L.S. Bowersox v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lexi S. Bowersox, :
Petitioner :
:
v. : No. 1360 C.D. 2016
: Submitted: January 6, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 16, 2017
Lexi Bowersox (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) denying her claim for
benefits under the Unemployment Compensation Law (Law).1 The Board
concluded that Claimant was ineligible for unemployment compensation benefits
under Section 402(b) of the Law, 43 P.S. §802(b),2 because Claimant voluntarily
quit her job without a necessitous and compelling cause. Finding no error by the
Board, we affirm.
Claimant worked for Somerset Chiropractic Service (Employer) as a
part-time receptionist from August 31, 2012, to October 23, 2015. Claimant
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
918.10.
2
Section 402(b) of the Law provides, in relevant part, that an employee is ineligible for
unemployment benefits when her unemployment is due to “voluntarily leaving work without
cause of a necessitous and compelling nature[.]” 43 P.S. §802(b).
tendered her resignation on October 16, 2015, with an effective date of October 30,
2015. She applied for unemployment benefits. The UC Service Center granted her
claim, and Employer appealed. The Referee conducted a hearing on January 26,
2016, after which he reversed the UC Service Center’s decision. Claimant
appealed that decision, and on May 4, 2016, the Board issued an order remanding
the matter for the Referee to consider Claimant’s eligibility under Section 402(e)
of the Law, 43 P.S. §802(e).3 A remand hearing was held on June 2, 2016.
Claimant appeared pro se, and Employer appeared with counsel.
The following facts are adduced from the testimony presented at both
hearings. Employer is a Pennsylvania chiropractic business co-owned by Thomas
and Margaret Connelly, both of whom supervised Claimant. Claimant testified that
Mrs. Connelly subjected Claimant to verbal mistreatment, which included yelling
and sometimes refusing to speak to Claimant. Further, on multiple occasions, Mrs.
Connelly would communicate with Claimant with notes rather than speaking to her
directly. For example, Claimant testified about a note on the thermostat stating
that no one except Mrs. Connelly could adjust the thermostat temperature;
previously, it was Claimant’s job to adjust the thermostat when appropriate.
Claimant testified that when she spoke to the Connellys and requested
an explanation for her mistreatment, she was informed that Claimant had done
nothing wrong and was not being mistreated. Nothing changed. Accordingly, on
October 16, 2015, Claimant tendered her resignation, effective October 30, 2015,
and Employer began looking for her replacement. On October 21, 2015, Claimant
asked for her job back, but her request was refused. She made the request again
3
Section 402(e) of the Law bars a claim for benefits where the claimant was discharged for
willful misconduct. 43 P.S. §802(e). That section is not at issue in this appeal.
2
two days later, and it was refused again. Because Claimant’s services were no
longer required, October 23, 2015, was her last day of work.
The Connellys testified that they did not mistreat Claimant and always
treated her in a business-like manner and no different than other employees.
Further, the Connellys testified that they told Claimant on multiple occasions that
there were no issues with her performance of her job duties.
The Board found Employer’s testimony credible and resolved all
conflicts in the testimony in Employer’s favor. The Board rejected Claimant’s
claims that she worked in a hostile work environment and held that Claimant was
ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b), because
she did not attempt to preserve her employment before quitting. Claimant
petitioned for this Court’s review.
On appeal,4 Claimant raises three issues. First, Claimant argues that
as a victim of mistreatment in the workplace, she had a necessitous and compelling
reason to terminate her employment. Second, Claimant argues that the Referee
failed to adequately assist her at the hearing. Third, Claimant argues that the
Board did not review all of the evidence submitted in the case.
In a Section 402(b) action, the claimant bears the burden of proving
that she voluntarily resigned for necessitous and compelling reasons. Danner v.
Unemployment Compensation Board of Review, 443 A.2d 1211, 1212 (Pa.
Cmwlth. 1982). As part of her burden, a claimant must demonstrate that she
addressed her concerns with her supervisor prior to quitting. Id. This Court has
4
Our review is to determine “whether constitutional rights were violated, whether an error of law
was committed and whether necessary findings of fact are supported by substantial evidence.”
First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811,
814 n.2 (Pa. Cmwlth. 2008) (citation omitted).
3
defined “necessitous and compelling cause” as “a real and substantial pressure to
terminate employment which would compel a reasonable person to do so.” Id.
Determining what constitutes a necessitous and compelling reason for resigning is
a question of law subject to this Court’s review. Ann Kearney Astolfi DMD PC. v.
Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa.
Cmwlth. 2010).
Claimant first argues that Employer’s mistreatment of her provided
her with a necessitous and compelling reason to resign. In considering such an
argument, this Court has held:
Resentment of a reprimand, absent unjust accusations, profane
language or abusive conduct, []; mere disappointment with
wages, []; and personality conflicts, absent an intolerable
working atmosphere, [], do not amount to necessitous and
compelling causes.
Lynn v. Unemployment Compensation Board of Review, 427 A.2d 736, 737 (Pa.
Cmwlth. 1981) (citations omitted). Racial slurs and excessive taunting are
examples of the types of conditions that may constitute a necessitous and
compelling reason to voluntarily terminate employment. Taylor v. Unemployment
Compensation Board of Review, 378 A.2d 829 (Pa. 1977) (holding that employee
had necessitous and compelling reason to quit because employer repeatedly called
him racially derogatory names); Mercy Hospital of Pittsburgh v. Unemployment
Compensation Board of Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995) (holding
that employee had necessitous and compelling reason to quit after co-workers
repeatedly called him derogatory names such as “faggot,” and employer was given
opportunity to fix problem).
4
Here, Claimant failed to meet her burden of demonstrating that her
alleged mistreatment was anything more than a personality conflict with her
supervisors. Claimant’s situation is analogous to that of the claimant in Astolfi,
995 A.2d 1286. In Astolfi, the claimant worked in a small office, where the
employees often argued with one another. When the claimant expressed her
concerns about the work environment to her supervisor, she was told that she was
acting like a child. The supervisor also repeatedly yelled at the claimant. This
Court held that this record did not give the claimant a necessitous and compelling
cause to quit.
Here, as in Astolfi, Claimant has demonstrated that her work
environment was uncomfortable. Claimant’s only evidence of mistreatment was
her testimony that one supervisor yelled at her and sometimes refused to
communicate face to face. Significantly, Claimant twice asked for her job back
after she resigned, which suggests that Claimant’s work environment was not
intolerable. Because Claimant did not establish an intolerable work environment,
she failed to prove that she had a necessitous and compelling reason to quit.
Claimant next argues that the Referee failed to adequately assist her
during the hearing. Specifically, Claimant contends that the Referee did not allow
her adequate time to review the record and did not aid her in developing relevant
evidence during the hearing.
When conducting a hearing with an unrepresented party, a referee is
encouraged to “advise him as to his rights, aid him in examining and cross-
examining witnesses, and give him every assistance compatible with the impartial
discharge of [the referee’s] official duties.” 34 Pa. Code §101.21(a). This rule,
however, does not require that the referee act as an advocate for an unrepresented
5
party. Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081,
1085 (Pa. 1985). Although the referee must provide reasonable assistance to a pro
se litigant, “any layperson choosing to represent himself in a legal proceeding
must, to some reasonable extent, assume the risk that his lack of expertise and legal
training will prove his undoing.” Id. at 1086 (quoting Groch v. Unemployment
Compensation Board of Review, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).
Contrary to Claimant’s arguments on appeal, the Referee assisted
Claimant in examining her witnesses throughout the hearing to ensure she had an
opportunity to develop the facts of her case. Claimant’s contention that the
Referee was required to instruct her as to the relevancy of documents and other
evidence and assist her in responding to Employer’s objections assumes that the
Referee’s role was to act as her advocate, which this Court has made clear is not
the case. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73,
77 (Pa. Cmwlth. 1985) (stating that referee is not required to, and should not
assume, the role of claimant’s advocate). In sum, Claimant’s second argument
lacks merit.
Finally, Claimant argues that the Board did not review all of the
evidence submitted in the case. Claimant asserts that if the Board had reviewed the
transcripts, it would have found procedural errors. Specifically, Claimant claims
that: (1) the Referee was biased against her at the hearing; (2) neither she nor
Employer received a copy of the Employer’s initial appeal from the UC Service
Center’s notice of determination until after the first hearing; and (3) she should
have received copies of her own separation information questionnaire, Employer’s
separation information questionnaire and the records of certain oral interviews.
6
Even if this Court agreed that Claimant has identified procedural
errors, which it does not, she has not demonstrated how any of the alleged errors
prejudiced her. It is axiomatic that a litigant is not entitled to a perfect hearing, but
rather a fair hearing. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008)
(holding that, even in the more stringent criminal context, a capital defendant is not
entitled to a perfect trial). If a claimant is asserting a procedural error, she must
establish prejudice in order to prevail. D.Z. v. Bethlehem Area School District, 2
A.3d 712, 719 (Pa. Cmwlth. 2010). In the instant case, Claimant did not allege any
harm from any of the alleged errors. Moreover, Claimant was afforded not one but
two hearings during which she explained, at length, the reasons for her separation
from employment. Claimant had a full and fair opportunity to show that she had a
necessitous and compelling reason to quit her job. Unfortunately she failed to
carry her burden of proof.
For all these reasons, the order of the Board is affirmed.
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lexi S. Bowersox, :
Petitioner :
:
v. : No. 1360 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 16th day of March, 2017, the order of the
Unemployment Compensation Board of Review dated June 27, 2016, in the above-
captioned matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge