Colduvell v. Commonwealth ( 1979 )

Opinion by

Judge Craig,

Florence Colduvell’s claim for unemployment compensation benefits was denied by tbe Unemployment Compensation Board of Review, on the basis of tbe referee’s determination that she voluntarily terminated ber employment without cause of a necessitous and compelling nature under Section 402(b) (1) of tbe Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43P.S. §802(b) (1).

Claimant’s own testimony substantially supports tbe referee’s findings that:

2. During tbe course of ber employment, claimant ran into personal conflicts with ber Office Manager because of ber lateness when returning from lunch.

3. For tbe past three years claimant was also annoyed by sexual insinuations habitually made by ber Office Manager, as well as momentary physical contacts which be initiated and for which be apologized.

4. Claimant never mentioned tbe specific causes of ber annoyances to ber superiors who were in a position to alleviate tbe situation.

5. Claimant voluntarily terminated ber employment because of tbe aforementioned problems at work.

An unemployment compensation claimant has tbe burden of proving that job termination was for cause of a necessitous and compelling nature, by showing that one’s conduct was consistent with common sense and prudence. Mackanic v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 347, 390 A.2d 884 (1978); Aluminum Co. of America v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 78, 324 A.2d 854 (1974).

Although tbe record fully supports claimant’s contention that ber termination was prompted by tbe repeated “sexual insinuations” and “physical contacts” initiated by her office manager, the record also clearly indicated that claimant did not take the required common sense action to obviate the problem so that she would not have to leave. Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A.2d 380 (1973).

Claimant testified that the “sexual insinuations” and “touching,” which began 2% to 3 years before her September 1977 termination, had increased over time. However, during that period, claimant made only one attempt to report this despicable situation to the owner of the company. Approaching the owner, but failing to indicate the nature of the problem, claimant was permanently rebuffed by the owner’s reply that at that particular moment he was too busy to see her. Claimant did not attempt to discuss the problem with anyone again before she quit.

The problem of job-related sexual harassment or insinuation is a very difficult one; employees are understandably reticent to complain or try to prove affronts of such a personal and debasing nature, especially when they come from a supervisor.

However, for purposes of unemployment compensation benefits, the law is clear: the claimant must sustain the burden of proving a reasonable attempt to stay on the job. Claimant’s failure to give the owners an opportunity to understand the nature of her objection, before resigning, did not meet that burden.

Therefore, we affirm the order of the board denying claimant benefits.

Order

And Now, this 28th day of December, 1979, the order of the Unemployment Compensation Board of Review in the above captioned case, dated April 6, 1978, is affirmed.