             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald K. Mathieu,                          :
                 Petitioner                 :
                                            :
       v.                                   : No. 1442 C.D. 2017
                                            : SUBMITTED: September 12, 2018
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                   FILED: October 5, 2018

       Ronald K. Mathieu (Claimant) petitions for review of the September 18, 2017
Order of the Unemployment Compensation Board of Review (Board), which affirmed
the decision of a Referee denying Claimant unemployment compensation (UC)
benefits. The Board concluded that Claimant was ineligible for UC benefits under
Section 402(b) of the Unemployment Compensation Law (Law)1 because he
voluntarily quit his employment without cause of a necessitous and compelling nature.
We affirm.
                                          Background
       The following background is a summary of the Referee’s Findings of Fact and
Conclusions of Law, which the Board adopted and incorporated in their entirety.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Section 402(b) of the Law provides that an employee shall be ineligible for UC benefits 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. § 802(b).
      Claimant worked for H & H Castings (Employer) as a full-time maintenance
electrician from February 13, 2012 through March 3, 2017. Bd.’s Findings of Fact
(F.F.) No. 1. Employer has an unwritten policy, of which Claimant was aware, in
which physical fighting is not tolerated. Id. No. 2. Although Employer has no written
policy prohibiting physical contact between employees, Employer has verbally advised
its employees that it has zero tolerance for such conduct. Id. No. 3. Employer typically
conducts an investigation and administers discipline for physical contact between
employees based on the circumstances. Id. Employer has also verbally informed its
employees that it has an open-door policy whereby an employee can to go to his or her
supervisor, the vice president of operations, the human resources coordinator, or the
owner of the company to resolve conflicts. Id. No. 4.
      Claimant had an ongoing, contentious relationship with a co-worker, Robert
Thome, who is known as “Whitey.” Id. No. 5. On March 1, 2017, Whitey purposefully
rammed a metal cart into Claimant’s arm. Id. No. 6. Five minutes later, Claimant
entered Whitey’s work area, allegedly to bring another co-worker a soda. Claimant
confronted Whitey and told him, “[T]his is your free pass. This is the last time. You’ll
never get away with that again,” after which Whitey elbowed Claimant in the stomach.
Id. No. 7; Notes of Testimony (N.T.), 5/25/17, at 8-10, 17.
      That same day, Claimant reported the incident to his Employer who began an
investigation. F.F. No. 8. Employer determined that there was physical contact
between the two men and that Whitey acted in self-defense during the second
altercation. Id. Following its investigation, Employer suspended Whitey for three days
without pay and suspended Claimant for one day without pay. Id. No. 9. Claimant
served his one-day suspension on March 2, 2017. Id.
      When Claimant returned to work on March 3, 2017, he placed a written request
on his supervisor’s desk, asking to take his two weeks of remaining vacation time. Id.


                                           2
No. 10. Claimant advised his supervisor that he would not work under these conditions
any longer and that he was giving his two weeks’ notice. Id. No. 11; N.T., 5/25/17, at
11.2 Claimant told his supervisor that he was dissatisfied with the discipline Employer
had administered to him and Whitey. F.F. No. 12. Claimant believed that Whitey
should have been fired and that Claimant’s suspension was unfair. Id. Nos. 12, 14.
Claimant’s supervisor asked Claimant to reconsider his decision to quit, but Claimant
refused to do so. Id. No. 13. Claimant did not use Employer’s conflict resolution
process before quitting, while continuing work was available. Id. No. 15.
       Claimant filed a claim for UC benefits, claiming he quit due to a hostile work
environment. The Service Center determined that Claimant was ineligible for UC
benefits under Section 402(b) of the Law because he voluntarily quit without a
necessitous and compelling cause and did not exhaust all alternatives before quitting.
Notice of Determination, 4/14/17, at 1.
       Claimant timely appealed to the Referee, who held a hearing on May 25, 2017.
Employer, acting pro se, participated via telephone and presented the testimony of Earl
Rapp, Claimant’s supervisor, and Melinda Myers, Employer’s human resources
coordinator. Claimant appeared in person and testified on his own behalf.
       Following the hearing, the Referee determined that Claimant voluntarily quit his
employment because he was displeased with the discipline that Employer administered
to him and Whitey following the March 1, 2017 altercations. Ref.’s Order at 2.
Although the Referee recognized that harassment may justify a voluntarily quit, the
Referee stated that “where the employer has a mechanism in place to deal with the
harassment, the claimant must make a good[-]faith effort to employ that mechanism to
resolve the problem.” Id. at 3. The Referee credited the testimony of Employer’s


       2
         Claimant testified: “At that point I said, I can’t do it no more, that I’m giving my two weeks’
notice.” N.T., 5/25/17, at 11; see id. at 13-14.

                                                   3
witnesses that Claimant was aware of Employer’s open-door policy for resolving
employee conflicts. Id. The Referee determined that Claimant did not use Employer’s
conflict resolution process and failed to exhaust all alternatives in a good-faith effort
to remain employed before quitting. Id. Therefore, the Referee concluded that
Claimant was ineligible for benefits under Section 402(b) of the Law. Id.
       Claimant timely appealed to the Board, which affirmed the Referee’s Order. The
Board adopted the Referee’s Findings of Fact and Conclusions of Law and further
concluded:

       Although [C]laimant testified that he was harassed and there were fights
       at the workplace, the Board does not find his testimony credible. Rather,
       [C]laimant’s supervisor only testified to personality conflicts between
       [C]laimant and his co[-]worker. [E]mployer’s witnesses credibly testified
       that they investigated the incident and suspended [C]laimant and the other
       co[-]worker involved in the incident following [its] policy prohibiting
       violence. To this end, [C]laimant admitted to his supervisor that he
       confronted the co[-]worker and told him that this is your free pass, you’ll
       never get away with that again. As [C]laimant quit the day after he was
       suspended, he did not allow time to see if the work environment improved
       after the suspensions.

Bd.’s Op. at 1. Claimant now petitions for review of the Board’s Order.3
                                              Issues
       On appeal, Claimant raises the following issues: (1) whether the evidence
established that Claimant had necessitous and compelling cause to voluntarily quit his




       3
         Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated, or whether the necessary factual findings are supported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.



                                                 4
employment; and (2) whether the record contains substantial evidence to support the
Board’s Findings of Fact 7, 8, and 15.4
                                              Analysis
                            1. Necessitous and Compelling Cause
       Claimant first contends that the evidence established that he had a necessitous
and compelling cause to voluntarily quit his employment due to ongoing verbal and
physical harassment by a co-worker. We disagree.
       It is well settled that the Board is the ultimate factfinder in UC cases and its
findings “are conclusive on appeal so long as the record, taken as a whole, contains
substantial evidence to support those findings.” Hessou v. Unemployment Comp. Bd.
of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). “Questions of credibility and the
resolution of evidentiary conflicts are within the discretion of the [Board] and are not
subject to re-evaluation on judicial review.” Bell v. Unemployment Comp. Bd. of
Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007).
       An employee alleging that he or she voluntarily quit for a necessitous and
compelling reason “must prove that: (1) circumstances existed that produced real and

       4
           The challenged Findings of Fact state:

       7. Approximately 5 minutes [after the cart incident], [C]laimant entered Whitey’s
       work area, allegedly to bring a co-worker a sod[a]. [C]laimant confronted Whitey,
       and another altercation ensued.

       8. [E]mployer initiated an investigation into the incident between [C]laimant and
       Whitey. [E]mployer determined that there was physical contact between the two, but
       the investigation showed that Whitey acted out of self-defense during the second
       altercation.
       ...

       15. [C]laimant did not utilize the conflict resolution process prior to quitting while
       continuing work was available.

F.F. Nos. 7, 8, and 15. Because Claimant did not specifically challenge the Board’s remaining
Findings of Fact, they are binding on appeal. See Salamak v. Unemployment Comp. Bd. of Review,
497 A.2d 951, 954 (Pa. Cmwlth. 1985).

                                                    5
substantial pressure to terminate employment; (2) such circumstances would compel a
reasonable person to act in the same manner; (3) the employee acted with ordinary
common sense; and (4) the employee made a reasonable effort to preserve his or her
employment.” Wert v. Unemployment Comp. Bd. of Review, 41 A.3d 937, 940 (Pa.
Cmwlth. 2012).      Harassment by a co-worker can constitute a necessitous and
compelling reason to quit one’s employment. Comitalo v. Unemployment Comp. Bd.
of Review, 737 A.2d 342, 344 (Pa. Cmwlth. 1999). However, “[p]ersonality conflicts,
absent an intolerable work atmosphere, do not amount to a necessitous and compelling
cause for leaving one’s employment.” Wert, 41 A.3d at 940; see First Fed. Sav. Bank
v. Unemployment Comp. Bd. of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008) (stating
that “[r]esentment of a reprimand, absent unjust accusations, profane language or
abusive conduct[,] . . . mere disappointment with wages[,] . . . and personality conflicts,
absent [an] intolerable working atmosphere” are not necessitous and compelling
reasons for voluntarily quitting).
      Here, the Board concluded that Claimant voluntarily quit, not because of
harassment, but because he was dissatisfied with Employer’s disciplinary action
following the March 1, 2017 altercations. While Claimant testified that he quit because
Whitey was verbally and physically harassing him, the Board disbelieved Claimant’s
testimony. Bd.’s Op. at 1. Rather, the Board credited Employer’s testimony that
Claimant and Whitey merely had a history of “personality conflicts,” which is not a
necessitous and compelling reason to voluntarily quit. See Wert, 41 A.3d at 940; First
Fed., 957 A.2d at 816. Mr. Rapp testified that based on his discussions with Claimant
and other employees, “I knew there was some things going on [between Claimant and
Whitey]. There was [sic] personality conflicts. I didn’t know that things were as
physical as [Claimant is] describing them.” N.T., 5/25/17, at 16; see id. at 19. Ms.
Myers, the human resources coordinator, also testified: “[W]hen we investigated th[e


                                            6
March 1, 2017] incident[,] we did not deem this as a physical fight. There were nudges
and bumps, not rammings and hand to hand combat.” Id. at 15.5
       We conclude that the record contains substantial evidence to support the Board’s
determination that Claimant voluntarily quit because he was dissatisfied with
Employer’s punishment following the March 1, 2017 altercations. Claimant’s own
testimony corroborated Employer’s testimony that on the day he resigned, Claimant
was upset that Employer suspended him and did not discharge Whitey. N.T., 5/25/17,
at 11. Mr. Rapp testified that Claimant stated that he “didn’t feel that [Whitey] had
enough punishment, and [Claimant] was unfairly punished. . . . [Claimant] didn’t think
he should have [had] any time off for the incident.” Id. at 16. This Court has held that
dissatisfaction with an employer’s disciplinary action is not a necessitous and
compelling reason to voluntarily terminate one’s employment. Gioia v. Unemployment
Comp. Bd. of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995). Moreover, an employer’s
refusal to discharge a co-worker at the claimant’s request constitutes mere
dissatisfaction with working conditions and is not a compelling reason for voluntarily
quitting. Oller v. Unemployment Comp. Bd. of Review, 426 A.2d 741, 742 (Pa.
Cmwlth. 1981).
       Claimant also failed to establish that he made a reasonable effort to preserve his
employment before voluntarily quitting. Ms. Myers explained Employer’s conflict
resolution policy as follows:

       We do not have a written policy but we had verbally gone over that with
       employees in employee meetings explaining to them that they can go to
       their direct supervisor and after that or if they don’t feel comfortable
       going to their direct supervisor, then they can go to [the] Vice President
       of Manufacturing and Operations, and then they also can come to [me] .

       5
        Ms. Myers testified that Employer’s investigation revealed that during the second altercation,
Whitey “was doing the bumping with the elbows as [a] defense to get away from [Claimant] who was
towering over him and trying to . . . intimidate him.” N.T., 5/25/17, at 15.

                                                  7
       . . and then also . . . [to] the Owner [and] President of the company. We
       consider it an open-door policy.

N.T., 5/25/17, at 14 (emphasis added).                Although Claimant had discussed the
harassment with his immediate supervisor, he never reported it to upper-level
management pursuant to Employer’s policy. Id. at 12, 14. Moreover, Claimant quit
the day after serving his one-day suspension and before Whitey had returned to work
from his three-day suspension. Therefore, we agree with the Board’s conclusion that
Claimant “did not allow time to see if the work environment improved after the
suspensions.” Bd.’s Op. at 1.
                          2. Board’s Findings of Fact 7, 8, and 15
       Next, Claimant contends that the Board erred in rejecting Claimant’s testimony
regarding the March 1, 2017 altercations when Claimant was the only eyewitness to
testify about what transpired. Specifically, Claimant challenges the Board’s findings
that: Claimant confronted Whitey in the second altercation (F.F. No. 7); Whitey acted
out of self-defense in the second altercation (F.F. No. 8); and Claimant did not use
Employer’s conflict resolution process before quitting (F.F. No. 15).6
       Claimant’s challenges to these Findings of Fact are merely challenges to the
Board’s credibility determinations. Contrary to Claimant’s assertion on appeal, the
Board may reject the testimony of any witness, even if the witness’s testimony is
uncontradicted. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1003
(Pa. Cmwlth. 2010); see Stockdill v. Unemployment Comp. Bd. of Review, 368 A.2d
1341, 1343 (Pa. Cmwlth. 1977) (“[T]he Board . . . may reject even uncontradicted
testimony if it is deemed not credible or worthy of belief.”).

       6
         In his brief, Claimant also argues that the Board capriciously disregarded competent
evidence. Claimant’s Br. at 19-20. However, in his Petition for Review, Claimant asserted only that
the Board’s determination was unsupported by substantial evidence. Pet. for Review, 10/17/17, ¶ 5.
Therefore, because Claimant did not raise the capricious disregard issue in his Petition for Review, it
is waived. See Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95, 96 (Pa. Cmwlth. 2011).

                                                  8
      Here, the Board credited the testimony of Employer’s witnesses regarding the
March 1, 2017 altercations between Claimant and Whitey. Although Mr. Rapp and
Ms. Myers were not present during either incident, their testimony was based on their
discussions with Claimant following the altercations as well as their investigation of
the incidents. Based on that testimony, the Board found that Employer determined that
Claimant confronted Whitey and Whitey acted out of self-defense in the second
altercation. The Board acted within its discretion in crediting Employer’s testimony
over Claimant’s. See Bell, 921 A.2d at 26 n.4. We conclude that the testimony of Mr.
Rapp and Ms. Myers was sufficient to support Findings of Fact 7 and 8.
      With regard to Finding of Fact 15, Ms. Myers’ testimony, which was credited
by the Board, was sufficient to support the Board’s finding that Claimant failed to avail
himself of Employer’s conflict resolution process, as discussed above. See N.T.,
5/25/17, at 14.
                                      Conclusion
      Accordingly, because we conclude that Claimant is ineligible for benefits under
Section 402(b) of the Law, we affirm the Board’s Order.




                                       ________________________________
                                       ELLEN CEISLER, Judge




                                           9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronald K. Mathieu,                :
                 Petitioner       :
                                  :
     v.                           : No. 1442 C.D. 2017
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER


     AND NOW, this 5th day of October, 2018, the Order of Unemployment
Compensation Board of Review, dated September 18, 2017, is hereby AFFIRMED.




                                  ________________________________
                                  ELLEN CEISLER, Judge
