               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Reinaldo A. DeLeon,                            :
                              Petitioner       :
                                               :
                       v.                      :   No. 1913 C.D. 2016
                                               :   Submitted: May 26, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: July 12, 2017


       Reinaldo A. DeLeon (Claimant), pro se, petitions for review from the Order
of the Unemployment Compensation Board of Review (Board) that determined he
was ineligible for unemployment compensation (UC) benefits pursuant to Section
402(b) of the UC Law (Law).1                Claimant argues that the Board erred in
determining he voluntarily quit without cause of a necessitous and compelling
nature. He contends that he quit because he was subjected to a hostile work
environment in the form of racial discrimination. Finding no error in the decision
of the Board, we affirm.

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
I.     Background
       Claimant was employed by Solid Waste Services d/b/a J.P. Mascaro & Sons
(Employer) as a picker from March 2014 to August 15, 2016, on which date he
voluntarily quit.     He subsequently applied for UC benefits and was initially
determined ineligible by the Department of Labor and Industry.                     Claimant
petitioned for appeal from this determination and was granted a hearing before a
referee, who affirmed the denial of UC benefits. Claimant then appealed to the
Board, which denied Claimant’s request that the record be remanded for additional
testimony and affirmed the referee’s decision. The Board adopted the referee’s
findings of fact, which were as follows:

       1.     The claimant was employed by Solid Waste Services d/b/a J.P.
              Mascaro & Sons as a picker with a final rate of pay of $7.40 an
              hour on a full-time basis.

       2.     The claimant began his employment in March 2014.

       3.     The claimant’s last day of work was 8/15/2016.

       4.     The claimant became upset over a comment made to him by a
              refuse truck driver.

       5.     The claimant punched out and went home.

       6.     The claimant never advised the general manager or the
              operations manager prior to leaving that he was upset by the
              comment made by the driver.[2]

       7.     The claimant did not exhaust all alternatives prior to quitting.




       2
        Though Claimant asserts that he did complain about the conduct, his complaint occurred
some three to four days after he had left employment.



                                              2
(Board Order; Referee’s Decision, Findings of Fact (FOF) ¶¶ 1-7.) The Board
concluded that Claimant did not meet his burden of proof in showing that the work
environment rose to the level of hostile and failed to demonstrate that discussion of
his complaints with Employer would have been futile. Rather, the Board found
that “[E]mployer credibly testified that it would have worked with the [C]laimant
had it known about his alleged ongoing issues.” (Board Order.) Thus, the Board
concluded Claimant did not establish a necessitous and compelling reason to
voluntarily quit and remain eligible for benefits under Section 402(b) of the Law.
Claimant now petitions this Court for review.

II.    Discussion
       On appeal,3 Claimant asserts that the Board erred in denying him UC
benefits under Section 402(b) of the Law when it concluded that Claimant did not
have a necessitous and compelling reason to quit his position. As Claimant does
not challenge any pertinent factual finding4 that the Board adopted, they are
binding upon this Court for purposes of this review. Salamak v. Unemployment
Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
       Section 402(b) of the Law provides 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.


       3
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Havrilchak v. Unemployment Comp. Bd. of Review, 133
A.3d 800, 803 n.2 (Pa. Cmwlth. 2015).
        4
          In his Petition, Claimant challenges the fourth finding of fact on the grounds that the
man who made the comment was a supervisor at the time rather than a truck driver; however,
whether he was a supervisor or truck driver is immaterial to this analysis.



                                               3
§ 802(b). Whether Claimant’s reason to terminate employment is necessitous and
compelling is a question of law reviewable by this Court.           Havrilchak v.
Unemployment Comp. Bd. of Review, 133 A.3d 800, 804 (Pa. Cmwlth. 2015).
      A claimant arguing he left employment for a necessitous and compelling
reason bears the burden of proof. Id. To satisfy this burden, a claimant must
demonstrate that: “(1) circumstances existed that produced real and substantial
pressure to terminate employment; (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 preserve h[is]
employment.” Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38
A.3d 1051, 1056 (Pa. Cmwlth. 2012) (quoting Brunswick Hotel & Conf. Ctr., LLC
v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006)).
Once a claimant demonstrates that the above factors exist, his voluntary leave is
transformed into an involuntary leave. Porco v. Unemployment Comp. Bd. of
Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003).
      Claimant asserts that he quit his job because of a racial remark allegedly
made by his supervisor. (C.R. Item No. 2.) It bears emphasizing here, that:

      [i]n hostile work environment cases, Pennsylvania courts for half a
      century have found that profanity in the workplace, abusive conduct
      and unjust accusations represent adequate justification to terminate
      one’s employment and that the claimant need not be subjected to such
      conduct or language indefinitely. . . . However, a claimant must take
      common sense action to obviate the problem so that he or she does not
      have to terminate employment, and this is accomplished by informing
      one’s superiors of the harassing, humiliating or abusive conduct.

Porco, 828 A.2d at 428 (citations omitted). A claimant must also provide the
employer with the opportunity to understand the nature of the objection before



                                        4
resigning. Id. In Porco, the petitioner was subjected to “abusive, hostile and
profane language” from his supervisor. Id. at 427. The petitioner had repeatedly
informed his supervisor of his inability to tolerate such conduct, but did not inform
management, and conditions went unchanged until the petitioner resigned. Id.
This Court affirmed the Board’s determination that the petitioner was ineligible for
benefits under Section 402(b) of the Law. We reasoned that even though the
petitioner had addressed the problem with the supervisor who was engaging in the
activity, he was obligated to inform upper management of the problem. We further
determined that when an employer is not given notice of a hostile work
environment, the employer cannot attempt to resolve the situation or prevent
further abuse. Id. at 429. As the petitioner failed to exhaust all alternatives prior to
quitting employment, he was ineligible for unemployment benefits.
         Here, the Board found that Claimant “never advised the general manager or
the operations manager prior to leaving that he was upset by the comment made
by the driver.” (FOF ¶ 6 (emphasis added).) Accordingly, the Board found that
Claimant did not exhaust all alternatives prior to quitting. Claimant does not
dispute these facts. The law requires that the claimant sustain the burden of
proving a reasonable attempt to preserve employment in order to receive
unemployment       compensation     after   voluntarily   quitting.      Colduvell    v.
Unemployment Comp. Bd. of Review, 408 A.2d 1207, 1208 (Pa. Cmwlth. 1979).
Claimant failed to provide his employer with an opportunity to understand the
nature of his objection. Therefore, Claimant failed to meet the requisite burden of
proof.




                                            5
III.   Conclusion
       Based on the foregoing, we affirm the Board’s Order, which determined
Claimant was ineligible for benefits under Section 402(b) of the Law.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Reinaldo A. DeLeon,                   :
                      Petitioner      :
                                      :
                 v.                   :   No. 1913 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


     NOW, July 12, 2017, the Order of the Unemployment Compensation Board
of Review, dated November 1, 2016, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
