               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cachee Berg-Moton,                             :
                              Petitioner       :
                                               :
                 v.                            :   No. 1171 C.D. 2016
                                               :   Submitted: November 23, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE:          HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: April 11, 2017



                 Petitioner Cachee E. Berg-Moton (Claimant) petitions for review of
an order of the Unemployment Compensation Board of Review (Board), dated
May 25, 2016. 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. We
reverse the Board’s order.



       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
              Claimant filed for unemployment compensation benefits after
voluntarily quitting her position as a customer service specialist for AT&T
Mobility    Services      LLC     (Employer).      The   Harrisburg   Unemployment
Compensation 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 to prove 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 a
customer service specialist, she had ongoing issues with two other employees.
(C.R., Item No. 9 at 13.) On October 2, 2015, she reported to her floor manager
and her area manager that these two employees began sexually harassing her in
September 2015. (Id. at 13-14.) Between October 8 and 12, 2015, Claimant called
Employer’s Asset Management department to report that someone had broken into
her computer. (Id. at 17-18.) Claimant testified that her floor manager, Holly
Decker, let one of the harassers read the reports Claimant made to Asset
Management.         (Id. at 18, 27-28.)   Claimant again made a report to her floor
manager and area manager in November 2015 about additional incidents of
harassment. (Id. at 15.) On December 31, 2015, Claimant called the police several
times in response to one of the employees following her and making a racial slur.
(Id. at 16-17.) She also reported these incidences to Ms. Decker. (Id.) Claimant
testified that she did not go to the union because one of the people harassing her
was in the union. (Id. at 26-27.) Claimant testified that she took a two-week
vacation and that she notified Ms. Decker that she was probably going to be


                                             2
leaving her employment. (Id. at 8.) On February 8, 2015, Claimant notified Ms.
Decker through text message that she resigned. (Id. at 24; C.R., Item 1, at 8.)
             Ms. Decker testified on behalf of Employer. Ms. Decker testified that
Claimant told her on January 22, 2016, that she planned to resign.
(C.R., Item No. 9 at 34.) As to Claimant’s complaints, Ms. Decker testified that
Asset Protection looked into Claimant’s computer to determine if someone was
accessing information, but that Asset Protection could only review her computer
for activity from the previous two days. (Id. at 35.) She testified that she told
Claimant to contact the police at the end of December regarding her concerns
about being followed and harassed, as it was outside of work. (Id.) Ms. Decker
testified that Employer offered Claimant assistance through its Employer
Assistance Program (EAP). (Id. at 36.) Ms. Decker also testified that Claimant
could have reported the harassment to the union, to Employer’s director (Dot
Moran), to the Assistant Vice President Jack Wright (AVP), or to the online human
resource center (HR One Stop). (Id. at 35-37.) Ms. Decker stated that she never
received any report through HR One Stop indicating that Claimant had made a
report. (Id. at 37.)
             Following the hearing, the Referee issued a decision and order,
affirming the Service Center’s determination. (C.R., Item No. 10.) The Referee
made the following findings of fact:
             1.        The claimant was working full time as a customer
                       service specialist for AT&T Mobility Services
                       LLC since July 9, 2012, earning $17.47 per hour.

             2.        The claimant alleges that she was being harassed
                       by    her   coworkers      since   approximately
                       October 2015.



                                           3
3.    The claimant first reported to her team manager
      and area manager that she felt harassed on or about
      October 2, 2015.

4.    The claimant alleges her coworker’s [sic] made
      such comments as “little miss virgin” and making
      reference as to the claimant being a “black jew.”

5.    The claimant continued to make complaints to her
      team manager and area manager.

6.    The claimant contacted a federal EEOC agency to
      file a complaint.

7.    The claimant also reported to her managers that
      she believed that her coworkers hacked into her
      computer and believe [sic] that the coworkers were
      tracking her movements via their cell phones.

8.    The managers contacted the [A]sset [P]rotection
      department to check into the claimant’s claims of
      her computer being hacked; however, no evidence
      was found to substantiate the claims.

9.    The claimant contacted the police in regards to the
      coworkers tracking her movements. The police are
      currently investigating those allegations.

10.   The claimant took a two week vacation on
      January 22, 2016, then sent her team manager a
      text February 8, 2016 resigning her position.

11.   The claimant was becoming ill due to the alleged
      harassment.

12.   The claimant could have utilized assistance from
      the director, AVP, union, or the employer’s HR
      [O]ne [S]top for assistance when she was not
      satisfied with the lack of assistance from her
      managers; however, the claimant did not utilize
      these options.


                           4
               13.    Continuing work was available to the claimant had
                      she not voluntarily left her employment.
(Id.)       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 Claimant “has not shown that she made
a good faith effort to take reasonable or necessary steps to overcome the obstacles
to maintain her employment and benefits must be denied under Section 402(b) of
the [L]aw.” (Id.)
               Claimant appealed to the Board, which affirmed the Referee’s
decision and order. (C.R., Item No. 12) In so doing, the Board adopted and
incorporated the Referee’s findings of fact and conclusions of law. Claimant now
petitions this Court for review of the Board’s order.
               On appeal,2 Claimant appears to contest the Board’s decision in two
ways.       First, Claimant essentially argues that the Referee’s finding of fact
number 12, as adopted and incorporated by the Board, is not supported by
substantial evidence of record. Finding of fact number 12 provides: “The claimant
could have utilized assistance from the director, AVP, union, or the employer’s HR
[O]ne [S]top for assistance when she was not satisfied with the lack of assistance
from her managers; however, the claimant did not utilize these options.” (C.R.,
Item No. 12.) Further, Claimant contends that the Board erred as a matter of law in
concluding that she did not have a necessitous and compelling reason for
terminating her employment.

        2
         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
             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 Referee’s finding of fact
number 12, adopted by the Board, is not supported by substantial evidence.
Claimant contests the Referee’s finding that she did not utilize options available to
her for assistance. Claimant states that she followed work policy conduct by


                                         6
contacting her supervisor, Ms. Decker, then the area manager, and she contacted
the “800 hotline through HR One Stop on multiple occasions.” (Petitioner’s Br.
at 17.)   She further contends that she attended EAP counselling and took a
two-week vacation at Ms. Decker’s suggestion.           Based on our review of
Claimant’s and Ms. Decker’s testimony, we conclude that sufficient evidence
exists to support the finding that Claimant knew that she could have utilized
additional assistance from the director, AVP, union, or the employer’s HR One
Stop, if she was not satisfied with the assistance from her managers. 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 Pa., Inc. v. Workers’
Comp. Appeal Bd. (Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015).
             Next, Claimant argues that the Board erred in concluding that she did
not terminate her employment for a necessitous and compelling reason. We agree.
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 her employment “bears the
burden of proving that necessitous and compelling reasons motivated that
decision.” Fitzgerald v. Unemployment Comp. 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


                                         7
(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 her 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). Failure to report harassment, however, may be excused where
the record evidence reveals that doing so would be futile. Id. A claimant also need
not “notify the employer of each and every incident of harassment.” Unclaimed
Freight Co. v. Unemployment Comp. Bd. of Review, 677 A.2d 377, 379
(Pa. Cmwlth. 1996).    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).
            Here, the Referee and Board focused their analysis on Claimant’s
failure to take reasonable or necessary steps to overcome the obstacles to maintain


                                        8
her employment. Claimant, however, satisfied the notification requirement by
bringing her complaints to her floor supervisor and her area manager in
October, November, and December 2015.      This notice afforded Employer the
opportunity to rectify the situation. Claimant was not required to endure the
alleged abusive behavior indefinitely. Her multiple reports to Employer provided
the requisite notice to allow Employer to attempt to alleviate the harassment.
Although Employer testified that Claimant could have utilized assistance from the
director, AVP, union, or the employer’s HR One Stop, it did not introduce into
evidence a policy that would indicate Claimant was required to contact anyone
other than her floor supervisor and area manager. Absent a policy that specified
additional reasonable steps Claimant was required to take to preserve her
employment, we cannot agree that Claimant failed to notify properly Employer.
We conclude, therefore, that Claimant took reasonable and necessary steps to
overcome the obstacles to maintain her employment.
            Accordingly, we reverse the Board’s order.




                               P. KEVIN BROBSON, Judge




                                       9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cachee Berg-Moton,                  :
                     Petitioner     :
                                    :
           v.                       :   No. 1171 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 11th day of April, 2017, the order of the
Unemployment Compensation Board of Review is hereby REVERSED.




                           P. KEVIN BROBSON, Judge
