               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paula A. Serrano,                                :
                               Petitioner        :
                                                 :
                 v.                              :   No. 665 C.D. 2016
                                                 :   No. 898 C.D. 2016
Unemployment Compensation                        :   Submitted: September 2, 2016
Board of Review,                                 :
                    Respondent                   :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                             FILED: October 31, 2016

                 Petitioner Paula A. Serrano (Claimant) petitions for review of two
orders of the Unemployment Compensation Board of Review (Board). By order
dated April 13, 2010, the Board affirmed the Unemployment Compensation
Referee’s decision, which denied Claimant unemployment compensation benefits
pursuant to Section 402(b) of the Unemployment Compensation Law (Law),1
relating to voluntary separation without cause of a necessitous and compelling
nature. By order dated May 12, 2016, the Board denied Claimant’s request for
reconsideration. Claimant petitions for review of both orders.2 For the reasons set
forth below, we affirm.


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
       2
           The Court consolidated the matters by order dated June 30, 2016.
             Claimant filed for unemployment compensation benefits after
voluntarily quitting her position as an operations manager at Lifeline Medical
Services (Employer). The Allentown UC Service Center (Service Center) issued a
Notice of Determination, finding Claimant ineligible for benefits under
Section 402(b) of the Law. (Certified Record (C.R.), Item No. 5.) The Service
Center reasoned that Claimant failed to meet her burden of proof to show a
necessitous and compelling reason for quitting.      (Id.)   Claimant appealed the
Service Center’s determination, and a Referee conducted an evidentiary hearing.
             Claimant testified that during her employment with Employer as an
operations manager, she had ongoing issues with the dispatch supervisor. (C.R.,
Item No. 10, at 5.) Claimant resigned from her position in August 2015, reporting
to her superiors that the dispatch supervisor created an intolerable work
environment through sexual harassment and his use of racial slurs. (Id. at 5-10.)
Employer convinced Claimant to return to work, according to Claimant, because
Employer promised Claimant that she would not have to interact with the dispatch
supervisor. (Id. at 5.) Claimant testified that the incidents of sexual harassment
and use of racial slurs continued after she returned to work. (Id. at 7.) She also
testified that she reported the incidents that occurred after she returned to work to
the Chief Operations Officer and Senior Vice President.         (Id. at 9-10.)   On
January 22, 2016, after there was confusion regarding scheduling in an email
chain, Employer directed Claimant to speak with the dispatch supervisor directly.
(Id. at 18.) Claimant refused and informed Employer that she quit. (Id.)
             Michelle Seidel, Chief Operations Officer, testified for Employer.
Ms. Seidel testified that she and Jim Dickenson, the Senior Vice President, spoke
with the dispatch supervisor about complaints that employees had made. (Id.


                                         2
at 15.) Ms. Seidel testified that after Claimant returned to work, Claimant made no
additional formal complaints about the dispatch supervisor. (Id.) Ms. Seidel
testified that she was shocked when Claimant quit so abruptly after she instructed
Claimant to speak with the dispatch supervisor. (Id. at 16.) She also testified that
while Claimant and the dispatch supervisor would disagree on occasion, they also
would smoke cigarettes in the same location and joke with one another. (Id. at 15.)
            Following the hearing, the Referee issued a decision and order,
affirming the Service Center’s determination. (C.R., Item No. 11.) The Referee
made the following findings of fact:
            1.     The claimant worked fulltime as Operations
                   Manager for Lifeline Medical Services from
                   June 23, 2012 through January 22, 2016 at a final
                   rate of $18 per hour.

            2.     The claimant and her supervisor previously
                   worked together as employees at a different
                   establishment, and came over to work for Lifeline
                   Medical Services at inception.

            3.     The claimant had ongoing issues with a member of
                   staff, who’s also the dispatch supervisor because
                   the claimant found the coworker’s comments
                   inflammatory and offensive.

            4.     Because of the claimant’s concerns, at the end of
                   August 2015, the claimant quit the employment
                   citing her issues with the coworker.

            5.     The employer persuaded the claimant to return to
                   her employment and promised to work things out
                   with the coworker.

            6.     From the time the claimant returned to the
                   employment until she quit the employment, the
                   claimant did not report any further issues she had
                   with the coworker to management.

                                         3
                7.    The Chief Operations Officer (COO) would
                      regularly request the claimant’s assessment of the
                      situation with the coworker, and the claimant
                      always responded that they were fine.

                8.    In the office environment, the staff, including the
                      claimant will regularly joke about other
                      employees.

                9.    On January 22, 2016, the employer was trying to
                      put together its schedule in view of the impending
                      storm predicted for the upcoming weekend.

                10.   The claimant had questions about an email that did
                      not make sense to her, and the Chief Executive
                      Officer (CEO) directed the claimant to talk to the
                      dispatch supervisor in order to resolve the issues.

                11.   The claimant sent an email to the Chief Executive
                      Officer (CEO) that she would not talk to the
                      dispatch supervisor, and that she quit the
                      employment.
(Id.)3       The Referee determined that Claimant voluntarily terminated her
employment and failed to show cause of a necessitous and compelling nature for
doing so. (Id.) The Referee explained that “the record does not show that from the
time of the employer’s intervention in August 2015, the claimant reported any
further issues with her coworker.” (Id.)
                Claimant appealed to the Board, which affirmed the Referee’s
decision and order. (C.R., Item No. 13.) In so doing, the Board adopted and


         3
          It appears that the Referee mistakenly described the involvement of the CEO of Lifeline
Medical Services in findings of fact numbers 10 and 11. From our review of the record, it was
actually the COO, Michelle Seidel, who directed Claimant to speak with the dispatch supervisor
and received the resignation email from Claimant.



                                               4
incorporated the Referee’s findings of fact and conclusions of law. Claimant
sought reconsideration with the Board, which the Board denied. Claimant now
petitions this Court for review of both orders.
              On appeal,4 Claimant appears to contest the Board’s decision in two
ways. First, Claimant essentially argues that the Referee’s findings, as adopted and
incorporated by the Board, were not supported by substantial evidence of record.
Specifically, Claimant challenges finding of fact number 6, which provides:
“From the time the claimant returned to the employment until she quit the
employment, the claimant did not report any further issues she had with the
coworker to management.” (C.R., Item No. 11.) In support of her argument,
Claimant states she met with the Chief Operating Officer and Senior Vice
President following her return to employment and made additional complaints.
(Petitioner’s Br. at 8.) Further, Claimant contends that the Board erred as a matter
of law because she provided a necessitous and compelling reason for terminating
her employment by demonstrating reports of “sexual harassment, racism, bias on
religion and sexual orientation.” 5 (Petitioner’s Br. at 8.)




       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       5
         The Board argues that Claimant only preserved for review the issue of whether or not
the single directive to speak with the dispatch supervisor constituted a necessitous and
compelling reason for her voluntary quit. We reject this argument. This Court views the
necessitous and compelling issue more broadly, as Claimant takes issue with the entirety of the
work environment. In addition, Claimant raises the issue of whether the findings of fact were
supported by substantial evidence.



                                               5
             Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in a light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The
Board’s findings of fact are conclusive on appeal only so long as the record, taken
as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984).
             In an unemployment compensation case, 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.            Peak v.
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board
is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment
Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). “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.”
Peak, 501 A.2d at 1388.
             We first address Claimant’s argument that the findings of the
Referee, adopted by the Board, are not supported by substantial evidence.
Claimant contests the Referee’s finding that she did not report any further incidents
of harassment after she returned to work in August 2015. Claimant cites her own


                                         6
testimony that she did report the incidents to Mr. Dickenson as well as Ms. Seidel,
but not in a formal, written complaint. (C.R., Item No. 10 at 9-10.) We observe,
however, that Ms. Seidel testified at the Referee’s hearing that she was surprised
when Claimant quit after Claimant returned to work, because there had been no
further complaints from Claimant or any other employee. (Id. at 5.) The Referee’s
resolution of this specific factual discrepancy binds this Court unless it is not
supported by substantial evidence. Claimant attempts to show that this finding is
unsupported by substantial evidence merely by pointing to contrary evidence in the
record, which is insufficient to show that a finding is not supported by substantial
evidence.   Verizon Pennsylvania Inc. v. Workers’ Comp. Appeal Bd. (Mills),
116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). Based on our review of Ms. Seidel’s
testimony, which the Referee found credible, we conclude that substantial evidence
exists to support the finding that Claimant did not report further incidents of
harassment after she returned to work.
            We next address Claimant’s argument that the Referee and Board
erred as a matter of law in determining that she did not terminate her employment
for a necessitous and compelling reason. Section 402(b) of the Law provides, in
part, that a claimant shall be ineligible for compensation for any week in which the
claimant’s “unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.”          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. Brunswick Hotel & Conference Ctr., LLC v. Unemployment
Comp. Bd. of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant who
voluntarily quits his employment “bears the burden of proving that necessitous and
compelling reasons motivated that decision.” Fitzgerald v. Unemployment Comp.


                                         7
Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), appeal denied,
794 A.2d 364 (Pa. 1999). To establish cause of a necessitous and compelling
nature, a claimant must establish that (1) circumstances existed that produced real
and substantial pressure to terminate employment, (2) like 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
his employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261,
264 (Pa. Cmwlth. 2008).
            Sexual harassment and racial slurs may present adequate pressure to
terminate one’s employment, and a claimant need not be subjected to such
language or conduct indefinitely. Porco v. Unemployment Comp. Bd. of Review,
828 A.2d 426, 428 (Pa. Cmwlth. 2003); see also Peddicord v. Unemployment
Comp. Bd. of Review, 647 A.2d 295, 298 (Pa. Cmwlth. 1994). This Court has held
that a claimant normally will not meet the fourth requirement—a reasonable effort
to preserve employment—unless the claimant notifies the employer of the
harassment. Martin v. Unemployment Comp. Bd. of Review, 749 A.2d 541, 544
(Pa. Cmwlth. 2000). However, failure to report harassment may be excused where
the record evidence reveals that doing so would be futile. Id. Moreover, “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
Comp. Bd. of Review, 737 A.2d 342, 345 (Pa. Cmwlth. 1999).
            Our decision in Mercy Hospital of Pittsburgh v. Unemployment
Compensation Board of Review, 654 A.2d 264 (Pa. Cmwlth. 1995), is directly


                                         8
applicable.     In Mercy Hospital, after the claimant returned to work from a
rehabilitation center, coworkers called him names such as “alcoholic,” “faggot,”
and “crazy.” Mercy Hospital, 654 A.2d at 266.                    The claimant notified his
employer, the hospital, and was given disability leave due to the emotional stress
caused by the working environment. Upon his return from leave, however, the
coworkers continued to harass him. The claimant quit his employment, and his
employer was unable to convince him to stay. This Court rejected the hospital’s
argument that the claimant was required to afford the hospital a second attempt to
rectify the situation. This Court reasoned that there was no evidence to suggest
that the second attempt to end the harassment would be any different than the first
attempt.6 Id.
               Here, the Referee and Board focused their analysis on Claimant’s
failure to report additional incidents after returning to work before she quit in
January 2016. Our decision in Mercy Hospital instructs, however, that Claimant
satisfied the notification requirement by bringing her complaints to her supervisors
in August 2015, when she initially decided to quit. This notice afforded Employer
the opportunity to rectify the situation. Claimant was not required to endure the
alleged abusive behavior indefinitely, or to afford Employer more than one
opportunity to address the alleged harassment. Her initial report to Employer


       6
           The unreported case Vito Rinaldi Chevrolet, Inc. v. Unemployment Compensation
Board of Review, (Pa. Cmwlth., No. 139 C.D. 2012, filed Aug. 16, 2012), lends further support
for this proposition. There, this Court again held that after notifying the employer, the claimant
was not required to provide the employer with a second opportunity to end the abusive conduct.
Id., slip op. at 3. We acknowledge that Vito Rinaldi Chevrolet, as an unreported panel decision
of this Court, has persuasive value, but it does not constitute binding precedent. IOP 414(a), 210
Pa. Code § 69.414(a).



                                                9
provided the requisite notice to allow Employer to attempt to alleviate the
harassment. Lending further credence to her efforts to continue an employment
relationship is the fact that Claimant resigned but then agreed to return to work.
This demonstrates Claimant’s willingness to allow Employer to remedy the
problem and maintain her position. The Referee and the Board erred because the
failure to notify Employer of the continuing harassment after Claimant’s return to
work was not the fatal flaw in her claim.
             Nevertheless, we affirm the decision of the Board on other grounds.
Claimant is unable to demonstrate the third requirement of a necessitous and
compelling reason for her voluntary quit, i.e.— that she acted with common sense.
The Referee found that the COO, Ms. Seidel, “would regularly request the
claimant’s assessment of the situation with the coworker, and the claimant always
responded that they were fine.” (C.R., Item No. 11, Finding of Fact (F.F.) No. 7.)
Whether or not there were, in fact, additional incidents of harassment after
Claimant’s return to work, Claimant now maintains that she continued to have a
conflict with the dispatch supervisor. Thus, Claimant was untruthful when she
reported to Ms. Seidel that “they were fine.”        (Id.)   Claimant’s knowing
misrepresentation of the conflict is distinct from merely failing to report
harassment a second time. We conclude that Claimant did not act with common
sense, because she misrepresented the employment situation to Employer.
Claimant, therefore, has failed to demonstrate a necessitous and compelling reason
for her voluntary quit. Thus, pursuant to Section 402(b) of the Law, Claimant is
ineligible for unemployment compensation benefits.
             With regard to the Board’s denial of Claimant’s request for
reconsideration, in reviewing an order denying reconsideration, we are limited to


                                            10
considering whether the Board abused its discretion in denying reconsideration.
Payne v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 928 A.2d 377, 379 (Pa.
Cmwlth. 2007). An abuse of discretion in the denial of reconsideration of an
administrative agency decision occurs only where the challenger establishes that
the order is manifestly unreasonable or is based upon bad faith, fraud, capricious
action, or an abuse of power. Id. Claimant has not established that the Board
engaged in behavior that would constitute an abuse of discretion, and we do not
perceive any such basis for such a conclusion. Thus, we conclude that the Board
did not abuse its discretion in denying reconsideration of its earlier order, denying
Claimant unemployment compensation benefits.
             Accordingly, we affirm the Board’s orders.




                                P. KEVIN BROBSON, Judge




                                         11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula A. Serrano,                    :
                      Petitioner     :
                                     :
            v.                       :   No. 665 C.D. 2016
                                     :   No. 898 C.D. 2016
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER


            AND NOW, this 31st day of October, 2016, the orders of the
Unemployment Compensation Board of Review are AFFIRMED.




                            P. KEVIN BROBSON, Judge
