                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kriger Construction, Inc.,                     :
                  Petitioner                   :
                                               :   No. 26 C.D. 2019
              v.                               :
                                               :   Submitted: November 8, 2019
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: February 10, 2020


              Kriger Construction, Inc. (Employer) petitions for review of the
December 11, 2018 order of the Unemployment Compensation Board of Review
(Board), which found Shelly L. Alexander (Claimant) not ineligible for unemployment
compensation (UC) benefits under section 402(b) of the Unemployment Compensation
Law (Law).1 The Board’s order reversed a referee’s decision that found Claimant
ineligible for UC benefits.




       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b)
(providing that a claimant is ineligible for compensation for any week in which her unemployment is
due to voluntarily leaving work without cause of a necessitous and compelling nature).
                           Facts and Procedural History
             Claimant worked as a full-time project manager for Employer from May
2, 2016, until April 6, 2018, when she voluntarily resigned her position. (Board
Findings of Fact (F.F.) Nos. 1, 8; Reproduced Record (R.R.) at 33a, Notes of Testimony
(N.T.) at 6.) Claimant applied for UC benefits and on April 27, 2018, a local service
center found her not ineligible for benefits under section 402(b) of the Law. (Certified
Record (C.R.) at Item No. 4.) In particular, the local service center determined
Claimant voluntarily quit because of harassment from Employer’s vice president,
Claimant exhausted all alternatives prior to quitting, and, therefore, Claimant had a
necessitous and compelling reason for quitting. Id.
             Employer appealed and a referee conducted a hearing on June 26, 2018,
at which Claimant and two witnesses on behalf of Employer testified. At the hearing,
Claimant testified that she quit because she was sexually harassed by Employer’s vice
president and because of an ongoing hostile work environment, while Employer’s
witnesses testified that Claimant quit after she was reprimanded for misuse of a
company vehicle. Following the hearing, the referee found that Claimant had been
assigned a company vehicle and that Claimant “abused the use of the company vehicle
by returning home from an eating and drinking establishment in the company vehicle
at an extremely excessive rate of speed, which was tracked by [Employer’s] GPS
system.” (Referee F.F. Nos. 5-6.) The referee also found that “[w]hen the company
vehicle was taken away from [Claimant], [she] voluntarily quit work . . . without ever
indicating to [Employer] any harassment, medical or other specific reason as to why
she was quitting.” (Referee F.F. No. 7.) The referee further found that Claimant “never
made any complaint to [Employer’s] president . . . concerning any sexual or other
harassment or mistreatment.”      (Referee F.F. No. 8.)      Accordingly, the referee



                                           2
concluded that Claimant did not voluntarily quit because of a compelling and
necessitous reason and that Claimant was ineligible for UC benefits under section
402(b) of the Law.
            Claimant appealed the referee’s decision to the Board. By decision dated
December 11, 2018, the Board reversed the referee’s decision and found Claimant
eligible for UC benefits. The Board made the following, pertinent, findings of facts:


            2.   In or around December 2016, [Claimant] was sexually
                 harassed by the vice president at a Christmas party.

            3.   [Claimant] told the vice president that she was not
                 interested in him, and no further sexual comments were
                 made to [Claimant].

            4.   The vice president assigned [Claimant] to a project
                 manager whom [Claimant] did not get along with.

            5.   The project manager yelled at [Claimant] and belittled
                 her on a regular basis, such as calling her stupid and
                 incompetent.

            6.   [Claimant] complained about the situation to another
                 project manager, the vice president, and the [Equal
                 Employment Opportunity (EEO)] officer.

            7.   The vice president did nothing about the situation and
                 laughed at [Claimant].

            8.   [Claimant] voluntarily quit due to a hostile work
                 environment.

(Board F.F. Nos. 2-8.)
            The Board noted that under Pennsylvania law, an employee who is
subjected to unjust accusations, abusive conduct, or profanity at the workplace has a



                                          3
necessitous and compelling reason to terminate employment, provided that notice has
been given to the employer of the conduct and the employer has been given an
opportunity to remedy the conduct. (Board decision at 2.) The Board concluded that
Claimant quit due to a hostile work environment. It observed that Claimant testified at
the hearing that Employer’s vice president told her he wanted to have sex with her and
touched her inappropriately at the December 2016 Christmas party. Id. The Board
also noted Claimant testified she told the vice president his advances were unwelcome
and that he stopped. Id. Therefore, the Board concluded the proximate cause of
Claimant leaving her employment was not sexual harassment because it “stopped long
ago” and was “remote in time.” Id.
               However, the Board also observed Claimant “testified that the vice
president retaliated against her by assigning her to a project manager that she did not
like,” which resulted “in her being yelled at and belittled on a regular basis” and being
called “stupid and incompetent.” Id. The Board credited this testimony. Id. The Board
further noted that Claimant stated she complained to the vice president and the EEO
officer, but that nothing was done and, in fact, the vice president laughed at Claimant.
Id. The Board also found this testimony credible. Accordingly, the Board concluded
that Claimant proved she was subjected to a hostile work environment and that
Claimant made a good faith effort to preserve her employment. Id. Thus, the Board
determined Claimant was not ineligible for benefits under section 402(b) of the Law.


                                           Discussion
               Employer now petitions this Court for review of the Board’s order,2
arguing the Board erred in concluding that Claimant had a necessitous and compelling

       2
         Our review of the Board’s decision “is limited to determining whether the necessary findings
of fact were supported by substantial evidence, whether errors of law were committed, or whether



                                                 4
reason to voluntarily quit her employment due to a hostile work environment and that
the Board’s findings of fact are not supported by competent evidence of record.
Essentially, Employer advocates a different set of events regarding Claimant’s
voluntary termination of her employment than that found by the Board. Employer
argues that Claimant never made any written complaints regarding her work
environment between December 2016 and her last day of work in April 2018, and that
Claimant only raised the allegations regarding a hostile work environment after she
was accused of improper use of a company vehicle. Employer relies on the lack of
written documentation supporting Claimant’s hostile work environment allegations to
impugn her overall credibility. Employer alleges that Claimant only quit after she was
confronted with vehicle tracking evidence showing she left Lucky’s Sports Bar in the
company vehicle at 12:15 a.m., driving 80 miles-per-hour.
             Additionally, Employer maintains that it introduced evidence at the
hearing which conflicted with Claimant’s description of her work environment.
Specifically, Employer asserts that its witnesses presented a different view of
Claimant’s work relationship with her supervisor, including testimony that the
supervisor treated Claimant the same way he treated everyone else in the office.
Employer also alleges that its witnesses testified that Claimant never complained to
Employer’s owner and that the owner would never tolerate the type of behavior alleged
by Claimant. Employer argues the Board capriciously disregarded this evidence and
failed to resolve the conflicts in the evidence.
             In UC cases, the Board’s findings of fact must be supported by
“[s]ubstantial evidence [which] is defined as ‘such relevant evidence which a
reasonable mind would accept as adequate to support a conclusion.’” Western &


constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).



                                             5
Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913
A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation
Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). “The Board’s findings are
conclusive on appeal so long as the record, when viewed in its entirety, contains
substantial evidence to support the findings.” Western & Southern Life Insurance Co.,
913 A.2d at 335. This Court is bound “to examine the testimony in the light most
favorable to the party in whose favor the Board has found, giving that party the benefit
of all inferences that can logically and reasonably be drawn from the testimony” to
determine if substantial evidence exists for the Board’s findings.          United States
Banknote Co. v. Unemployment Compensation Board of Review, 575 A.2d 673, 674
(Pa. Cmwlth. 1990). Moreover, “even if there is contrary evidence of record, the
Board’s findings of fact are binding upon the Court where supported by substantial
evidence.” Borough of Coaldale v. Unemployment Compensation Board of Review,
745 A.2d 728, 731 (Pa. Cmwlth. 2000).
             Further, in UC cases, “it is well-settled that the Board is the ultimate fact
finder and is, therefore, entitled to make its own determinations as to witness credibility
and evidentiary weight.” Serrano v. Unemployment Compensation Board of Review,
149 A.3d 435, 439 (Pa. Cmwlth. 2016) (citing Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1388 (Pa. Cmwlth. 1985)). “The Board is also
empowered to resolve conflicts in the evidence.”           Serrano, 149 A.3d at 439.
‘“Questions of credibility and the resolution of evidentiary conflicts are within the
sound discretion of the Board, and are not subject to re-evaluation on judicial review.”’
Id. (quoting Peak, 501 A.2d at 1388). “The Board is the arbiter of credibility and is
free to accept or reject the testimony of any witness in whole or in part.” Ackley v.
Unemployment Compensation Board of Review, 166 A.3d 565, 568 (Pa. Cmwlth.
2017).



                                            6
             While the Board is empowered to resolve conflicts in the evidence, it may
not capriciously disregard evidence. Wise v. Unemployment Compensation Board of
Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). However, capricious disregard of
evidence occurs only where the Board “willfully and deliberately disregards competent
and relevant evidence that one of ordinary intelligence could not possibly have avoided
in reaching a result.” Id. Thus, disturbing the Board’s “adjudication for a capricious
disregard of evidence is appropriate only where the [Board] has refused to resolve
conflicts in the evidence, has not made essential credibility determinations or has
completely ignored overwhelming evidence without comment.” Id. at 1263.
             Here, when viewing the evidence in the light most favorable to Claimant,
as we must because the Board ruled in her favor, see United States Banknote Co., 575
A.2d at 674, there is substantial evidence in the record to support the Board’s findings
regarding Claimant’s voluntary termination of her employment. Claimant testified that
she left her job because she “was sexually harassed and assaulted by [her] boss and
endured retaliation until [she] couldn’t endure it anymore.”        (N.T. at 6.) More
specifically, she testified that at the 2016 Christmas party, Employer’s vice president
told her he wanted to have sex with her multiple times, licked the back of her neck, ear,
and face, and groped her breasts. Id. at 7. Claimant stated that after she told the vice
president she was not interested he did not sexually harass her again; however, she
testified that the vice president retaliated against her by reassigning her to a project
manager, Tim Francis, who was “abusive” toward her. Id. at 8. Claimant said that
every day Francis yelled at her, told her to do something and then told her not to do
something, insulted her mannerisms, cursed at her and called her names, compared her
to his wife, and told her she was incompetent, stupid, did not know anything, and did
not deserve to be paid what she was paid. Id. at 9, 11.
             Claimant said the treatment did not make sense, was “nonstop torture,”
and that Francis was not abusive toward other coworkers. Id. at 11, 26. Claimant stated

                                           7
that she complained to another project manager, Mike Chorba, Employer’s EEO
officer, and the vice president, but nothing was done. Id. at 8. In fact, she stated that
when she complained to the vice president he laughed at her. Id. at 9. She testified
that Francis’s behavior progressively worsened from when she was reassigned after the
2016 Christmas party until she terminated her employment in April 2018. Id. Claimant
stated that even though she complained to the EEO officer on a daily basis and asked
to be assigned to a new supervisor, nothing was done. Id. at 10.
             Claimant stated that the final work event that caused her to quit occurred
on April 6, 2018. Id. at 12. Claimant testified that she left work in her company
vehicle, as she was permitted to do, and parked the vehicle at Lucky’s Sports Bar so
that she could go shopping with her friend. Id. She stated that she did not go home
first to get her personal vehicle because her home was half an hour past where she
planned to shop. Id. at 13. After parking the company vehicle at Lucky’s Sports Bar,
Claimant and her friend took the friend’s vehicle to go shopping. Id. Claimant said
that after shopping, the two ate at Lucky’s Sports Bar and then Claimant drove the
company vehicle home. Id. Claimant stated that she often used her company vehicle
to complete errands on the way home from work, other employees used company
vehicles for the same purpose, and other employees have committed moving violations
in company vehicles without being reprimanded or having their vehicles taken away.
Claimant also testified that Employer never provided her with a written company
vehicle policy regarding the personal use of company vehicles, but that she was told
she was permitted to use her vehicle for personal use on her way home from work. Id.
at 14.
             Claimant testified that the morning after shopping, the vice president and
Francis began sending her nonstop text messages asking where she was the night before
and informing her she was required to turn in the company vehicle. Id. Claimant
testified that, because she believed she was being unfairly targeted for violating a policy

                                            8
that did not exist and could not take Francis’s unfair treatment of her anymore, she
terminated her employment. Id. at 16, 25.
             Based on the foregoing testimony, we conclude there is “such relevant
evidence which a reasonable mind would accept as adequate to support” the Board’s
findings that Claimant was sexually harassed by Employer’s vice president at the 2016
Christmas party and that after Claimant complained she was reassigned to a supervisor
who yelled at and belittled her on a regular basis. See Western & Southern Life
Insurance Co., 913 A.2d at 335. This testimony also provides substantial evidence to
support the Board’s findings that Claimant repeatedly complained about Francis’s
behavior, but no action was taken to remedy his conduct, and that Claimant quit due to
the hostile work environment.
             Employer argues the Board capriciously disregarded evidence presented
at the hearing in reaching its decision. Specifically, Employer contends the Board
ignored Chorba’s testimony that Claimant never submitted any formal written
complaints regarding the hostile work environment and that Francis treated Claimant
the same way he treated everyone else. Employer also maintains that the Board ignored
the testimony of Marc Shibley, Employer’s fleet manager, that his mother, Employer’s
owner and president, would never tolerate complaints of sexual harassment and that
Claimant only quit after being confronted with her company vehicle’s tracking
information showing that she left Lucky’s Sports Bar at 12:15 a.m. on her final day of
work, driving 80 miles-per hour. Id.
             Although Employer attempted to impugn Claimant’s testimony regarding
the harassing conduct she experienced and instead demonstrate that Claimant actually
quit because she was reprimanded for misusing the company vehicle, the Board found
Claimant’s version of events credible.          Indeed, the Board specifically credited
Claimant’s testimony that she was reassigned to Francis after she complained about the
vice president’s sexual harassment of her, that Francis regularly yelled at her, belittled

                                            9
her, and called her stupid and incompetent, and that Claimant complained about
Francis’s conduct to both Employer’s vice president and EEO officer, but that they did
not address or alleviate the situation. (Board decision at 2.) As the arbiter of
credibility, the Board was empowered to credit Claimant’s testimony over that of
Employer’s witnesses and we may not disturb such determinations on appeal. See
Ackley, 166 A.3d at 568; Serrano, 149 A.3d at 439.
               Employer argues that the Board capriciously disregarded evidence in
reaching its decision; however, it is clear from our review of the record in this case that
the Board did not refuse to resolve conflicts in the evidence, fail to make essential
credibility determinations, ignore overwhelming evidence without comment, or
deliberately disregard competent and relevant evidence. See Wise, 111 A.3d at 1262-
1263. Rather, the Board merely credited Claimant’s testimony regarding Employer’s
treatment of her and her reason for quitting. While the Board did not make explicit
credibility determinations regarding Employer’s testimony, given that the Board
specifically credited Claimant’s testimony, we can infer the Board credited Claimant’s
testimony over that of Employer’s witnesses, to the extent the testimony differed.3
Likewise, the Board did not make explicit credibility determinations with respect to
Employer’s witnesses’ testimony that Claimant only quit because she was reprimanded

       3
          Additionally, it is notable that much of Employer’s testimony did not conflict with or refute
Claimant’s testimony. For example, other than challenging Claimant for not filing a formal complaint
regarding the vice president’s behavior, Employer did not present any evidence to dispute Claimant’s
testimony that she was sexually harassed and assaulted at the December 2016 Christmas party and
retaliated against by being reassigned to Francis. Similarly, while Employer criticized Claimant for
not filing a formal complaint regarding Francis’s conduct, Chorba acknowledged that Claimant
informally complained to him about Francis and that Francis yelled and screamed at everyone daily.
(N.T. at 32-33.) Chorba also admitted that he was unaware of any formal complaint process. Id.
With regard to Employer’s allegation that Claimant actually quit because she was reprimanded for
her use of the company vehicle, Employer did not present any testimony to explain the parameters of
the company vehicle policy or to refute Claimant’s testimony that personal use of the company vehicle
on the way home from work is permitted and that other employees did not lose driving privileges or
receive reprimands for similar behavior.


                                                 10
for using the company vehicle. Yet, based on the Board’s finding that Claimant quit
due to a hostile work environment, we can deduce that the Board credited Claimant’s
testimony that Employer’s reaction to Claimant’s use of the company vehicle was the
“final straw” of the hostile work environment experienced by Claimant, which finally
caused her to quit, and that the Board did not credit the alternate theory, presented by
Employer, for why Claimant quit. Accordingly, we are unable to conclude that the
Board capriciously disregarded evidence in reaching its decision.
             Although Employer does not appear to dispute that the facts, as found by
the Board, support its determination that Claimant had a necessitous and compelling
reason to voluntarily terminate her employment, we briefly turn to whether the Board’s
conclusion is supported by the law.
             Section 402(b) of the Law provides that an employee shall be ineligible
for UC benefits for any week in which he or she voluntarily left his or her employment
without a necessitous and compelling reason. 43 P.S. §802(b). Whether a claimant
has a necessitous and compelling reason to quit is a conclusion of law that is reviewable
by this Court. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829,
832 (Pa. 1977). The burden to show a necessitous and compelling reason existed to
terminate employment rests with the claimant. Petrill v. Unemployment Compensation
Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). An employee who claims to
have left employment for a necessitous and compelling reason must prove that (1)
circumstances existed which produced a 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).



                                           11
              Sexual harassment can constitute a necessitous and compelling reason to
quit under section 402(b) of the Law.                Collier Stone Co. v. Unemployment
Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005); Johnson v.
Unemployment Compensation Board of Review, 725 A.2d 212, 213-14 (Pa. Cmwlth.
1999). For sexual harassment to constitute a necessitous and compelling reason to quit,
the claimant must show that he or she acted with common sense and prudence to
alleviate the sexual harassment before quitting, unless to do so would have been futile.
Hussey Copper Ltd. v. Unemployment Compensation Board of Review, 718 A.2d 894,
900 (Pa. Cmwlth. 1998). For example, “[w]here a mechanism exists . . . to deal with
problems of sexual harassment, a claimant must make a good faith effort to utilize that
mechanism to resolve [his or] her problems” prior to resigning. Id. Further, the sexual
harassment incident relied upon by the claimant for terminating his or her employment
must be the precipitating event for the resignation, meaning the incident must have
occurred relatively close in time to the resignation. See Lumpkins v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 704 C.D. 2012, filed November 9,
2012), slip op. at 5-6;4 Hussey Copper Ltd., 718 A.2d at 900.
              Additionally, on a related note, “profanity in the workplace, abusive
conduct and unjust accusation[s] give rise to a hostile work environment that may
provide cause of a necessitous and compelling nature to quit.” Western & Southern
Life Insurance Co., 913 A.2d at 337; see also Porco v. Unemployment Compensation
Board of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003) (holding that “abusive
conduct and unjust accusations represent adequate justification to terminate one’s
employment and that the claimant need not be subjected to such conduct or language
indefinitely”); Willet v. Unemployment Compensation Board of Review, 429 A.2d


       4
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).



                                                12
1282, 1284 (Pa. Cmwlth. 1981) (holding that under the Law, “an employee need not
be subjected indefinitely to unjust accusations, abusive conduct or profane language”).
However, “a claimant must act in a common sense manner to eliminate the problem so
as to avoid quitting.” Western & Southern Life Insurance Co., 913 A.2d at 337. Not
complaining to management can constitute a failure to exhaust all possible alternatives
before quitting. Id. In Willet, where the claimant was subjected to profanity, verbal
ridicule, unjust accusations, and insults to her intelligence over a four-month period by
her supervisor, we concluded the claimant had a necessitous and compelling reason to
quit. 429 A.2d at 1284.
              Here, the Board found that Claimant was sexually harassed at a Christmas
party by Employer’s vice president and that, after Claimant told the vice president she
was not interested, he retaliated against her by reassigning her to a new supervisor with
whom she did not get along. (Board F.F. Nos. 2-4.) The Board also found that
Claimant’s new supervisor regularly yelled at her, belittled her, and called her stupid
and incompetent. (Board F.F. No. 5.) Additionally, the Board found that Claimant
complained about the situation to another project manager, the EEO officer, and the
vice president, but that nothing was done and, in fact, the vice president laughed at
Claimant. (Board F.F. Nos. 6-7.) Finally, the Board found that Claimant quit due to a
hostile work environment. (Board F.F. No. 8.)
              Like Willet, Claimant was continuously subjected to verbal ridicule,
yelling, and insults to her intelligence over a period of a year-and-a-half. Claimant
frequently complained to Employer’s management and EEO officer, but nothing was
done to remedy the situation.5 Based on these facts, we conclude that (1) circumstances


       5
         At the hearing and in its brief, Employer assailed Claimant for not submitting a written
complaint regarding Francis’s behavior and for not reporting his conduct to Employer’s president.
However, Employer produced no evidence to demonstrate that Employer’s policy required Claimant
to submit a written complaint and/or report the hostile work environment to Employer’s president.


                                               13
existed which produced a 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. See Brunswick Hotel & Conference
Center, LLC, 906 A.2d at 660. Thus, we hold that the Board did not err in deciding
that Claimant had a necessitous and compelling reason for terminating her
employment.
            Accordingly, the Board did not err in finding Claimant not ineligible for
benefits under section 402(b) of the Law.


                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kriger Construction, Inc.,           :
                  Petitioner         :
                                     :    No. 26 C.D. 2019
            v.                       :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                  ORDER


            AND NOW, this 10th day of February, 2020, the December 11, 2018
order of the Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
