K.A. Manley v. UCBR ( 2018 )


Menu:
  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Karen A. Manley,                                  :
    Petitioner              :
    :
    v.                             :
    :
    Unemployment Compensation                         :
    Board of Review,                                  :   No. 1893 C.D. 2017
    Respondent                       :   Submitted: August 3, 2018
    BEFORE:            HONORABLE ROBERT SIMPSON, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE DAN PELLEGRINI, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE FIZZANO CANNON                               FILED: October 5, 2018
    Karen A. Manley (Claimant), pro se, petitions for review of the
    November 22, 2017 order of the Unemployment Compensation Board of Review
    (Board) that affirmed the determination of a Referee denying Claimant
    unemployment compensation benefits under Section 402(b) of the Pennsylvania
    Unemployment Compensation Law (Law),1 which provides that a claimant shall be
    ineligible for benefits in any week in which her unemployment is due to voluntarily
    leaving work without cause of a necessitous and compelling nature. Upon review,
    we affirm.
    Claimant was employed by The Restaurant School at Walnut Hill
    College (Employer) from 1997 to 2004 and from 2005 to 2007. Certified Record
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    802(b).
    (C.R.) Item No. 17, 11/29/16 Transcript of Testimony (T.T.) at 9-10.      Employer
    rehired Claimant in 2010 as an admissions representative. Board’s Finding of Fact
    (Board’s F.F.) 1. The work atmosphere at Employer’s administrative offices was
    extremely permissive and bawdy humor between employees was tolerated. Board’s
    F.F. 2.
    In February 2016, Employer hired a new supervisor (Supervisor).
    Board’s F.F. 6. In April 2016, Supervisor angrily reprimanded Claimant when she
    took time off without first obtaining his approval. Board’s F.F. 9. Claimant had
    consulted with human resources (HR) but did not obtain Supervisor’s permission, as
    required by Employer. Board’s F.F. 9. Supervisor unilaterally decided to suspend
    Claimant for two days. Board’s F.F. 8. Claimant complained to Employer’s vice
    president (VP) regarding her suspension as well as Supervisor’s actions, and
    informed Employer that she intended to quit. Board’s F.F. 10. VP overruled
    Claimant’s suspension and convinced her to continue her employment. Board’s F.F.
    11. VP counseled Supervisor for yelling at Claimant, and also counseled Claimant
    for taking time off without first obtaining Supervisor’s permission. Board’s F.F. 12.
    Sometime thereafter, Claimant and a co-worker complained to VP regarding
    Supervisor’s treatment of women, alleging that he yelled and cursed at them.
    Board’s F.F. 13.
    Employer had a Summer Institute for new students, some of whom
    were minors and none of whom were of legal drinking age. Board’s F.F. 14.
    Claimant and other admissions staff assisted at the Summer Institute by attending
    dinner on a boat with the new students and chaperoning their stay in a dormitory.
    Board’s F.F. 14. On July 6, 2016, Claimant invited a guest without obtaining
    Supervisor’s prior approval, and she and her guest each had one alcoholic drink on
    2
    the dinner cruise. Board’s F.F. 15 & 26. It was not uncommon for employees to
    have a drink at such events. Board’s F.F. 16. Claimant and her guest chaperoned
    the Summer Institute students over the next two days while they stayed in the student
    dormitory. Board’s F.F. 17. On July 8, 2016, Supervisor informed VP that Claimant
    brought a guest and that she and the guest had alcoholic drinks on the boat. Board’s
    F.F. 18. Later that day, Employer hosted a dinner at the school for prospective
    students and their families, during which Supervisor thanked all Summer Institute
    staff by name. Board’s F.F. 19. Supervisor did not mention Claimant’s name until
    reminded to do so, which caused Claimant to become upset and leave. Board’s F.F.
    20 & 21. As she left, Claimant walked by VP and told him that Supervisor’s
    behavior was ridiculous and that she could not put up with it anymore. Board’s F.F.
    22.
    The next day, July 9, 2016, Claimant applied for leave pursuant to the
    Family and Medical Leave Act (FMLA)2 due to stress. Board’s F.F. 23. That same
    day, Claimant informed the head of HR that she could no longer work with
    Supervisor. Board’s F.F. 24. Employer granted Claimant FMLA leave through
    September 19, 2016. Board’s F.F. 25. On August 31, 2016, Claimant e-mailed VP,
    stating that she wanted to speak with him before returning to work and that she did
    not want to continue working under Supervisor, alleging that Supervisor created a
    hostile work environment. Board’s F.F. 27. VP responded that he was investigating
    possible violations of company policies as well as state and federal laws that may
    have occurred at the Summer Institute, and that upon Claimant’s return, she would
    be subject to questioning regarding her alcohol consumption on the cruise and
    whether she had obtained necessary clearances for her guest. Board’s F.F. 28. VP
    2
    29 U.S.C. §§ 2601-2654.
    3
    also informed Claimant that he disagreed with her assessment regarding the
    allegedly hostile work environment. Board’s F.F. 29.
    By letter dated September 16, 2016, Claimant resigned her position due
    to Employer’s allegedly hostile work environment. Board’s F.F. 30.                       Claimant
    submitted a request for unemployment compensation benefits, which the
    Pennsylvania Department of Labor and Industry (Department) denied pursuant to
    Section 402(b) of the Law. C.R. Item No. 6, Department’s Notice of Determination.
    Claimant appealed and, after holding multiple hearings, the Referee reversed the
    Department’s determination.            C.R. Item 19, Referee’s Decision/Order at 3.
    Employer appealed, and the Board remanded the case to the Referee to allow for
    receipt of additional testimony from the parties. C.R. Item 24, Notice of Board
    Hearing – Remand. Following a hearing, the Board reversed the Referee’s decision
    and determined that Claimant is ineligible for benefits under Section 402(b) of the
    Law. C.R. Item 27, Board’s Decision/Order at 5. Claimant then petitioned this
    Court for review.3
    On appeal, Claimant argues that “[t]he [Board] was in error when it
    found that [she] did not have necessitous and compelling cause for leaving her
    position.” Claimant’s Brief at 15. Claimant asserts that she “quit her position as a
    direct result of a hostile work environment,” alleging that she “was subjected to
    repeated and persistent harassment during employment[,] including offensive and
    unwelcomed [sic] comments, distasteful conduct, and negligence.” Claimant’s Brief
    at 7, 16. Claimant contends “[she] endured an extremely permissive environment
    3
    “The Court’s review is limited to determining whether constitutional rights were violated,
    whether an error of law was committed, whether a practice or procedure of the Board was not
    followed or whether the findings of fact are support by substantial evidence in the record.” W. &
    S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 
    913 A.2d 331
    , 334 n.2 (Pa. Cmwlth. 1991);
    see also Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
    4
    that was encouraging of vulgar humor and questionable communication.”
    Claimant’s Brief at 16. Further, Claimant maintains that her “professional file did
    not make any note of her personal verbal or written participation in crude or vulgar
    humor, nor did it note any crude, silly, or flirtatious behavior with the president or
    other administrators in the work environment or outside of it.” Claimant’s Brief at
    17.   Claimant also contends that her “professional file does not contain
    documentation of unprofessional or inappropriate physical actions or commentary
    through verbal warnings or formal, written disciplinary actions.” 
    Id. Finally, Claimant
    asserts that “[t]he accusations made against . . . [her] are false and
    slanderous, and are a result of heresay [sic] brought forth by the [E]mployer.
    [Claimant’s] record does not contain documented evidence suggesting that she
    engaged in the behaviors noted by the [E]mployer.” 
    Id. Thus, Claimant
    challenges the Board’s Findings of Fact Numbers 3, 4,
    and 5, which provide as follows:
    [3] Throughout her employment, the [C]laimant was an
    active and enthusiastic participant in all sorts of crude and
    vulgar electronic and verbal communications, as well as
    crude, silly and flirtatious behavior with the president and
    other administrators at work, and outside work at social
    events.
    [4] The [C]laimant never raised any objections to this type
    of behavior by anyone.
    [5] The [C]laimant herself made many crude, sexually-
    charged comments to the president and other
    administrators, told sexually graphic stories, made
    frequent racist comments about Employer’s African-
    American admissions applicants, and engaged in sexually-
    5
    suggestive behavior like rubbing her groin area against the
    president while sitting on his lap.
    Board’s F.F. 3-5.
    “The Board’s findings of fact are conclusive on appeal . . . so long as
    the record taken as a whole contains substantial evidence to support them.”
    Henderson v. Unemployment Comp. Bd. of Review, 
    77 A.3d 699
    , 718 (Pa. Cmwlth.
    2013) (citing Penflex, Inc. v. Bryson, 
    485 A.2d 359
    , 365 (Pa. 1984)). “Substantial
    evidence is correctly defined as ‘such relevant evidence as a reasonable mind might
    accept as adequate to support a conclusion.’” Peak v. Unemployment Comp. Bd. of
    Review, 
    501 A.2d 1383
    , 1387 (Pa. 1985) (quoting Murphy v. Dep’t of Pub. Welfare,
    
    480 A.2d 382
    , 386 (Pa. Cmwlth. 1984)). “In determining whether there is substantial
    evidence to support the Board’s findings, this Court must examine the testimony in
    the light most favorable to the prevailing party, giving that party the benefit of any
    inferences that can logically and reasonably be drawn from the evidence.”
    
    Henderson, 77 A.3d at 718
    .
    Taken as a whole, the record in this case contains substantial evidence
    to support the challenged Findings of Fact. The record contains a copy of a series
    of e-mail communications between Claimant and Employer’s president, in which
    Claimant actively participated in and even encouraged vulgar and indecent
    conversation. C.R. Item No. 4, Employer Separation Information. The e-mails
    contained pictures that were highly suggestive, several involving nudity.          
    Id. Although Claimant
    did not attach these pictures to the e-mails, she made no
    objection to them and she encouraged inappropriate commentary pertaining to the
    pictures. 
    Id. The record
    also contains copies of photo booth pictures of Claimant
    with Employer’s president, one of which shows the two kissing. C.R. Item No. 4,
    6
    Employer Separation Information; C.R. Item No. 17, 11/29/16 T.T. at 2. Further,
    the Board credited the testimony of Employer’s president,4 which revealed that
    Claimant was “inappropriate” with him “numerous times.” 11/29/16 T.T. at 29; C.R.
    Item No. 27, Board’s Decision/Order at 4. Employer’s president provided the
    following examples:
     Claimant twice asked him if she could move in with him, once doing so in
    front of an admissions candidate. 11/29/16 T.T. at 29-30.
     Claimant asked him if he could arrange a date for her with a woman who
    was a vice president of the University of Pennsylvania. 
    Id.  Claimant
    told him he was the only man she would ever sleep with. 
    Id.  Claimant
    asked him numerous times why he ever got married. 
    Id.  Claimant
    twice asked him why he ever bred. 
    Id.  At
    a Christmas party, Claimant rubbed her vagina against him for at least
    five seconds. 
    Id.  On
    two occasions, Claimant asked him to pretend he was her husband for
    her mother. 
    Id.  Claimant
    used suggestive language regarding how he could help her to pay
    her bills. 
    Id.  Claimant
    described the mother of an applicant as a “hot mess,” but said
    that she “would do her.” 
    Id.  Claimant
    denigrated African-American admissions candidates by asking,
    “What are the marketing people doing? There are too many of these” while
    rubbing her fingers against the skin on her cheeks. 
    Id.  Claimant
    commented that there were “a lot of black people here.” 
    Id.  Claimant
    told salacious stories about lesbian sex between novices at a
    convent. 
    Id.  Claimant
    described in graphic detail the sexual abuse her mother had
    experienced. 
    Id. 4 The
    Board is the ultimate factfinding body and arbiter of credibility in unemployment
    compensation cases. Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review, 
    173 A.3d 1224
    , 1227 (Pa. Cmwlth. 2017). “Questions of credibility and the resolution of evidentiary
    conflicts are within the discretion of the Board and are not subject to re-evaluation on judicial
    review.” 
    Id. The Board
    may reject even uncontradicted testimony if it is deemed not credible or
    worthy of belief. 
    Id. 7 It
    is reasonable to accept the evidence summarized above as adequate
    to support the conclusion that Claimant actively and enthusiastically participated in
    the crude, vulgar, and otherwise inappropriate humor, communications and behavior
    of which she complains on appeal. See 
    Peak, 501 A.2d at 1387
    . Further, a review
    of the record indicates that Claimant did not object in any way to Employer regarding
    this type of behavior. Thus, substantial record evidence supports the Board’s
    Findings of Fact Numbers 3, 4, and 5.
    Claimant further contends that Employer engaged in “retaliation”
    against her, alleging that while away on FMLA leave, “[E]mployer took the
    opportunity to create an investigation [regarding her conduct at the Summer
    Institute] in order to penalize [her] for wrongdoing.” Claimant’s Brief at 7, 18.
    Thus, Claimant also challenges Finding of Fact Number 33, in which the Board
    found that “[t]he [E]mployer’s investigation is not in retaliation for any complaints
    or for the [C]laimant taking leave.” Board’s F.F. 33. The Board determined that
    “[E]mployer was acting in good faith, without retaliatory animus, when it indicated
    that it was conducting an investigation regarding [the] events” in question. C.R.
    Item No. 27, Board’s Decision/Order at 4. The Board further found that “[E]mployer
    was informed by the [C]laimant’s [S]upervisor that he had not given the [C]laimant
    permission to bring a guest.” Id.; see also Board’s F.F. 26. Claimant contends that
    she “informed her [S]upervisor that her guest was a long-time [school] teacher . . .
    and that she had all necessary background clearances,” to which Supervisor
    allegedly responded, “[d]o whatever you want.” Claimant’s Brief at 9-10. However,
    Employer’s VP testified that whether Claimant’s guest had the requisite background
    clearances “wasn’t the problem. The problem was that the Claimant brought a
    8
    guest.” C.R. Item No. 17, 11/29/16 T.T. at 77. Employer’s VP further testified that
    he and Supervisor told Claimant not to drink alcohol on the dinner cruise. 
    Id. at 73.
    Thus, substantial record evidence supports the Board’s Finding of Fact Number 33.
    Having established that the challenged Findings of the Board are
    supported by substantial evidence, we now turn to the Board’s decision to deny
    Claimant unemployment compensation benefits.5 “A claimant who voluntarily
    terminates his employment has the burden of proving that a necessitous and
    compelling cause existed.” Solar Innovations, Inc. v. Unemployment Comp. Bd. of
    Review, 
    38 A.3d 1051
    , 1056 (Pa. Cmwlth. 2012); see also 43 P.S. § 802(b).
    Employees who claim to have left their employ for a necessitous and compelling
    reason must prove:
    (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 Center, LLC v. Unemployment Comp. Bd. of Review,
    
    906 A.2d 657
    , 660 (Pa. Cmwlth. 2006). “Whether a claimant had cause of a
    5
    Claimant argues that, as she “was not present in the [May 30, 2017 remand] hearing
    appealing her unemployment [compensation] benefits, the Board did not consider her previous
    testimony given during the initial hearing.” Claimant’s Brief at 16. In its Order for a Remand
    Hearing, the Board did inform Claimant that “[i]f . . . [she] fail[ed] to make herself available for
    cross-examination at the [r]emand hearing either by telephone or in person, the Board [would] not
    consider her testimony from the hearing held on November 4, 2016.” C.R. Item No. 22, Board’s
    5/10/17 Order of Remand Hearing at 1. Prior to the remand hearing, Claimant submitted a letter
    from her treating psychologist recommending that Claimant not attend, either in-person or by
    telephone. C.R. Item No. 25, 5/30/17 Hearing, Exhibit No. 17. “[T]he Board, therefore, “[found]
    that the [C]laimant had good cause for not attending the [r]emand hearing. Accordingly, the Board
    considered the entire record[,] including the [C]laimant’s testimony.” C.R. Item No. 27, Board’s
    Decision/Order at 4. Thus, Claimant’s argument is without merit.
    9
    necessitous and compelling nature to quit a job is a conclusion of law subject to
    review by this Court.” Warwick v. Unemployment Comp. Bd. of Review, 
    700 A.2d 594
    , 596 (Pa. Cmwlth. 1997).
    Claimant maintains that she was “forced to resign from her position due
    to repeated and pervasive harassment, discrimination, and retaliation by . . .
    [E]mployer, . . . thereby resulting in a hostile work environment and constructive
    termination.” Claimant’s Brief at 7.
    “In hostile work environment cases, Pennsylvania courts for half a
    century have found that profanity in the workplace, abusive conduct and unjust
    accusations represent adequate justification to terminate one’s employment . . . .”
    Porco v. Unemployment Comp. Bd. of Review, 
    828 A.2d 426
    , 428 (Pa. Cmwlth.
    2003) (citing Elec. Reactance Corp. v. Unemployment Comp. Bd. of Review, 
    82 A.2d 277
    , 277-78 (Pa. Super. 1951)). However, as discussed previously, the Board found
    that “[C]laimant was an active and enthusiastic participant” in the complained-of
    work environment. Board’s F.F. 3. Thus, the work conditions of which Claimant
    complains could not have constituted real and substantial pressure for Claimant to
    terminate employment. Cf. Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of
    Review (Pa. Cmwlth., No. 1526 C.D. 2011, filed Sept. 14, 2012), slip op. at 11
    (holding that the claimant did not commit willful misconduct where the
    “[c]laimant’s conduct did not create a hostile work environment” when the other
    employees “were not offended by [the] [c]laimant’s behavior and, in fact, freely
    participated in sexually explicit conversations”) (emphasis added).6
    Claimant contends that, “[g]iven the climate and culture of the
    institution, [she] had no other choice but to submit to the circumstances presented to
    6
    While this Court’s unreported memorandum opinions may not be cited as binding
    precedent, they may be cited for persuasive value. 210 Pa. Code § 69.414.
    10
    her in order to maintain her employment status,” but that she “did raise objections
    to the president and other administrators when conflicts involving her immediate
    [S]upervisor . . . affected the wellbeing of students and staff, as well as her own.”
    Claimant’s Brief at 16-17. Claimant thus admits that she did not complain to
    Employer regarding the nature of her work environment.                   Therefore, even if
    Claimant could establish that her apparent condonation of Employer’s work culture
    was insincere conformity for the sole purpose of maintaining employment, Claimant
    would still be ineligible for unemployment compensation benefits because she did
    not make a reasonable effort to preserve her employment by voicing her concerns
    with Employer. See Brunswick 
    Hotel, 906 A.2d at 660
    .
    Apart from Employer’s general office culture, Claimant argues that
    Supervisor created a hostile work environment, thereby constituting necessitous and
    compelling cause to voluntarily leave her employment. Claimant’s Brief at 13.
    Claimant asserts that “[Supervisor] behaved in a bullying manner,” that his
    “behavior and communication within the work environment [was] unprofessional,”
    and that he subjected her to “repeated verbal harassment.” Claimant’s Brief at 9, 17.
    By way of example, Claimant alleges that “[Supervisor] angrily reprimanded [her]
    when she took time off without obtaining his expressed [sic] permission and he
    unilaterally decided to suspend her for two days.” Claimant’s Brief at 8.7 Claimant
    also alleges that when she became upset and left the room after Supervisor failed to
    mention her name at a Summer Institute family dinner, he followed her into another
    room, laughed, and said, “[d]on’t be stupid.” Claimant’s Brief at 11.
    7
    As previously noted, VP overruled Claimant’s suspension and “counseled [Supervisor]
    for yelling at the [C]laimant.” Board’s F.F. 11 & 12. However, VP also “counseled the [C]laimant
    for taking days off without obtaining the required permission of her [S]upervisor.” Board’s F.F.
    12.
    11
    It is well-settled that absent an intolerable work atmosphere, personality
    conflicts do not amount to necessitous and compelling cause for leaving one’s
    employment. Lynn v. Unemployment Comp. Bd. of Review, 
    427 A.2d 736
    , 737 (Pa.
    Cmwlth. 1981). Likewise, “normal workplace strains” are insufficient to justify a
    voluntary resignation. Ann Kearney Astolfi DMD P.C. v. Unemployment Comp. Bd.
    of Review, 
    995 A.2d 1286
    , 1289 (Pa. Cmwlth. 2010).
    Here, the Board determined that “[C]laimant and her [S]upervisor had
    a conflict,” and that “[C]laimant did not like [Supervisor’s] management style.”
    Board’s F.F. 7. Although Claimant generally alleges that Supervisor verbally
    harassed her, Claimant’s description of Supervisor’s conduct falls far short of the
    level of abuse required to demonstrate intolerable working conditions for purposes
    of Section 402(b) of the Law. See First Fed. Sav. Bank v. Unemployment Comp. Bd.
    of Review, 
    957 A.2d 811
    , 817 (Pa. Cmwlth. 2008) (finding “real and substantial
    pressure for [c]laimant to terminate her employment” when she was “unjustly
    reprimanded with abusive language,” “could not respond to discipline and was
    subject to criticism and ridicule from a senior vice president that was uncalled for
    and incorrect”) (internal quotation marks and citation omitted).
    Significantly, Claimant did not first complain to Employer until
    Supervisor admonished her for taking leave without his permission.8 As this Court
    8
    Claimant argues that after Supervisor attempted to suspend her, she complained to
    Employer regarding “[Supervisor’s] unprofessional behaviors [sic] . . . on multiple occasions,” but
    “no further disciplinary action was taken with [him]. [Supervisor] continued as a direct supervisor
    and both [Claimant] and [a co-worker] continued to note incidents of verbal harassment and
    unprofessional behavior directed at them by [Supervisor].” Claimant’s Brief at 9. However, the
    Board found that “it would not have been futile for the [C]laimant to return to work after the
    expiration of her [FMLA] leave and specifically inform the [E]mployer of all that allegedly
    occurred” with Supervisor at the Summer Institute family dinner. C.R. Item No. 27, Board’s
    Decision/Order at 5. Thus, even if Claimant could establish that Supervisor created an intolerable
    and hostile work environment, her claim for unemployment compensation benefits nevertheless
    would fail because she did not make a reasonable effort to preserve her employment.
    12
    has held, “[m]ere dissatisfaction with working conditions or resentment of
    supervisory criticism or a mere personality conflict . . . does not constitute
    necessitous and compelling reason[] for a voluntary quit.” Gioia v. Unemployment
    Comp. Bd. of Review, 
    661 A.2d 34
    , 37 (Pa. Cmwlth. 1995) (citing Magazzeni v.
    Unemployment Comp. Bd. of Review, 
    462 A.2d 961
    , 962 (Pa. Cmwlth. 1983)); see
    also First 
    Fed., 957 A.2d at 817
    (requiring a claimant to “demonstrate[] more than
    a mere belief of unjust accusation” in order to demonstrate “a necessitous and
    compelling reason for terminating . . . employment”). Thus, the Board did not err in
    concluding that Claimant failed to meet her burden of proving that necessitous and
    compelling cause prompted her to leave her employment.
    Accordingly, we affirm.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Karen A. Manley,                   :
    Petitioner      :
    :
    v.                      :
    :
    Unemployment Compensation          :
    Board of Review,                   :   No. 1893 C.D. 2017
    Respondent        :
    ORDER
    AND NOW, this 5th day of October, 2018, the order of the
    Unemployment Compensation Board of Review dated November 22, 2017 is
    AFFIRMED.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge