           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Landing, Inc.,                                :
                     Petitioner               :
                                              :
              v.                              :    No. 313 C.D. 2017
                                              :    Submitted: October 6, 2017
Unemployment Compensation Board               :
of Review,                                    :
               Respondent                     :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: January 5, 2018

              Landing, Inc. (Employer) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) granting Jeannie
Eleftherion (Claimant) benefits under the Unemployment Compensation Law
(Law).1 The Board affirmed the determination of the Referee that Claimant had
cause of a necessitous and compelling nature to leave her job and, thus, was not
ineligible for benefits under Section 402(b) of the Law.2 Employer argues that
Claimant did not establish sufficient cause to leave her employment. We affirm the
Board.




1
 Act of December 5, 1936, Second Ex Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-918.10.
2
 Section 402(b) of the Law states that an employee shall be ineligible for compensation for any
week “[i]n which his unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature[.]” 43 P.S. §802(b).
             Employer runs a business known as “Fred’s Breakfast Membership
Club” in New Hope, Pennsylvania that is owned by Chris Bollenbacher (Owner).
Notes of Testimony, 11/14/2016, at 1 (N.T. __); Reproduced Record at 2 (R.R. ___).
Claimant worked there full-time as a waitress, earning $2.84 per hour, plus tips, from
2010 through September 6, 2016. Claimant resigned because she was “no longer
able to emotionally handle the toxic, hostile environment [at work].” Certified
Record (C.R.), Item No. 3 at 13.
             Claimant applied for unemployment benefits, asserting that she left her
employment due to sexual harassment. In her application, Claimant stated that on
August 18, 2016, she filed a sexual harassment and discrimination claim with the
Equal Employment Opportunity Commission (EEOC). At that point, the work
atmosphere began to decline to the point that her doctor advised her to quit to relieve
her anxiety and depression. The UC Service Center denied her application for the
stated reason that Claimant did not establish a necessitious and compelling reason
for quitting. Claimant appealed, and a hearing was held before a Referee.
             Claimant testified that she quit because the workplace environment was
not a healthy one. It caused her to suffer headaches, loss of sleep and loss of appetite.
Claimant’s physician prescribed anxiety medication and recommended that she
resign.
             Claimant explained that her work difficulties started in 2014,
approximately two years before she quit, when a new waitress (New Waitress) was
hired. After several customers complained to Claimant about New Waitress’ attire,
Claimant raised the issue with Owner. He responded that there was nothing wrong
with New Waitress’ attire and he liked looking at her breasts. N.T. 7; R.R. 8.




                                           2
             Thereafter, in August 2016 Claimant overheard a risqué conversation
between New Waitress and Owner. New Waitress said that someone had burned the
bread she had placed in the toaster, to which Owner replied that he only touched his
own toast and no one had been playing with his toast lately. Claimant found this
conversation uncomfortable and confronted Owner about it after work. Claimant
also complained about New Waitress grabbing Owner’s buttocks on occasion.
Claimant told Owner that she was troubled by New Waitress’ comment to customers
that she and Owner were going to get a massage together after work and wondered
if the massage would have a “happy ending.” N.T. 10; R.R. 11.
             Claimant testified that no one had ever made any sexual comments
toward her or touched her improperly. She also agreed that Owner never grabbed
anyone’s buttocks. However, she had observed Owner and New Waitress in the
“back room” kissing and hugging. N.T. 12; R.R. 13.
             Employer presented the testimony of Owner. He stated that Claimant
was a habitual complainer. Over the years, she complained about other employees
and schemed to get rid of co-workers she did not like. He confirmed that Claimant
complained about New Waitress’ attire, which were low cut t-shirts. However, he
found that the attire was fine. Owner denied making a comment about New
Waitress’ breasts.
             He claimed the toast conversation was innocent. Owner explained there
is a recurring problem with one server putting bread in the toaster and another server
removing it after it is toasted. Owner responded by giving each server a separate
toast container. Owner does not make or handle toast that is served to customers.
             Owner stated he was present for, but not a participant in, New Waitress’
conversation with customers about Owner and New Waitress getting a massage at a


                                          3
reputable spa close to work. In his view, New Waitress likes to joke, and the
customers laughed. It only offended Claimant because everything New Waitress
does offends Claimant.
            Owner confirmed that New Waitress slaps people on the behind. At
work “20-something-year olds do it to each other all day long. I’m the only old guy,
I think, that’s getting slapped.” N.T. 14; R.R. 15. However, Owner never touches
the employees.
            Employer submitted e-mail correspondence between Claimant and
Owner dated August 15, 2016. Claimant’s e-mail message states:

            I wanted to recap our conversation in the parking lot last week
            when I expressed to you my discomfort in the unacceptable
            language and behavior that has been taking place at [work]. A
            few examples are:
             [New Waitress] talking loudly about the massages you are
              going to have and will they come with a “happy ending” in
              front of myself and the customers
             [New Waitress] grabbing your rear in front of myself and
              customers
             Talk about only touching one’s own “toast”
            There has also been discussion in the past regarding [New
            Waitress’] inappropriate attire; however, you find it acceptable
            because you said you enjoy looking at her breasts.
            During my seven-year tenure [my] duties have included
            management, hostess and waitressing. I have been a team player
            and accepted additional responsibility without question or
            training so you could be out of the restaurant with your ailing
            wife. After my dedication and work record, I do not believe that
            correct solution should be for me to leave because [New
            Waitress] is out of control and rude. The discrimination and
            sexual harassment that has been taking place over the last two
            years because of your “relationship” with [New Waitress] needs
            to be resolved. Her disrespect and rudeness towards me in
                                         4
            addition to the total lack of staff support is unacceptable, and I
            find myself in a hostile environment.
Certified Record (C.R.), Item No. 3 at 5. Owner responded as follows:

            I appreciate all your efforts while Ellen was in hospice. You and
            the entire staff stepped up and I am grateful to everyone. You
            were hired as a hostess/waitress and you have done a fine job.
            Any other responsibilities that you accepted I assume was
            because you were willing. [New Waitress] is outspoken and a
            bit brazen. I understand that this is unacceptable to you. We did
            go to a spa together because we are friends and each had a
            massage in separate rooms. It was at Nurture spa [ ] which is a
            reputable institution. They do not offer happy endings. I am
            sorry that you are offended by her sense of humor. You are not
            being sexually harassed. If anyone chooses to slap my behind
            that is my problem not yours. She has done this to other people
            as well. She thinks it is funny. Some of the recipients also
            thought it was funny. I believe she has never touched you. No
            one is touching you. No one has ever to my knowledge made a
            sexual comment to you.
            Regarding [New Waitress’] attire, we do not require a uniform.
            We do not have a dress code. I have never said that I like her
            breasts. I have said that her attire is not offensive to me and I
            think that she looks fine. I think that if you bothered to look you
            would find that many of our bus girls wear ripped pants, butt
            shorts, and excessively tight yoga pants, so tight in fact that male
            customers often express their appreciation. I have never received
            a comment about [New Waitress’] dress [from anyone] other
            than you and Brad [(Owner’s stepson)]. Until we choose to have
            a dress code, the dress of the other girls is none of your concern.
            Everyone who works [for Employer] is dedicated and has a good
            work record. You are not special in this regard. You are not
            guaranteed an environment of your desire…. The problem here
            is that you are offended by [New Waitress]. I do not owe you an
            environment where you approve of your co-workers
            personalities. The hostile environment you believe exists is not
            one caused nor nurtured by management. You can document and
            complain and use words such as hostile and unacceptable all you
            wish and as I have told you before I am not a social director.
            [New Waitress’] attitude does not affect your ability to make
            money, does not affect your schedule or the policies under which
                                         5
               you work. There are about 100 employees at [work]. Some like
               [New Waitress], some like [New Waitress] a lot, some don’t care
               for her. You cannot seem to get along with her and seem to feel
               that the continued beating you give me about her is going to force
               me to make her behave in a fashion in which you approve….
               You are free to leave if you are unhappy. I feel this conversation
               is not going anywhere. You have made your point clear. I have
               made mine. I am asking you to drop this subject. This is not the
               first time I have asked you to drop it but since it is now in writing
               it will be considered the first. As you continue to bring this
               subject up I will write to you two more times asking you to drop
               this subject. Then I will ask you to leave my employment.

C.R., Item No. 3 at 6.
               The Referee found Claimant credible and resolved all conflicts with
Owner’s testimony in her favor. The Referee concluded that during the last several
months of Claimant’s employment, Employer allowed vulgar jokes and remarks in
the workplace in front of Claimant and customers who complained to Claimant.
Even though Claimant brought these matters to the attention of Owner, he refused
to take any action. The Referee found that the offensive workplace conduct gave
Claimant a necessitous and compelling reason to leave employment and granted
Claimant benefits. Employer appealed to the Board, which adopted the Referee’s
findings and conclusions. The Board affirmed without further opinion.
               Employer petitioned for this Court’s review, arguing that Claimant did
not meet her burden of proving there was a necessitous and compelling cause for
quitting.3 Employer contends that Claimant was not sexually harassed, and she did
not act reasonably in quitting.



3
  “Our standard of review is limited to determining whether the Board’s adjudication is in violation
of constitutional rights, whether an error of law has been committed, or whether the factual
findings are supported by substantial evidence.” Brunswick Hotel & Conference Center, LLC v.
Unemployment Compensation Board of Review, 906 A.2d 657, 660 n.2 (Pa. Cmwlth. 2006).
                                                 6
             In support, Employer argues that cleavage is not offensive to an
ordinary person. Likewise, an ordinary person would not quit because a co-worker
is consensually grabbing someone else’s behind. Nor would an ordinary person quit
after hearing off-color discussions that were not directed toward her.
             The Board responds that it did not find that Claimant was sexually
harassed. Rather, it found that offensive conduct in the workplace gave Claimant a
necessitous and compelling cause for terminating her employment.
             We begin with a review of the law. It is well settled that a

             [n]ecessitous and compelling cause for voluntarily leaving
             employment [is one that] results from circumstances which
             produce pressure to terminate employment that is both real and
             substantial, and which would compel a reasonable person under
             the circumstances to act in the same manner.

Mercy Hospital of Pittsburgh v. Unemployment Compensation Board of Review, 654
A.2d 264, 266 (Pa. Cmwlth. 1995). We have offered the following guidelines for
distinguishing normal workplace strains from pressures that justify a resignation:

             Resentment of a reprimand, absent unjust accusations, profane
             language or abusive conduct ...; mere disappointment with wages
             ...; and personality conflicts, absent an intolerable working
             atmosphere ... do not amount to necessitous and compelling
             causes.

Ann Kearney Astolfi DMD PC v. Unemployment Compensation Board of Review,
995 A.2d 1286, 1289 (Pa. Cmwlth. 2010) (quoting Lynn v. Unemployment
Compensation Board of Review, 427 A.2d 736, 737 (Pa. Cmwlth. 1981)). “Whether
a claimant had cause of a necessitous and compelling nature for leaving work is a
question of law subject to this Court’s review.” Ann Kearney Astolfi, 995 A.2d at
1289. When determining questions of law, our standard of review is de novo and


                                          7
our scope of review is plenary.         Quality Care Options v. Unemployment
Compensation Board of Review, 57 A.3d 655, 660 (Pa. Cmwlth. 2012).
            Claimant’s testimony, which the Board credited, was that (1) when
Claimant complained about New Waitress’ attire, Owner responded that he liked
looking at breasts; (2) Claimant had to listen to a conversation about toast that was
full of sexual double entendres; (3) Claimant saw New Waitress grab Owner’s
buttocks; and (4) customers who witnessed the off-color comments complained to
Claimant.   The Board concluded that on these facts, Claimant established a
demeaning workplace environment that justified her resignation.
             Workplace racial slurs, insults, and harassment will give an employee
a necessitous and compelling reason to terminate employment. See, e.g., Taylor v.
Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977) (employee
had necessitous and compelling reason to quit after employer repeatedly called him
racially derogatory names); Mercy Hospital of Pittsburgh, 654 A.2d at 266
(employee had necessitous and compelling reason to quit after his co-workers
repeatedly called him “faggot,” “alcoholic,” and “crazy” and employer was given an
opportunity to fix the problem); and Danner v. Unemployment Compensation Board
of Review, 443 A.2d 1211, 1212 (Pa. Cmwlth. 1982) (employee had necessitous and
compelling cause to quit after employer failed to address employee’s complaints of
verbal abuse and harassment by co-workers).         On the other hand, a merely
“uncomfortable” workplace is not the same as an “intolerable” one and does not
establish a compelling reason to quit. Ann Kearney Astolfi, 995 A.2d at 1290
(personality conflict with a co-worker and being chastised for crying and acting like
a child by the boss made for an “uncomfortable,” but not “intolerable” work
environment).


                                         8
             The Board concluded that Claimant demonstrated an intolerable work
environment. She complained to Owner, who did not address her concerns. This is
a close case, but we cannot say that the Board abused its discretion in holding that
Claimant established a necessitous and compelling reason to resign. Accordingly,
we affirm.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Landing, Inc.,                      :
                 Petitioner         :
                                    :
            v.                      :   No. 313 C.D. 2017
                                    :
Unemployment Compensation Board     :
of Review,                          :
               Respondent           :


                                ORDER

            AND NOW, this 5th day of January, 2018, the order of the
Unemployment Compensation Board of Review, dated February 21, 2017, in the
above-captioned matter is hereby AFFIRMED.

                               _____________________________________
                               MARY HANNAH LEAVITT, President Judge
