City of Pittsburgh v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Pittsburgh, :
Petitioner :
:
v. : No. 1568 C.D. 2015
: Submitted: March 18, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: April 21, 2016
The City of Pittsburgh (Employer) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) finding Cosette M. Grant-
Overton (Claimant) not ineligible for unemployment compensation benefits under
Section 402(b) of the Unemployment Compensation Law (Law) 1 because she quit her
1
Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §§751–914. Section 402(b) renders an employee ineligible for
compensation for any week:
[i]n which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature, irrespective of
whether or not such work is in “employment” as defined in this act:
Provided, That a voluntary leaving work because of a disability if the
(Footnote continued on next page…)
job due to a hostile work environment constituting cause of a necessitous and
compelling nature. For the reasons that follow, we affirm.
I.
Claimant was employed as the Manager of Educational Policy and
Workforce Development in Employer’s Bureau of Neighborhood Empowerment
from April 1, 2014, through October 3, 2014, under the supervision of Dr. Curtis
Porter, Chief Education and Neighborhood Reinvestment Officer. In August and
September 2014, Claimant made internal complaints regarding Dr. Porter’s conduct
before directly addressing the issues with him via e-mail dated September 23, 2014.
Specifically, by e-mail dated August 6, 2014, Claimant advised Kevin
Acklin, Mayor of Pittsburgh William Peduto’s Chief of Staff, as follows:
As per our brief hall conversation on Monday about
issues with Dr. Porter and my complaints of his raising his
hand at me, his claim that he is paid to chill and I am to do
the work, his not showing up for meetings and events, and
him dumping all of his work load on me, I attempted to
reach out to Laurie Dierker to set up a one on meeting [sic]
with you to discuss for Tuesday at 9:30am and she indicated
your availability. I stopped by and you were not there. I
followed up for today and Laurie indicated for me to stop
by at 4:30, I showed up and you were not present. I
(continued…)
employer is able to provide other suitable work shall be deemed not a
cause of a necessitous and compelling nature….
43 P.S. §802(b).
2
appreciate you having my back. I also appreciate you
indicating that we are on the same team and you
acknowledging that I am working and often late. In
particular, I would like to discuss work load issues and
working more separately from Dr. Porter. His recent hand
raising has be [sic] concerned and I would feel more
comfortable working away from him as much as possible.
Please let me know. Thanks in advance for handling this.
(Reproduced Record [R.R.] at 119a.)
After receiving no response from Mr. Acklin, Claimant reached out to
Deb Lestitian, the Chief Administration Officer, who advised her to memorialize her
complaints in a memorandum. Consequently, Claimant submitted a memorandum
dated September 8, 2014, to Ms. Lestitian, requesting that the “work load and hostile
work environment issues” with Dr. Porter be amicably resolved. (Id. at 120a.) In the
memorandum, she noted that she approached Ms. Lestitian to further discuss her
issues with Dr. Porter after receiving no response from Mr. Acklin, despite her
attempts to follow up. She clarified:
my interest is not to get rid of him, but rather to define our
work load and separate from him, given the hostile work
conditions and that I did not feel comfortable one on one
with him given recent incidents of him raising his hand at
me as if he were going to hit me and also him harassing me
during times I needed to leave for spousal related events.
(Id. at 120a.) She summarized that as per their oral discussion, Ms. Lestitian agreed
to “get back to [Claimant] in two days” after following up on the complaint. (Id.)
3
After receiving no response, Claimant submitted a second memorandum
dated September 18, 2014, to Ms. Lestitian. Claimant acknowledged that as of that
date, Ms. Lestitian was out of the office for a medical issue. Claimant advised that
she was leaving for a vacation in California but would return to work on September
29, 2014, after which she looked forward to discussing developments and the next
steps regarding her complaint.
On September 23, 2014, while Claimant was on vacation, a contentious
e-mail exchange took place between her and Dr. Porter in which Claimant advised
him that “[t]hese temper tantrums of yours—verbal and sometimes physical threats
are happening far too frequently and seem to occur when I am away or busy with
family matters.” (Id. at 123a.) While still in California, she learned that Employer
launched an investigation into her residency and agreed to participate in an interview
after her return. On October 1, 2014, following her interview, she also updated her
personnel file with a copy of her updated driver’s license and real-estate property tax
payment receipt, both of which reflected an address within the City of Pittsburgh.
Subsequently, by letter dated October 3, 2014, the Mayor’s Office
advised Claimant that an October 1st investigative report from the Mayor’s Office
found that Claimant resided in Ross Township rather than in the City of Pittsburgh as
required by Section 711 of the City of Pittsburgh Code of Ordinances (Ordinance)
providing:
§711.—RESIDENCY REQUIREMENTS FOR ALL CITY
EMPLOYEES.
4
All City employees and officials, including Police and Fire
Bureau personnel, shall be domiciled in the City at the time
of their initial appointment and shall continuously maintain
their domicile within the City throughout their terms of
employment with the City.
Ordinance §711. Employer advised Claimant that she must either provide the
required documentation to demonstrate her residency within the City or resign by
October 6, 2014. The same day, Claimant submitted a letter of resignation, stating in
relevant part:
I write to tender my resignation, effective October
15, 2014. I am on a 7 work day sick leave and under
Doctors [sic] orders until that time. I along with the
Doctor’s office have provided that documentation to
personnel on October 3, 2014. I am resigning based on a
hostile work environment that I have been subjected to span
over 6 months (April, 2014 to present). Four of the hostile
incidents were documented, reported to the appropriate staff
in your office, but were never addressed. In particular, the
fourth hostile incident was reported verbally to Debbie
Lestitian, as recent as September, 2014, and despite her
promise to follow up in two days, she never did. As a result
of all four reported incidents, I believe the recent
harassment, threats and intimidation from city police
towards my family and I to be potentially retaliatory actions
as a result of my previously reported hostile incidents.
(R.R. at 20a.)
Subsequently, Claimant submitted a claim for unemployment
compensation benefits, explaining:
5
It was e[rrone]ously reported that I was not a resident
of [P]ittsburgh. I was in California when the investigation
got underway. There was a forced investigation done while
I was out of state. There was an [sic] harrasment [sic] for
me to come back to the city so that as part of the
investigation to come back to prove that I was a resident.
(Id. at 6a.) Employer disputed Claimant’s position, alleging that Claimant voluntarily
resigned prior to taking steps to preserve her job.
The Lancaster Unemployment Compensation Service Center (Service
Center) determined that Claimant satisfied her burden of proving a necessitous and
compelling reason for leaving her job in that she demonstrated a hostile work
environment, intimidation and harassment, of which she informed Employer prior to
leaving. Employer appealed, asserting that Claimant “voluntarily resigned without
exhausting any alternatives prior to quitting” and “did not discuss any work-related
issues nor take any steps to preserve the job prior to quitting,” thus depriving
Employer of the opportunity to address the complaints alleged in her resignation
letter. (Id. at 27a.)
At the hearing before the Referee, Claimant testified that she resigned
because she was subjected to physical threats from her immediate supervisor, Dr.
Porter, and despite her repeated written and oral complaints, the issue was never
addressed and continued. Specifically, she testified:
I got the physical raise of the hand like I was going to
get hit. When I was discussing—we were discussing work-
related issues that were a concern about workload, and I felt
that he was going to hit me. And so immediately upon
leaving his office I made it know [sic] to Kevin Acklin
6
who’s the Chief of Staff who was coincidentally coming
out—down the hall as I was leaving the office, and I shared
with him what happened and he said let’s, you know, talk
about it soon. And so I wrote him a memo. I wrote him
and [sic] e-mail and tried to set up an appointment and kept
trying to meet with him. In between that time, I—it
happened again. It happened where Dr. Porter raised his
hand again, once again in conflict about some work-related
issues. And he, you know, stood up like he was going to hit
me with his hand, with his right hand. And, I immediately
went to Latrinda Leonard (phonetic) who is the Deputy of
Administration for the City who works two doors down
from me, and I went to her to talk to her about it. She said
we need to talk to Deb Lestitian about it. I talked with—so
this was immediately upon him raising his hand. I went to
Deb Lestitian about, [sic] talked to her, and she said memo
me and I’m going to get [to] the bottom of this. We had a
level of discussion about what happened, what my issues
were. I let her know that I had talked to Kevin Acklin but
that he did not respond. There was never a response from
anyone, and, my concern was that I was—I had to work
with this gentleman ongoing, the way which our work
structure was and that I felt threatened and I didn’t know
what he would continue to do, that he was in a position of
authority, and so Deborah said she’d get back to me in two
days. She didn’t get back to me in two days after me trying
to follow up with her. And, she went out on some kind of
leave or—I don’t know what happened, but she was not
around. And, so, that would have meant I filed—so I gave
a letter to Kevin Acklin initially August 5th, 6th, somewhere
around there, and then I—then there was a few other
incidents with Dr. Porter. I made it known to Latrinda
Leonard and to Deb Lestitian both being physical threats.
And, that would have been September—mid September—
I’m rough on dates, but—and then toward the end before I
left on vacation, I followed up with Deborah again in
writing to say nobody’s responded. Kevin hasn’t
responded. You haven’t responded. I’ve made these
complaints. I still feel threatened here. I want to address
these issues, and, there was still no response.
7
(Id. at 74a–75a.)
She further explained that after following up with Ms. Lestitian, she left
for vacation for five days, during which time an internal investigation was initiated
regarding her residency. She concluded that because the investigation began after she
repeatedly made it known that she was working in a hostile environment, she was
being retaliated against, particularly since her residency had already been approved
when she assumed the position. As such, she resigned.
Specifically, she stated that she learned her residency was being
investigated when her husband informed her while she was on vacation that a plain-
clothes officer came to their home and inquired regarding her residency. According
to Claimant, her husband advised the officer that she lived in the City during the
workweek. While still on vacation, Claimant contacted Mayor Peduto to resolve the
issue, and he suggested that she reach out to the Solicitor, who recently had a similar
issue. Nonetheless, Deborah Walker, a City employee, informed Claimant that the
investigation could not be held off until her return and that her husband needed to
travel to her weekday home from out of town to provide the investigators access. She
testified that after she returned, Detective Gahr interviewed her regarding her
residency and despite her request for a copy of the complaint which was the impetus
for the investigation, he would not provide one.
Regarding her residency, she testified that since beginning her
management position in April 2014, she lived at an address in the City and registered
to vote at that residence. She stated that she owned the home since 1991, and
8
although she did not live there continuously, she did move back into it in April 2014
for the purposes of accepting her job with Employer. She submitted a copy of her
voter registration, which went into effect ten days after April 29, 2014, reflecting a
City address. She also submitted a June 2014 e-mail she sent to the Mayor regarding
alleged code violations at her City residence for which she previously sought his help
in obtaining an extension.
Additionally, Claimant offered an October 3, 2014, note from Jeannette
E. South-Paul, M.D., advising that Claimant was under her medical care and should
remain on bedrest for seven days before re-evaluation. She stated that she attached
this note to her resignation letter and provided it to Employer.
On cross-examination, she advised that she and her husband have dual
residence, and that she presented Detective Gahr bills from those properties bearing
both her and her husband’s names but that he refused to accept them. She also
submitted the Declarations page from a Liberty Mutual Fire Insurance Policy with a
policy period of October 1, 2014, through October 1, 2015, which listed her and her
husband as the insureds of a residence in the City. In response to an inquiry
regarding why Claimant would quit her job pending an investigation into her
residency if she could, in fact, satisfy the residency requirement, Claimant stated:
The investigation was further retaliation for my
complaint. I’m sorry. I was getting threatened, you know,
physical. No one did anything. No one seemed to care in
that environment. And, it just kept escalating, one thing
after another. I mean, a few—several times this man raised
his hand, verbal, bothering me while I’m in California,
bothering me while I’m away on—while I’m away for a day
or two for husband’s stuff, and, I come back—or while I’m
9
gone, which you all knew. Everyone knew I was in
California and to insist that you do an investigation while
I’m in California. You go to my kids’ school, you know,
and harassing me about residency all of a sudden. And, so
that was my final straw.
(Id. at 99a.) She testified that she never received the October 3, 2014 letter from the
Mayor’s Office regarding her need to substantiate her residency or resign.
In support of its appeal, Employer presented the testimony of Detective
James Gahr, who stated that he was assigned a residency investigation regarding
Claimant, pursuant to which he conducted surveillance, which was inconclusive, and
collected documentation from her personnel file. He also contacted the United States
Postal Inspection Service and learned that Claimant was receiving her mail at an
address outside the City of Pittsburgh, in Ross Township. He unsuccessfully
attempted to contact her Ross Township neighbors and then contacted Claimant for
an interview, requesting that she provide any documentation relevant to establishing
her residency in the City. According to Detective Gahr, during Claimant’s October 1,
2014 interview, she provided documentation bearing only her husband’s name with
respect to the City address and, therefore, his final report showed that she failed to
establish her residency in the City. He also submitted the tax records for the City
property, indicating $182.11 in unpaid taxes for years 2013 and 2014.
On cross-examination, Detective Gahr admitted that Employer required
information concerning residency upon hire, which was previously provided by
Claimant, and that Claimant advised him during his investigation that she continued
to live at that address in the City. He, however, failed to inquire whether she kept
10
clothes there, ate meals there or took part in activities of daily living at that address.
He acknowledged that although Claimant requested a copy of the complaint, one was
not provided, noting that the investigation was prompted by an anonymous tip. He
further acknowledged that Employer mailed correspondence to Claimant at her City
address but denied knowing if Claimant actually received those letters at that address.
Following the hearing, the Referee reversed the Service Center’s
determination, finding that: (1) although Claimant had complaints regarding Dr.
Porter’s conduct, “she did nothing about those complaints when they first occurred on
August 6, 2014 and September 8, 2014 other than writing letters of complaint,” (Id. at
138a); (2) during the investigation, Claimant did not submit any documentation
linking the City property to her name; and (3) the same day that the Chief of Staff
informed her that she must submit proof of her residency or resign, Claimant
resigned. As such, the Referee concluded that Claimant voluntarily resigned without
exhausting alternatives and, therefore, denied her benefits under Section 402(b) of the
Law, 43 P.S. §802(b).
On further appeal, the Board reversed, crediting Claimant’s testimony
regarding her working relationship with Dr. Porter. The Board emphasized the
timing of Employer’s residency investigation and concluded that it was conducted to
further harass Claimant. Regarding the merits of the investigation, the Board credited
Claimant’s testimony that she lived in the City during the workweek and resolved any
disputes in the testimony in her favor. Because the Board found that Claimant did not
receive Employer’s October 3, 2014 letter and attempted to resolve her issues to no
avail before resigning, the Board concluded that her resignation was consistent with
11
common sense. As such, the Board held that she was not ineligible for benefits under
Section 402(b) of the Law. This appeal followed.
II.
On appeal,2 Employer contends that the Board’s finding that Claimant
had a necessitous and compelling reason for quitting is not supported by substantial
evidence. In this respect, an employee who alleges that she left her position for a
necessitous and compelling reason bears the burden of proving 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.” Brunswick Hotel &
Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d
657, 660 (Pa. Cmwlth. 2006). In the context of hostile work environment cases,
abusive conduct constitutes adequate justification to quit, so long as an employee
notifies her superiors of the harassing or abusive conduct. Porco v. Unemployment
Compensation Board of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003).
2
Our review is limited to determining whether the Board’s findings of fact are supported by
substantial evidence in the record, whether errors of law were committed, whether agency
procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment
Compensation Board of Review, 633 A.2d 1150, 1153 (Pa. 1993). We have defined “substantial
evidence” as such “relevant evidence that a reasonable mind might consider adequate to support a
conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n.3
(Pa. Cmwlth. 2013).
12
Specifically, Employer claims that Claimant failed to establish real and
substantial pressure to terminate her employment because she was not harassed by the
residency investigation and because Employer was addressing her concerns regarding
Dr. Porter through its action plan. In support of the assertion that it created an action
plan, Employer cites Claimant’s September 18, 2014 follow up memorandum to Ms.
Lestitian. The record, however, belies this argument.
First, the Board’s conclusion that Dr. Porter’s conduct created real and
substantial pressure for Claimant to quit is supported by substantial evidence.
Claimant noted, in at least one conversation with Mr. Acklin, one e-mail to Mr.
Acklin, two memoranda to Ms. Lestitian, and an e-mail she directed to Dr. Porter,
herself, her concerns regarding Dr. Porter’s conduct. She testified, consistent with
those exchanges, that Dr. Porter raised his hand at her on two separate occasions,
giving rise to her fear that he was going to strike her. Yet, despite her repeated
reports of this conduct, no further action was taken. Instead of investigating Dr.
Porter’s conduct, while Claimant was on a scheduled vacation in California,
Employer launched an investigation into her residency as per an “anonymous” tip.3
As the Board noted, Employer’s initiation of this investigation during the small
window of time when Claimant was known to be out of town so close to the time
Claimant voiced her complaints gives rise to the inference that the investigation was
retaliatory. That is particularly true considering that while Employer actively
investigated Claimant’s residency, it took no action regarding her hostile work
3
We decline Employer’s invitation to speculate who may have provided the tip due to the
absence of evidence in the record on this point.
13
environment complaints, even though Employer admitted that Claimant satisfied the
residency requirement before beginning employment.4
Contrary to Employer’s argument, the fact that the record does not
contain evidence showing that the timing of the residency investigation imposed a
hardship upon Claimant does not alter this outcome. See Hoffmaster v. Workers’
Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa. Cmwlth.
1998) (explaining that “in a substantial evidence analysis…the pertinent inquiry is
whether there is any evidence which supports” the agency’s decision below.
(emphasis added)). As shown by Claimant’s doctor’s note, these circumstances
created real pressure upon Claimant, for which Claimant sought medical treatment.
Moreover, the mere fact that Claimant submitted a second memorandum
to Ms. Lestitian outlining her continued concerns after Employer failed to respond to
previous communications does not in any way evidence that Employer devised an
“action plan.” Rather, such evidence illustrates Employer’s continued failure to
address the alleged conduct in any meaningful manner and only further supports the
conclusion that Employer’s lack of response contributed to the hostile work
environment.
Finally, we find meritless Employer’s argument that Claimant failed to
make a reasonable effort to preserve her employment. Indeed, as discussed above,
Claimant addressed her concerns on at least four different occasions with several
4
We make no judgment in this opinion with respect to whether Claimant was a City resident
at the time of her dismissal.
14
individuals and on a separate occasion with Dr. Porter himself. Regardless of
whether Claimant specifically stated in the claim she filed with the Service Center
that Dr. Porter was the cause of her resignation, she did state that she quit because she
was “threatened” and subjected to a hostile, harassing environment. These statements
align with the resignation letter she submitted over a month before filing her claim,
expressly noting that she resigned due to “a hostile work environment” that spanned
over the course of six months, Employer’s failure to address her concerns, and
retaliatory action she faced as a result of her complaints. As such, the Board’s
conclusion has more than substantial support in the record.
Accordingly, we affirm the Board’s decision finding that Claimant is not
ineligible for unemployment compensation benefits pursuant to Section 402(b) of the
Law, 43 P.S. §802(b).
DAN PELLEGRINI, Senior Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Pittsburgh, :
Petitioner :
:
v. : No. 1568 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 21st day of April, 2016, the order of the Unemployment
Compensation Board of Review dated July 27, 2015, at No. B-580582, is affirmed.
DAN PELLEGRINI, Senior Judge