Opinion
No. 1287 C.D. 2012
02-01-2013
Jamie Lynn Ernesto, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this unemployment compensation appeal, Jamie Lynn Ernesto (Claimant), representing herself, asks whether the Unemployment Compensation Board of Review (Board) erred in denying her benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit). Claimant contends the Board erred in determining she voluntarily quit without cause of a necessitous and compelling nature. She argues the working conditions, including alleged incidents of sexual harassment, created a hostile work environment. Upon review, we affirm.
Although she represents herself before this Court, Claimant was represented by counsel at the hearing before the referee.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Claimant worked as a server and on-duty manager for the Pizza Grille (Employer) at the time of her separation. Previously, Claimant worked as an assistant manager. Combined, she worked for Employer for about 18 months.
Claimant resigned from her position, asserting she was subjected to a hostile work environment and several acts of inappropriate behavior. Claimant then applied for benefits. The local service center approved benefits pursuant to Section 402(b). Employer appealed.
The referee held a hearing at which Claimant and three witnesses for Employer testified. The referee resolved the conflicts in testimony in Employer's favor. The referee made the following pertinent findings:
2. [Claimant] had previously reported a kitchen employee for hugging a server because she thought it was a form of sexual harassment.See Ref. Decision, 4/16/2012, Findings of Fact (F.F.) Nos. 2-3, 5-6, 10, at 1-2.
3. The cook was disciplined by [Employer] and sent home for the incident.
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5. [Employer] never received any written complaints from [Claimant] regarding either harassment or any other issues in the workplace.
6. [Claimant] never informed the manager Johnathan [sic] Ford that she was being harassed by other employees or sexually harassed by any employees.
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10. [Claimant] never discussed her concerns about her employment with either the owner or the manager prior to submitting her resignation on February 3, 2012.
The Board adopted the referee's findings of fact and affirmed the denial of benefits. See Bd. Op., 6/11/2012, at 1. Claimant sought reconsideration, which the Board denied.
On appeal, Claimant asserts the Board erred in failing to conclude the alleged sexual harassment in Employer's workplace constituted a necessitous and compelling reason for resigning. She challenges the findings that she did not inform her supervisors of the inappropriate behavior, asserting she made repeated verbal complaints.
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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
This Court precluded Employer from filing a brief as an intervenor as it failed to comply with this Court's order setting forth the briefing deadline. --------
As fact-finder, the Board is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Korpics v. Unemployment Comp. Bd. of Review, 833 A.2d 1217 (Pa. Cmwlth. 2003). The Board's findings are conclusive on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Lee.
Section 402(b) of the Law provides that an employee 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). An employee who claims to have left employment for a necessitous and compelling reason bears the burden of proof. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012).
To prove a necessitous and compelling reason for leaving employment, Claimant must demonstrate the following: (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 her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). An employer has no burden of proof in a voluntary quit case. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Middletown Twp. "[M]ere dissatisfaction with the employer's policies or procedures alone is not cause of a necessitous and compelling nature to voluntarily terminate employment." Tom Tobin Wholesale v. Unemployment Comp. Bd. of Review, 600 A.2d 680, 683 (Pa. Cmwlth. 1991).
Sexual harassment may constitute a necessitous and compelling reason to quit when a claimant makes attempts to resolve the situation. Andrews v. Unemployment Comp. Bd. of Review, 698 A.2d 151 (Pa. Cmwlth. 1997). However, to prove a necessitous and compelling cause in this context, "a claimant must show that she made her employer aware of the harassment." St. Barnabas, Inc. v. Unemployment Comp. Bd. of Review, 525 A.2d 885, 887 (Pa. Cmwlth. 1987).
The record here reflects that Claimant was dissatisfied with the working conditions, including horseplay and what she deemed inappropriate acts. Although Claimant contends she repeatedly complained about sexual harassment to Employer, she cites no record evidence to support her claim.
The Board found that Claimant did not complain to Employer regarding the alleged hostile work environment. F.F. Nos. 5-6, 10. The record is clear that there were no written complaints, F.F. No. 5, and Claimant admits as much. See Notes of Testimony (N.T.), 4/3/12, at 10. Regarding verbal complaints, Employer's witnesses testified there were none. See N.T. at 13, 17, 19 (testimony of both Employer's owner and manager). The Board resolved all conflicts in testimony in Employer's favor. See Bd. Op. at 1, adopting Ref. Decision, 4/16/12, at 2.
Our decisions involving allegations of sexual harassment in voluntary quit cases require an employee to inform an employer about the issue prior to quitting. See Andrews; Peddicord v. Unemployment Comp. Bd. of Review, 647 A.2d 295 (Pa. Cmwlth. 1994); St. Barnabas. We recognize in our precedent:
[t]he problem of job-related sexual harassment or insinuation is a very difficult one; employees are understandably reticent to complain or try to prove affronts of such a personal and debasing nature, especially when they come from a supervisor.St. Barnabas, 525 A.2d at 887 (quoting Colduvell v. Unemployment Comp. Bd. of Review, 408 A.2d 1207, 1208 (Pa. Cmwlth. 1979)) (emphasis added). We are guided and constrained by this precedent here.
However, for purposes of unemployment compensation benefits, the law is clear: the claimant must sustain the burden of proving a reasonable attempt to stay on the job. Claimant's failure to give the owners an opportunity to understand the nature of her objection, before resigning, did not meet that burden.
In this case, there is no evidence Claimant informed Employer of the sexual harassment prior to submitting her resignation letter. Consequently, Employer had no opportunity to correct the allegedly objectionable behavior. As an appellate court, we are not in a position to re-determine the facts as found by the Board, or to rehear the evidence that may have been overlooked or omitted. The facts as found by the Board are supported by the record; thus, the findings are binding on appeal. Lee.
Therefore, based on the facts as found by the Board, which are supported by substantial evidence, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 1st day of February, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge