Opinion
No. 784 C.D. 2014
01-08-2015
Donna M. Reish, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Donna M. Reish (Claimant) petitioned this Court for review of the May 7, 2013 Decision and Order of the Unemployment Compensation (UC) Board of Review (Board) which denied her claim for UC benefits pursuant to Section 402(b) of the UC Law (Law) because she failed to prove cause of a necessitous and compelling nature for leaving her employment. Upon review, we vacated the Board's 2013 Order and remanded this matter to the Board for more specific findings. Reish v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1058 C.D. 2013, filed January 6, 2014). On remand, the Board, without taking additional evidence, issued a new Decision and Order on April 17, 2014 with additional findings. Based on those findings, the Board again denied Claimant's claim for UC benefits pursuant to Section 402(b) of the Law. Claimant now petitions this Court for review of the Board's 2014 Order. In support of this appeal, Claimant argues that the Board did not comply with our remand instructions by making the findings specified by this Court. Therefore, Claimant contends that the Board erred in concluding that she quit her employment without cause of a necessitous and compelling nature. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is ineligible for compensation for any week "[i]n which h[er] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was employed by Furman Foods (Employer) from June 1, 2004 to December 13, 2012 as a label line adjuster. (2014 Board Decision, Findings of Fact (2014 FOF) ¶ 1.) Claimant applied for UC benefits. The UC Service Center determined that Claimant had a necessitous and compelling reason to quit because of harassment from her supervisor, but was ineligible for UC benefits pursuant to Section 402(b) of the Law since she did not exhaust all alternatives prior to quitting. (Notice of Determination, R. Item. 5.) Claimant appealed the UC Service Center's determination and a hearing was held before a UC Referee. Claimant appeared and testified. Employer's Vice President of Human Resources (HR Vice-President) and Warehouse Manager testified on behalf of Employer. The UC Referee affirmed the UC Service Center's determination.
Claimant appealed to the Board and, in its 2013 Decision and Order, the Board found that "[C]laimant began to experience problems with her immediate supervisor [Label Supervisor] in early 2010" that included inappropriate physical contact and inappropriate sexual comments. (2013 Board Decision, Findings of Fact (2013 FOF) ¶¶ 2-3.) Claimant tried to resolve the situation by addressing it directly with Label Supervisor by telling him "that his remarks and actions were inappropriate and he should 'knock it off.[']" (2013 FOF ¶¶ 5-6.) The situation improved for several months but, after a few months, Label Supervisor again made inappropriate comments regarding how Claimant smelled and looked. (2013 FOF ¶¶ 7-8.) In early 2011, the situation between Claimant and Label Supervisor was brought to the attention of Warehouse Manager, whereupon he spoke separately with Claimant and Label Supervisor. (2013 FOF ¶¶ 9-10.) Warehouse Manager advised Claimant that the situation would improve and it again improved. (2013 FOF ¶ 11.) However, Warehouse Manager did not inform Employer's HR Vice-President about Claimant's complaints or the actions Warehouse Manager took to correct the situation as required by Employer's policies. (2013 FOF ¶ 12.) In November 2012, Label Supervisor made more sexual comments and the situation again deteriorated. (2013 FOF ¶ 13.) HR Vice-President conducted an investigation examining the sexual and physical content of Label Supervisor's alleged behavior that resulted in a disciplinary action plan being imposed upon Label Supervisor. (2013 FOF ¶¶ 14-15.) The disciplinary action plan required Label Supervisor to be suspended for five days and attend a refresher course for violations of Employer's harassment policies. (2013 FOF ¶ 16.)
The Board found that Claimant deemed Employer's disciplinary action plan unacceptable and that Claimant continued to deem the disciplinary action plan unacceptable after Employer offered to reevaluate the plan after ninety days, one month, and finally after one week. (2013 FOF ¶¶ 17-20.) The Board found further that Employer offered Claimant a transfer to another position, but that Claimant also found that unacceptable. (2013 FOF ¶ 21.) Finally, the Board found that because Claimant "did not approve of the corrective actions outlined by the employer," she voluntarily quit her employment. (2013 FOF ¶ 22.)
Based on the findings, the Board concluded that "[C]laimant voluntarily quit her employment because she did not approve of the corrective actions outlined by the [E]mployer." (2013 Board Decision at 3.) Claimant petitioned this Court for review, arguing that she had a necessitous and compelling reason to quit her employment because Employer's corrective action plan was not reasonable. Claimant contended that, in the context of her allegations of sexual harassment, she was not required to accept a transfer to a less desirable position, a demotion, or that she continue to work with Label Supervisor in the manner established by the corrective action plan.
Upon review, we determined:
[W]hile the Board found that Claimant quit because she did not approve of the corrective actions outlined by Employer, it is clear from the record that the disciplinary action plan that Employer imposed upon Label Supervisor is not the corrective action plan that Claimant found unacceptable. The Board made no findings regarding the details of Employer's corrective action plan, as testified to by both Claimant and Employer, or the reasonableness of the corrective actions taken in light of the testimony.Reish, slip op. at 6. We determined further that there were no findings by the Board "as to the reasonableness of Employer's actions in failing to take responsibility to eliminate the harassment against Claimant when it was first reported in 2011, and then treating the incident in November 2012 as the first notice Employer had of the situation in formulating a corrective action plan." Id., slip op. at 7. We noted "that there was no testimony by Employer as to what the consequences would be for Label Supervisor if Employer's corrective action plan failed and he again engaged in inappropriate conduct towards Claimant." Id., slip op. at 7 n.6. Thus, we concluded that:
[w]ithout more specific findings this Court cannot, in the first instance, assess whether Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by refusing to try Employer's corrective action plan even for one week. More specific findings must be made concerning whether the entire corrective action plan offered Claimant was reasonable and prudent given the length of time that she was subjected to the inappropriate conduct and Employer's failure to take the necessary steps to adequately correct the situation for more than a year and a half.Id., slip op. at 8-9. Accordingly, we vacated the Board's 2013 Order and remanded this matter for more specific findings by the Board. Id.
On remand, the Board stated that the purpose of this Court's remand was for the Board to reconsider its 2013 Decision and make "more specific findings concerning whether the entire corrective action plan offered to the claimant was reasonable and prudent given the length of time she was subjected to inappropriate conduct from her supervisor and the employer's delay in correcting the situation." (2014 Board Decision at 1.) Upon reconsideration of the record, the Board made the following findings of fact:
1. The claimant was last employed as a label line adjuster by Furman Foods from June 1, 2004, at a final rate of $15.96 per hour and her last day of work was December 13, 2012.
2. In early 2010, the claimant began to experience problems with her supervisor, [Label Supervisor].
3. These were divided into two areas; the first was inappropriate physical contact in the form of being hit on the head by [Label Supervisor's] hat and being shoved by [Label Supervisor]; the second was inappropriate sexual comments made to the claimant by [Label Supervisor].
4. The claimant took her own steps to try to resolve the situation by telling [Label Supervisor] to "knock it off."
5. The situation did improve but would return after a couple months.
6. In early 2011, the claimant advised the warehouse manager, about [Label Supervisor's] physical conduct toward her. The claimant did not report that [Label Supervisor] had made any sexual comments to her.
7. The warehouse manager asked the claimant if she wanted to pursue the matter further and the claimant explained that she did not want [Label Supervisor] to lose his job and[,] as long as he behaved himself, she would let it go.
8. The situation improved, but every few months thereafter, [Label Supervisor] would continue making sexual comments toward the claimant. The claimant did not report these comments to the employer.
9. On November 30, 2012, [Label Supervisor] made another sexual comment to the claimant, which the claimant did not report.
10. Other employees reported to the warehouse manager that [Label Supervisor] had made the claimant upset on this date.
11. On December 4, 2012, the warehouse manager called the claimant into his office and asked what [Label Supervisor] did on November 30, 2012, to upset her so much.
12. Although reluctant at first, the claimant eventually told the warehouse manager about the sexual comment.
13. This was the first time that the claimant reported any sexual comments by [Label Supervisor] to the employer.
14. Approximately thirty minutes later, the vice president of human resources called the claimant into her office to discuss [Label Supervisor's] conduct.
15. The VP advised the claimant that she was going to talk to [Label Supervisor] to hear his side of the story, but that he was on vacation at the time.
16. On December 10, 2012, the VP met with [Label Supervisor] to discuss the sexual comments he made to the claimant on November 30, 2012. [Label Supervisor] denied making sexual comments to the claimant.
17. VP sent [Label Supervisor] home on an administrative leave so that she could complete the investigation.
18. The VP was unable to corroborate the claimant's allegations that [Label Supervisor] had physically hit her in early 2010. [The VP] was able to corroborate that [Label Supervisor] had made at least one sexual comment to the claimant, but was unable to corroborate the claimant's allegations that [Label Supervisor] had made a sexual comment to her on November 30, 2012.
19. On December 11, 2012, the VP advised the claimant that [Label Supervisor] had told a different story than the one she told and requested that the claimant provide a written statement.
20. On December 13, 2012, the VP advised the claimant that she had concluded her investigation and that [Label Supervisor] was being placed on an action plan.
21. [Label Supervisor's] action plan began with a five-day unpaid suspension. When he returned, he would be required to take additional harassment training, he would be prohibited from having any one-on-one contact with the claimant, he would no longer conduct the claimant's performance reviews, and he would no longer administer any discipline that the claimant may have been involved in.
22. The VP advised the claimant that she would informally review the action plan after ninety days to ensure that it was acceptable.(2014 FOF ¶¶ 1-32.)
23. The claimant stated her concerns about who she would need to contact in a warehouse "first responder" situation. The VP assured the claimant that she would advise the first responders from other sections of the facility to report immediately to any situation regarding the warehouse.
24. One hour later, the claimant came back to the VP's office and stated that she was going to quit. The VP asked that the claimant take some time to think about her decision.
25. The VP then offered to reevaluate the action plan after thirty days instead of ninety days, which the claimant declined.
26. The VP then offered to reevaluate the action plan after one week instead of thirty days, which the claimant also declined.
27. The claimant voiced her concerns that [Label Supervisor] would be the only management employee available for most of her shift, at which point the VP asked if the claimant wanted to switch positions.
28. The VP then offered the claimant another position as a floater on the same shift, and the claimant stated that "she shouldn't have to leave her job."
29. The claimant's job as an adjuster was dirty and greasy. The floater position offered would have involved the claimant cleaning up wet machinery, which she found to be less desirable.
30. The claimant never asked the VP whether or not her pay would have been affected by switching positions. In the past, the employer had allowed employees to keep a similar wage if they were required to switch positions.
31. The claimant made it clear to the VP that she would not be satisfied unless [Label Supervisor] was terminated from his position; however, based on her investigation, the VP did not find it prudent to do so.
32. Finding the employer's action plans unacceptable, the claimant voluntarily quit her employment.
Based on the foregoing findings of fact the Board determined that, under the circumstances, Employer's corrective action plan was reasonable and that Claimant did not prove "good cause for her failure to work under the plan or that she made reasonable efforts to preserve her employment." (2014 Board Decision at 5.) Accordingly, the Board concluded that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law. Thus, the Board denied Claimant's claim. Claimant now petitions this Court for review.
Our review of the Board's 2014 Decision "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." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014). --------
In support of this appeal, Claimant argues that the Board failed to make the specific findings as instructed by this Court on remand. Claimant asserts that the Board made no findings that establish that Employer acted with reasonable prudence to protect Claimant from physical, verbal, and sexual harassment. In particular, Claimant contends that the Board failed to make any findings that Employer was justified in treating a second incident of sexual harassment against Claimant as if it were the first incident under its policies and the Board also failed to make findings regarding the consequences for Label Supervisor if the corrective action plan failed and the harassment continued. Claimant argues that, because these findings were not made, the Board erred in concluding that Employer had acted with reasonable prudence to protect Claimant from subsequent harassment.
We believe that the Board complied with this Court's instructions on remand. The Board made more specific findings that address the sequence of events between the time that Claimant first reported a problem with Label Supervisor's conduct to Warehouse Manager in early 2011 and the time that Claimant ended her employment. The Board's findings explain in more detail why an investigation was not begun in early 2011 after Claimant reported the physical contact between Claimant and Label Supervisor and why Employer did begin an investigation after learning of the November 30, 2012 incident involving sexual comments. As instructed by this Court, the Board made specific findings regarding the details of Employer's corrective action plan, as testified to by Claimant and Employer, and found that the plan was reasonable under the circumstances. (2014 FOF ¶¶ 20-31; 2014 Board Decision at 5.)
Finally, although the Board did not make findings as to the consequences to Label Supervisor if his sexual comments continued after Employer implemented the corrective action plan, such findings were not necessary to the Board's resolution of the issues presented. As found by the Board, Claimant was unwilling to work under the corrective plan for any period of time. (2014 FOF ¶¶ 22-26.) Therefore, because Claimant quit before allowing the corrective action plan to take effect, it was unnecessary to examine the consequences to Label Supervisor if the corrective action plan failed. In addition, the Board found that Claimant made it clear "that she would not be satisfied unless [Label Supervisor] was terminated." (2014 FOF ¶ 31.) However, after conducting an investigation, Employer determined that it would not be prudent to terminate Label Supervisor. (2014 FOF ¶ 31.)
Accordingly, a review of all of the findings shows that the Board complied with our remand instructions. We now turn to the issue of whether the Board erred by concluding that Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature. Claimant argues that the record does not support the Board's findings that Employer fulfilled its responsibility to protect Claimant from further physical, sexual, and verbal harassment. Claimant asserts that she took common sense action to provide Employer with the opportunity to understand the nature of her objections and to take prudent steps to resolve the issues she had with Label Supervisor.
Section 402(b) of the Law provides that a claimant is ineligible for compensation for any week in which his or her unemployment is due to a voluntary termination of employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). A claimant who voluntarily terminates her employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). Whether or not a claimant had a necessitous and compelling cause for terminating employment is a question of law subject to this Court's review. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006).
It is well settled that:
[a]n employee who claims to have left employment for a necessitous and compelling reason must prove that: (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.Id. at 660. "Sexual harassment may constitute a necessitous and compelling reason to quit employment." Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). As explained by this Court:
In such a situation, a claimant need not "notify the employer of each and every incident of harassment." Unclaimed Freight Co. v. Unemployment Comp[ensation] B[oar]d o[f] Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996). Rather, a claimant will remain eligible for benefits as long as she has "taken 'common sense' action that [gives] the employer an opportunity to understand the nature of [her] objections and to take prudent steps to resolve the problem." Id. Furthermore, "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." Comitalo [v. Unemployment Compensation Board of Review], 737 A.2d [342,] 345 [(Pa. Cmwlth. 1999)].
Id.
Upon review of the Board's findings, we conclude that the Board did not err in determining that Claimant was ineligible for UC benefits pursuant to Section 402(b) of the Law. Although this Court does not condone the type of behavior at issue here, the Board's findings show that it was Claimant's reluctance to report the sexual nature of Label Supervisor's conduct toward her that deprived Employer of the opportunity to resolve the situation sooner. Employer did not become aware of Label Supervisor's conduct toward Claimant until it was brought to its attention by other employees after the November 30, 2012 incident.
As support for its determination that Employer's corrective action plan was reasonable under the circumstances, the Board addressed the fact that Claimant had previously advised Warehouse Manager that Label Supervisor had made physical contact with her. At that time, however, Claimant did not report Label Supervisor's previous sexual remarks and asked that no action be taken against Label Supervisor for physically touching her. (2014 Board Decision at 5.) Moreover, Warehouse Manager testified that employees were required to wear hearing protection resulting in employees needing to physically touch another employee in order to get that employee's attention. (Hr'g Tr. at 34, R. Item 9.) The Board also considered the fact that Employer immediately began an investigation when it learned, through reports by other employees, of the comments made by Label Supervisor to Claimant on November 30, 2012. Upon completion of its investigation, Employer formulated a corrective action plan and advised Claimant of the plan. Thus, we conclude that the record supports the Board's findings that Employer engaged in reasonable efforts to protect Claimant from Label Supervisor's offensive behavior.
Once Claimant informed Employer that the corrective action plan, as first proposed, was not acceptable, Employer offered to adjust the plan to address Claimant's concerns and to review the plan after one week. Because Claimant continued to oppose Employer's attempts to develop an amenable corrective action plan, Employer offered to transfer Claimant to a different position where she would have no contact with Label Supervisor. Claimant also rejected this alternative and made it clear to Employer that the only action she would find acceptable would be for Employer to terminate Label Supervisor. However, Employer did not believe, based on its investigation in which it was only able to corroborate that Label Supervisor made one sexual comment to Claimant, that it was prudent to terminate Label Supervisor. Despite Employer's efforts to develop a solution that would be acceptable, Claimant then terminated her employment.
Given the Board's findings, we are constrained to conclude, as did the Board, that Claimant did not make a reasonable effort to preserve her employment. Employer offered Claimant a reasonable corrective action plan, which Claimant refused to try for even one week, and Claimant refused Employer's offer to move her to a different position away from Label Supervisor. Although it could appear from Claimant's perspective that Employer did not do enough, given the length of time she silently endured the offensive behavior, Employer did take steps to eliminate the offensive behavior once it became aware of the situation. As such, in terminating her employment without attempting to work with Employer's corrective action plan, Claimant did not take reasonable steps to preserve her employment.
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 8, 2015, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge