           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tamara A. Forsyth,                            :
                             Petitioner       :
                                              :
                v.                            :   No. 127 C.D. 2015
                                              :   Submitted: August 28, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: October 16, 2015

                Tamara A. Forsyth (Claimant) petitions for review from the order of
the Unemployment Compensation Board of Review (Board) that determined she
was ineligible for unemployment compensation (UC) benefits pursuant to Section
402(b) of the UC Law (Law) (voluntary quit).1 Claimant contends the Board erred
in determining she quit without cause of a necessitous and compelling nature. She
argues her direct supervisor created intolerable working conditions in retaliation for
her complaints about his behavior. Discerning no error below, we affirm.


                                      I. Background
                Claimant worked for East Pikeland Township (Employer) as an
administrative assistant for the chief of police (Chief). In October 2013, Claimant


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
was in a motor vehicle accident and needed back surgeries and epidural injections.
She took leave while receiving treatment.         On February 2, 2014, the Chief
discharged Claimant, advising that he could not wait for her recovery. Claimant was
released by her doctor to return to work on February 20, 2014. After Claimant’s
attorney contacted Employer threatening a disability discrimination claim, Claimant
was called back to work on May 12, 2014.


               After returning to work, the Chief kept his door closed and maintained
minimal conversations with Claimant. He also delegated parts of Claimant’s job to
other employees. Claimant reported the Chief’s treatment of her to Employer’s
Board of Supervisors (Supervisors). The Supervisors then discussed the matter with
the Chief. The Chief was irate and warned Claimant against going over his head.


               Claimant reported his reaction to her attorney, who contacted the
Supervisors.     The Supervisors investigated the matter.      As a result of that
investigation, the Supervisors suspended the Chief for two months.


               After notifying Claimant that the Chief was returning to work, the
Supervisors offered her a position outside the police department.         Instead of
accepting the offer, Claimant resigned her position before the Chief returned to
work. In her resignation letter, Claimant stated, “[b]ased on [Employer’s] decision
… to reinstate [the Chief] following the discriminatory and retaliatory conduct
against me, I feel that I cannot tolerate working for, with or around him.” Bd. Op.,
1/9/15, Finding of Fact (F.F.) No. 20. Claimant then applied for benefits, which the
local service center denied under Section 402(b) of the Law. Claimant appealed.



                                           2
            A referee held a hearing where Claimant, represented by counsel,
testified, and Employer appeared by counsel only. The referee affirmed, reasoning
Claimant did not establish a necessitous and compelling reason to leave work as
required by Section 402(b) of the Law. Claimant appealed to the Board.


            The Board affirmed the referee, issuing 22 findings of fact and its own
decision regarding Claimant’s ineligibility for benefits.    The Board made the
following pertinent findings:

            8. After [Claimant’s return] to work, the [Chief] would keep
            his door closed, he would have minimal conversations with
            [Claimant] and he delegated parts of [Claimant’s] job to other
            employees.

            9. [Claimant] told [a] township supervisor about the [Chief’s]
            conduct and he would check in once in a while to see how she
            was doing.

            10.   [Claimant] reported the [Chief’s] conduct to the
            [Supervisors].

            11. On July 2, 2014, the Supervisors met with the [Chief] and
            afterwards the [Chief] asked [Claimant] to go to lunch to try to
            clear the air.

            12. After the lunch, the [Chief] pointed his finger in
            [Claimant’s] face and said, “how dare you go over my head,
            how dare you report me. I’m the one that gives you raises.
            I’m the one that gives you time off, you know, you hurt me,
            you went over my head.”

                                         [***]

            14. [Claimant] contacted her attorney about the conversation
            with the [Chief], who then contacted the [Supervisors].



                                        3
            15. [Employer] conducted an investigation and talked to
            [Claimant].

            16. On July 3, 2014, the [Supervisors] suspended the [Chief]
            for two (2) months.

            17. [Claimant] wanted the [Chief] not to return back to work
            with [Employer].

            18. On September 2, 2014, the [Supervisors] advised
            [Claimant] that the [Chief] was returning to work.

            19. [Employer] offered [Claimant] another position outside
            the police department.

            20. [Days later], [Claimant] submitted a resignation letter ….

Bd. Op., F.F. Nos. 8-12, 14-20.


            The Board reasoned Claimant did not establish discriminatory or
retaliatory conduct by the Chief.    The Board explained, “[Claimant] … only
testified that the [Chief] delegating some of her job duties away was retaliatory.”
Bd. Op. at 3. That the Chief “closed his door more often and had minimal
conversations with her … [did not] establish an intolerable work atmosphere.” Id.
Regardless of whether Claimant established an intolerable work atmosphere, the
Board determined:

            [Claimant] also failed to establish that she made
            reasonable efforts to preserve her employment.
            [Claimant] did not establish that [Employer’s] actions
            against the [Chief] were ineffectual. [Employer] had not
            previously suspended the [Chief] for two (2) months and
            [Claimant] did not wait for his return to see if his
            behavior had changed. Further, [Employer] offered
            [Claimant] other employment but [Claimant] failed to
            pursue it prior to quitting.



                                        4
Bd. Op. at 4. Claimant now petitions for review.2


                On appeal,3 Claimant argues the Board erred as a matter of law in
determining that her work environment did not constitute a necessitous and
compelling reason to quit. She claims the Chief treated her “in such poor fashion
that it could only be viewed as a systematic campaign of [sic] undertaken with the
intent to make her uncomfortable and ultimately force her to resign ….” Pet’r’s
Br. at 8. Claimant contends her unwillingness to continue working with the Chief
was reasonable.        She also disclaims responsibility for allowing Employer an
opportunity to prove the effectiveness of its disciplinary measures. Further, she
denies Employer offered her other employment, asserting such a finding is
unsupported by the record.


                                          II. Discussion
                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. §802(b).         An employee who claims to have left employment for a
necessitous and compelling reason bears the burden of proof. Middletown Twp. v.
Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012).

      2
          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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d
1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would
accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review,
52 A.3d 558 (Pa. Cmwlth. 2012).
      3
          Although it intervened, Employer did not file a brief.



                                                 5
            To prove a necessitous and compelling reason for leaving
employment, a claimant must demonstrate the following:          (1) circumstances
existed which 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 her employment. Solar Innovations,
Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051 (Pa. Cmwlth. 2012).
An employer has no burden of proof in a voluntary quit case.           Johnson v.
Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).


            The question of whether a claimant has a necessitous and compelling
reason to terminate employment is a question of law reviewable by this Court.
Middletown Twp.       “[M]ere dissatisfaction with the employer’s policies or
procedures alone is not cause of a necessitous and compelling nature to voluntarily
terminate employment.” Tom Tobin Wholesale v. Unemployment Comp. Bd. of
Review, 600 A.2d 680, 683 (Pa. Cmwlth. 1991). Further, disagreement with a
disciplinary policy is not a compelling reason to leave employment. Oller v.
Unemployment Comp. Bd. of Review, 426 A.2d 741 (Pa. Cmwlth. 1981).


            Harassment may constitute a necessitous and compelling nature to
quit when a claimant makes attempts to resolve the situation.         Comitalo v.
Unemployment Comp. Bd. of Review, 737 A.2d 342 (Pa. Cmwlth. 1999).
However, to establish a necessitous and compelling cause, “a claimant must show
that she made her employer aware of the harassment.”         St. Barnabas, Inc. v.
Unemployment Comp. Bd. of Review, 525 A.2d 885, 887 (Pa. Cmwlth. 1987).



                                        6
            Claimant argues she had no obligation to preserve employment with
Employer based on our decision in Comitalo.          There, a supervisor sexually
harassed the claimant.       After receiving repeated complaints, the employer
transferred the supervisor to another location.     The supervisor’s replacement
subjected the claimant to constant criticism, which was joined by her co-workers,
who disapproved of her reporting the prior supervisor. The claimant advised the
employer of the criticism.     The employer took no action to stop the alleged
retaliation. Instead, the employer asked the claimant to “take a few days off and …
stick it out.” Comitalo, 737 A.2d at 344. The claimant did not return to work. The
referee found the employer did not take any action to remedy the harassment.
Although the Board disagreed, and denied benefits, this Court reversed the Board.


            Important to our analysis in Comitalo, we recognized an employer
bears the burden to take action in response to a claimant’s complaint about
harassment. We reasoned the employer did not take action to prevent further
harassment by suggesting the claimant take off work and allow things to settle
down.    The harassment in Comitalo started as sexual harassment, and then
continued as retaliation in response to the claimant’s reporting of the initial
harassment. Thus, this Court concluded the employer did not take proper steps to
enforce its harassment policy and to protect the claimant from further abuse.


            Comparing the current circumstances to those in Comitalo, we discern
material differences. Here, Claimant did not establish a hostile work environment.
The Board did not find that the Chief’s treatment of her constituted harassment. The
record reflects only that the Chief shut his door, reduced his conversation with



                                         7
Claimant, and was no longer friendly with her. Referee’s Hr’g, Notes of Testimony
(N.T.), 10/27/14, at 12, 14, 26; see Referee’s Hr’g Tr. at Ex. 2. That the Chief did
not talk with her often and closed his door more does not create a hostile work
environment compelling her to quit. Bd. Op. at 3; see Ann Kearney Astolfi, DMD
PC v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1288 (Pa. Cmwlth.
2010) (denying benefits under Section 402(b) as claimant established only
resentment after supervisor yelled at her; that work environment was
“uncomfortable” does not rise to the level of an intolerable work atmosphere).


             Also in contrast to Comitalo, Employer here responded to Claimant’s
complaints regarding the Chief’s conduct. When Claimant informed the Supervisors
that the Chief yelled at her for going over his head, Employer did not advise
Claimant to take a few days off and allow matters to settle like the employer in
Comitalo. Rather, Employer undertook an investigation. Then, it disciplined the
Chief as a means of addressing Claimant’s concerns.         Accordingly, Employer
undertook appropriate steps to remedy the situation.


             Moreover, Claimant did not establish that she made reasonable efforts
to retain her employment. St. Barnabas.        Importantly, Claimant admitted that
Employer offered her alternate employment. F.F. No. 19; N.T. at 25. Claimant
resigned instead of accepting a transfer. F.F. No. 20; N.T. at 25.


             Additionally, Claimant did not attempt to work with the Chief after he
was disciplined. Id. at 17; see Referee’s Hr’g Tr. at Ex. 4 (resignation letter).
Claimant’s disagreement with Employer’s disciplinary decision does not rise to the



                                          8
level of a necessitous cause to leave. Ann Kearney Astolfi; Oller. By leaving
before the Chief returned, Claimant did not allow for the possibility that
Employer’s discipline was effective. St. Barnabas, 525 A.2d at 888 (reversing
eligibility determination because claimant “submit[ed] her resignation without
giving the [e]mployer the opportunity to solve the problem.”). Therefore, she did
not demonstrate the work environment continued after Employer attempted to
remedy it by disciplining the Chief. For these reasons, we agree with the Board’s
determination that Claimant did not make reasonable efforts to preserve her
employment.


                                III. Conclusion
            Because Claimant did not establish a necessitous and compelling
reason for leaving employment, we affirm the Board.




                                     ROBERT SIMPSON, Judge




                                       9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tamara A. Forsyth,                  :
                     Petitioner     :
                                    :
           v.                       :   No. 127 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER

           AND NOW, this 16th day of October, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
