Opinion
No. 704 C.D. 2012
11-09-2012
Hope D. Lumpkins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Hope Lumpkins (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. The Board held that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. §802(b), because she voluntarily terminated her employment without a necessitous and compelling reason. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It 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.
Claimant worked full-time for Lincoln National Life (Employer) from October 1998 until she resigned on July 1, 2011. She was employed as an executive or administrative assistant and earned an annual salary of approximately $56,000. Claimant filed for unemployment compensation benefits, and they were denied by the UC Service Center on September 15, 2011. Claimant appealed on October 6, 2011, after the deadline. A hearing was held before a Referee on November 30, 2011. Employer did not participate.
Claimant explained why she filed her appeal late. Claimant left Pennsylvania on July 4, 2011, and moved to Kansas. There, she found herself in a domestic violence situation and moved to Illinois. Notes of Testimony, November 30, 2011, at 7 (N.T. ___). Her application for unemployment compensation was denied on September 15, 2011, and sent to the address she had listed in Kansas. Instead of opening the letter, she packed it up and opened it in Illinois after she moved. As a result, she did not appeal the UC Service Center's denial of benefits until October 6, 2011, after the deadline of September 30, 2011. The appeal was received on October 13, 2011.
Claimant testified that she told Employer she was quitting because she was "exhausted" and "couldn't stand it any longer." N.T. 6. She then elaborated.
Claimant testified that in December 2005, she was the victim of a sexual assault by a manager in the company while they were on a business trip. The manager resigned shortly thereafter. Claimant filed a complaint with Employer's human resources department in early 2006, but at the hearing before the Referee she provided little detail about the assault, her complaint or its resolution. Notably, Claimant did not claim that the sexual assault itself prompted her decision to resign. Rather, Claimant asserted that it was what happened afterwards that caused her to resign, namely a series of retaliatory actions by Employer.
Starting in 2006, Claimant began to receive poor job performance reviews. Then, in 2007, Claimant did not receive a promotion for which she applied. Employer's stated reason for denying Claimant the promotion was that she stated in her interview that the least favorite aspect of her current job was filing; unfortunately, the new job also required filing. Finally, in 2009, when Claimant's boss, a "national" manager, left the company, his replacement, Kirk North, chose someone else to be his assistant; Claimant was assigned to work for other managers. Claimant opined that working for lower level executives diminished her ability to seek other executive assistant positions. Claimant offered no evidence that she had, in fact, sought or been denied other executive assistant positions.
Claimant then complained about North's conduct. In April 2011, North walked by her desk while smacking a baseball bat in his hand and stated that hitting someone with a bat would create a hostile work environment. Claimant believed North's comments were directed at her. Claimant reported the North baseball bat incident to human resources and was told that North always walks around with a bat. Claimant testified that North opposed her request to relocate to Employer's Illinois office.
Claimant then complained about Employer's human resources department. Claimant received a call from the department while she was on vacation in June 2011 advising her that she was a "no call, no show" and warning her that she could lose her job. The department retracted its warning after it learned Claimant had been on approved leave. Claimant maintained that the incident caused her to suffer from post-traumatic stress.
On July 1, 2011, Claimant tendered a letter of resignation. It stated:
After years of mental stress and internal turmoil resulting from a criminal act of sexual assault imposed upon me by a Lincoln Financial Distributors employee i.e. manager, and ensuing damaging behaviors towards me, it is my resolve that the atmosphere here, at Lincoln Financial Distributors, has become very harmful to my health and well being thereby necessitating that I immediately remove myself from any further turmoil.Certified Record, Item No. 11 (C.R. ___), Claimant's Exhibit 1.
The Referee dismissed Claimant's appeal as untimely filed. Claimant appealed to the Board. The Board vacated the Referee's decision, holding that Claimant had demonstrated grounds for a nunc pro tunc appeal. On the merits, however, the Board held that Claimant failed to prove that Employer retaliated against her for filing a sexual assault complaint or had fostered a hostile working environment. It concluded that Claimant's failure to receive the desired promotion, her change in work assignment and North's baseball bat habit were insufficient to prove either retaliation or a hostile work environment. Noting that Claimant continued to work for three months after what Claimant called the "final straw," i.e., the baseball bat incident, the Board held that the incident was also too remote in time to justify her sudden resignation. N.T. 8. Because Claimant failed to show a necessitous and compelling reason for quitting her employment, the Board held that she was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). Claimant now petitions for this Court's review.
On appeal, Claimant asserts that the Board erred. She contends that the record shows that she was a victim of retaliation and a hostile work environment, which led to post-traumatic stress. Accordingly, she had a necessitous and compelling reason to resign.
Our scope of review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987).
A claimant who voluntarily terminates her employment without a necessitous and compelling reason is ineligible for unemployment compensation benefits. Section 402(b) of the Law, 43 P.S. §802(b). A claimant who believes she has a necessitous and compelling reason to quit bears the burden of proof. Draper v. Unemployment Compensation Board of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998). A necessitous and compelling reason is defined as circumstances, both real and substantial, that produce pressure to leave a job; further, the circumstances must be those that would prompt a reasonable person to resign. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 832-33 (Pa. Cmwlth. 1977). The circumstances relied upon by the claimant must have existed close in time to her resignation. Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894, 899 (Pa. Cmwlth. 1998). Finally, a claimant must show that she took all reasonable efforts to preserve her employment. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). With these principles in mind, we turn to Claimant's arguments that she proved necessitous and compelling reasons for her resignation.
Claimant argues that Employer retaliated against her for making a sexual harassment complaint by giving her poor performance reviews, denying her a promotion and assigning her to serve as an assistant to lower level managers when her former boss left the company. The problem with Claimant's position is that these actions occurred between 2006 and 2009, years before her July 2011 resignation. As such, they cannot be considered part of the circumstances that caused Claimant to quit. In any case, she offered no evidence, other than her speculation, that her complaint had anything to do with these personnel actions.
Claimant also cites the April 2011 incident where North walked around with a baseball bat and made comments that Claimant interpreted to be threatening. Again, however, North's actions occurred three months before Claimant's sudden resignation, and she offered no evidence that the incident was ever repeated. Dissatisfaction with working conditions, resentment of supervisory criticism, or personality conflicts do not constitute a necessitous and compelling reason for a voluntary quit. Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995). The incident involving North appears to fall into the category of personality conflict, given the fact that North's playing with a baseball bat was a well-known habit in the office. This was the stated reason for human resources not taking action against North, i.e., "he always walks around with a bat." N.T. 8.
In any case, Claimant did not take reasonable steps to preserve her employment. Claimant did not inform human resources that she found her work environment intolerable because of North's baseball bat habit. She did not inform human resources of the stress caused by its phone call to her while on vacation. Claimant simply handed in a letter of resignation. An employee must take reasonable efforts to preserve her employment, including an attempt at resolving conflicts with coworkers or supervisors. Craighead-Jenkins, 796 A.2d at 1033.
A necessitous and compelling cause to quit may be established if a claimant proves that she resigned due to health problems. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 128, 451 A.2d 1353, 1355 (1982). To establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems, and (3) be available to work if reasonable accommodations can be made. Id. at 130-31, 451 A.2d at 1356. Claimant did not offer competent evidence of any stress-related medical condition. She did not inform Employer that the call from human resources caused her to experience stress or give Employer a chance to address the matter. In any case, human resources did address the matter by retracting its warning.
A claimant need not present expert testimony to meet her burden, but may rely on her own testimony and documentation. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 372-73, 453 A.2d 591, 594 (1982). --------
In summary, Claimant's evidence of job dissatisfaction did not establish that she had a necessitous and compelling reason to voluntarily terminate her employment. Therefore, the Board did not err in holding that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b), and we affirm its order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 9th day of November, 2012, the order of the Unemployment Compensation Board of Review dated February 17, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge