls. The claimant acknowledged that he did 

not respond to the employer’s attempts to contact him. 

The claimant did not make a good faith effort to preserve 

his employment, or make a reasonable effort to continue 

working when the employer offered an alternative 

solution. 

(Id.) The Board, therefore, concluded that Claimant was ineligible for benefits 

under Section 402(b) of the Law. Claimant now petitions this Court for review of 

the Board’s order. 

On appeal,3 Claimant appears to contest the Board’s decision in two

ways. First, Claimant essentially argues that the Board’s finding of fact 

 

3

This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

(Footnote continued on next page...)
8

number 16 is not supported by substantial evidence of record. Second, Claimant 

contends that the Board erred as a matter of law in concluding that he did not act in 

good faith by making a reasonable effort to preserve the employment relationship 

before quitting.

Substantial evidence is defined as relevant evidence upon which a 

reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of 

Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is 

substantial evidence to support the Board’s findings, this Court must examine the 

testimony in a light most favorable to the prevailing party, giving that party the 

benefit of any inferences that can logically and reasonably be drawn from the 

evidence. Id. A determination as to whether substantial evidence exists to support 

a finding of fact can only be made upon examination of the record as a whole. 

Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The 

Board’s findings of fact are conclusive on appeal only so long as the record, taken 

as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 

485 A.2d 359, 365 (Pa. 1984). 

In an unemployment compensation case, it is well-settled that the 

Board is the ultimate fact finder and is, therefore, entitled to make its own 

determinations as to witness credibility and evidentiary weight. Peak v. 

 

(continued...)

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704. 
9

Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board 

is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment 

Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). “Questions of 

credibility and the resolution of evidentiary conflicts are within the sound 

discretion of the Board, and are not subject to re-evaluation on judicial review.” 

Peak, 501 A.2d at 1388.

We first address Claimant’s argument that the Board’s finding of fact 

number 16 is not supported by substantial evidence. Claimant contests the Board’s 

finding that the plant manager told him that Employer wanted to find another 

position for Claimant because it was not safe for him to wear sunglasses while 

operating the machinery. Specifically, Claimant contends that substantial evidence 

does not exist because the Board made contrary findings from the Referee. He 

states that Employer was aware of his “need for sunglasses since February which 

directly contradicts there [sic] assertion that the sunglasses came out all of a 

sudden, on August 21, 2015.” (Petitioner’s Br. at 8.) He further argues that if the 

owners decided to find an alternative position for him, he should have been sent to 

the packaging department directly instead of being asked to wait for the owners. 

(Id. at 10.) 

Based on our review of Claimant’s and Employer’s testimony, we 

conclude that sufficient evidence exists to support the finding that the plant 

manager informed Claimant that the owners wanted to find him a different 

position, possibly in the packaging department, due to safety concerns relating to 

operating machinery while wearing sunglasses. Specifically, Mr. Weber testified

as follows regarding his conversation with Claimant on August 25, 2015:

I asked [Claimant] if he’d come to the front office, took 

him to the waiting room and said that the owners will be 
10

in shortly. You can wait here, and we’ll discuss this and 

see if we can work it out and find what job you can do. 

But I can’t have you operate in that position. That’s the 

instructions I was under. He left the building agitated. I 

informed him that I’d have the owners contact him, you 

know, to work something out. At no point in time did I 

terminate him, fire him, or tell him he was not employed 

there. He refused to wait for the owners to arrive. 

(C.R., Item No. 9 at 11-12.) Claimant attempts to show that this finding is 

unsupported by substantial evidence merely by pointing to contrary evidence in the 

record—i.e., his own testimony. The mere presence of conflicting evidence in the 

record is insufficient to show that a finding is not supported by substantial 

evidence. See Verizon Pa., Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 

1157, 1162 (Pa. Cmwlth. 2015). Additionally, the Board, not the Referee, is the 

ultimate fact-finder in unemployment cases. Peak, 501 A.2d at 1388. As such, the 

Board is empowered to resolve the conflicts in evidence. It did so in Employer’s 

favor.

Next, Claimant argues that the Board erred in concluding that he did 

not act in good faith to preserve his employment. We do not agree. An employee

in Claimant’s situation must take “reasonable steps to preserve the employment 

relationship.” Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1046 

(Pa. Cmwlth. 2002). In order to be eligible for unemployment benefits, an 

employee is obligated to seek work with which his disability will not interfere. 

Sankey v. Unemployment Comp. Bd. of Review, 425 A.2d 52, 54 (Pa. 1981). An

attempt must be made to perform the alternative work before becoming 

unemployed. Kownacki v. Unemployment Comp. Bd. of Review, 335 A.2d 868, 

870 (Pa. 1975). Moreover, the burden is on a claimant who asserts a necessitous 

and compelling reason for quitting employment to show that the accommodations 
11

offered by the employer are inadequate. Taraschi v. Unemployment Comp. Bd. of 

Review, 510 A.2d 400, 402 (Pa. Cmwlth. 1986).

Here, the Board concluded that Claimant did not make a good faith 

effort to preserve his employment or make a reasonable effort to continue working 

when Employer offered an alternative solution. The Board found that Mr. Weber 

and Mr. Huddell credibly testified that they attempted to discuss other job 

opportunities with Claimant, but that Claimant left before Mr. Huddell arrived. 

(C.R., Item No. 12 at 3.) Claimant admits that Mr. Weber told him on 

August 21, 2015, that Employer wanted to explore if other jobs were available. 

(C.R., Item No. 9 at 12.) The Board further found that Employer attempted to 

contact Claimant at least four times. (C.R., Item No. 12 at 4.) Employer testified 

that they attempted to contact Claimant the same day that he left by cell phone and 

email. (C.R., Item No. 9 at 15.) Three days later, Employer sent him a certified 

letter, informing him that since he had not returned to work, Employer assumed he 

did not intend to return to work. (Id.) These facts clearly demonstrate that 

Employer attempted to offer Claimant an alternative position, but that Claimant 

rebuffed those attempts. Because Claimant walked out before the meeting with the 

owners to discuss accommodating Claimant’s condition, we conclude that 

Claimant did not make a good faith effort to preserve his employment. For these 

reasons, the Board did not err in concluding that Claimant did not meet his burden 

of proof under Section 402(b) of the Law.

Accordingly, we affirm the Board’s order.

 

 P. KEVIN BROBSON, Judge

Judge Cosgrove dissents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. French, Sr., :

Petitioner :

:

v. : No. 241 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 18th day of May, 2017, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

 

 P. KEVIN BROBSON, Judge