              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kera L. Downey,                           :
                     Petitioner           :
                                          :
              v.                          :   No. 1466 C.D. 2013
                                          :   Submitted: May 23, 2014
Unemployment Compensation                 :
Board of Review,                          :
                 Respondent               :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                                 FILED: August 8, 2014

              Kera L. Downey (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) denying her claim for
benefits under the Unemployment Compensation Law (Law).1                       The Board
concluded that Claimant was ineligible for unemployment benefits under Section
402(b) of the Law2 because Claimant voluntarily quit her job without a necessitous
and compelling cause. Finding no error by the Board, we affirm.
              Claimant worked for Morgan AM&T (Employer) as a quality
technician from April 12, 2009, to April 19, 2013. Claimant resigned on April 22,

1
 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914.
2
  Section 402(b) of the Law provides, in relevant part, that an employee is ineligible for
unemployment benefits when her unemployment is due to “voluntarily leaving work without
cause of a necessitous and compelling nature[.]” 43 P.S. § 802(b).
2013, and applied for unemployment benefits. The UC Service Center denied her
application. Claimant appealed, and a hearing was held before a Referee, by
telephone, on June 4, 2013.         Claimant appeared pro se; Employer did not
participate.
                Claimant testified that she had a difficult time working with her co-
workers and that her supervisor often sided with these co-workers when disputes
arose. Claimant testified that Employer continuously added responsibilities to her
position and cross-trained Claimant for other jobs. According to Claimant, the
hostility in the workplace, coupled with the increasingly complex tasks she was
assigned, created a great deal of stress. Claimant further testified that this stress
affected her work performance, which resulted in a “very, very bad” performance
review in February of 2013. Notes of Testimony, June 4, 2013, at 9 (N.T. ___).
                On April 19, 2013, Claimant and her supervisor discussed Claimant’s
job performance. Claimant testified that her supervisor spoke to her in a “very
unprofessional” tone and with a “flailing of the arms[.]” N.T. 7-8. This encounter
led Claimant to believe she was at risk of being fired.           Claimant went to
Employer’s Human Resources department on April 22, 2013, to resolve her
concerns. Claimant spoke to Mark Moore (Moore), a Human Resources employee,
about her difficulties with learning her new duties and working with her co-
workers.       Claimant expressed her desire to return to a position with fewer
responsibilities. Claimant testified that Moore told her that she might be able to
achieve this if she resigned and then applied for such a position. Based on this
advice, Claimant decided to resign. However, Claimant did not testify that Moore
told Claimant that she would be fired if she did not resign or guarantee that she
would be re-hired in a position if she resigned.


                                           2
              The Referee found that Claimant’s unsubstantiated feeling she was
about to be fired did not provide a valid basis for her to believe termination was
imminent. The Referee also found that Claimant failed to attempt to preserve her
employment by discussing her concerns with her immediate supervisor. Based
upon these findings, the Referee concluded that Claimant voluntarily quit “because
she felt she could not perform the work that was being required of her.”3 Referee’s
Decision, dated May 2, 2013, at 1, Findings of Fact No. 5. The Referee determined
that Claimant’s decision to quit was made without a necessitous and compelling
cause.    On review, the Board adopted the Referee’s findings of fact and
conclusions of law and affirmed the denial of benefits. Claimant now petitions for
this Court’s review.
              On appeal,4 Claimant raises three issues. First, Claimant argues that,
as the victim of workplace harassment, she had a necessitous and compelling
reason to terminate her employment.5 Second, Claimant argues that she quit for a
necessitous and compelling reason because she was deceived as to the scope of her
job responsibilities when she was hired in 2009. Third, Claimant requests that the
case be remanded to the Referee so that she can develop more testimony to support
her arguments.


3
  The Referee did not find that Moore’s suggestion that Claimant might be re-hired was a factor
in Claimant’s decision to quit.
4
  This Court’s scope of review is limited to determining whether the findings of fact are
supported by substantial evidence, the Board violated the Claimant’s constitutional rights, or
errors of law were committed. Kirkwood v. Unemployment Compensation Board of Review, 525
A.2d 841, 843 (Pa. Cmwlth. 1987) (citing 2 Pa. C.S. § 704).
5
  Employer argues that Claimant waived this issue by not testifying before the Referee that she
was the victim of harassment. We disagree. Although Claimant did not use the word
“harassment” before the Referee, such a claim can be inferred from Claimant’s testimony.


                                              3
             In a Section 402(b) case, the claimant bears the burden of proving that
she voluntarily resigned for necessitous and compelling reasons.         Danner v.
Unemployment Compensation Board of Review, 443 A.2d 1211, 1212 (Pa.
Cmwlth. 1982). As part of her burden, a claimant must show that she addressed
her concerns with her supervisor prior to quitting.        Id.   “Necessitous and
compelling cause” is defined as “a real and substantial pressure to terminate
employment which would compel a reasonable person to do so.”                     Id.
Determination of what constitutes a necessitous and compelling cause for resigning
is a question of law subject to this Court’s review. Ann Kearney Astolfi DMD PC
v. Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa.
Cmwlth. 2010).
             Claimant first argues that harassment in the workplace provided her
with a necessitous and compelling reason to resign. In considering such a claim,
this Court has held:

             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.

Lynn v. Unemployment Compensation Board of Review, 427 A.2d 736, 737 (Pa.
Cmwlth. 1981). Racial slurs and excessive taunting are examples of the type of
conditions that may constitute a necessitous and compelling reason to voluntarily
terminate one’s 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 v. Unemployment Compensation Board of

                                         4
Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995) (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, 443 A.2d 1211 (employee had necessitous and compelling
cause to quit after employer failed to address employee’s complaints of verbal
abuse and harassment by co-workers).
            Here, Claimant failed to meet her burden of showing that the
harassment she experienced rose above personality conflicts with her co-workers
or reprimands by her supervisor. A supervisor speaking to an employee in an
unprofessional manner, while gesticulating, pales in comparison to the conduct of
the employers in Taylor, Mercy Hospital, and Danner.          Rather, Claimant’s
situation resembles that of the claimant in Astolfi, 995 A.2d 1286. There, the
claimant worked in a small office where the employees often argued with one
another. When the claimant expressed concerns about her work environment, her
supervisor told her she was acting like a child. The supervisor also repeatedly
yelled at the claimant and told her to improve her performance. This stressful
environment caused the claimant to develop hives and headaches, and her doctor
advised her to quit her job. This Court held that the claimant did not demonstrate
necessitous and compelling cause to quit because she showed only that her work
environment was uncomfortable, not intolerable.
            In the case sub judice, Claimant’s only evidence of harassment was
her testimony that her supervisor spoke to her in an unprofessional manner. When
asked to elaborate on what the supervisor said, Claimant stated, “I can’t even
remember. She’s just really high strung and I’m not high strung.” N.T. 7. This
does not show an intolerable work environment.         As in Astolfi, Claimant’s


                                        5
uncomfortable work environment did not give her a necessitous and compelling
reason to quit.
              In her second issue, Claimant argues that she had a necessitous and
compelling reason to resign because she was deceived about the scope of her job
duties when she was hired in 2009. This argument lacks merit. With respect to
modification of an employee’s job duties, this Court has held:

              [W]hen an employer hires an employee the employee is usually
              assigned to perform particular tasks in assigned places at
              assigned times, but the employer need not agree never to
              modify the tasks or the times or places where the tasks are to be
              performed. As long as the modifications are reasonable, the
              employee must abide by the employer’s decision or risk being
              held ineligible for unemployment compensation benefits if he
              refuses.

Kistler v. Unemployment Compensation Board of Review, 416 A.2d 594, 597 (Pa.
Cmwlth. 1980).        There is no evidence in the record that Claimant’s new
responsibilities were drastically different from her original duties when she was
hired as a quality technician.        Moreover, Claimant’s argument that Employer
deceived her about the scope of her duties is belied by the statement in her Petition
for Review that she “quit because of the work environment[,] not the extra job
duties.” Petition for Review (emphasis added).
              In her third issue, Claimant contends that this Court should remand
her case to the Board for her to offer additional testimonial evidence.6 According

6
  The Board argues that Claimant has waived this issue because it was not raised in her petition
for review. Pa. R.A.P. 1513(d) states that an appellate jurisdiction petition for review must
contain “a general statement of the objections to the order or other determination,” which “will
be deemed to include every subsidiary question fairly comprised therein.” A proposed
amendment to Rule 1513 deletes the “subsidiary question” clause and states that “the omission of
(Footnote continued on the next page . . .)
                                               6
to Claimant, she was so nervous during the Referee’s hearing that she was unable
to develop the record adequately and, therefore, the matter should be remanded.
Claimant further contends that she “did not understand the burden of proof or what
the standards of evidence for this type of matter were.” Claimant’s Brief at 22.
              When conducting hearings before an unrepresented party, referees are
encouraged to “advise him as to his rights, aid him in examining and cross-
examining witnesses, and give him every assistance compatible with the impartial
discharge of [their] official duties.” 34 Pa. Code § 101.21(a). However, this rule
does not require that the referee act as an advocate for an unrepresented party.
Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081, 1085 (Pa.
1985). Although the referee must offer reasonable assistance to a pro se litigant,
ultimately “any layperson choosing to represent himself in a legal proceeding
must, to some reasonable extent, assume the risk that his lack of expertise and legal
training will prove his undoing.” Id. at 1086 (quoting Groch v. Unemployment
Compensation Board of Review, 472 A.2d 286, 288 (Pa.Cmwlth. 1984)).
              Contrary to Claimant’s argument on appeal, the Referee did advise
her of her rights and the burden and quantum of proof necessary for her to prevail.
At the beginning of the hearing, the Referee stated:

              [Referee:] You have the right to be represented by an attorney
              or other non legal advisor today. You have the right to present
              evidence, testimony and witnesses on your behalf. You also



(continued . . .)
an issue from the statement [of objections] shall not be the basis for a finding of waiver if the
court is able to address the issue based on the certified record.” 44 Pa. Bull. 2052 (April 5,
2014). In light of the pending change to Rule 1513, we will decide the merits of Claimant’s
appeal. The outcome is the same.


                                               7
             have the right to cross examine witnesses from the opposing
             parties. Are you aware of your rights?

             [Claimant:] Yes I am.

N.T. 2. The Referee further explained that “[i]n these cases the burden is on the
[c]laimant to prove that the reason for voluntarily leaving employment was in fact
compelling and necessitous.” N.T. 3. Claimant essentially asks for the proverbial
“second bite at the apple,” which is not a sufficient ground for remand. Because
the Referee properly informed Claimant of her rights, Claimant’s failure to develop
the record to her satisfaction is no ground for remand.
             In sum, Claimant failed to demonstrate that the harassment she
experienced in the workplace was severe enough to provide her with a necessitous
and compelling cause to quit. Furthermore, Claimant failed to establish that the
additional job duties she was assigned provided her with a necessitous and
compelling reason to quit. Lastly, Claimant failed to establish a valid basis for
remanding the matter to the Referee.
             For these reasons, we affirm the Board’s decision denying Claimant
benefits under Section 402(b) of the Law.
                                              ______________________________
                                              MARY HANNAH LEAVITT, Judge




                                          8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kera L. Downey,                      :
                  Petitioner         :
                                     :
           v.                        :   No. 1466 C.D. 2013
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                     ORDER

           AND NOW, this 8th day of August, 2014, the order of the
Unemployment Compensation Board of Review in the above-captioned matter,
dated August 5, 2013, is AFFIRMED.
                                           ______________________________
                                           MARY HANNAH LEAVITT, Judge
