Opinion
Argued June 4, 1981
September 23, 1981.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Burden of proof — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Harassment by co-workers — Rumors — Health problems.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, unless he proves that such termination was for a cause of a necessitous and compelling nature. [43]
2. In an unemployment compensation case where the party with the burden of proof fails to prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether findings were consistent with each other and with conclusions of law and can be sustained without capriciously disregarding competent evidence. [43]
3. Harassment by co-workers can constitute a necessitous and compelling cause for terminating employment, but the existence of rumors about personal relationships of an employe does not constitute such a cause when the employe makes no effort to obviate the problem and preserve his employment. [43-4]
4. Problems of health can constitute a necessitous and compelling cause for terminating employment, but unemployment compensation benefits are payable to an employe asserting such to be the reason for his termination only if the employe proves by competent medical evidence the existence of such problems sufficient to justify termination, that he informed the employer of such problems and that he requested to be transferred to a position more suitable to his condition. [45]
Argued June 4, 1981, before Judges ROGERS, BLATT and PALLADINO, sitting as a panel of three.
Appeal, No. 1068 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Edward Donaldson, No. B-182867.
Application with the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Donald M. Graffius, with him Gregory J. Karlick, for petitioner.
Karen Durkin, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
Edward Donaldson (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1), which states in pertinent part:
An employe shall be ineligible for compensation for any week —
. . . .
(b)(1) In which his unemployment is due to voluntarily leaving without cause of a necessitous and compelling nature. . . .
Pursuant to the Act of July 10, 1980, P.L. 521, Section "402(b)(1)" is now Section "402(b)" of the Law, 43 P. S. § 802 (b).
Claimant was employed as a night auditor by Holiday Inn (Employer). Claimant voluntarily terminated his employment and attributed his termination to harassment arising out of rumors circulating among his co-workers.
It is the Claimant who has the burden of proving that the voluntary termination of his employment was for cause of a necessitous and compelling nature. Gaiser v. Unemployment Compensation Board of Review, 55 Pa. Commw. 259, 423 A.2d 57 (1980). Where the party with the burden of proof does not prevail before the Board, as in the instant case, this Court's scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether the findings can be sustained without a capricious disregard of competent evidence. Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commw. 302, 426 A.2d 719 (1981).
Claimant's reliance on alleged harassment as a necessitous and compelling reason for voluntary termination is unfounded. Harassment by a supervisor or co-worker has been found to be a necessitous and compelling reason for voluntary termination. See Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977); Willet v. Unemployment Compensation Board of Review, 59 Pa. Commw. 500, 429 A.2d 1282 (1981).
In the instant case, however, the Board made the following finding: "5. The employees were not harassing the claimant." The Board is the ultimate fact finder, and from our review of the record we conclude that the Board's finding was not in error. Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commw. 170, 410 A.2d 422 (1980).
Claimant avers that co-workers were circulating rumors to the effect that he (1) was engaged in homosexual activities with truck driver patrons of Employer, (2) was secretly married to a former co-worker and (3) was having an affair with a former hostess. The record shows that none of Claimant's co-workers directly accused, questioned or confronted Claimant with respect to the substance of the rumors, and that Claimant's knowledge of the rumors rested solely on a conversation with one person and an admission, after confrontation, with another. Accordingly, we are unable to conclude that the Board erred in not finding Claimant had necessitous and compelling cause for terminating his employment based on a report of the rumors alone. Stacy v. Unemployment Compensation Board of Review, 43 Pa. Commw. 355, 402 A.2d 330 (1979).
We further note that a claimant alleging necessitous and compelling reasons for terminating his employment must have made a reasonable effort to obviate his problem and maintain his employment status. Colduvell v. Unemployment Compensation Board of Review, 48 Pa. Commw. 185, 408 A.2d 1207 (1979). Claimant here did not tell his supervisor about the rumors until some six to eight months after he learned about them. The supervisor, who was not previously aware of the rumors, told Claimant he would put a stop to them. Despite the supervisor's assurances, Claimant quit just a few days after the discussion, even though he had not heard of any further rumors.
Claimant alternately contends that his termination was compelled by emotional distress which resulted from the pressure of responding to myriad, annoying, work-related telephone calls and which rendered Claimant unable to perform his job. However, to establish emotional distress as a health problem that is a necessitous and compelling reason for termination, Claimant must (1) introduce competent testimony proving that at the time of termination adequate health reasons existed to justify termination; (2) inform Employer of the health problems, and (3) specifically request Employer to transfer him to a more suitable position. Coyle v. Unemployment Compensation Board of Review, 56 Pa. Commw. 170, 424 A.2d 588 (1981); Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977).
Our review of the record shows that Claimant did not meet any of the three requirements. Claimant did not offer competent medical evidence that his work adversely affected his health. Pastorius v. Unemployment Compensation Board of Review, 50 Pa. Commw. 50, 411 A.2d 1301 (1980). "The only evidence to this effect was [Claimant's] own [testimony] and we have previously held that such evidence is insufficient to establish the existence of adequate health reasons for termination." Steffy v. Unemployment Compensation Board of Review, 51 Pa. Commw. 16, 18, 413 A.2d 483, 484 (1980). Claimant neither informed Employer of his asserted health problem nor asked Employer to transfer him to work more compatible with his averred health problem.
Accordingly, we will enter the following
ORDER
AND NOW, September 23, 1981, the decision of the Unemployment Compensation Board of Review, Number B-182867, dated April 3, 1980, is hereby affirmed.