Opinion
No. 1204 C.D. 2014
01-09-2015
Linda Flammer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
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. 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.
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.
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.
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.Referee's Dec., 2/20/14 at 2.
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.
On appeal, the Board affirmed. In so doing, the Board adopted and incorporated the referee's findings and conclusions. Claimant petitions for review.
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). --------
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 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.
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.
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 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. See Referee's Dec. at 2. 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). 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.
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.
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, dual-discipline. 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 23-24. 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.
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.
For the above reasons, the order of the Board is affirmed.
/s/_________
ROBERT SIMPSON, Judge 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.
/s/_________
ROBERT SIMPSON, Judge