            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Ream,                                  :
                              Appellant         :
                                                :
                       v.                       :   No. 872 C.D. 2018
                                                :   ARGUED: April 9, 2019
Pennsylvania Department of                      :
Public Welfare                                  :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                              FILED: May 3, 2019


               Jennifer Ream (Ream) appeals from an order of the Court of Common
Pleas of the Seventeenth Judicial District (Snyder County Branch) (trial court) that
denied her motion for post-trial relief seeking reconsideration of a non-jury verdict
in favor of her former employer, the Pennsylvania Department of Public Welfare
(Department).1 We affirm.
               The present appeal originated with Ream’s four-count discrimination
complaint alleging that the Department violated the Pennsylvania Human Relations
Act (PHRA)2 and asserting the following counts: Count I-PHRA-Hostile Work




   1
       In 2014, the Department changed its name to the Department of Human Services.
   2
       Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951 - 963.
Environment Based on Disability;3 Count II-PHRA-Disability Based Constructive
Discharge; Count III-PHRA-Retaliatory Hostile Work Environment; and Count
IV-PHRA-Constructive Discharge due to Retaliation for Protected Activity (Equal
Opportunity Employment Commission “EEOC” complaints).4 (October 19, 2015,
Complaint 1-12; Reproduced Record “R.R.” at 12-21.) Ream appeals only from the
verdict as to Count IV.
               In support of the verdict, the trial court adopted the Department’s
proposed findings of fact and conclusions of law and rendered an opinion specifying
the evidence and the law upon which it relied.5 Pursuant to the foregoing, the
pertinent background is as follows.             From 2005 to 2014, Ream worked as a
residential services aide (RSA) at Selinsgrove Center (Center). (Finding of Fact
“F.F.” No. 1.) The Center is a home for mentally challenged persons and an RSA
provides direct care with respect to activities such as dental care, dressing,
showering, and help with meals. (F.F. Nos. 2 and 3.) Beginning in 2011, Ream
worked the 2:00 p.m. to 10:30 p.m. shift. (F.F. No. 4.) Although her tenure at the
Center was not without incident,6 she received consistently positive job evaluations
over the course of her employment.

    3
       The alleged disability consisted of “mental impairments of generalized anxiety and major
depressive disorder.” (October 19, 2015, Complaint at ¶9; Reproduced Record “R.R.” at 13.)
     4
       Over the course of her employment, Ream filed five complaints with the EEOC: August
2011-gender discrimination; February 2012-unfavorable performance evaluation in retaliation for
2011 filing; April 2013-retaliation for pending claims; February 2014-discrimination and
retaliation for engaging in a protected activity; and July 2014-constructive discharge due to hostile
work environment. (Findings of Fact “F.F.” Nos. 43, 44, 46, 49, and 52.)
    5
      (Department’s Proposed Findings of Fact and Conclusions of Law; Reproduced Record
“R.R.” at 155-68.)
    6
      There is no indication that the Center investigated any of these incidents in a manner
inconsistent with the processes required by the applicable collective bargaining agreement or that
it administered inappropriate discipline for any infractions. (See F.F. Nos. 20-42.)


                                                 2
             At any rate, the incident that precipitated Ream’s decision to quit her
job occurred in June 2014 when a resident wandered away while Ream was assisting
four other residents with dining. (F.F. Nos. 34 and 36.) Ream believed that another
RSA was monitoring the resident in the restroom. (F.F. No. 37.) On July 10, 2014,
Ream quit her job out of fear of possible termination. (Trial Transcript “T.T.” at
186 and 188; R.R. at 357 and 359.) She voluntarily terminated her position
notwithstanding a “satisfactory” final work evaluation and special commendations
from her work supervisor. (Trial Court’s June 4, 2018, Op. at 3.) In August 2014,
the Department issued a notice of no-discipline to Ream regarding the June 2014
incident. (F.F. No. 39.)
             In October 2015, Ream filed the instant complaint. After a two-day
non-jury trial, the trial court entered a verdict in favor of the Department. In Ream’s
motion for post-trial relief, she abandoned Count I but sought the trial court’s
reconsideration of the remaining three counts. The trial court denied Ream’s motion
for post-trial relief. As noted, the instant appeal pertains only to Count IV.
             On appeal, we consider whether the trial court erred in determining that
Ream failed to satisfy the elements necessary for establishing a claim for
constructive discharge due to retaliation for protected activity.       In conducting
appellate review in a non-jury case, we are limited to determining whether the trial
court’s findings of fact are supported by competent evidence and whether it erred in
applying the law. Piston v. Hughes, 62 A.3d 440, 443 (Pa. Super. 2013). “Findings
of the trial judge in a non-jury case must be given the same weight and effect on
appeal as a verdict of a jury and will not be disturbed on appeal absent error of law
or abuse of discretion.” Id. In addition, “[w]hen this Court reviews the findings of
the trial judge, the evidence is viewed in the light most favorable to the victorious



                                          3
party below and all evidence and proper inferences favorable to that party must be
taken as true and all unfavorable inferences rejected.” Id. As in other cases,
conclusions of law are not binding on an appellate court and our review of questions
of law is plenary. Id.
             In support of her position, Ream primarily asserts that the trial court
abused its discretion and capriciously disbelieved her evidence by failing to view the
totality and timing of the events. To that end, she has substituted her proposed
findings of fact for the ones that the trial court adopted. However, her substitution
constitutes an improper attempt to have this Court reassess the credibility of
witnesses and reweigh the evidence. Accordingly, mindful that the trial court
adopted the Department’s proposed findings of fact, we turn to an analysis as to
whether Ream established a claim for constructive discharge due to retaliation for
protected activity.
             In general, a claimant attempting to establish constructive discharge
“‘must prove first that [she] was discriminated against by [her] employer to the point
where a reasonable person in [her] position would have felt compelled to resign.’”
Kegerise v. Delgrande, 183 A.3d 997, 1003 (Pa. 2018) [quoting Green v. Brennan,
___ U.S. ___, ___, 136 S. Ct. 1769, 1777 (2016)]. A claimant must establish more
than a stressful work environment. Duffy v. Paper Magic Grp., Inc., 265 F.3d 163
(3d Cir. 2001). Specifically, factors that employees commonly cite when making a
constructive discharge claim include: an employer threatens discharge and/or urges
or suggests that an employee resign or retire; an employer demotes an employee or
reduces his pay or benefits; an employer transfers an employee to a less desirable
position and/or alters his job responsibilities; and/or an employer gives an employee




                                          4
unsatisfactory job evaluations. Clowes v. Allegheny Hosp., 991 F.2d 1159, 1161 (3d
Cir. 1993).
              In the present case, the trial court concluded that Ream failed to
establish any of the Clowes factors. Specifically, the trial court found no indication
that the Department threatened discharge or urged Ream to resign, instead affording
weight to her admission that she quit out of fear of termination after a resident
wandered away from the Center. In so doing, the trial court disregarded her
subjective belief that the Department planned to terminate her employment and
attributed significance to the fact that she chose to quit despite her final work
evaluation of “satisfactory” and special commendations from her work supervisor.
See Charles v. Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa.
Cmwlth. 1989) (“[w]here an employee resigns in order to avoid the chance of being
fired, that employee is deemed to have voluntarily quit”).
              In addition, there is no indication that the Department punished Ream
and/or singled her out by transferring her to a less desirable position or altering her
job responsibilities.   Instead, regarding one instance when the Department
reassigned Ream to another area, the trial court found that the Department reassigned
all of the staff members from the housing unit under review to other areas during the
pendency of the investigation regarding a specific incident. (F.F. Nos. 24-25.)
              Further, notwithstanding Ream’s allegations that she experienced
retaliation for the EEOC complaints, Ream conceded that her lowest evaluation was
“satisfactory” and that she received several “commendable” evaluations. (T.T. at
91-92; R.R. at 262-63.) As the trial court observed, her final evaluation indicated a
“satisfactory” in every category and a final comment from her work supervisor of




                                          5
“Thanks for your dedication in doing a good job.” (Trial Court’s March 26, 2018,
Op. at 4.) More specifically, the trial court found:

                 [PB], a coworker [registered nurse], testified that Ms.
                 Ream “was very caring,” “very good at her job.” [T.T. at
                 127; R.R. at 298.] [NI], a Residential Services Supervisor,
                 who worked with Ms. Ream for a period of two years and
                 had occasion to observe [her] job performance, stated she
                 performed her job duties, stuck to the routine, and took
                 care of her charges. He never had any concerns about the
                 way she interacted with her coworkers, never observed
                 staff “picking on her.” [T.T. at 357-58; R.R. at 528-29.]

(Id. at 3-4.)
                 Moreover, in concluding that there was no retaliation in response to
Ream’s EEOC complaints, the trial court determined that none of the trial witnesses,
none of the individuals who allegedly were hostile to Ream, and none of the
coworker-witnesses to her job performance had knowledge of those complaints.
(Trial Court’s March 26, 2018, Op. at 5-6.) Consistent with this, the trial court
accepted the testimony of the director of human resources at the Center that such
complaints were confidential, were not kept as part of an employee’s personnel file,
and were not disclosed to coworkers.7 (Id.) Mindful that Ream had to prove “actual
knowledge and real intent” by the persons alleged to have caused any retaliatory
employment actions in order to establish causation between the protected activity
and those alleged actions,8 the trial court did not err in determining that she failed to




    7
        (T.T. at 377; R.R. at 548.)
    8
        Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002).



                                                 6
establish constructive discharge due to retaliation for protected activity in support of
Count IV.9
               Accordingly, we affirm.


                                               _____________________________________
                                               BONNIE BRIGANCE LEADBETTER,
                                               Senior Judge




    9
      Given our determination that Ream failed to satisfy the elements necessary for establishing
a claim under Count IV, we need not reach the Department’s argument that she waived Count IV
by failing to appeal from the trial court’s verdict against her regarding Count III-retaliatory hostile
work environment.


                                                  7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Ream,                        :
                       Appellant      :
                                      :
                 v.                   :   No. 872 C.D. 2018
                                      :
Pennsylvania Department of            :
Public Welfare                        :


                                   ORDER


           AND NOW, this 3rd day of May, 2019, the order of the Court of
Common Pleas of the Seventeenth Judicial District (Snyder County Branch) is
hereby AFFIRMED.



                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
