IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lori A. Kelly, :

Petitioner :

:

v. : No. 286 C.D. 2017

: Argued: September 11, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION 

BY JUDGE SIMPSON FILED: October 17, 2017

Lori A. Kelly (Claimant) petitions for review of an order of the 

Unemployment Compensation Board of Review (Board) affirming a referee’s 

decision denying her unemployment compensation benefits under Section 402(b) of 

the Unemployment Compensation Law (Law).1 Claimant argues she had 

necessitous and compelling reasons for resigning her position with the University of 

Pittsburgh (Employer). In particular, Claimant asserts she resigned because of 

religious objections to a new project Employer assigned her to manage, which 

involved the collection of fetal tissue from abortions, miscarriages and fetal 

autopsies, including those performed at Employer’s Magee-Women’s Hospital 

(Magee). Upon review, we are constrained to affirm on this record.

I. Background

 

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

§802(b). Section 402(b) of the Law provides “[a]n employe shall be ineligible for compensation 

for any week ... [i]n which [her] unemployment is due to voluntarily leaving work without cause 

of a necessitous and compelling nature ....” 43 P.S. §802(b). 
2

In this case, the Board adopted and incorporated the referee’s findings 

and conclusions into its decision and order. The referee found the following facts. 

Claimant worked for Employer as a full-time project manager from April 2016 to 

July 19, 2016 at a rate of pay of $33 per hour. Claimant worked in Employer’s 

Health Sciences Tissue Bank (HSTB) as a project manager. Her job duties included 

managing projects involving the collection and distribution of tissue for research 

projects. Shortly after the beginning of Claimant’s employment, Employer told 

Claimant she would be project manager for a new tissue distribution project known 

as the GenitoUrinary Development Molecular Anatomy Project (GUDMAP). 

Federal funding for GUDMAP was pending.

Eventually, Claimant discovered the project would involve the 

collection and distribution of fetal tissue. Employer’s sources of fetal tissue included 

abortions, miscarriages and fetal autopsies. Claimant’s supervisor directed her to 

develop an online request tool for researchers’ use of the distribution of tissue 

samples. Claimant’s duties involved facilitating the distribution of tissue. However, 

Claimant’s duties did not include the collecting or packing of samples for 

distribution.

Claimant is Catholic, and the practice of abortion violates her religious 

principles. Having learned of Employer’s use of fetal tissue from abortions, 

Claimant consulted with her mother, a lay Eucharistic minister, for guidance.

The Board also found Claimant developed a contentious relationship 

with her immediate supervisor, HSTB Assistant Director Susan Kelly (Supervisor). 
3

Eventually, Claimant told Supervisor that she found Supervisor’s frequent contacts 

with her to be distracting and asked that Supervisor only communicate with her by 

email. When Supervisor wanted to discuss this, Claimant told her that she would 

not speak to her without HSTB Director Paul Wood (HSTB Director) being present. 

HSTB Director, located at a different hospital in Pittsburgh, advised Supervisor to 

ask the Director of Employee and Labor Relations, Jane Volk (Labor Director), to 

intervene instead.

Thereafter, Claimant met with Labor Director and Supervisor. Labor 

Director told Claimant that refusing to meet or speak with Supervisor would be 

considered insubordinate. Claimant became upset and told Labor Director that she 

felt Supervisor was harassing her and asked that the matter be investigated.

Claimant then asked Labor Director for assistance in transferring to 

another position. Labor Director told Claimant she was free to apply for other 

positions because she was close to the end of her probationary period. If someone 

offered Claimant a position, the matter could be considered at that time.

Claimant did not indicate to Supervisor or Labor Director during the 

meeting that she had a religious objection to being involved with a project that 

utilized the tissue of aborted fetuses. Employer has a policy of accommodating 

employees for religious reasons. Employer’s HSTB could have offered Claimant 

other projects that did not involve fetal tissue. The next day, however, Claimant 

tendered her resignation letter, which stated she objected to working on a project 

that involved the collection and transfer of fetal tissue.
4

Following her resignation, Claimant applied for unemployment 

benefits, and the Department of Labor and Industry (Department) issued a notice of 

determination finding Claimant voluntarily quit with cause of a necessitous and 

compelling nature because she was unaware at hire that she would be working with 

aborted fetuses. The Department found this was against Claimant’s religious beliefs. 

The Department also noted there were no alternatives to resolve the situation.

Employer appealed. The parties, represented by counsel, each 

presented testimony at a referee’s hearing. Claimant testified on her own behalf. 

Employer presented testimony from Supervisor and Labor Director.

Claimant testified she worked as project manager for GUDMAP, which 

had not yet started operations. Prior to the end of April 2016, Claimant did not know 

that Employer’s HSTB engaged in the collection of fetal tissue from abortions, 

including those performed at Magee. As project manager, Claimant would assign 

projects to tissue banks, including those at Magee, which would collect, store and 

disperse fetal material. In short, Claimant would facilitate the movement of fetal 

tissue and organs between Employer and other places around the country.

When Claimant, who is Catholic and opposed to abortion, learned that 

GUDMAP involved the collection of fetal tissue, she became very distraught. 

Although Claimant previously worked for Employer in projects involving human 

tissue, the projects used adult human tissue. Upset, Claimant called her mother for 
5

spiritual advice. They prayed together on the phone a number of times. Claimant, 

however, continued to remain involved with GUDMAP and other projects.

On July 19, 2016, prior to GUDMAP becoming an up and running

project, Claimant met with Supervisor and Labor Director to discuss some 

personality issues she had with Supervisor. During the meeting, Claimant asked 

Labor Director if she could help her find another position with Employer. However, 

Labor Director informed her that she could not change positions during her 

probationary period. Employer did not offer Claimant another position.

Although Claimant admitted she had a personality conflict with 

Supervisor, she would never resign her position for that reason. To that end, 

Claimant testified she would have liked to continue working on her relationship with 

Supervisor. See Referee’s Hr’g, Notes of Testimony (N.T.), 10/5/16, at 19; 

Reproduced Record (R.R.) at 91a. Nonetheless, Claimant acknowledged she did not 

inform Employer of her moral and religious objections to the use of fetal tissue from 

abortions. Id. Claimant characterized her moral and religious feelings as an inner 

struggle. Id. Ultimately, when asked by her counsel whether she would accept 

another position with Employer if it offered her a transfer, Claimant testified: 

“Knowing that [Employer] through Magee-Women’s Hospital is involved with 

abortions and fetal collections, no.” N.T. at 36; R.R. at 108a.

Employer presented testimony from Supervisor, who stated she had 

daily conversations with Claimant. Although Claimant learned of GUDMAP’s use 

of fetal tissue in April 2016, she did not raise any concerns about it.
6

Regarding the July 19, 2016 meeting with Labor Director and Claimant, 

Supervisor testified the meeting concerned her working relationship, specifically her 

ability to communicate with Claimant. Claimant did not want Supervisor calling her 

and asked that Supervisor email her instead. Primarily, Supervisor wanted to explain 

to Claimant that she needed to call her and have access to her knowledge. Supervisor 

described Claimant’s conduct as a recurrent pushback on her authority, 

obstructionist behavior and an attempt to dictate their relationship. N.T. at 24; R.R. 

at 96a. Supervisor further testified that Claimant never raised at the meeting any 

religious or moral concerns regarding GUDMAP or its use of fetal tissue. Id. 

Rather, Claimant indicated that she needed to think about whether she still wanted 

to work with Supervisor because of the difficulties between them. Id. 

When Supervisor came to work the next day, she learned that Claimant 

sent an email informing Employer that she resigned. Id. Supervisor was shocked 

that Claimant used GUDMAP and fetal tissue collections as her reason. Id. at 24-

25; R.R. at 96a-97a. Supervisor stated that this issue could have been resolved and 

that continuing work remained available. Id. at 25; R.R. at 97a.

However, Supervisor recalled that Claimant did request a transfer 

because she did not want to work with Supervisor. Id. at 27; R.R. at 99a. Supervisor 

told her that this was not possible during her 90-day probationary period. Id. 

However, Supervisor stated that Labor Director told Claimant she could apply for 

any job she wanted. Id.
7

Employer also presented testimony from Labor Director. She recalled 

that Supervisor informed her that Claimant would not speak to her unless HSTB 

Director was present at the meeting. N.T. at 29; R.R. at 101a. HSTB Director works 

at Presbyterian Hospital while Claimant and Supervisor are located at Shadyside 

Hospital. Id. Therefore, HSTB Director asked Labor Director to attend the meeting. 

Id. 

Labor Director testified that the entirety of the meeting dealt with 

Claimant’s working relationship with Supervisor. N.T. at 30; R.R. at 102a. 

Claimant, a subordinate, should not be telling Supervisor to email her rather than 

coming to her office. Id. Claimant then complained that Supervisor bullied and 

intimidated her. Id. Labor Director told Claimant that she would investigate the 

situation. Id. Claimant, however, did not appear satisfied with the response. Id. 

Labor Director further testified Claimant asked for help in finding another position. 

Id. Labor Director told Claimant she could look for a new position but she could 

not transfer during her provisional employment. Id.

More importantly, Claimant did not raise any moral or religious 

concerns at the meeting. N.T. at 31; R.R. at 103a. At the time of Claimant’s 

resignation, continuing work was available to her. Id. 

Following the hearing, the referee issued a decision and order reversing 

the notice of determination and holding Claimant ineligible for benefits under 

Section 402(b) of the Law because she failed to establish that she left her 
8

employment for a necessitous and compelling reason. To that end, the referee 

reasoned:

Good faith requires that a [c]laimant show that, prior to 

terminating [her] employment, she communicated the 

problem necessitating the quit to the [e]mployer and gave 

the [e]mployer an opportunity to resolve the problem or 

offer a suitable accommodation. Although [Claimant] 

asked [Labor Director] for assistance in transferring to 

another position, she left the director with the logical 

understanding that she was requesting the transfer because 

she did not get along with [Supervisor]. The director 

testified that if Claimant voiced a religious objection to 

working in a project regarding fetal tissue, a transfer could 

have been arranged as an accommodation. [Supervisor] 

also testified that there were various projects not involving 

fetal tissue that [Claimant] could have been transferred to 

within the Department. Because [Claimant] failed to show 

that a request would have been futile, the Referee finds 

that she is ineligible for benefits under Section 402(b) of 

the Law. 

Referee’s Op., 10/12/16, at 3 (emphasis added). 

Claimant appealed, and the Board affirmed. In so doing, the Board reasoned: 

 

In the meeting prior to [Claimant’s] resignation, she did 

not mention any religious objections to the project to 

which she was assigned. That meeting primarily 

concerned [Claimant’s] relationship with [Supervisor]. In 

any event, [Claimant] did not give [Employer] an 

opportunity to accommodate her objections. [Employer’s 

witnesses] credibly testified [Employer] could have 

assigned [Claimant] to other projects that did not involve 

fetal tissue. The Board finds that that would have been a 

reasonable accommodation. Therefore, the Board adopts 

and incorporates the Referee’s findings and conclusions 

....
9

Bd.’s Op., 2/14/17 at 1 (emphasis added). Claimant petitions for review.2

II. Discussion

A. Argument

On appeal, Claimant contends the Board erred in determining she 

voluntarily quit her employment without necessitous and compelling reasons where 

no reasonable accommodation for Claimant’s sincerely held religious beliefs could 

be made. To that end, Claimant asserts anything short of Employer stating it would 

stop engaging in the harvesting, collection and dissemination of aborted fetal tissue 

and parts would not resolve her deeply held religious objections to abortions and the 

collection of fetal tissue.

Claimant acknowledges she bears the initial burden of proof in a 

voluntary quit case to show she had necessitous and compelling reasons for 

terminating her employment. Petrill v. Unemployment Comp. Bd. of Review., 883 

A.2d 714 (Pa. Cmwlth. 2005). In order to be entitled to unemployment benefits 

upon a voluntarily quit, a claimant must prove she acted with ordinary common 

sense, and that she made reasonable efforts to preserve the employment relationship. 

Id. Each case must be examined on an individual basis to understand the exigencies 

the claimant faced at the time she decided to separate from employment. Id. 

 

2 Our review is limited to determining whether the Board’s necessary findings were 

supported by substantial evidence or whether the Board erred or violated the petitioner’s 

constitutional rights. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 

2013). Substantial evidence is evidence which a reasonable mind would accept as adequate to 

support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. 

Cmwlth. 2012).
10

Whether or not a claimant had necessitous and compelling reasons for terminating 

her employment is a question of law subject to this Court’s plenary review. Id.

Claimant asserts religious beliefs can constitute necessitous and 

compelling reasons to leave employment. See Mathis v. Unemployment Comp. Bd. 

of Review, 64 A.3d 293 (Pa. Cmwlth. 2013) (an actual conflict between a claimant’s 

sincerely held religious beliefs and her employment conditions may constitute cause 

of a necessitous and compelling nature for voluntarily terminating employment). In 

Mathis, we cited Thomas v. Review Board of the Indiana Employment Security 

Division, 450 U.S. 707 (1981), a U.S. Supreme Court decision holding that the State 

of Indiana’s denial of unemployment compensation violated a claimant’s First 

Amendment right to free exercise of religion where the claimant, a Jehovah’s 

Witness, quit his job after he was transferred from a roll foundry that produced sheet 

steel for various industrial uses to a department that fabricated turrets for military 

tanks. The claimant’s religious beliefs prevented him from participating in the direct 

production of weapons for war. The Thomas Court noted that the claimant’s 

employment, once acceptable, became religiously objectionable because of changed 

conditions.

Claimant asserts there are two basic issues in determining whether a 

claimant’s religious beliefs constitute cause of a necessitous and compelling nature 

for a voluntary quit: whether the claimant’s beliefs were sincerely held and religious 

in nature; and, whether or not an actual conflict between those beliefs and the job 

requirements exist. Monroe v. Unemployment Comp. Bd. of Review, 535 A.2d 

1222 (Pa. Cmwlth. 1988). 
11

Here, Claimant maintains she meets both tests. First, her religious 

beliefs are sincere. Claimant was raised a Catholic, and went to a Catholic grade 

school, high school and college. Catholic teachings opposing abortion are wellknown. When Claimant learned of Employer’s practice of fetal collection, 

experimentation and shipments, she immediately contacted her mother, a lay 

Eucharistic minister, and a spiritual advisor.

Claimant also contacted an organization called “And Then There Were 

None,” which helps provide support and encouragement for people trying to leave 

the abortion industry. See N.T. at 10; R.R. at 82a. Claimant wanted to keep her job, 

but she struggled with the fact that Employer engaged in a highly objectionable 

practice. Claimant further testified she worked on about 25 other projects; she 

focused on these projects to try and help her deal with GUDMAP. However, as 

GUDMAP’s up and running date approached, Claimant could no longer rationalize 

it.

Claimant further maintains she meets the second requirement in 

Monroe by showing that her religious beliefs are in conflict with her job. She 

testified she could not work at a place or for an employer that deals in aborted fetuses 

and body parts. Even if Employer transferred her to another department or project, 

the problem of working for an employer that engaged in such morally and religiously 

objectionable activity would persist.
12

Claimant also notes that Supervisor and Labor Director each testified 

Claimant was not eligible for a transfer because she was in her probationary period. 

Nonetheless, even assuming she could transfer, she would still be working for an 

employer who engages in religiously objectionable activities.

Further, Claimant argues her situation is similar to Thomas, where the 

claimant, a Jehovah’s Witness, left employment after his employer transferred him 

to a job that manufactured weapons of war. Similarly, the destruction of human life 

and sale of fetal body parts is improper as well. As such, Claimant asserts the Board 

erred in determining an assignment to another project would have been a reasonable 

and suitable accommodation of her religious objections.

Therefore, Claimant argues that prior notice of her intention to quit, 

along with the reasons, would not and could not resolve Claimant’s deeply held 

religious objections to Employer’s practice of harvesting and collecting aborted fetal 

body tissue and parts. Consequently, Claimant requests that this Court reverse the 

Board’s determination of ineligibility under Section 402(b) and order that she

receive unemployment benefits.

In response, the Board asserts, an employee quitting for religious 

beliefs or objections is required to inform her employer of such reasons prior to 

terminating her employment. Curry v. Unemployment Comp. Bd. of Review, 503 

A.2d 1007 (Pa. Cmwlth. 1986). Failure to do so constitutes grounds for 

disqualification under Section 402(b). Id. The purpose of this rule is to provide the 

employer with an opportunity to offer the employee work that would not infringe on 
13

her religious beliefs. Id. Here, Claimant, who resigned because she objected to 

working on GUDMAP for religious and moral reasons, never addressed her concerns 

with Employer prior to her resignation. Id.

In addition, the day before she resigned, Claimant asked Supervisor and 

Labor Director if Employer could transfer her to another position because of her 

contentious relationship with Supervisor. Referee’s Dec., Finding of Fact (F.F.) No. 

19. The Board contends this conduct is inconsistent with Claimant’s position that 

no transfer could address or resolve her religious objections to Employer’s 

collections of fetal tissue from abortions.

The Board also argues that Claimant misinterprets the U.S. Supreme 

Court’s decision in Thomas. In Thomas, the claimant searched for a transfer to a 

department that was not directly armament-related. However, this transfer did not 

materialize. In other words, the claimant’s employer did not offer him any 

“nonweapons work.” Thomas, 450 U.S. at 710. Here, to the contrary, Supervisor 

and Labor Director testified that Employer has a policy of accommodating 

employees for religious reasons, and that there were other projects that did not 

involve fetal tissue.

B. Analysis

Whether a claimant had cause of a necessitous and compelling nature 

to voluntarily leave her employment is a question of law subject to appellate review. 
14

Anne Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of Review, 995 A.2d 

1286 (Pa. Cmwlth. 2010). As noted above, an employee who claims she quit for 

necessitous and compelling reasons must prove: (1) circumstances existed that 

produced real and substantial pressure to terminate employment; (2) such 

circumstances would compel a reasonable person to act in the same manner; (3) the 

employee acted with ordinary common sense; and, (4) the employee made a 

reasonable effort to preserve her employment. Wert v. Unemployment Comp. Bd. 

of Review, 41 A.3d 937 (Pa. Cmwlth. 2012).

Further the Board, as the ultimate fact-finder, is empowered to resolve 

all issues of witness credibility, conflicting evidence and evidentiary weight. 

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. 

Cmwlth. 2008). Also, it is irrelevant whether the record includes evidence that 

would support findings other than those made by the Board; the proper inquiry is 

whether the evidence supports the findings actually made. Id. Further, the party 

prevailing below is entitled to the benefit of all reasonable inferences drawn from 

the evidence. Id.

Here, the Board found “Claimant did not advise [Supervisor] or [Labor 

Director] that she had a religious objection to being involved with a project that 

utilized the tissue of aborted fetuses.” F.F. No. 22. This finding is supported by 

Claimant’s testimony. See N.T. at 14-15, 17; R.R. at 86a-87a. Supervisor also 

testified Claimant did not raise any concern about fetal tissue prior to her resignation. 

N.T. at 22; R.R. at 94a. Labor Director also testified she was unaware that Claimant 

had any moral or religious concerns with her work. N.T. at 31; R.R. at 103a.
15

An employee who is compelled to quit on religious grounds must 

inform her employer of the conflict between her religious beliefs and work duties. 

Mathis; Curry; Rhodes v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 

817 C.D. 2013, filed December 16, 2013) 2013 WL 6630411 (unreported). The 

purpose of the rule is to give the employer an opportunity to find other work that 

would not infringe on the employee’s exercise of her religious beliefs. Curry; 

Rhodes. 

Here, the Board determined Employer’s witnesses credibly testified 

that Employer could have assigned Claimant to other projects that did not involve 

fetal tissue. First, Supervisor testified if Claimant had religious or moral problems 

working on GUDMAP or with fetal tissue, she could have been removed from the 

project. Employer had plenty of work on other projects. F.F. Nos. 23-24; N.T. at 

21; R.R. at 93a. Second, Labor Director testified that if an employee raised a moral 

objection to a project, Employer’s practice is to find the employee another job. F.F. 

Nos. 23-24; N.T. at 31; R.R. at 103a.

In addition, we disagree with Claimant’s contention that the U.S. 

Supreme Court’s decision in Thomas supports her position that a transfer to another 

position would have been futile because it would not address or resolve Claimant’s 

religious objections to Employer’s collections of fetal tissue from abortions. In 

Thomas, the claimant had no objection to working in the employer’s roll foundry, 

which did not directly produce weapons. However, the employer eventually closed 

the roll foundry, and its other remaining departments were directly involved in 
16

weapons production. Consequently, although the claimant in Thomas searched for 

a transfer to a department that was not directly armament-related, such a transfer 

never materialized. Id.

Here, Claimant argues that like the situation in Thomas, no transfer 

could accommodate her religious and moral objections to Employer’s involvement 

in the collection of fetal tissue from abortions. However, Claimant testified she did 

not have a religious struggle with approximately 25 other projects she was working 

on at the same time as GUDMAP. See N.T. at 15; R.R. at 87a. Further, the day 

before her resignation, Claimant asked Labor Director to move her to another 

position because of the problematic relationship she had with Supervisor. F.F. No. 

19; N.T. at 30; R.R. at 102a.

Consequently, we do not interpret Thomas as supporting Claimant’s 

“futility” argument. Rather, Thomas actually supports the Board’s position that a 

transfer to another project not involving the collection of fetal tissue would be a 

suitable and reasonable accommodation. To that end, the claimant in Thomas would 

have accepted “non-weapons” work, had such work been available, regardless of the 

employer’s continued weapons production.

Therefore, we reject Claimant’s contention that notice to Employer of 

her religious and moral objections prior to her resignation would have been a futile 

act. Employer could have offered Claimant work on many other projects that did 

not involve the collection or dissemination of fetal tissue. Because Claimant 
17

previously worked on these other projects without objection and also sought a 

transfer the day before her resignation, we believe the Board could determine that a 

transfer to a project that did not involve fetal tissue would be a suitable and 

reasonable accommodation. Thomas; Mathis; Curry; Rhodes.

III. Conclusion

Respectful of Claimant’s religious beliefs, we must nevertheless affirm 

the order of the Board denying Claimant unemployment compensation benefits 

under Section 402(b) based on her failure to notify Employer of her religious 

objections to Employer’s use of fetal tissue in GUDMAP. Such notification would 

have provided Employer with an opportunity to accommodate her religious 

objections by transferring her to a project that did not involve the use of fetal tissue.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lori A. Kelly, :

Petitioner :

:

v. : No. 286 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 17th day of October, 2017, for the reasons stated in 

the foregoing opinion, the order of the Unemployment Compensation Board of 

Review is AFFIRMED.

 

ROBERT SIMPSON, Judge