Opinion
No. 1058 C.D. 2013
01-06-2014
Donna M. Reish, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
This matter was reassigned to the authoring judge on November 19, 2013.
Donna M. Reish (Claimant) petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) denying her claim for UC benefits pursuant to Section 402(b) of the UC Law (Law) because she failed to prove cause of a necessitous and compelling nature for leaving her employment. Because the Board's findings of fact do not sufficiently address Employer's corrective action plan and its reasonableness, given the circumstances presented here, we vacate the Board's Order and remand this matter for more specific findings.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is ineligible for compensation for any week "[i]n which h[er] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was employed by Furman Foods (Employer) from June 1, 2004 to December 13, 2012 as a label line adjuster. (Board Op., Findings of Fact (FOF) ¶ 1.) Claimant applied for UC benefits. The UC Service Center determined that Claimant had a necessitous and compelling reason to quit, but was ineligible for UC benefits pursuant to Section 402(b) of the Law because she did not exhaust all alternatives prior to quitting. (Notice of Determination, R. Item. 6.) Claimant appealed the UC Service Center's determination and a hearing was held before a UC Referee. Claimant appeared and testified. Employer's Vice President of Human Resources (HR Vice-President) and Warehouse Manager testified on behalf of Employer. The UC Referee affirmed the UC Service Center's determination. Claimant appealed to the Board.
The Board found that "[C]laimant began to experience problems with her immediate supervisor [Label Supervisor] in early 2010" that included inappropriate physical contact and inappropriate sexual comments. (FOF ¶¶ 2-3.) Claimant tried to resolve the situation by addressing it directly with Label Supervisor by telling him that his remarks and actions were inappropriate and he should "knock it off." (FOF ¶¶ 5-6.) The situation would improve for several months but, after a few months, Label Supervisor would again make comments regarding how Claimant smelled or looked. (FOF ¶¶ 7-8.) In early 2011, the situation between Claimant and Label Supervisor was brought to the attention of Warehouse Manager, whereupon he spoke separately with Claimant and Label Supervisor. (FOF ¶¶ 9-10.) Warehouse Manager advised Claimant that the situation would improve; however, Warehouse Manager did not inform Employer's HR Vice-President about Claimant's complaints or the actions Warehouse Manager took to correct the situation as required by Employer's policies. (FOF ¶¶ 11-12.) In November 2012, Label Supervisor made more sexual comments and the situation again deteriorated. (FOF ¶ 13.) HR Vice-President conducted an investigation examining the sexual and physical content of Label Supervisor's alleged behavior that resulted in a disciplinary action plan being imposed upon Label Supervisor. (FOF ¶¶ 14-15.) The disciplinary action plan required Label Supervisor to be suspended for five days and attend a refresher course for violations of Employer's harassment policies. (FOF ¶ 16.)
Label Supervisor's inappropriate sexual comments concerned, among others, whether or not Claimant had a panty line, whether she was wearing a thong, and whether the color of her bra matched the color of her underwear. (FOF ¶ 4.)
Although we note that Finding of Fact number 9 states that "[t]he situation was addressed by a coworker to the warehouse manager in early 2011," this finding is not supported by the hearing transcript. Claimant testified that she, not a coworker, reported Label Supervisor's conduct to Warehouse Manager in early 2011 and Warehouse Manager did not contradict Claimant's testimony in this regard. (Hr'g Tr. at 9, 32-34.) However, the hearing transcript shows that someone other than Claimant reported a November 30, 2012 incident involving Label Supervisor and Claimant to Warehouse Manager, which resulted in a December 4, 2012 meeting between Warehouse Manager and Claimant to discuss the incident. (Hr'g Tr. at 13-16.)
The Board found that Claimant deemed Employer's disciplinary action plan unacceptable and that Claimant continued to deem the disciplinary action plan unacceptable after Employer offered to reevaluate the plan after ninety days, one month, and finally after one week. (FOF ¶¶ 18-20.) The Board found further that Employer then offered Claimant a transfer to another position to which Claimant objected. (FOF ¶ 21.) Finally, the Board found that because Claimant "did not approve of the corrective actions outlined by the employer," she voluntarily quit her employment. (FOF ¶ 22.)
Based on the findings, the Board concluded that "[C]laimant voluntarily quit her employment because she did not approve of the corrective actions outlined by the [E]mployer." (Board Op. at 3.) The Board explained:
While the Board does not condone the inappropriate conduct of the claimant's supervisor, the claimant did not allow the employer the opportunity to employ its action plan in order to resolve the issues of the sexual harassment before quitting. Specifically, the claimant refused to try any reasonable solutions offered by the employer. The claimant cannot be said to have left for necessitous and compelling cause under these facts and circumstances. Therefore, benefits must be denied under Section 402(b) of the Law.(Board Op. at 4.) Claimant now petitions this Court for review.
"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 supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant argues that she had a necessitous and compelling reason to quit her employment because Employer's corrective action plan was not reasonable. Claimant contends that, in the context of her allegations of sexual harassment, she is not required to accept a transfer to a less desirable position, a demotion, or that she continue to work with Label Supervisor in the manner established by the corrective action plan.
Section 402(b) of the Law provides that a claimant is ineligible for compensation for any week in which his or her unemployment is due to a voluntary termination of employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). A claimant who voluntarily terminates her employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). Whether or not a claimant had a necessitous and compelling cause for terminating employment is a question of law subject to this Court's review. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006).
It is well settled that:
[a]n employee who claims to have left employment for a necessitous and compelling reason must prove 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.Id. at 660. "Sexual harassment may constitute a necessitous and compelling reason to quit employment." Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). As explained by this Court:
In such a situation, a claimant need not "notify the employer of each and every incident of harassment." Unclaimed Freight Co. v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996). Rather, a claimant will remain eligible for benefits as long as she has "taken 'common sense' action that [gives] the employer an opportunity to understand the nature of [her] objections and to take prudent steps to resolve the problem." Id. Furthermore, "there is a certain level of conduct that an employee will not be required to tolerate and the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace." Comitalo [v. Unemployment Compensation Board of Review], 737 A.2d [342,] 345 [(Pa. Cmwlth. 1999)].
Id.
Here, the Board concluded that Label Supervisor's conduct was inappropriate. (Board Op. at 4.) The Board found that Employer implemented a disciplinary action plan which required that Label Supervisor be suspended for five days and attend a refresher course on Employer's harassment policies. (FOF ¶ 16.) However, while the Board found that Claimant quit because she did not approve of the corrective actions outlined by Employer, it is clear from the record that the disciplinary action plan that Employer imposed upon Label Supervisor is not the corrective action plan that Claimant found unacceptable. The Board made no findings regarding the details of Employer's corrective action plan, as testified to by both Claimant and Employer, or the reasonableness of the corrective actions taken in light of the testimony.
Here, Claimant testified that when she reported Label Supervisor's conduct to Warehouse Manager in January 2011, Warehouse Manager told Claimant that Label Supervisor would be fired "if anything ever happened like that again." (Hr'g Tr. at 9.) However, as found by the Board, Warehouse Manager did not report Label Supervisor's conduct or the corrective actions Warehouse Manager took in response to HR Vice-President, in violation of Employer's harassment policies. (FOF ¶ 12.) As the record shows, Label Supervisor was not fired in November 2012 when his inappropriate conduct was again reported to Warehouse Manager. This appears to be the result of Employer's HR Vice-President's decision to treat the situation as though Employer's first notice of the harassment occurred in November 2012 because HR Vice-President was not aware of the situation before that date. (Hr'g Tr. at 22.) However, the Board does not make any findings as to the reasonableness of Employer's actions in failing to take responsibility to eliminate the harassment against Claimant when it was first reported in 2011, and then treating the incident in November 2012 as the first notice Employer had of the situation in formulating a corrective action plan.
We note that there was no testimony by Employer as to what the consequences would be for Label Supervisor if Employer's corrective action plan failed and he again engaged in inappropriate conduct towards Claimant.
The testimony shows further that, after being subjected to Label Supervisor's inappropriate conduct beginning in 2010 and the failure of Employer to follow its own policies after becoming aware of such conduct in early 2011, Employer offered Claimant, in November 2012, the choice of either a position that Claimant deemed less desirable or working on the same shift in her current job while being supervised by Warehouse Manager for only one hour of that shift. (Hr'g Tr. at 16-17, 22.) While Employer testified that a back-up Warehouse Manager would be available during Claimant's shift, the only testimony was that Label Supervisor would still be present and in charge of the labeling area in which Claimant worked during Claimant's entire shift. (Hr'g Tr. at 22.) In other words, it appears there would be no other supervisor physically present within the immediate area where Claimant worked in the event Label Supervisor again harassed Claimant.
Claimant testified that, when she expressed her concern to HR Vice-President about working on the same shift with Label Supervisor while no other supervisor was present, the HR Vice-President then offered Claimant a floater job in the canning room. (Hr'g Tr. at 17.) Claimant testified further that the canning room was less desirable because Claimant would be wet during her shift. (Hr'g Tr. at 18.) Claimant also believed that this offer would require her to accept a pay reduction based upon her prior experience working in the canning room. (Hr'g Tr. at 17-18.) Claimant testified that she indicated to HR Vice-President that she would earn less in the canning room, (Hr'g Tr. at 18), and HR Vice-President testified that it was Employer's policy to permit an employee to keep a similar wage if he or she is required to change jobs; however, the exact amount of what Claimant's wages would be in the canning room was never discussed. (Hr'g Tr. at 18, 24.) Again, the Board made no findings resolving these issues.
Without more specific findings this Court cannot, in the first instance, assess whether Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by refusing to try Employer's corrective action plan even for one week. More specific findings must be made concerning whether the entire corrective action plan offered Claimant was reasonable and prudent given the length of time that she was subjected to the inappropriate conduct and Employer's failure to take the necessary steps to adequately correct the situation for more than a year and a half.
The Dissent compensates for the Board's lack of necessary findings regarding Employer's corrective action plan by analyzing the evidence presented and making findings not found by the Board. Reish v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1058 C.D. 2013, filed January 6, 2014), slip op. at 3-4 (Pellegrini, PJ, dissenting). The Dissent then concludes that the Board's findings are sufficient to support the conclusion that Claimant did not act in good faith or use common sense by rejecting Employer's corrective action plan. Id. at 6. However, the Board's findings are not sufficient and it is not this Court's role to weigh conflicting testimony and make additional findings not made by the fact-finder.
Accordingly, for these reasons, the Board's Order is vacated, and this matter is remanded for more specific findings by the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 6, 2014, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby VACATED, and this matter is REMANDED for further proceedings in accordance with this opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI
The majority vacates the Unemployment Compensation Board of Review's (Board) determination that Furman Foods' (Employer) corrective action plan was reasonable because it finds purported gaps in the Board's findings. I dissent on the basis that those gaps are illusory because there is substantial evidence to support the Board's findings that Donna M. Reish (Claimant) did not take good faith actions to preserve her employment while Employer repeatedly made good faith attempts to take steps to resolve her concerns. Because she failed to prove necessitous and compelling cause for leaving her employment, she is ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Whether an employee has cause of a necessitous and compelling nature to quit employment is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). The burden is on a claimant to prove necessitous and compelling reasons for quitting. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002). In order to show cause of a necessitous and compelling nature, the claimant must establish that circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment. Brown, 780 A.2d at 888.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
* * *
(b) In 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.
The following facts are undisputed. In 2010, Claimant began to experience problems with her immediate supervisor involving physical contact and inappropriate sexual comments. Claimant tried to resolve the situation herself with the supervisor. The inappropriate comments resumed and, in 2011, a co-worker reported the situation to the warehouse manager. The warehouse manager separately discussed the matter with Claimant and her supervisor and the situation temporarily improved. The warehouse manager did not notify the human resources manager of the complaints or corrective actions as required by Employer's policy.
The situation deteriorated and Employer's human resources manager conducted an investigation and developed a disciplinary action plan against Claimant's supervisor including a five-day suspension and requiring his attendance at a refresher course for violations of Employer's harassment policy. Employer also offered to reevaluate the plan after 90 days. Claimant rejected the plan as unacceptable. Employer then offered to reevaluate the plan after one month and Claimant rejected the plan as unacceptable. Employer then offered to reevaluate the plan after one week and Claimant rejected the plan as unacceptable. Employer also offered to transfer Claimant to another position which Claimant rejected as unacceptable.
I.
Notwithstanding all of that, the majority vacates the award because the Board failed to make sufficient findings regarding the details of Employer's corrective action plan. All of the facts set forth above regarding the corrective action plan come from the Board's Findings of Fact Nos. 14 through 22. Moreover, the Board's detailed findings regarding the corrective action plan imposed on the supervisor and the offers made to Claimant are amply supported by both Claimant's and the human resources manager's testimony. (Notes of Testimony (N.T. 3/1/13) at 21-23).
II.
The majority also faults the Board's failure to make any findings regarding the reasonableness of Employer's failure to take responsibility to eliminate the harassment when it was first reported in 2011, and then treating the November 2012 incident as the first notice Employer had of the situation in formulating the corrective action plan. However, the majority overlooks Claimant's testimony that after the warehouse manager became aware of the harassment from her co-worker, he asked Claimant if she wanted to pursue it any further and she replied that she did not want anyone to lose his or her job and that she "would let it go" as long as her supervisor "behaved himself." (N.T. 3/1/13 at 9). In addition, the human resources manager testified that she first learned of the supervisor's harassment on December 4, 2012, when the warehouse manager related what had been related to him; that she conducted an investigation into the matter; that the supervisor "gave me a different story than what [Claimant] had given me;" and that it was the first time that anything about the supervisor had ever been reported to her. (Id. at 21).
III.
A.
The majority also faults the Board's findings regarding Employer's corrective action plan. First, it faults those findings because the supervisor would still be working the same shift as Claimant. However, the Employer offered a corrective action plan in which Claimant would no longer be supervised by the supervisor. Claimant acknowledged that the human resources manager told her that if she stayed in her present position, Employer would keep her and the supervisor apart, and that she would report to the warehouse manager. (N.T. 3/1/13 at 18). The human resources manager testified that she told Claimant about the supervisor's suspension; that he would be required to have additional harassment training; and that he would be prohibited from having one-on-one contact with her when he came back to work. (Id. at 22). The human resources manager said that the back-up supervisor in the warehouse is a female, and that she told Claimant that the supervisor would no longer complete Claimant's performance reviews or administer any discipline. The human resources manager also stated that she told Claimant that she would check on her on a weekly basis to ensure that there were no negative repercussions or disparate treatment, and she told Claimant that they could informally review this action plan in 90 days and that Claimant returned to work on the label line without comment.
The human resources manager also testified that after Claimant returned to her office an hour later and said that she was quitting, she told Claimant that she didn't want her to quit and to take some time to think about it and that they could review the arrangement in 30 days. She stated that Claimant objected to that suggestion; that she asked Claimant if she could try it for just a week; and that Claimant responded that it wouldn't work.
B.
Insofar as Employer's offer to place Claimant in the open floater laborer position in production on the second shift, where the supervisor would not be on duty, the majority faults the Board because it did not make a finding on Claimant's belief that she would have to accept a lower wage. Claimant, however, had to take "'common sense' action that would have given the employer an opportunity to understand the nature of [her] objections and to take prudent steps to resolve the problem." Unclaimed Freight Co. v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996). "If the employer promises to take action to alleviate the problem, good faith requires that the employee continue working until or unless the employer's action proves ineffectual." Craighead-Jenkins, 796 A.2d at 1034. In this case, the prudent action for Claimant would have been to ask what the wages would be if she changed positions. The human resources manager stated that it was a fairly common practice for Employer to allow someone to keep a similar wage if she needed to move positions, but that Claimant immediately shot down the option of moving and made it clear that she would only be satisfied to keep working for Employer if it removed the supervisor from his position. (N.T. 3/1/13 at 24).
IV.
The Board's findings are more than sufficient and more than substantial evidence exists that Claimant did not quit for necessitous and compelling reasons because she did not act in good faith by continuing to work in her current position "until or unless [E]mployer's plan prove[d] ineffectual," Craighead-Jenkins, 796 A.2d at 1034, and she did not take common sense action by considering Employer's alternative offer of other potentially suitable employment.
The majority says that the dissent compensates for the Board's purported lack of factfinding by analyzing evidence presented and engaged in factfinding. First, the issue of whether there was insufficient factfinding was not advanced by Claimant; she makes no claim that any of the testimony was incorrect or that any of the testimony of any party is in dispute - she is only arguing that based on all of the testimony that she had just cause to quit because the accommodations offered were insufficient. Second, the dissent does use uncontested facts to show that the reason the majority gives as to why the Board's factfinding is so insufficient that there should be a remand are not reasons at all. Finally, that comment illustrates the core flaw of the majority opinion - it remands because it wants more factfinding when it should have been reviewing the Board's decision to determine whether there is substantial evidence to support the factfinding it did and whether those facts support its decision. "It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). --------
Accordingly, unlike the majority, I would affirm the Board's order in this case.
/s/_________
DAN PELLEGRINI, President Judge