Serrano v. Unemployment Compensation Board of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula A. Serrano, :

Petitioner :

:

v. : No. 665 C.D. 2016

: No. 898 C.D. 2016

Unemployment Compensation : Submitted: September 2, 2016

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: October 31, 2016

Petitioner Paula A. Serrano (Claimant) petitions for review of two

orders of the Unemployment Compensation Board of Review (Board). By order

dated April 13, 2010, the Board affirmed the Unemployment Compensation

Referee’s decision, which denied Claimant unemployment compensation benefits

pursuant to Section 402(b) of the Unemployment Compensation Law (Law),1

relating to voluntary separation without cause of a necessitous and compelling

nature. By order dated May 12, 2016, the Board denied Claimant’s request for

reconsideration. Claimant petitions for review of both orders.2 For the reasons set

forth below, we affirm.

1

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

§ 802(b).

2

The Court consolidated the matters by order dated June 30, 2016.

Claimant filed for unemployment compensation benefits after

voluntarily quitting her position as an operations manager at Lifeline Medical

Services (Employer). The Allentown UC 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 her burden of proof to show 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 during her employment with Employer as an

operations manager, she had ongoing issues with the dispatch supervisor. (C.R.,

Item No. 10, at 5.) Claimant resigned from her position in August 2015, reporting

to her superiors that the dispatch supervisor created an intolerable work

environment through sexual harassment and his use of racial slurs. (Id. at 5-10.)

Employer convinced Claimant to return to work, according to Claimant, because

Employer promised Claimant that she would not have to interact with the dispatch

supervisor. (Id. at 5.) Claimant testified that the incidents of sexual harassment

and use of racial slurs continued after she returned to work. (Id. at 7.) She also

testified that she reported the incidents that occurred after she returned to work to

the Chief Operations Officer and Senior Vice President. (Id. at 9-10.) On

January 22, 2016, after there was confusion regarding scheduling in an email

chain, Employer directed Claimant to speak with the dispatch supervisor directly.

(Id. at 18.) Claimant refused and informed Employer that she quit. (Id.)

Michelle Seidel, Chief Operations Officer, testified for Employer.

Ms. Seidel testified that she and Jim Dickenson, the Senior Vice President, spoke

with the dispatch supervisor about complaints that employees had made. (Id.

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at 15.) Ms. Seidel testified that after Claimant returned to work, Claimant made no

additional formal complaints about the dispatch supervisor. (Id.) Ms. Seidel

testified that she was shocked when Claimant quit so abruptly after she instructed

Claimant to speak with the dispatch supervisor. (Id. at 16.) She also testified that

while Claimant and the dispatch supervisor would disagree on occasion, they also

would smoke cigarettes in the same location and joke with one another. (Id. at 15.)

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

affirming the Service Center’s determination. (C.R., Item No. 11.) The Referee

made the following findings of fact:

1. The claimant worked fulltime as Operations

Manager for Lifeline Medical Services from

June 23, 2012 through January 22, 2016 at a final

rate of $18 per hour.

2. The claimant and her supervisor previously

worked together as employees at a different

establishment, and came over to work for Lifeline

Medical Services at inception.

3. The claimant had ongoing issues with a member of

staff, who’s also the dispatch supervisor because

the claimant found the coworker’s comments

inflammatory and offensive.

4. Because of the claimant’s concerns, at the end of

August 2015, the claimant quit the employment

citing her issues with the coworker.

5. The employer persuaded the claimant to return to

her employment and promised to work things out

with the coworker.

6. From the time the claimant returned to the

employment until she quit the employment, the

claimant did not report any further issues she had

with the coworker to management.

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7. The Chief Operations Officer (COO) would

regularly request the claimant’s assessment of the

situation with the coworker, and the claimant

always responded that they were fine.

8. In the office environment, the staff, including the

claimant will regularly joke about other

employees.

9. On January 22, 2016, the employer was trying to

put together its schedule in view of the impending

storm predicted for the upcoming weekend.

10. The claimant had questions about an email that did

not make sense to her, and the Chief Executive

Officer (CEO) directed the claimant to talk to the

dispatch supervisor in order to resolve the issues.

11. The claimant sent an email to the Chief Executive

Officer (CEO) that she would not talk to the

dispatch supervisor, and that she quit the

employment.

(Id.)3 The Referee determined that Claimant voluntarily terminated her

employment and failed to show cause of a necessitous and compelling nature for

doing so. (Id.) The Referee explained that “the record does not show that from the

time of the employer’s intervention in August 2015, the claimant reported any

further issues with her coworker.” (Id.)

Claimant appealed to the Board, which affirmed the Referee’s

decision and order. (C.R., Item No. 13.) In so doing, the Board adopted and

3

It appears that the Referee mistakenly described the involvement of the CEO of Lifeline

Medical Services in findings of fact numbers 10 and 11. From our review of the record, it was

actually the COO, Michelle Seidel, who directed Claimant to speak with the dispatch supervisor

and received the resignation email from Claimant.

4

incorporated the Referee’s findings of fact and conclusions of law. Claimant

sought reconsideration with the Board, which the Board denied. Claimant now

petitions this Court for review of both orders.

On appeal,4 Claimant appears to contest the Board’s decision in two

ways. First, Claimant essentially argues that the Referee’s findings, as adopted and

incorporated by the Board, were not supported by substantial evidence of record.

Specifically, Claimant challenges finding of fact number 6, which provides:

“From the time the claimant returned to the employment until she quit the

employment, the claimant did not report any further issues she had with the

coworker to management.” (C.R., Item No. 11.) In support of her argument,

Claimant states she met with the Chief Operating Officer and Senior Vice

President following her return to employment and made additional complaints.

(Petitioner’s Br. at 8.) Further, Claimant contends that the Board erred as a matter

of law because she provided a necessitous and compelling reason for terminating

her employment by demonstrating reports of “sexual harassment, racism, bias on

religion and sexual orientation.” 5 (Petitioner’s Br. at 8.)

4

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

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

§ 704.

5

The Board argues that Claimant only preserved for review the issue of whether or not

the single directive to speak with the dispatch supervisor constituted a necessitous and

compelling reason for her voluntary quit. We reject this argument. This Court views the

necessitous and compelling issue more broadly, as Claimant takes issue with the entirety of the

work environment. In addition, Claimant raises the issue of whether the findings of fact were

supported by substantial evidence.

5

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.

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 findings of the

Referee, adopted by the Board, are not supported by substantial evidence.

Claimant contests the Referee’s finding that she did not report any further incidents

of harassment after she returned to work in August 2015. Claimant cites her own

6

testimony that she did report the incidents to Mr. Dickenson as well as Ms. Seidel,

but not in a formal, written complaint. (C.R., Item No. 10 at 9-10.) We observe,

however, that Ms. Seidel testified at the Referee’s hearing that she was surprised

when Claimant quit after Claimant returned to work, because there had been no

further complaints from Claimant or any other employee. (Id. at 5.) The Referee’s

resolution of this specific factual discrepancy binds this Court unless it is not

supported by substantial evidence. Claimant attempts to show that this finding is

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

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

evidence. Verizon Pennsylvania Inc. v. Workers’ Comp. Appeal Bd. (Mills),

116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). Based on our review of Ms. Seidel’s

testimony, which the Referee found credible, we conclude that substantial evidence

exists to support the finding that Claimant did not report further incidents of

harassment after she returned to work.

We next address Claimant’s argument that the Referee and Board

erred as a matter of law in determining that she did not terminate her employment

for a necessitous and compelling reason. 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.

7

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).

Sexual harassment and racial slurs may present adequate pressure to

terminate one’s employment, and a claimant need not be subjected to such

language or conduct indefinitely. Porco v. Unemployment Comp. Bd. of Review,

828 A.2d 426, 428 (Pa. Cmwlth. 2003); see also Peddicord v. Unemployment

Comp. Bd. of Review, 647 A.2d 295, 298 (Pa. Cmwlth. 1994). This Court has held

that a claimant normally will not meet the fourth requirement—a reasonable effort

to preserve employment—unless the claimant notifies the employer of the

harassment. Martin v. Unemployment Comp. Bd. of Review, 749 A.2d 541, 544

(Pa. Cmwlth. 2000). However, failure to report harassment may be excused where

the record evidence reveals that doing so would be futile. Id. Moreover, “there is

a certain level of conduct that an employee will not be required to tolerate and the

Court will not place all responsibility upon an employee to resolve his or her work

dilemma. Ultimately the employer bears the responsibility for eliminating

harassment against employees in the workplace.” Comitalo v. Unemployment

Comp. Bd. of Review, 737 A.2d 342, 345 (Pa. Cmwlth. 1999).

Our decision in Mercy Hospital of Pittsburgh v. Unemployment

Compensation Board of Review, 654 A.2d 264 (Pa. Cmwlth. 1995), is directly

8

applicable. In Mercy Hospital, after the claimant returned to work from a

rehabilitation center, coworkers called him names such as “alcoholic,” “faggot,”

and “crazy.” Mercy Hospital, 654 A.2d at 266. The claimant notified his

employer, the hospital, and was given disability leave due to the emotional stress

caused by the working environment. Upon his return from leave, however, the

coworkers continued to harass him. The claimant quit his employment, and his

employer was unable to convince him to stay. This Court rejected the hospital’s

argument that the claimant was required to afford the hospital a second attempt to

rectify the situation. This Court reasoned that there was no evidence to suggest

that the second attempt to end the harassment would be any different than the first

attempt.6 Id.

Here, the Referee and Board focused their analysis on Claimant’s

failure to report additional incidents after returning to work before she quit in

January 2016. Our decision in Mercy Hospital instructs, however, that Claimant

satisfied the notification requirement by bringing her complaints to her supervisors

in August 2015, when she initially decided to quit. This notice afforded Employer

the opportunity to rectify the situation. Claimant was not required to endure the

alleged abusive behavior indefinitely, or to afford Employer more than one

opportunity to address the alleged harassment. Her initial report to Employer

6

The unreported case Vito Rinaldi Chevrolet, Inc. v. Unemployment Compensation

Board of Review, (Pa. Cmwlth., No. 139 C.D. 2012, filed Aug. 16, 2012), lends further support

for this proposition. There, this Court again held that after notifying the employer, the claimant

was not required to provide the employer with a second opportunity to end the abusive conduct.

Id., slip op. at 3. We acknowledge that Vito Rinaldi Chevrolet, as an unreported panel decision

of this Court, has persuasive value, but it does not constitute binding precedent. IOP 414(a), 210

Pa. Code § 69.414(a).

9

provided the requisite notice to allow Employer to attempt to alleviate the

harassment. Lending further credence to her efforts to continue an employment

relationship is the fact that Claimant resigned but then agreed to return to work.

This demonstrates Claimant’s willingness to allow Employer to remedy the

problem and maintain her position. The Referee and the Board erred because the

failure to notify Employer of the continuing harassment after Claimant’s return to

work was not the fatal flaw in her claim.

Nevertheless, we affirm the decision of the Board on other grounds.

Claimant is unable to demonstrate the third requirement of a necessitous and

compelling reason for her voluntary quit, i.e.— that she acted with common sense.

The Referee found that the COO, Ms. Seidel, “would regularly request the

claimant’s assessment of the situation with the coworker, and the claimant always

responded that they were fine.” (C.R., Item No. 11, Finding of Fact (F.F.) No. 7.)

Whether or not there were, in fact, additional incidents of harassment after

Claimant’s return to work, Claimant now maintains that she continued to have a

conflict with the dispatch supervisor. Thus, Claimant was untruthful when she

reported to Ms. Seidel that “they were fine.” (Id.) Claimant’s knowing

misrepresentation of the conflict is distinct from merely failing to report

harassment a second time. We conclude that Claimant did not act with common

sense, because she misrepresented the employment situation to Employer.

Claimant, therefore, has failed to demonstrate a necessitous and compelling reason

for her voluntary quit. Thus, pursuant to Section 402(b) of the Law, Claimant is

ineligible for unemployment compensation benefits.

With regard to the Board’s denial of Claimant’s request for

reconsideration, in reviewing an order denying reconsideration, we are limited to

10

considering whether the Board abused its discretion in denying reconsideration.

Payne v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 928 A.2d 377, 379 (Pa.

Cmwlth. 2007). An abuse of discretion in the denial of reconsideration of an

administrative agency decision occurs only where the challenger establishes that

the order is manifestly unreasonable or is based upon bad faith, fraud, capricious

action, or an abuse of power. Id. Claimant has not established that the Board

engaged in behavior that would constitute an abuse of discretion, and we do not

perceive any such basis for such a conclusion. Thus, we conclude that the Board

did not abuse its discretion in denying reconsideration of its earlier order, denying

Claimant unemployment compensation benefits.

Accordingly, we affirm the Board’s orders.

P. KEVIN BROBSON, Judge

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula A. Serrano, :

Petitioner :

:

v. : No. 665 C.D. 2016

: No. 898 C.D. 2016

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 31st day of October, 2016, the orders of the

Unemployment Compensation Board of Review are AFFIRMED.

P. KEVIN BROBSON, Judge