L. Houseknecht v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lori Houseknecht, :
Petitioner :
:
v. : No. 268 C.D. 2022
: Submitted: September 30, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 18, 2023
Lori Houseknecht (Claimant), pro se, petitions for review of the March 1,
2022 Order of the Unemployment Compensation (UC) Board of Review (Board),
finding Claimant was ineligible for benefits pursuant to Section 402(b) of the UC
Law (Law),1 as she voluntarily quit her employment with Wyrope Williamsport
Federal Credit Union (Employer) without cause of a necessitous and compelling
nature. On appeal, Claimant argues the Board erred in failing to find Claimant was
subject to abusive, hostile, or intolerable working conditions at the hands of
Employer’s Chief Executive Officer (CEO), to examine all of the evidence, and to
find Claimant credible. Based upon the Board’s findings of fact and a review of the
record and relevant case law, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
I. BACKGROUND
Claimant began working for Employer as a full-time member service
representative 2 on September 8, 2020. On November 2, 2020, Claimant tendered a
resignation letter stating, “Due to certain circumstances and the level of the working
environment, this is my letter of resignation. Effective today, I am submitting my
two[-]week[s’] notice and my last day will be on November 19, 2020.” (Certified
Record (C.R.) at 85.) After working her final day for Employer, Claimant filed a
claim for UC benefits. (Id. at 7.) A UC Service Center issued a Notice of
Determination finding Claimant was ineligible under Section 402(b) of the Law. (Id.
at 21.) Claimant filed a timely appeal, and a telephone hearing was scheduled before
a Referee.
At the hearing, Claimant testified on her own behalf as follows. Claimant quit
due to “harassment in the work place” by CEO. (C.R. at 53.) Claimant described
the workplace as an unprofessional work environment, which caused her to be
prescribed anxiety medication. (Id.) Claimant testified, “I could have gotten my
doctor involved in this, but at this time, I thought I would just provide the
information.” (Id.) Claimant acknowledged her doctor did not set any restrictions
on her work. (Id. at 54.) Claimant testified other tellers seemed “timid” and “scared
to do anything wrong” because of CEO. (Id.) Claimant described CEO as “very
boisterous” if tellers did not answer the telephone within three rings. (Id.) Claimant
explained that sometimes they were busy and could not answer within three rings.
(Id.) At the time, the lobby was closed so there were more phone calls. (Id.) When
asked by the Referee whether Claimant thought about answering and putting the
caller on hold, Claimant responded that she did not think putting someone on hold
was “normal” for the workplace, although Claimant acknowledged this is what CEO
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instructed her to do. (Id. at 54-55.) Claimant testified that she did not understand
why CEO did not answer the phone herself. (Id. at 55.) Claimant also described a
“threatening” incident with CEO. (Id. at 54.) After a tube at the drive-through
window was broken, CEO told employees that whoever broke the tube again would
have to pay for repairs. (Id.) On cross-examination, Claimant acknowledged no one
was ever charged for the tube. (Id. at 61-62.) Claimant also referred to an incident
in which her drawer was allegedly $100 short, but it was the result of CEO signing
onto the terminal and not signing back out. (Id. at 55-56.) It turned out the drawer
was not short and no one was written up for the incident, but Claimant was upset
that CEO “laughed [it] off.” (Id. at 56.) Claimant also testified that it was
“unprofessional” for CEO to talk about other employees in Claimant’s presence. (Id.
at 57.) In addition, Claimant stated CEO decided employees did not have to wear
masks despite guidance to do so. (Id.) However, Claimant further testified that “it
was nice that you didn’t have to wear masks,” and admitted on cross-examination
that masks were provided for any employee who chose to wear one. (Id. at 57, 61.)
CEO testified for Employer, along with Vice President and another member
service representative who supervised tellers (Teller Supervisor). CEO testified
Claimant never approached her about feeling harassed or bullied, and continuing
work was available with Employer had Claimant not voluntarily quit. (Id. at 64.)
CEO admitted that she was “blunt” and “very curt” but stated she was “not
unprofessional.” (Id. ) Vice President testified that Claimant never expressed any
concerns to her before quitting. (Id. at 65.) Vice President also explained Claimant
was being considered for a management role, which is why she was involved in
discussions about other employees. (Id. at 67.) Finally, Teller Supervisor testified
she did not think any of the conversations about other tellers was unprofessional.
3
(Id. at 68.) At one point during the hearing, when Claimant said she might call Teller
Supervisor as a witness “down the road, if I have to take this to a different level,”
the Referee advised Claimant, “if this goes to the Board . . . , the Board . . . is only
going to review what has been brought out in today’s hearing . . . [s]o if [Claimant
ha[d] questions, [Claimant] need[ed] to ask them.” (Id. at 68-69.) On cross-
examination, Teller Supervisor testified employees were told a couple times about
the three-ring policy, “[b]ut it wasn’t a threat.” (Id. at 69.) In handwritten notes
submitted as evidence before the Referee, as well as in her appeal from the UC
Service Center’s Notice of Determination, Claimant indicated that a member of
Employer’s Board of Directors asked Claimant why she quit, and she explained the
situation. (Id. at 30, 76.) Also admitted as an exhibit was an email from Vice
President to employees reminding them of the phone policy. (Id. at 87.)
On June 2, 2021, the Referee issued a decision and order affirming the UC
Service Center’s Notice of Determination that Claimant was ineligible for benefits
under Section 402(b) of the Law. The Referee made the following relevant findings
of fact:
2. [] [C]laimant voluntarily left her employment with [Employer] due
to an alleged hostile working environment.
3. [] CEO/President stressed the importance of answering all phone
call[s] within three rings to all employees . . . even if it meant putting
the caller on hold.
4. [] CEO/President made a joke/comment that the next person who
broke the drive-in tube system would be paying for it, but she never
actually charged anyone for this.
5. Members of management at [Employer] would openly discuss issues
they had with employees in front of [] [C]laimant, as they were training
her to become a manager.
4
6. Continuing work would have been available to [] [C]laimant had she
not have voluntarily left her employment as she did.
(Referee’s Decision, Findings of Fact (FOF) ¶¶ 2-6.)
The Referee reasoned that “personality conflict[s] with supervisors or co-
workers or resentment of supervisory criticism is not necessitous and compelling
cause to quit” under Pennsylvania law. (Referee’s Decision at 2.) Rather, a claimant
must show the employment situation is intolerable and that the claimant made a good
faith effort to preserve employment. (Id.) Based upon the facts as found, the Referee
concluded Claimant did not establish a necessitous and compelling reason for
voluntarily quitting nor did Claimant “act[] with ordinary common sense and ma[k]e
a good faith effort to preserve the employment.” (Id.) Thus, benefits were denied
(Id.)
Claimant subsequently appealed to the Board, which adopted and
incorporated the Referee’s findings and conclusions. (Board Order.) Claimant filed
a timely Petition for Review with this Court.
II. PARTIES’ ARGUMENTS
On appeal,2 Claimant argues CEO created a hostile work environment by
bullying, yelling, and talking down to employees. Instead of explaining something
in a civil manner, Claimant asserts CEO would grow upset when the phone was not
answered quickly. According to Claimant, this created stress and anxiety. Claimant
also argues CEO did not require masks during COVID-19. Claimant contends she
told UC officials that she had to seek psychological treatment as a result of the stress
2
“Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Rev., 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014) (citation omitted).
5
and anxiety and asserts she submitted documentation to that effect to the Board.
However, Claimant argues the Board failed to consider all of the evidence, including
her medical records. Finally, Claimant asserts CEO has since resigned in lieu of
being fired, which supports her claim that the work environment was hostile.
The Board responds that Claimant did not meet her burden of proving she had
a necessitous and compelling reason for quitting. The Board maintains Claimant’s
issue with CEO was a personality conflict and not intolerable working conditions.
The Board asserts the three-ring policy was reasonable, and there was no real or
substantial pressure on Claimant to quit. The Board argues Claimant also did not
inform Employer of any concerns, including in her resignation letter. While
Claimant spoke to a member of Employer’s Board of Directors and voiced her
grievances there, the Board asserts this was after Claimant already quit, as Claimant
admits the board member asked her why she quit. The Board claims we cannot
consider evidence that CEO left, as that evidence is not of record. Similarly, the
Board argues Claimant did not raise COVID-19 as an issue before the Board, but
even if the issue was preserved, Claimant did not attempt to preserve her
employment or seek accommodations. The Board further argues Claimant’s
physician did not place any work restrictions, and Claimant did not inform Employer
of needing any accommodations. The Board asserts it did not capriciously disregard
evidence as the documentation from Claimant’s doctor was not presented to the
Referee, which was necessary for it to become part of the record the Board reviewed.
It also disputes that Claimant attempted to provide such documentation while
Claimant’s appeal to the Board was pending; rather, the Board claims the
documentation was included in Claimant’s Reproduced Record for the first time.
6
Finally, the Board states it is the factfinder and its credibility determinations are not
subject to reevaluation by this Court.
III. DISCUSSION
Under Section 402(b) of the Law, “[a]n employe shall be ineligible for
compensation for any week . . . [i]n which [the employe’s] unemployment is due to
voluntarily leaving work without cause of a necessitous and compelling nature . . . .”
43 P.S. § 802(b). Here, it is undisputed that Claimant voluntarily left her
employment. Thus, the burden is on Claimant to show that she had a necessitous
and compelling reason to do so. Latzy v. Unemployment Comp. Bd. of Rev., 487
A.2d 121, 123 (Pa. Cmwlth. 1985). To satisfy this burden, Claimant must
demonstrate 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 & Conf. Ctr., LLC v. Unemployment Comp. Bd. of
Rev., 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Whether a claimant had necessitous
and compelling reasons for terminating his employment is a question of law subject
to review by this Court. Wise v. Unemployment Comp. Bd. of Rev., 111 A.3d 1256,
1261 (Pa. Cmwlth. 2015).
“Mere dissatisfaction with one’s working conditions does not constitute cause
of a necessitous and compelling nature for terminating one’s employment.”
Brunswick Hotel, 906 A.2d at 660. Likewise, “[p]ersonality conflicts, absent an
intolerable work atmosphere, do not amount to a necessitous and compelling cause
for leaving one’s employment.” Wert v. Unemployment Comp. Bd. of Rev., 41 A.3d
7
937, 940 (Pa. Cmwlth. 2012). Furthermore, “resentment of a reprimand, absent
unjust accusations, profane language or abusive conduct . . . do not amount to
necessitous and compelling causes.” Lynn v. Unemployment Comp. Bd. of Rev., 427
A.2d 736, 737 (Pa. Cmwlth. 1981). The Court has recognized that “abusive
conduct” may constitute a necessitous and compelling reason to voluntarily quit.
Ann Kearney Astolfi, DMD, PC v. Unemployment Comp. Bd. of Rev., 995 A.2d 1286,
1290 (Pa. Cmwlth. 2010). This includes being called names or being “subject to
criticism and ridicule from [a superior] that was uncalled for and incorrect.” First
Fed. Sav. Bank v. Unemployment Comp. Bd. of Rev., 957 A.2d 811, 817 (Pa.
Cmwlth. 2008).
The record here does not demonstrate the CEO’s conduct “produced real and
substantial pressure” such that a reasonable person would quit. Brunswick Hotel,
906 A.2d at 660. Employer reasonably instructed its employees to answer the phone
within three rings and, if necessary, to place the caller on hold. Claimant testified
CEO became “very boisterous” if the phone was not answered within three rings,
(C.R. at 54), but this does not establish the work environment was intolerable. For
instance, in Uniontown Newspapers, Inc. v. Unemployment Compensation Board of
Review, 558 A.2d 627, 628, 630 (Pa. Cmwlth. 1989), we concluded a claimant had
necessitous and compelling reasons for quitting when the claimant’s supervisor
threw items at the claimant and screamed and pointed her finger at the claimant.
And in Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282,
1283-84 (Pa. Cmwlth. 1981), we concluded a claimant who was called a profane
name, was repeatedly insulted about her intelligence, ridiculed for her physical
appearance, and subjected to unsubstantiated job infractions by her supervisor, had
a necessitous and compelling reason to voluntarily quit her job. There is no such
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evidence here. Claimant also asserts CEO threatened to make employees pay for
breaking the drive-through tube but Claimant admits CEO never did so. (C.R. at 54,
61-62.) And while Claimant contends it was unprofessional for management to
speak about other employees in front of her, Claimant was being trained as a
manager. (Id. at 57, 67.) Even assuming a reasonable person would have felt “real
and substantial pressure” to quit, Claimant took no steps to preserve her
employment. Brunswick Hotel, 906 A.2d at 660.
Similarly, Claimant did not inform Employer of any medical conditions that
constituted a necessitous and compelling reason to resign. To establish that a
medical condition constituted a compelling reason to resign, a claimant must prove
through competent and credible evidence that (1) the health reason is of sufficient
dimension to compel the employee to quit; (2) the employee informed the employer
of the health problem; and (3) the employee is able and available for work if the
employer can make a reasonable accommodation. Watkins v. Unemployment Comp.
Bd. of Rev., 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). As stated above, Claimant did
not approach Employer seeking any reasonable accommodations for her anxiety and,
instead, quit.
Claimant’s argument about COVID-19 likewise does not entitle her to
benefits. While Claimant argues in her brief that she felt uncomfortable by
Employer’s lack of a masking policy, (Claimant’s Br. at 8), before the Referee,
Claimant stated “it was nice that you didn’t have to wear masks,” and admitted on
cross-examination that masks were provided for any employee who chose to wear
one. (Id. at 57, 61.) Thus, this argument is unavailing. Nor is it evident from a
review of the record that Claimant raised this issue to the Board. See Pa.R.A.P.
1551(a) (“Only questions raised before the government unit shall be heard or
9
considered, except” limited exceptions not applicable here.); see also Hubbard v.
Unemployment Comp. Bd. of Rev., 252 A.3d 1181, 1186 (Pa. Cmwlth. 2021)
(holding same).
Turning to Claimant’s next argument, that the Board failed to consider all of
her evidence, including a letter from her doctor, we likewise find no error by the
Board. The Board capriciously disregards the evidence, if it “willfully or
deliberately ignored evidence that any reasonable person would have considered to
be important.” Jackson v. Unemployment Comp. Bd. of Rev., 933 A.2d 155, 156 n.4
(Pa. Cmwlth. 2007) (citation omitted). The problem for Claimant here is that the
letter was not admitted into evidence at the Referee’s hearing, which would have
enabled the Board to consider it. See Section 504 of the Law, 43 P.S. § 824
(providing the Board may affirm, modify, or reverse a referee’s decision “on the
basis of the evidence previously submitted in the case”); 34 Pa. Code § 101.106(providing the Board “may review both the facts and the law pertinent to the issues
involved on the basis of the evidence previously submitted”). Under precedent,
“[t]he Board may not consider post-hearing factual communications in its
determination, as the Board is restricted to the facts and the law pertinent to the
issues involved on the basis of evidence previously submitted.” Croft v.
Unemployment Comp. Bd. of Rev., 662 A.2d 24, 28 (Pa. Cmwlth. 1995). Thus, it
did not err in not considering Claimant’s letter from her doctor.
Finally, Claimant argues the Board should have found her credible. “[T]he
[Board] is the ultimate fact-finder in [UC] matters . . . .” Sipps v. Unemployment
Comp. Bd. of Rev., 181 A.3d 479, 484 (Pa. Cmwlth. 2018) (citation omitted). As the
factfinder, it is entitled to make its own credibility determinations regarding
witnesses and to resolve any evidentiary conflicts within its discretion, and these
10
credibility determinations are not reviewable on appeal. Serrano v. Unemployment
Comp. Bd. of Rev., 149 A.3d 435 (Pa. Cmwlth. 2016). This Court cannot reevaluate
the Board’s credibility determinations on appeal. Cambria Cnty. Transit Auth. v.
Unemployment Comp. Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019).
Because Claimant did not satisfy her burden of establishing a necessitous and
compelling reason for voluntarily quitting her employment, we must affirm the
Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lori Houseknecht, :
Petitioner :
:
v. : No. 268 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, April 18, 2023, the Order of the Unemployment Compensation Board
of Review, dated March 1, 2022, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge