K.A. Manley v. UCBR

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