Opinion
No. 2166 C.D. 2011
07-11-2012
JJ Stanley, Inc., d/b/a Home Helper, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
JJ Stanley, Inc., d/b/a Home Helper (Employer), petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that its former employee, Bobbi L. Muehlbauer (Claimant), is eligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law. The Board adopted the findings of the referee (Referee) and affirmed the Referee's conclusion that Claimant had shown a necessitous and compelling reason to quit her job due to sexual harassment. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, §402, as amended, 43 P.S. §802(b). Section 402(b) provides, in relevant part, that "[a]n employe 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." Id.
The facts found by the Board and the evidence found credible by the Board establish the following. Claimant was employed full-time by Employer from February 3, 2009 through May 3, 2011 as a Home Helper Aide providing in-home personal care and light housekeeping for disabled individuals. (Record Item (R. Item) 12, Referee's Decision, Findings of Fact (F.F.) ¶1, R. Item 11, Referee Hearing Transcript (H.T.) at 3-5.) Claimant was assigned by Employer to work in the home of a client of Employer who suffered from multiple sclerosis (Client). (R. Item 11, H.T. at 5; R. Item 16, Employer Brief submitted to Board at 1.) Employer was aware when it assigned Claimant to Client in February 2009 that Client's husband had engaged in inappropriate conduct with a prior aide. (R. Item 11, H.T. at 5.)
Client's husband was present when Claimant was working at least one to two days a week. (R. Item 11, H.T. at 6.) Within a week or so after Claimant started working in Client's home in February 2009, Client's husband began leaving suggestive notes for Claimant. (R. Item 12, F.F. ¶2; R. Item 11, H.T. at 5.) These notes made Claimant uncomfortable. (R. Item 11, H.T. at 5.) Claimant notified Employer of these inappropriate notes from Client's husband, but was told by Employer to just ignore them. (R. Item 12, F.F. ¶3; R. Item 11, H.T. at 5-6.) Over the next two years, Client's husband continued to harass Claimant, including touching her and putting ice on her shirt. (R. Item 11, H.T. at 6-7.) Claimant told Employer on several occasions that the problems with Client's husband continued. (R. Item 12, F.F. ¶4; R. Item 11, H.T. at 6-7.) Employer did not take any action in response to protect Claimant from sexual harassment. (R. Item 12, Referee's Decision at 2; R. Item 11, H.T. at 7.)
On April 29, 2011, when Claimant and Client's husband were taking Client to the hospital for medical treatment, Client's husband put his arm around Claimant and pulled her close to him. (R. Item 12, F.F. ¶¶6-8; R. Item 11, H.T. at 7-8.) When Claimant pushed him away and tried to distance herself from him, Client's husband made repeated sexual comments to her, asking her if she would swim in his pool "[b]ecause I want to see you in your two-piece bathing suit because it excites me" and telling her "I can't wait for your pants to come off." (R. Item 12, F.F. ¶¶10-12; R. Item 11, H.T. at 7-8.) Later that day, Client's husband also sent Claimant a poem about female genitalia. (R. Item 11, H.T. at 8.) On May 2, 2011, Client's husband left a box for Claimant with the tag "Happy Belated Birthday, Bobbi," although her birthday was over two months earlier, containing a blanket he had taken from the April 29, 2011 hospital visit. (R. Item 12, F.F. ¶13; R. Item 11, H.T. at 9.)
After her shift on May 2, 2011, Claimant telephoned Ms. Stanley, who ran Employer's business and who was the person at Employer who was responsible for handling sexual harassment complaints, and told Ms. Stanley about the harassment at the hospital. (R. Item 12, F.F. ¶14; R. Item 11, H.T. at 9-10, 18, 20.) Ms. Stanley told Claimant that she would get back to her. (R. Item 12, F.F. ¶15; R. Item 11, H.T. at 9-10.) On May 3, 2011, when Claimant called Employer again, Ms. Stanley told her that the only thing that could be done was for Claimant to talk to Client's husband. (R. Item 12, F.F. ¶16; R. Item 11, H.T. at 10-11.) Claimant told Ms. Stanley that she was not comfortable going back to Client's home because of the harassment and asked to be placed with a different client. (R. Item 12, F.F. ¶17; R. Item 11, H.T. at 10-11.) Ms. Stanley responded by getting angry at Claimant and telling her that there was nowhere else to place her and that she could not be transferred to a different client. (R. Item 11, H.T. at 10-11.)
When Claimant insisted that she was not comfortable returning to Client's home and could not continue working there, the only alternative Ms. Stanley offered her was an assignment that required both night and weekend work. (R. Item 12, F.F. ¶19; R. Item 11, H.T. at 11, 13-14.) Claimant had told Employer when she was hired that she could not work a job with night hours because she was attending school at night, and told Ms. Stanley that she could not take the night and weekend assignment because of that conflict. (R. Item 12, F.F. ¶¶20-21; R. Item 11, H.T. at 11.) Employer did not offer Claimant any other assignment. (R. Item 12, F.F. ¶22; R. Item 11, H.T. at 11, 13-14.) Claimant did not return to work after May 3, 2011. (R. Item 12, F.F. ¶23; R. Item 11, H.T. at 4, 11.)
Claimant applied for benefits on May 22, 2011, stating that she left her employment due to sexual harassment. (R. Item 2, Internet Initial Claims Application.) After the Unemployment Compensation Service Center denied Claimant's application for benefits, Claimant appealed, and the Referee conducted a hearing at which Claimant and two Employer representatives, Ms. Stanley and Ms. Defrancesco, testified.
At the hearing, Claimant testified that Client's husband had sexually harassed her from February 2009 on and that she reported this harassment to Employer. (R. Item 11, H.T. at 5-9.) Claimant's testimony concerning the harassment, the specific events of April 29, 2011 and her reporting of the harassment to Employer in February 2009 and May 2011 was not contradicted by any witness. Ms. Stanley admitted that Claimant had reported twice in 2009 that Client's husband left inappropriate, romantic notes for her and both Employer witnesses admitted that Claimant reported the April 29, 2011 harassment at the hospital. (R. Item 11, H.T. at 14, 17-18, 20.) Moreover, Employer admitted that it investigated the April 29, 2011 hospital incident and that Client did not dispute that the conduct occurred, but only contended that "her husband was joking." (R. Item 3, Employer Questionnaire at 1; R. Item 11, H.T. at 18.)
Claimant's and Employer's witnesses' testimony conflicted on whether Claimant reported any harassment between February 2009 and May 2011. Claimant testified that she told Employer during that intervening period that the harassment was continuing. (R. Item 11, H.T. at 6-7.) Ms. Stanley testified that Claimant did not notify her of any harassment in the period between the early 2009 notes and May 2011. (R. Item 11, H.T. at 14-15.)
Claimant and Employer also disputed how Employer responded to Claimant's May 2011 harassment complaint and request to be placed with a different client. Claimant testified that when she asked to be transferred to a different client, Ms. Stanley "kind of got mad about it that I didn't want to go back. And she told me that - well, she didn't have anywhere to place me." (R. Item 11, H.T. at 10.) Claimant testified that when she insisted that she could not go back to Client's home, Ms. Stanley told her "Well, the only thing I can do for you is have you at night" and offered only an assignment that required night and weekend work. (R. Item 11, H.T. at 11, 13-14.) Claimant testified that she could not work nights because of her school schedule and that Ms. Stanley knew of this restriction when she hired Claimant. (R. Item 11, H.T. at 11.)
Employer's witnesses testified that Ms. Stanley orally offered Claimant three alternative assignments ranging of 15-20 hours a week, 35 hours a week and 38 ½ hours a week and that Claimant turned these down because they were less than 40 hours per week. (R. Item 11, H.T. at 15, 19.) Employer, however, admitted that it did not give Claimant anything in writing or any email setting forth these or any other alternative placement because "we don't provide that in writing." (R. Item 11, H.T. at 16.) Claimant specifically denied that she was offered these alternative assignments and testified that no alternative placements were offered other than one for night and weekend work. (R. Item 11, H.T. at 10-11, 13-14.)
On August 18, 2011, the Referee issued a decision reversing the Service Center's determination and finding Claimant eligible for benefits. The Referee found that Claimant was being sexually harassed at work by Client's husband, that Claimant had informed Employer of the sexual harassment and that Employer did not provide Claimant any feasible alternative or other protection from the sexual harassment. (R. Item 12, Referee's Decision at 2-3 & F.F. ¶¶2-4, 6-22.) The Referee therefore concluded that Claimant had shown a necessitous and compelling reason for leaving her job and was entitled to benefits. (R. Item 12, Referee's Decision at 2-3.) With respect to the facts that the parties disputed, the Referee found Claimant's testimony credible and specifically rejected Employer's assertions that it had offered Claimant three alternative placements. (R. Item 12, Referee's Decision at 2-3 & F.F. ¶¶4, 18-22.)
Employer appealed the Referee's decision to the Board. The Board, following its review of the record, concluded that the Referee's determination was correct, adopted and incorporated the Referee's findings and conclusions in their entirety and affirmed the Referee's decision. (R. Item 18, Board Order.) Employer timely filed the instant petition for review appealing the Board's order to this Court.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 483 n.2 (Pa. Cmwlth. 2005); Comitalo v. Unemployment Compensation Board of Review, 737 A.2d 342, 344 (Pa. Cmwlth. 1999).
A claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate that she had a necessitous and compelling reason for leaving that employment. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, ___ A.3d ___, ___, No. 927 C.D. 2011, 2012 WL 1860807 at *2 (Pa. Cmwlth. May 23, 2012); Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005); 43 P.S. §802(b). To prove a necessitous and compelling reason for leaving employment, the claimant must show circumstances that produced real and substantial pressure to terminate employment and would compel a reasonable person to act in the same manner, and must also show that she acted with ordinary common sense and made a reasonable effort to preserve her employment. Pennsylvania Gaming Control Board, ___ A.3d at ___, 2012 WL 1860807 at *3; Collier Stone Co., 876 A.2d at 484; Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728, 730 (Pa. Cmwlth. 2000); Comitalo v. Unemployment Compensation Board of Review, 737 A.2d 342, 344 (Pa. Cmwlth. 1999). Whether or not a claimant had a necessitous and compelling reason for terminating employment is a question of law subject to this Court's review. Pennsylvania Gaming Control Board, ___ A.3d at ___, 2012 WL 1860807 at *2; Comitalo, 737 A.2d at 344.
The Referee and Board correctly concluded that Claimant satisfied her burden of proving a necessitous and compelling reason for leaving her job. Sexual harassment is a circumstance which produces real and substantial pressure to terminate employment and which would compel a reasonable person to terminate employment. "[C]onduct such as unwanted sexual comments and requests for sexual favors ... go beyond what must be tolerated in the workplace." Mutual Pharmaceutical Co. v. Unemployment Compensation Board of Review, 654 A.2d 37, 40 (Pa. Cmwlth. 1994). It is therefore well established that sexual harassment can constitute a necessitous and compelling reason to leave employment. Collier Stone Co., 876 A.2d at 484; Borough of Coaldale, 745 A.2d at 731; Comitalo, 737 A.2d at 344.
Employer contends that Claimant did not satisfy her burden to show that she acted with ordinary common sense and made a reasonable effort to preserve her employment because she allegedly did not sufficiently notify Employer of the harassment (Petitioner's Br. at 15-19) and allegedly turned down three alternative placements. (Petitioner's Br. at 19-22.) Both of these arguments, however, are contrary to the Board's credibility determinations and factual findings.
To the extent that Employer is also arguing that Claimant did not prove sexual harassment (Petitioner's Br. at 14-15), any such contention is specious. Not only did the Referee find credible Claimant's testimony that she was sexually harassed, that testimony was uncontradicted and, indeed, was corroborated by Employer's own evidence. --------
The Board adopted the Referee's findings that Claimant's testimony was credible and that Claimant not only notified Employer of the harassment in February 2009 and May 2011, but also informed Employer of the continuing harassment on several occasions in the intervening two-year period. (R. Item 18, Board Order; R. Item 12, Referee's Decision at 2-3 & F.F. ¶¶2-4, 14-18.) The Board further adopted the Referee's findings that Employer did not offer three alternative placements and that Employer failed to provide any alternative assignment other than one involving night work which was outside Claimant's agreed upon availability. (R. Item 18, Board Order; R. Item 12, Referee's Decision at 2-3 & F.F. ¶¶19-22.) The Board's findings of fact are binding on this Court where they are supported by substantial evidence, even if there is other contrary evidence. Borough of Coaldale, 745 A.2d at 731; Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894, 900 n.9 (Pa. Cmwlth. 1998). Moreover, the testimony of Claimant, as the party who prevailed before the Board, must be viewed in the light most favorable to her, with all reasonable and logical inferences taken in her favor. Mutual Pharmaceutical Co., 654 A.2d at 40 n.5.
The Board's findings against Employer on these issues are all supported by substantial evidence. Claimant testified that during the two years she was working in Client's home she spoke with Ms. Stanley to keep her apprised of her work, that she told Ms. Stanley in some of these conversations about Client's husband's harassment and that Ms. Stanley did nothing. (R. Item 11, H.T. at 6-7.) Claimant testified that Employer did not offer her the three alternative assignments they argue, but only offered an assignment that would require her to work nights. (R. Item 11, H.T. at 10-11, 13-14.) Claimant further testified that she turned down the one alternative placement offered because it conflicted with her school schedule and that she had been hired by Employer with the understanding that she would not have to work nights because of her school schedule. (R. Item 11, H.T. at 11.) It is, therefore, these facts, and not Employer's preferred version of the facts, that we must consider in determining whether Claimant adequately reported the harassment and made a reasonable effort to preserve her employment. Borough of Coaldale, 745 A.2d at 731-32.
Given the Board's findings, Employer's contentions are without merit. Claimant gave Employer sufficient notice of the sexual harassment. A claimant is not obligated to file a written or formal complaint of harassment or report every incident of harassment. Comitalo, 737 A.2d at 344; Mutual Pharmaceutical Co., 654 A.2d at 40; Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109, 1111 (Pa. Cmwlth. 1987). "The law does not require a claimant to complain of each and every incident of sexual harassment nor does it require a formal complaint be filed." Homan, 527 A.2d at 1111. Moreover, Claimant fully complied with Employer's sexual harassment policy. Employer's sexual harassment policy required only that Claimant notify her supervisor of the harassment; it did not require her to submit a written report or statement. (R. Item 3, Employer Questionnaire at 3-4.) Claimant reported the harassment to Ms. Stanley, who was both her supervisor and the person at Employer who was responsible for addressing sexual harassment complaints. (R. Item 11, H.T. at 5-7, 9-11, 14, 17, 20.)
Claimant also did not refuse any reasonable accommodation which could have permitted her to continue her employment. Claimant's unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. Unemployment Compensation Board of Review, 706 A.2d 406, 408 (Pa. Cmwlth. 1998) (promise of future transfer away from harasser to office which did not yet exist was not a sufficient accommodation where claimant would have to work with harasser in the interim); Mutual Pharmaceutical Co., 654 A.2d at 41 (claimant had shown necessitous and compelling reason to quit her job where employer failed to transfer her to shift where she would not have contact with harasser). "[T]here 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, 737 A.2d at 345 (claimant had demonstrated necessitous and compelling reason to quit where employer did not take immediate action to prevent further harassment).
The only alternative that Employer offered Claimant, an assignment requiring night work, was not a reasonable accommodation that she was required to accept because it conflicted with the restrictions on her work schedule under which she had been hired. Where an employee is hired under an understanding that he or she can work only a particular shift or particular hours because of other obligations, the employee's refusal to accept work hours or assignments that violate that agreed upon availability does not show a lack of reasonable effort to preserve employment and does not defeat eligibility for benefits. Mauro v. Unemployment Compensation Board of Review, 751 A.2d 276, 280 & n.8 (Pa. Cmwlth. 2000) (claimant entitled to benefits because change by employer requiring claimant to work hours which conflicted with his agreed upon schedule limitation constituted necessitous and compelling circumstances for quitting his job).
Because the Board correctly concluded that Claimant had shown a necessitous and compelling reason for leaving her job with Employer, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of July, 2012, the order of the Unemployment Compensation Board of Review in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge