               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah Seabreeze,                           :
                 Petitioner                  :
                                             :   No. 407 C.D. 2017
              v.                             :
                                             :   Submitted: November 22, 2017
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :



BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: January 18, 2018


              Deborah Seabreeze (Claimant) petitions pro se for review of the February
17, 2017 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision and order denying Claimant unemployment compensation
benefits under section 402(b) of Pennsylvania’s Unemployment Compensation Law
(Law).1


                                  Facts and Background
              Claimant was employed by Northern Children’s Services (Employer) as a
payroll specialist from October 14, 2014, through July 26, 2016. (Finding of Fact (F.F.)

       1
        Section 402(b) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(b).
No. 1; Reproduced Record (R.R.) at Item No. 9, Notes of Testimony (N.T.), at 5, 7.)
Beginning in June 2016, Claimant worked under the supervision of a new Human
Resources Director (HR Director), Rachel Harriet. (F.F. No. 3; N.T., at 16.) Claimant
believed that the new HR Director was treating her overbearingly and berating her in
front of her peers, (N.T., at 6), and “that she was being overworked, overloaded, treated
unfairly and harassed.” (F.F. No. 4; N.T., at 6.)
             On June 27, 2016, Claimant met with the new HR Director to discuss her
concerns. (F.F. No. 5; N.T., at 35-36.) Later, Claimant complained to both Employer’s
chief executive officer (CEO), Renata Copps-Fletcher, and a member of Employer’s
board of directors, Paul Rovner, about the alleged harassment by the new HR Director.
(F.F. No. 7; N.T., at 9, 13, 26, 30.) However, neither the CEO nor the board member
took any action against the HR Director based upon Claimant’s concerns. (F.F. No. 8;
N.T., at 10, 45.) Claimant never told her HR Director that she felt harassed to the point
that she sought medical treatment because of it. (F.F. Nos. 9-10; N.T., at 34-35, 41.)
             On July 20, 2016, Claimant received a performance improvement plan
(PIP) issued by the CEO and HR Director. (F.F. No. 11; N.T., at 7.) The PIP informed
Claimant that she needed to improve her attendance, communication with others, her
ownership and accountability, and her sense of urgency regarding her work. (F.F. No.
12; N.T., at 10-11.) The PIP further notified Claimant that she had 30 days to
accomplish the goals set forth in the PIP. (F.F. No. 13; N.T., at 17-18.) Because she
disagreed with the PIP in its entirety, Claimant voluntarily terminated her employment
with Employer. (F.F. No. 15; N.T., at 7-8, 13-14.) Prior to resigning, Claimant made
no efforts to improve her job performance in compliance with the PIP. (F.F. No. 16;
N.T., at 16-18.)




                                           2
               On July 24, 2016, Claimant filed an application for unemployment
compensation benefits. (R.R. at Item No. 2.) On August 17, 2016, the Erie UC Service
Center issued a notice of determination, which approved benefits for Claimant, finding
that she was not ineligible under section 402(b) of the Law. (R.R. at Item No. 5.)
Employer timely appealed the notice of determination. (R.R. at Item No. 6.) The
referee held a hearing to consider the appeal on November 15, 2016. (R.R. at Item No.
7.) On November 21, 2016, the referee issued his decision and order, which reversed
the notice of determination issued by the Erie UC Service Center and disallowed the
claim credit for the week ending July 30, 2016. (R.R. at Item No. 10.)
               Claimant timely appealed the referee’s decision and order to the Board,
requesting a remand hearing. (R.R. at Item No. 11.) On February 17, 2017, the Board
issued its order affirming the referee’s decision and order. (R.R. at Item No. 13.)
Although Claimant filed a request for reconsideration, (R.R. at Item No. 14), the Board
denied such request by order dated March 16, 2017. (R.R. at Item No. 19.)
               Claimant timely appealed the Board’s February 17, 2017 decision to this
Court.


                                           Discussion
               On appeal,2 Claimant argues that the Board erred in (1) failing to
determine that her due process rights were violated by the referee when he prohibited
her from presenting her case in a fair manner; and (2) concluding that Claimant was
ineligible for unemployment compensation benefits under section 402(b) of the Law.

         2
         On appeal, our scope of review is limited to determining whether constitutional rights have
been violated, whether an error of law has been committed, and whether findings of fact are supported
by substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).



                                                 3
                                 Eligibility for Benefits
             We begin with Claimant’s argument regarding her eligibility for
unemployment compensation benefits. Section 402(b) of the Law provides that “[a]n
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 . . . .” 43 P.S. §802(b).
             To establish eligibility for benefits, a claimant who voluntarily quit her
employment bears the initial burden of proving that she did so for necessitous and
compelling reasons. Wert v. Unemployment Compensation Board of Review, 41 A.3d
937, 940 (Pa. Cmwlth. 2012). Specifically, a claimant must demonstrate that (1)
circumstances existed which produced pressure to terminate employment that was both
real and substantial; (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 maintain her employment. Id. “[W]e must
examine the circumstances surrounding each claimant’s departure on an individual
basis, so as to understand what exigencies [she] faced at the time [she] decided to
separate from employment.” Petrill v. Unemployment Compensation Board of Review,
883 A.2d 714, 715 (Pa. Cmwlth. 2005) (quoting Pacini v. Unemployment
Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986)).
             It is well-settled that, where an individual is merely dissatisfied with her
working conditions, or is experiencing normal workplace strains, such circumstances
are not necessitous and compelling reasons for voluntarily terminating her
employment. See Anne Kearney Astolfi, DMD, PC v. Unemployment Compensation
Board of Review, 995 A.2d 1286, 1289 (Pa. Cmwlth. 2010); Spadaro v. Unemployment



                                                4
Compensation Board of Review, 850 A.2d 855, 860 (Pa. Cmwlth. 2004). We have
explained that resentment of supervisory criticism or a mere personality conflict, absent
an intolerable working atmosphere, does not constitute necessitous and compelling
reasons for voluntary termination. See Wert, 41 A.3d at 940; Anne Kearney Astolfi,
DMD, PC, 995 A.2d at 1289; Magazzeni v. Unemployment Compensation Board of
Review, 462 A.2d 961, 965 (Pa. Cmwlth. 1983); Lynn v. Unemployment Compensation
Board of Review, 427 A.2d 736, 737 (Pa. Cmwlth. 1981). Specifically, “[r]esentment
of a reprimand, absent unjust accusations, abusive conduct or profane language, does
not constitute [a] necessitous and compelling reason for termination.” Krieger v.
Unemployment Compensation Board of Review, 415 A.2d 160, 161 (Pa. Cmwlth.
1980).
             In Kelly v. Unemployment Compensation Board of Review, 172 A.3d 718,
725 (Pa. Cmwlth. 2017), we explained:

             [T]he Board, as the ultimate fact-finder, is empowered to
             resolve all issues of witness credibility, conflicting evidence
             and evidentiary weight.          Ductmate Indus., Inc. v.
             Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa.
             Cmwlth. 2008). Also, it is irrelevant whether the record
             includes evidence that would support findings other than
             those made by the Board; the proper inquiry is whether the
             evidence supports the findings actually made. Id. Further,
             the party prevailing below is entitled to the benefit of all
             reasonable inferences drawn from the evidence. Id.
             In this case, Claimant alleges that Employer’s HR Director and CEO
harassed her and retaliated against her by issuing the PIP on July 20, 2017, after she
reported such harassment to the board of directors. (N.T., at 12.) Claimant explained
that, although she had not been disciplined prior to issuance of the PIP, she resigned
because the “bullying and harassment” at work was causing her to lose sleep and have



                                           5
stomach pains. (N.T., at 14.) We note that Claimant provided conflicting testimony
regarding her medical treatment, first testifying that she did not inform the new HR
Director of her job-related medical issues, then later testifying that she did visit a doctor
several times for medical reasons related to the harassment, and that she was prescribed
medication to manage stress. (N.T., at 25, 34-35.)
             Claimant testified that the unfair treatment began after Employer named
Ms. Fletcher as its CEO. (N.T., at 21.) She also testified that, after that time, other
employees, including the executive staff, quit. (Id.) In addition to receipt of the PIP,
Claimant asserted that her resignation was ultimately a result of other instances,
including feeling overworked because her supervisors called her after working hours
and on holidays. (N.T., at 22.) Claimant presented the Employer’s harassment policy
as evidence at the referee hearing, arguing that Employer did not comply with its own
policy. (N.T., at 29.) Claimant also alleged that, prior to their July 20, 2017 meeting,
the HR Director and CEO deleted certain emails from her work email account. (N.T.,
at 7-8.)
             Based upon a complete review of the record, we must conclude that
substantial evidence supports the Board’s determination in this case.              Claimant
presented no evidence to suggest that her voluntary termination was a result of unjust
accusations, abusive conduct, or profane language. Instead, the record indicates that
Claimant’s disagreement and unwillingness to comply with the PIP ultimately led to
her termination. Therefore, Claimant did not meet her burden to establish a necessitous
and compelling reason for her resignation.




                                             6
                           Conduct of Hearing by Referee
             Claimant argues that she was denied her due process rights based upon
the manner in which the referee conducted the November 15, 2016 hearing.
Specifically, she asserts that he interfered with her counsel’s prosecution of the case,
overlooked certain testimony, and badgered witnesses.
             “The essential elements of due process are notice and an opportunity to be
heard in a full and fair hearing before an impartial decision maker.”         Leone v.
Unemployment Compensation Board of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005).
To determine whether a claimant was denied her due process rights at a referee hearing,
we turn to 34 Pa. Code §101.21, which provides that, in a hearing, the referee may
examine the parties and witnesses and shall determine the order in which evidence will
be presented. 34 Pa. Code §101.21(a)-(b). In exercising his discretion, the referee is
not free to completely disregard the rules of evidence; although he has “wide latitude”
regarding the admissibility of evidence, he cannot “improperly refuse to accept relevant
competent and material evidence.” Healey v. Unemployment Compensation Board of
Review, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).
             Here, Claimant’s counsel took exception to the manner in which the
referee conducted the hearing. While Claimant’s counsel was prepared to present his
case by questioning Claimant according to their preparation, the referee opted to
question the Claimant directly to build the record. The referee made clear that
Claimant’s counsel would then have a full opportunity to ask any additional questions
to Claimant. Although Claimant’s counsel did not agree with the referee’s preferences,
he was not precluded from fully and fairly prosecuting his case.
             Claimant also argued that the referee precluded her from presenting all
testimony, overlooked certain testimony, and badgered witnesses. A thorough review



                                           7
of the notes of testimony from the referee’s hearing does not support this argument.
As we explained, the referee has broad discretion regarding the admissibility of
evidence, which is limited by his inability to refuse to accept relevant competent and
material evidence. Here, the referee questioned Claimant’s counsel regarding the
relevance of certain lines of questioning. The referee ultimately concluded that certain
testimony was not relevant to the matter before him. Further, there is no evidence that
the referee overlooked the testimony of Claimant’s former supervisor, Anthony Moore.
Rather, the record reveals that the referee considered all testimony presented to him
before apparently determining that Employer’s testimony and evidence was more
credible than that presented by Claimant. Such a determination was “well within a
referee’s discretion as to questions of credibility and evidentiary weight, and is not
within the scope of review of this Court.” Panczak v. Unemployment Compensation
Board of Review, 409 A.2d 929, 932 (Pa. Cmwlth. 1980).


                                     Conclusion
             Because Claimant did not meet her burden of establishing that her
voluntary termination was due to a necessitous and compelling reason, and because the
referee did not violate Claimant’s due process rights related to the November 15, 2016
hearing, we cannot conclude that the Board erred in affirming the referee’s decision
and order finding Claimant ineligible for unemployment compensation benefits under
section 402(b) of the Law.
             Accordingly, the Board’s order is affirmed.




                                           PATRICIA A. McCULLOUGH, Judge


                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah Seabreeze,                :
                 Petitioner       :
                                  :    No. 407 C.D. 2017
            v.                    :
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                               ORDER


            AND NOW, this 18th day of January, 2018, the order of the
Unemployment Compensation Board of Review dated February 17, 2017, is
affirmed.



                                      ________________________________
                                      PATRICIA A. McCULLOUGH, Judge
