           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimberly A. Walker,                           :
                                              : No. 1766 C.D. 2015
                            Petitioner        : Submitted: February 12, 2016
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: May 12, 2016



              Kimberly A. Walker (Claimant) petitions pro se for review of the
August 13, 2015 order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s determination and held that Claimant was
ineligible for benefits under Section 402(b) of the Unemployment Compensation
Law (Law).1 We affirm.
              Claimant was employed as a full-time paint manager by Somerset
Auto Parts, Inc. (Employer) from July 6, 2009 until March 12, 2015, at a final rate

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.
of $13.75 per hour, when she voluntarily quit her employment. The local service
center found that Claimant did not show a necessitous and compelling reason for
leaving her job and denied benefits under Section 402(b). Claimant appealed.
            A referee held a hearing on June 3, 2015, where both parties appeared
with counsel. Claimant testified that, on February 3, 2015, she was extremely busy
when she noticed Employer’s delivery coordinator (Coworker) texting on her cell
phone, trying to take a nap, and generally doing nothing. Claimant stated that she
spoke with Coworker about the cell phone use, reminded her of the owner’s wishes
that employees not use their cell phones while at work, and asked Coworker to
follow these wishes when the owner was out of town.            Claimant described
Coworker’s reaction as “a little out of control,” which included yelling, swearing,
and name calling. Claimant stated that, although they were separated by a counter,
she felt threatened that Coworker, while holding a fist in the air, was going to
throw a handful of bolts at her. Notes of Testimony (N.T.), June 3, 2015, at 6, 7,
13.
            Claimant testified that, with her resignation in hand, she reported this
incident to Employer’s corporate officer and general manager (General Manager),
upon his return from vacation on February 9, 2015. Claimant stated that General
Manager would not accept her resignation and that she agreed to stay if he made
changes and did something with Coworker. She said that two days later General
Manager implemented a cell phone policy banning the use of cell phones in the
store. Claimant complained that she heard the repercussions of this new policy
from Coworker and another employee.         Additionally, Claimant admitted that
Coworker apologized to her and that Claimant did not accept the apology because
Coworker could not remember what she said or did. Id. at 7, 8, 13.


                                        2
            Claimant testified that on March 11, 2015, she noticed that a part for
one of her orders was sitting on the counter. Claimant stated that, generally,
Coworker was supposed to give the part to the driver and the driver was to load it.
Claimant informed Coworker that the part for the order was sitting on the counter
and that Coworker needed to call the driver back. Claimant testified that Coworker
responded by yelling, swearing, and telling her to mind her own business.
Claimant said she told Coworker at that point that the two of them needed to go to
the office and speak with General Manager, but Coworker refused. Id. at 9, 10.
            Claimant testified that she went into the office and reported the
incident to General Manager. She said that she told him that Coworker was on a
rampage again, cussing, swearing, and yelling about a delivery order. Claimant
said she informed General Manager that Coworker’s behavior was not acceptable
in the work place and that Claimant was going home. According to Claimant,
General Manager responded that if that is what Claimant needed to do, then she
should go. Claimant went home. Id. at 10.
            Claimant testified that she telephoned General Manager later that day
and asked if he planned to do anything with Coworker and General Manager
responded that there was nothing he could do and that was the way of the younger
generation. Claimant stated that she went to General Manager’s office the next
day with her uniforms and, again, General Manager reiterated that there was
nothing he could do. She testified that she was forced to quit because she felt that
she was harassed and threatened. Id. at 10.
            In rebuttal, General Manager testified that Claimant did not have a
supervisory role and was not responsible for any other employee. Furthermore, he




                                         3
stated that Coworker had a supervisory position and that she supervised all part-
time delivery people and reported to him. Id. at 19.
             General Manager testified that he spoke with Claimant, Coworker,
and other full-time employees about the February 3, 2015 incident and then sat
Coworker down and told her that she could not talk to other employees in that
manner. General Manager said he gave Coworker a “final warning” that she
would lose her job if it happened again and told her to do her job and leave
Claimant alone. General Manager also stated that he implemented a “no cell
phone use policy” prohibiting employees from taking personal calls on cell phones
in the store. Id. at 19, 20, 21, 24.
             General Manager recalled that the next incident occurred on March
11, 2015, when Claimant came into his office in an absolute rage and accused
Coworker of messing up a delivery order. He stated that after Claimant finished
her rant, she said she was leaving, turned, and slammed the door.        General
Manager testified that he was in the store and did not hear any yelling, nor did
anyone else report any vulgar language or yelling. General Manager said he
subsequently conducted an investigation and found that Coworker had made a
mistake. General Manager stated that Claimant called him later that day and
informed him that she was quitting, and the next morning Claimant turned in her
keys and uniforms and quit. Id. at 22, 23, 24.
             Coworker acknowledged that she used vulgar language on February 3,
2015, but she denied shaking any bolts at Claimant.      Coworker claimed that
Claimant had provoked her all day by making comments about her not doing her
job, getting paid to do nothing, and being on her cell phone. Coworker admitted
that she “blew up” at Claimant at the end of the day. She also admitted that


                                         4
General Manager gave her a final warning that if it happened again she would be
fired. Id. at 28, 31, 32.
             Pertaining to the March 11, 2015 incident, Coworker denied using
vulgar language. Id. at 29. Coworker said that one of the drivers loaded the order
without the part and then Claimant came over and made comments to her about not
doing her job. Coworker said that she responded to Claimant and told her to “shut
up” and mind her own business. Coworker claimed that Claimant at that point
came storming back toward her and asked if she wanted to take this conversation
to General Manager’s office. Coworker said she declined and Claimant went to
the office and slammed the door. Id. at 32.
             The referee affirmed the local service center’s determination and
found Claimant ineligible for benefits under Section 402(b).        Resolving all
conflicts in testimony in favor of Employer, the referee determined that Claimant
failed to sustain her burden of proving that she had necessitous and compelling
reason to quit her employment.
             Claimant appealed to the Board, which affirmed the referee’s
decision. The Board found that Claimant and Coworker had a personality conflict.
As to the February 3, 2015 incident, the Board found that Claimant complained to
Employer about Coworker’s profanity and cell phone use while at work, and
Employer addressed both complaints by placing Coworker on a final warning and
by establishing a cell phone use policy. As to the March 11, 2015 incident, the
Board found that Coworker had made a mistake with a paint order delivery and
that Claimant became angry and went to General Manager’s office in a rage to
complain about Coworker. The Board found that Claimant left General Manager’s
office when she finished complaining and slammed the door.            The Board


                                         5
acknowledged the conflict in testimony regarding the March 11, 2015 incident and
resolved the conflict, in its entirety, in favor of Employer’s credible testimony.
Finally, the Board noted that Claimant failed to demonstrate that Employer would
not be responsive to her complaints or that complaining to Employer would be
futile, while Employer showed that it was responsive to Claimant’s concerns.
Accordingly, the Board held that Claimant was ineligible for benefits under
Section 402(b).
               On appeal,2 Claimant argues that the Board did not address the
following three issues: (1) whether an employee should be allowed to physically
threaten another employee in the workplace; (2) whether an employee should be
allowed to use vulgarities and inappropriate name calling when directed to another
employee in the workplace; and (3) whether an employee should be expected to
work in an unsafe environment where she was harassed and threatened. Finally,
Claimant complains that she was not permitted to call her witnesses at the hearing.



       2
          Our scope 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. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843-44 (Pa. Cmwlth. 1987). Additionally, the Board is the factfinder in
unemployment compensation cases, empowered to determine the credibility of witnesses and
resolve conflicts in evidence. Curran v. Unemployment Compensation Board of Review, 752
A.2d 938, 940 (Pa. Cmwlth. 2000). The Board’s findings are binding and conclusive on appeal
if the record, when examined as a whole, contains substantial evidence to support them. Mathis
v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013).
“Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate
to support a conclusion.” Guthrie v. Unemployment Compensation Board of Review, 738 A.2d
518, 521 (Pa. Cmwlth. 1999). We view the record in the light most favorable to the party
prevailing before the Board and afford that party the benefit of all reasonable inferences that can
be drawn from the evidence to determine if substantial evidence exists. Big Mountain Imaging v.
Unemployment Compensation Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).


                                                6
             Preliminarily, we note that under Section 402(b) of the Law, a person
is ineligible for unemployment benefits if she voluntarily terminates her
employment without cause of a necessitous and compelling nature. The burden of
proof rests on the claimant to demonstrate necessitous and compelling cause.
Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282, 1284
(Pa. Cmwlth. 2009).         Necessitous and compelling cause “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.” Philadelphia Parking Authority v.
Unemployment Compensation Board of Review, 654 A.2d 280, 282 (Pa. Cmwlth.
1995) (quoting Taylor v. Unemployment Compensation Board of Review, 378 A.2d
829, 832-33 (Pa. 1977)). Whether a person had a necessitous and compelling
reason to voluntarily quit employment is a question of law subject to this Court’s
review. Middletown Township v. Unemployment Compensation Board of Review,
40 A.3d 217, 227 (Pa. Cmwlth. 2012).
             After careful review of the record, we conclude that the Board’s
findings are supported by substantial evidence. These findings, in turn, support the
Board’s conclusion that Claimant did not demonstrate necessitous and compelling
cause for quitting her job. Specifically, the Board determined that Claimant and
Coworker had a personality conflict, and it is well-settled that absent an intolerable
work atmosphere, personality conflicts do not amount to a necessitous and
compelling reason for leaving one’s employment. Ann Kearney Astolfi DMD P.C.
v. Unemployment Compensation Board of Review, 995 A.2d 1286, 1290 (Pa.
Cmwlth. 2010); Lynn v. Unemployment Compensation Board of Review, 427 A.2d
736, 737 (Pa. Cmwlth. 1981).


                                          7
              On appeal, Claimant argues that she established good cause to quit her
employment because she was exposed to unsafe working conditions when
Coworker used vulgarities, called her names, and physically threatened her.
However, Claimant’s testimony in this regard was not accepted by the Board.
Essentially, then, Claimant is asking this Court to review the evidence and credit
her testimony over that offered by Employer.                 As we previously observed,
questions of credibility and evidentiary weight are within the sole discretion of the
Board and are not subject to reevaluation on judicial review.                          Bell v.
Unemployment Compensation Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth.
2007). Accordingly, Claimant cannot rely on her preferred version of the facts to
meet her burden of proof.
              Claimant’s remaining argument is that the referee erred in denying her
request to call two additional witnesses at the hearing. Unfortunately, this issue
was raised for the first time in Claimant’s reconsideration request, after the Board
had issued its decision.3 The failure to preserve an issue before the Board results in
waiver of the issue. Merida v. Unemployment Compensation Board of Review, 543
A.2d 593, 596 (Pa. Cmwlth. 1998), appeal dismissed, 570 A.2d 1320 (Pa. 1990).
Additionally, “issues raised for the first time in a reconsideration request, after the
agency has issued its adjudication, cannot be regarded as raising the issues while
the matter was before the agency.” Bedford Downs Management Corporation v.



       3
         Represented by counsel at the hearing, Claimant called herself and Coworker as
witnesses in her case-in-chief, and attempted to call two terminated employees who left
Employer prior to 2015. The referee found that the additional witnesses could not offer relevant
testimony because they lacked personal knowledge of the incidents occurring on February 3,
2015, and March 11, 2015.


                                               8
State Harness Racing Commission, 926 A.2d 908, 924 (Pa. 2007). Thus, this issue
is waived on appeal.4
               Accordingly, we affirm the Board’s order.




                                             MICHAEL H. WOJCIK, Judge




       4
         Even if this issue was not waived, our disposition would be the same. It is well settled
that “when an employee is terminated or quits, ‘the factual matrix at the time of separation
governs’ as to whether a claimant is entitled to benefits, and the relevant inquiry in determining
the cause of a claimant’s unemployment is confined to the surrounding circumstances existing at
the time of the claimant’s departure.” Hussey Copper Ltd. v. Unemployment Compensation
Board of Review, 718 A.2d 894, 899 (Pa. Cmwlth. 1998) (citing Warner Co. v. Unemployment
Compensation Board of Review, 153 A.2d 906, 909 (Pa. 1959)). Because Claimant’s witnesses
lacked first-hand knowledge of the events that occurred in 2015, the referee did not err in
excluding their testimony.


                                                9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimberly A. Walker,                    :
                                       : No. 1766 C.D. 2015
                       Petitioner      :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                                       :
                       Respondent      :


                                    ORDER


             AND NOW, this 12th day of May, 2016, the order of the
Unemployment Compensation Board of Review, dated August 13, 2015, is
affirmed.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
