R.L. Hohl v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randy Lee Hohl, :
Petitioner :
:
v. : No. 478 C.D. 2020
: Submitted: February 26, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY PRESIDENT JUDGE BROBSON FILED: September 22, 2021
Petitioner Randy Lee Hohl (Claimant) petitions, pro se, for review of an order
of the Unemployment Compensation Board of Review (Board), which affirmed a
decision by a Referee, denying benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law).1 We now vacate the Board’s order and
remand the matter to the Board.
Claimant was employed by Roeberg Enterprises Inc. (Employer) as a Deka
Route/Industrial Driver until his separation from employment in November of 2019.
(Certified Record (C.R.) 8-11, 13, 63.) Claimant applied for unemployment benefits
on November 24, 2019, stating in his application that he quit because he was verbally
threatened by a coworker while at work, and Employer had not resolved the issue
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
despite its assurance to the contrary. (Id. at 8-11.) The Scranton UC Service Center
(Service Center) concluded that Claimant was ineligible for benefits because he did
not have a necessitous and compelling reason for voluntarily quitting his
employment and because he did not exhaust all available alternatives before quitting.
(Id. at 37.) Claimant appealed the Service Center’s decision, and a Referee
conducted a hearing at which Claimant appeared and testified. (Id. at 42, 53, 60-72.)
Employer was not present at the hearing.
Claimant testified that he worked for Employer as an industrial driver
beginning in January 2019 until his last day on November 8, 2019. (C.R. at 62-63.)
When asked about the circumstances surrounding his separation from employment,
Claimant stated that he “pretty much resigned” because he was “verbally threatened
to be beaten up at work” by a coworker. (Id. at 63-64.) Claimant explained that
Employer is in the garment care and cleaning business, and, as part of his duties, he
is responsible for folding and bagging clean towels and transporting them back to
clients. (Id. at 64.) This required Claimant to interact with coworkers known as
“washers,” who laundered items and who worked a couple hundred feet away from
him. (Id. at 64, 69.) The incident in question involved an interaction between
Claimant and a washer coworker. Claimant testified:
Actually[,] I have to interact with the [w]ashers daily all day long, when
I’m there I interact with them, you know, how many more towels do
you have, are they in the washer, are they coming down soon, you
know, pretty much that type of deal. So[,] there’s no way I could not
avoid them, my job pertained to interacting with them daily all day
long. And then I just said to him -- I don’t know if he was having a bad
day, I said do you have any more towels[,] and he goes if you don’t shut
the F up I’m going to knock you the F out, one more word you say to
me.
2
(Id. at 65.) Claimant stated that he walked away and avoided his coworker for the
rest of the day. (Id.) Claimant immediately reported the incident to Employer’s
owners, who told him that “the situation was going to be handled [the following]
Monday morning[;] it was going to be resolved.” (Id. at 66.) Claimant interpreted
this statement to mean that Employer would fire the coworker, but when Claimant
returned to work the following Monday, the coworker had not been fired.
(Id. at 66-67.) That week, Claimant again went to Employer’s owners, explaining
that the coworker and the other washer employees would not talk to him.
(Id. at 67-68.) Claimant testified that Employer’s owners acknowledged that there
were issues with the washers, but they still did not terminate the employment of the
coworker in question. (See id.) Claimant, thus, was “worr[ied] about getting
physically beaten and attacked at work,” which ultimately caused him to quit at the
end of the week on November 8, 2019. (See id. at 67.) The Referee further pressed
Claimant as to whether he could have moved to a different work area to avoid
interacting with the coworker, but Claimant responded that he “knew for a fact” that
there were no other available positions for him, except for at one of Employer’s retail
locations. (Id. at 71.) Claimant did not ask to work in a retail location. (Id.) After
quitting, however, Claimant did apologize to Employer and asked for his job back,
but he did not receive a response. (Id.)
The Referee issued a decision on January 17, 2020, affirming the Service
Center’s determination and denying benefits. (C.R. at 74-78.) In so doing, the
Referee made the following findings of fact:
1. [C]laimant worked for [Employer] from January 2019, until
November 8, 2019, as a full-time industrial driver.
2. [E]mployer’s principal business activity is to provide cleaning
services.
3
3. [C]laimant worked for [E]mployer in a large factory setting and
spent part of his work time performing delivery work.
4. [C]laimant alleges that approximately one week prior to the
separation, he asked a coworker if he had any towels, and the
coworker responded by saying, “If you don’t shut the [f]u** up, I’m
going to knock you out.”
5. [C]laimant discussed this alleged statement with [E]mployer[’s]
management, and then continued to work for [E]mployer for an
additional week without any other incidents occurring with the
coworker.
6. [E]mployer has multiple work locations.
7. Prior to the separation, [C]laimant did not discuss with
[E]mployer[’s] management the possibility of working in a different
section of the factory or transferring to a different work location.
8. [C]laimant quit the job on November 8, 2019.
(Id. at 74-75.)
The Referee concluded that Claimant failed to prove that he had a necessitous
and compelling reason for leaving his employment, reasoning:
Here, the Referee did not find [C]laimant’s testimony to be credible
that [C]laimant did not in any way provoke the coworker and that the
coworker told [C]laimant he was going to knock him out in response to
[C]laimant simply asking the coworker if he had any towels. As such,
[C]laimant did not establish a necessitous and compelling reason for
the separation as a result of this alleged statement, which was the only
reason provided by [C]laimant for the separation. Moreover,
[C]laimant testified that he brought the issue to the attention of
[E]mployer[’s] management and alleges management took no action;
however, [C]laimant testified that he continued to work in the presence
of the coworker for a week after the alleged incident with no other
incidents occurring with the coworker, which would indicate this issue
was addressed with the coworker. Lastly, [C]laimant testified that he
made no inquiry with [E]mployer to work in a different section of the
warehouse or to work at a different [E]mployer location despite
[E]mployer having multiple work locations. As such, [C]laimant did
not make a reasonable attempt to preserve the employment. For these
reasons, [C]laimant has not met his burden of proof under
Section 402(b) of the Law; therefore, benefits are denied.
(Id. at 75-76 (emphasis added).)
4
Claimant appealed to the Board. By decision and order dated March 4, 2020,
the Board adopted the Referee’s findings of fact and conclusions of law and affirmed
the Referee’s decision. (C.R. at 86.) Although the Board recognized that Claimant
may have been physically threatened, the Board, nevertheless, concluded that
Claimant failed to “sustain his burden to prove that he acted with ordinary common
sense and took reasonable measures to preserve the employment relationship.”2 (Id.)
Claimant now petitions this Court for review.
On appeal,3 Claimant contends that the Board erred as a matter of law in
concluding that he failed to establish cause of a necessitous and compelling nature
to voluntarily quit his employment. In furtherance thereof, Claimant argues that he
should not have been required to exhaust available alternatives to preserve his
employment relationship. Rather, Claimant asserts that he did everything he felt he
needed to, but that Employer was at fault for failing to take the proper steps to
terminate the coworker’s employment. Throughout his brief, Claimant reiterates
that his rights were violated and that he should not be required to prove that he
explored all pathways when he did nothing but “show up to work and do [his] job.”
(Claimant’s Br. at 4.) In response, the Board contends that Claimant was not credible
in testifying that his coworker physically threatened him, and, therefore, the Board
2
On March 10, 2020, Claimant petitioned the Board for reconsideration of its decision.
(C.R. at 94-111.) The Board acknowledged receipt of Claimant’s petition. (Id. at 113.) His
petition was deemed denied when the Board failed to rule on it within the applicable timeframe.
See Section 35.241(d), (e) of the General Rules of Administrative Practice and Procedure, 1 Pa.
Code § 35.241(d), (e).
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704. “Substantial evidence is defined as relevant
evidence upon which a reasonable mind could base a conclusion.” Henderson v. Unemployment
Comp. Bd. of Rev., 77 A.3d 699, 718 (Pa. Cmwlth. 2013).
5
did not err in concluding that Claimant did not have cause of a necessitous and
compelling nature to voluntarily quit his employment.
Under Section 402(b) of the Law, an employee is ineligible for unemployment
benefits for any week “[i]n which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature.” Whether a claimant
had cause of a necessitous and compelling nature for leaving work is a question of
law subject to this Court’s review. Wasko v. Unemployment Comp. Bd. of
Rev., 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits his
employment “bears the burden of proving that necessitous and compelling reasons
motivated that decision.” Fitzgerald v. Unemployment Comp. Bd. of Rev., 714 A.2d
1126, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999).
In order for a claimant to establish cause of a necessitous and compelling
nature, he must show: (1) the existence of circumstances that created real and
substantial pressure to leave employment; (2) that such circumstances would compel
a reasonable person to leave employment; (3) that he acted with ordinary common
sense; and (4) that he made a reasonable attempt to continue his employment.
Comitalo v. Unemployment Comp. Bd. of Rev., 737 A.2d 342, 344
(Pa. Cmwlth. 1999). Where the claimant has failed to take all necessary and
reasonable steps to preserve the employment relationship, he cannot demonstrate a
necessitous and compelling reason for leaving his job and is ineligible for benefits.
PECO Energy Co. v. Unemployment Comp. Bd. of Rev., 682 A.2d 58, 61
(Pa. Cmwlth. 1996). “Each [situation] must be examined on an individual basis to
understand the exigencies the claimant faced at the time [he] decided to separate
from employment.” Kelly v. Unemployment Comp. Bd. of Rev., 172 A.3d 718, 723
(Pa. Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018).
6
Threats of violence and fear for one’s safety may constitute necessitous and
compelling circumstances for quitting employment. See Kama Corp. v.
Unemployment Comp. Bd. of Rev., 410 A.2d 974 (Pa. Cmwlth. 1980) (affirming
grant of benefits to claimant who quit after two union members told him they would
break his knees if he returned to work and had his car vandalized); see also Howell
v. Unemployment Comp. Bd. of Rev., 501 A.2d 718 (Pa. Cmwlth. 1985) (reversing
denial of benefits when claimant quit over being struck in face by another employee
and, after employee was terminated, employee returned to workplace and again
struck claimant in face). As we explained in Scott v. Unemployment Compensation
Board of Review (Pa. Cmwlth., No. 637 C.D. 2014, filed November 7, 2014):4
Concern for personal safety, including fear of physical attacks by
co[]workers, can constitute necessitous and compelling reasons for
leaving employment.[5] The mere fact that the claimant is subjectively
afraid, however, is not sufficient; the safety risk must be objectively
real to constitute a sufficient reason for resigning from one’s job.[6]
Moreover, even where the safety concern is real and serious, the
claimant must show that he made a reasonable attempt to seek
protection from the danger and that the employer’s response gave him
no choice but to leave his employment.[7] If the employer has offered
alternative work arrangements that could solve the safety issue, quitting
without even attempting to work under those arrangements does not
constitute a reasonable attempt to preserve employment and bars the
claimant from benefits.[8] “If the employer promises to take action to
4
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.” We cite Scott here because its summary
of this Court’s case law is extremely pertinent to the matter now before this Court.
5
Green Tree Sch. v. Unemployment Comp. Bd. of Rev., 982 A.2d 573, 577
(Pa. Cmwlth. 2009).
6
Green Tree Sch., 982 A.2d at 578.
7
Iaconelli v. Unemployment Comp. Bd. of Rev., 423 A.2d 754, 756 (Pa. Cmwlth. 1980).
8
Iaconelli, 423 A.2d at 756-57.
7
alleviate the problem, good faith requires that the employee continue
working until or unless the employer’s action proves ineffectual.”
Craighead-Jenkins [v. Unemployment Comp. Bd. of Rev.], 796 A.2d
[1031,] 1034 [Pa. Cmwlth. 2002].
Scott, slip op. at 5-6 (some citations omitted).
Presently, what should be a straight-forward analysis is complicated by the
lack of clarity as to the basis for the Board’s decision. At the outset we note that the
Referee failed to articulate clearly a crucial finding regarding the alleged physical
threat—i.e., whether it occurred. Instead, the Referee, as part of his credibility
determination, explains that he “did not find [C]laimant’s testimony to be credible
that [C]laimant did not in any way provoke the co[]worker and that the coworker
told [C]laimant he was going to knock him out in response to [C]laimant simply
asking the coworker if he had any towels.” (C.R. at 75.) From this finding, it is
unclear to this Court whether the Referee intended to convey that (1) the Referee
found that the coworker did not threaten Claimant with physical violence, or (2) the
Referee found that the coworker threatened physical violence but that Claimant
provoked the threat. The sentence following the “finding” does not provide any
clarification, as the Referee merely concluded that “[C]laimant did not establish a
necessitous and compelling reason for the separation as a result of this alleged
statement, which was the only reason provided by [C]laimant for the separation.”
The Referee did not provide any further explanation as to the alleged physical threat
and whether Claimant may have provoked it.9 On appeal, the Board did not provide
9
It is also unclear as to what significance, if any, the Referee placed on whether Claimant
may have provoked the threat. Indeed, the issue of provocation has arisen in the unemployment
matters in the context of willful misconduct termination, but not as it relates to cause of a
necessitous and compelling nature to quit under Section 402(b) of the Law. See Nehi Bottling Co.
v. Unemployment Comp. Bd. of Rev., 366 A.2d 594 (Pa. Cmwlth. 1976) (holding that claimant’s
threat of physical harm to another employee was not willful misconduct under Section 402(e)
because threat was provoked); Allen v. Unemployment Comp. Bd. of Rev., 638 A.2d 4488
any clarification either; rather, the Board adopted the Referee’s findings and
conclusions and held: “[C]laimant asserts that he had just cause to voluntarily leave
due to being physically threatened. However, [C]laimant did not sustain his burden
to prove that he acted with ordinary common sense and took reasonable measures to
preserve the employment relationship.” (Id. at 86 (emphasis added).)
Consequently, we cannot now ascertain for purposes of appellate review
whether the Board was agreeing with the Referee either that (1) Claimant was not
credible in testifying that his coworker threatened him with physical violence,
or (2) Claimant was not credible in testifying that he did not provoke the threat.
Furthermore, although the Board acknowledged that Claimant asserted that he faced
a physical threat of violence from his coworker, the Board nonetheless, in agreement
with the Referee’s determination on the issue, concluded that Claimant’s failure to
preserve his employment relationship was dispositive of this matter. The Referee
had based his reasoning on the fact that Claimant “made no inquiry with [E]mployer
to work in a different section of the warehouse or to work at a different [E]mployer
location.” (C.R. at 75.) While we have held that, in order to make a reasonable
attempt to preserve his employment in a situation where an employer offers
alternative work arrangements in response to a report of a physical threat, an
employee must attempt the alternative work arrangement, see Scott, slip op. at 5-6,
we have not required an employee to request an alternative work arrangement in the
face of a physical threat. In Comitalo, we held that, “[u]ltimately[,] [an] employer
bears the responsibility for eliminating harassment against employees in the
workplace,” recognizing that “there is a certain level of conduct that an employee
(Pa. Cmwlth. 1994) (finding that vulgar language to superior constituted willful misconduct under
Section 402(e) because there was no justifiable provocation).
9
will not be required to tolerate and that the Court will not place all responsibility
upon an employee to resolve his . . . work dilemma.” Comitalo, 737 A.2d at 345.
We believe an employer bears a similar level of responsibility in the face of threats
of physical violence. Here, there is no record evidence that Employer offered
Claimant an alternative work arrangement that Claimant rejected.
Accordingly, we will vacate the Board’s decision and remand the matter to
the Board for the issuance of a new decision that allows for effective appellate
review and applies the correct legal standards. Specifically, the Board should make
factual findings relative to Claimant’s stated reason for quitting and apply the
appropriate legal standard for determining whether Claimant, given the fact finding,
had a necessitous and compelling reason to quit.
P. KEVIN BROBSON, President Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randy Lee Hohl, :
Petitioner :
:
v. : No. 478 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 22nd day of September, 2021, the order of the Unemployment
Compensation Board of Review (Board) is hereby VACATED, and this matter is
REMANDED to the Board for the issuance of a new decision consistent with this
opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, President Judge