IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Flammer,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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No. 1204 C.D. 2014
Submitted: December 5, 2014
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON
FILED: January 9, 2015
Linda Flammer (Claimant), representing herself, petitions for review
of an order of the Unemployment Compensation Board of Review (Board) denying
her unemployment compensation (UC) benefits under Section 402(b) of the
Unemployment Compensation Law (Law) on the basis she voluntarily quit her
employment.1
Claimant contends the Board erred in concluding she did not
establish a necessitous and compelling reason for quitting her job.
Claimant
further asserts the Board erred in concluding she failed to establish a negative work
environment, which compelled her to retire.
For the reasons that follow, we
affirm.
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).
I. Background
Claimant worked for the Reading School District (Employer) from
January 2005 until her last day of work in December 2013 as an attendance
secretary. Claimant worked full-time and her final rate of pay was $19.00 per
hour.
Claimant worked with a coworker who communicated with her in a
sarcastic manner and would not provide Claimant with the necessary assistance
needed in her work. Prior to her separation from employment, Claimant began to
experience stress and anxiety as a result of this situation.
However, Claimant failed to notify Employer of the specifics of her
situation. Nonetheless, Claimant was aware of Employer’s policy that would have
afforded her the opportunity to file a formal harassment complaint against her
coworker.
Regardless, Claimant did not exercise this option prior to her
separation. Similarly, Claimant did not request a transfer to another position. Had
she done so, Employer could have potentially provided this accommodation.
In November 2013, Employer informed Claimant that the coworker in
question filed a formal harassment complaint against her, and that a meeting would
be held on December 3, 2013, in an attempt to resolve the complaint. Employer
also advised Claimant that she should not discuss the complaint with the coworker
prior to the meeting.
Employer advised Claimant that if she confronted the
coworker prior to the meeting, this could be considered insubordination and result
in her termination.
2
Moreover, Claimant’s union representative told her that she was on
thin ice and advised her to retire to avoid the possibility of losing her pension.
Thus, Claimant retired on December 2, 2013, the day before the scheduled
meeting.
Thereafter, Claimant applied for UC benefits, which the local UC
service center denied under Section 402(b) of the Law.
The service center
determined Claimant voluntarily quit without exhausting all alternatives to resolve
the situation that caused the separation.
Claimant appealed, and the Board scheduled a referee’s hearing at
which both parties presented evidence. Following the hearing, the referee issued a
decision and order affirming the UC service center and denying Claimant benefits
under Section 402(b).
In his decision, the referee reasoned (with emphasis added):
Here, the Referee found [Claimant’s] testimony to be
credible regarding a difficult work environment she
experienced, however it is well settled that personality
conflicts with co-workers will not generally constitute a
necessitous and compelling reason for a worker to quit a
job. Additionally, [Claimant] had options available to
her such as requesting a transfer, filing a formal
harassment complaint or flushing [sic] out the issue in the
scheduled December 3, 2013 meeting. [Claimant] did
not pursue any of these options, therefore the Referee has
determined that [Claimant’s] work atmosphere did not
give her necessitous and compelling reason to quit the
job.
3
The Referee will also address [Claimant’s] testimony
regarding her health as the result of her work
environment. Once again, the Referee does not discredit
[Claimant’s] testimony here; however it is clear from the
testimony that [Claimant] did not afford [Employer] the
opportunity to provide an accommodation to her when
one could have potentially have been provided.
Accordingly, [Claimant] did not have necessitous and
compelling reason[s] for quitting the job due to health
reasons.
Finally, the referee will address [Claimant’s] testimony
that she quit for fear of being discharged. There was no
testimony presented to indicate that discharge was
imminent in this case, or even a possibility, as [Claimant]
quit the job prior to the scheduled human resources
meeting on December 3, 2013.
Accordingly,
[Claimant’s] belief that she could be discharged also did
not provide her with necessitous and compelling
reason[s] to quit this job.
[Claimant] has not established a necessitous and
compelling reason for quitting this job. Accordingly,
benefits are denied under Section 402(b) of the Law.
Referee’s Dec., 2/20/14 at 2.
On appeal, the Board affirmed. In so doing, the Board adopted and
incorporated the referee’s findings and conclusions.
Claimant petitions for
review.2
2
Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. 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).
4
II. Discussion
A. Argument
Claimant contends the Board erred in concluding she did not establish
a necessitous and compelling reason for quitting her job. To that end, Claimant
asserts the Board erred in concluding she failed to establish a negative work
environment resulting from Employer’s lack of control of its employees, which
compelled her to retire.
Claimant presents the following argument.
In order to show a
necessitous and compelling reason to quit, a claimant must show that
circumstances existed that produced real and substantial pressure to terminate
employment; such circumstances would compel a reasonable person to act in the
same manner; the claimant acted with ordinary common sense; and, the claimant
made a reasonable effort to preserve her employment.
Collier Stone Co. v.
Unemployment Comp. Bd. of Review, 876 A.2d 481 (Pa. Cmwlth. 2005).
Explaining her circumstances at work, Claimant testified that in
performing her duties as an attendance secretary, she needed help in translating
Spanish from Glenda Alcaraz (Coworker), a parent outreach assistant.
See
Referee’s Hr’g, Notes of Testimony (N.T.), 1/28/14, at 4-5. Claimant testified
Coworker hindered her job performance on a daily basis. N.T. at 10. As a result,
Claimant felt very hurt and stressed, she did not know what was going to happen
from one day to the next. Id. at 11. Claimant’s doctor prescribed her Xanax so she
5
could get to work. Id. Claimant also suffered from irritable bowel syndrome. Id.
All of these factors played into her decision to resign. Id.
Further, Claimant testified she discussed her situation with her union
representative and inquired about filing a harassment claim against Coworker. Id.
at 10. However, the union never filed anything on Claimant’s behalf. Id.
In addition, Claimant complained to a vice-principal about her work
environment and her problems with Coworker and Coworker’s friend, Donna
Reggiani (Secretary Reggiani). See N.T. at 12. Claimant also discussed her
workplace problems with Employer’s employee relations director, Elizabeth Pena
(Employee Relations Director).
Id.
Claimant further stated a meeting was
scheduled for October 13, 2013 to discuss her problems, but the meeting never
happened. Id.
The ultimate event causing Claimant’s resignation occurred when
Coworker filed a complaint against Claimant. Just prior to the Thanksgiving
break, Claimant attended a meeting where she learned Coworker filed a
harassment complaint against her. See N.T. at 14. Claimant’s union representative
told Claimant she was bound to be terminated and she should consider retiring. Id.
Claimant further testified Employer scheduled a meeting for December 3, 2013
regarding Coworker’s harassment claim. Id. at 15.
6
Claimant, however, resigned and retired on December 2, the day
before the meeting. Id. Claimant testified she ultimately quit out of fear that she
would lose her pension. Id.
Claimant contends these circumstances would compel a reasonable
person to act in the same manner. Claimant asserts she acted with common sense
when she resigned because she was urged to quit and save her pension.
Further, Claimant argues she made a reasonable effort to preserve her
employment. Employer, however, took no action on her behalf. She continued to
work for most of the school year with the hope that things would get better. In
fact, she stayed until Coworker filed the complaint against her. To that end,
Claimant asserts, “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.”
Collier Stone, 876 A.2d 484 (citation omitted).
In light of her negative work environment, including her coworkers’
refusal to cooperate with her, Claimant contends the Board erred in not finding she
had necessitous and compelling reasons for quitting her job. Therefore, Claimant
requests that we reverse the Board’s eligibility determination.
7
B. Analysis
Whether a claimant had cause of a necessitous and compelling nature
to voluntary leave her employment is a question of law subject to appellate review.
Anne Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of Review, 995
A.2d 1286 (Pa. Cmwlth. 2010). A claimant seeking benefits under Section 402(b)
bears the burden of demonstrating a necessitous and compelling reason for leaving
her employment. Id.
As Claimant acknowledges, 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).
However, resentment of a reprimand, absent unjust circumstances,
and personality conflicts, absent an intolerable working atmosphere, do not present
necessitous and compelling causes to quit a job. Wert; Gioia v. Unemployment
Comp. Bd. of Review, 661 A.2d 34 (Pa. Cmwlth. 1995). Further, a disagreement
with an employer’s policies or dissatisfaction with an employer’s management
style does not constitute a compelling reason for a voluntarily quit under Section
402(b). Gioia. What is more, multiple causes, which, considered separately, do
not constitute necessitous or compelling cause, do not in combination become
8
necessitous and compelling. Spadaro v. Unemployment Comp. Bd. of Review,
850 A.2d 855 (Pa. Cmwlth. 2004).
Here, the Board, by adopting the referee’s findings and conclusions,
credited Claimant’s testimony regarding a difficult work environment.
Referee’s Dec. at 2.
See
However, the Board observed, it is well-settled that
personality conflicts with coworkers do not generally constitute a necessitous and
compelling cause for a voluntary quit. Id.
To that end, the Board found Claimant could have requested a transfer
to another position, which Employer potentially could have provided. Referee
Dec., Finding of Fact (F.F.) No. 3. The Board also found Claimant was aware that
pursuant to Employer’s procedures, she could file a formal harassment complaint
against Coworker; however, Claimant did not exercise this option prior to her
resignation. F.F. No 4.
The Board further found that although Claimant began to experience
stress and anxiety as a result of her work situation, she did not communicate the
specifics of her situation to Employer’s management prior to her separation. F.F.
Nos. 5, 6. Additionally, the Board found Employer could have provided Claimant
accommodations for her medical condition if Claimant informed Employer of her
condition. F.F. No. 7.
In UC cases, the Board is the ultimate fact-finder. Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
9
As such, it is empowered to resolve all issues of witness credibility, conflicting
evidence and evidentiary weight. Id. Further, 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.
In addition, the party prevailing below is entitled to the benefit of all reasonable
inferences drawn from the evidence. Id.
Our review of the record reveals the Board’s findings are adequately
supported.
Employee Relations Officer testified Claimant never requested a
transfer. F.F. No. 3; N.T. at 23. Had Claimant done so, Employer could have tried
to accommodate her. Id.
Further, Claimant testified she was aware she could have filed a
formal harassment complaint against Coworker. F.F. No. 4; N.T. at 20, 27-28.
However, Claimant thought the union would file a complaint on her behalf. F.F.
No. 4; N.T. at 20. Notwithstanding, Claimant did not follow-up with the union to
see if someone filed the complaint. Id.
Employee Relations Officer further testified Claimant never requested
any assistance for medical problems or presented any medical documentation or
medical advice concerning any condition brought about by her working conditions.
F.F. Nos. 6, 7; N.T. at 24. Claimant could have requested an accommodation,
which would be reviewed by Employer’s human resources and legal departments.
Id.
Also, Claimant could have requested help from Employer’s employee
assistance program. Id.
10
As indicated by the above findings, Claimant failed to either apprise
Employer of her reasons for resigning or request assistance from Employer in
dealing with them prior to her separation.
A claimant’s failure to notify an
employer of her reasons for quitting work prior to her separation renders her
ineligible for UC benefits under Section 402(b) of the Law.
Lynn v.
Unemployment Comp. Bd. of Review, 427 A.2d 736 (Pa. Cmwlth. 1981). The
purpose of this rule is to provide an employer with the opportunity to
accommodate the claimant, if possible.
Id.
Here, the record clearly shows
Claimant made an insufficient effort to preserve her employment. Id.
Finally, the Board found Claimant resigned to avoid what she thought
would be an imminent discharge at the meeting concerning Coworker’s harassment
claim. To that end, the Board found Claimant’s union representative advised her
that she was “on thin ice” regarding the entire situation and should consider
retirement to avoid losing her pension. F.F. No. 10. However, the Board observed
that there was no testimony indicating that discharge was imminent, or even likely.
Bd. Op. at 2. Thus, the Board determined, Claimant’s belief that she could be
discharged did not provide her with a necessitous and compelling reason to quit her
job.
The record supports the Board’s determination. Employee Relations
Officer testified Employer made no determination or pre-determination regarding
the merits of Coworker’s harassment claim. N.T at 22-23. Further, Claimant was
not under any discipline that would have made the scheduled December 3, 2013
hearing a final hearing. Id. at 23.
11
When asked what the possible results would be if the hearing
proceeded as scheduled, Employee Relations Officer testified:
Frankly, it could’ve been dual-negligence, dualdiscipline.
If there were counterclaims that were
substantiated, it could’ve been listen, you both need to
work collegially. You had to – have to have harmonious
relations. You know, that is what we’re going to do.
We’re going to remediate this. We’re going to separate
the two of you, transfer your assignment, see who the
common denominator is, and possibly neither is a
common denominator; it was just an environment where
two people could not effectively communicate.
Id.
Employee Relations Officer further testified she did briefly discuss
Coworker’s complaint against Claimant with the union representative. N.T. at 2324. However, Employee Relations Officer never advised the union at any point
that Claimant should resign because her employment was in jeopardy. Id. at 24.
Where an employee, without action by the employer, resigns, leaves
or quits employment, that action amounts to a voluntary termination. Fishel v.
Unemployment Comp. Bd. of Review, 674 A.2d 770 (Pa. Cmwlth. 1996). In
Fishel, the claimant resigned from his teaching position to avoid the possibility of
being fired after a formal hearing by the school board. The claimant in Fishel
testified his employer advised him prior to his resignation that it would move to
recommend his termination before the school board.
12
Nonetheless, we determined that the claimant’s resignation under such
circumstances constituted a voluntary quit.
In short, the employer’s
communication to the claimant did not possess the requisite immediacy and finality
of a termination. Id. We noted the outcome of the employer’s recommendation
was far from certain; the claimant could only be discharged by a majority vote of
the school board.
Moreover, the existence of a right to appeal an employer’s
determination of discharge renders the prospect of a discharge less than certain. Id.
Here, Employee Relations Officer testified Claimant was not under
any imminent threat of discharge at the time of the scheduled hearing on
Coworker’s complaint. N.T. at 23-24. Further, Employee Relations Officer never
advised Claimant or her union that her employment was in immediate jeopardy.
Id. at 24.
In addition, Employee Relations Officer testified that if Employer
took any action against Claimant at the hearing, Claimant could bring a grievance
under the parties’ collective bargaining agreement. N.T. at 25.
Given the circumstances here, we hold Claimant’s resignation to
avoid the possibility of termination constituted a voluntary quit under Section
402(b) of the Law.
Fishel.
There is no evidence showing Employer ever
threatened Claimant with imminent discharge. Consequently, we discern no error
or abuse of discretion by the Board in denying Claimant UC benefits under Section
402(b) of the Law. Fishel; Lynn.
13
For the above reasons, the order of the Board is affirmed.
ROBERT SIMPSON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Flammer,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
:
:
:
:
:
:
:
:
No. 1204 C.D. 2014
ORDER
AND NOW, this 9th day of January, 2015, for the reasons stated in the
foregoing opinion, the order of the Unemployment Compensation Board of Review
is AFFIRMED.
ROBERT SIMPSON, Judge