           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Laura Gordon,                                  :
                                               :
                             Petitioner        :
                                               :
              v.                               :   No. 290 C.D. 2015
                                               :
Unemployment Compensation                      :   Submitted: July 24, 2015
Board of Review,                               :
                                               :
                             Respondent        :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                     FILED: September 3, 2015


       Laura Gordon (Claimant), pro se, petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) finding Claimant
ineligible for benefits pursuant to Section 402(b) of the UC Law (Law). 1 Claimant
argues that the Board did not consider all of the reasons she provided for
voluntarily quitting her employment; therefore, the Board’s findings are
       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 a claimant is ineligible for compensation if her
unemployment is due to voluntarily leaving her employment “without cause of a necessitous and
compelling nature.” Id.
inadequate, misleading, and unsupported. Because the Board did not capriciously
disregard competent evidence and substantial evidence supports the Board’s
findings, we affirm.


      Claimant voluntarily terminated her employment as a Warranty Manager
with Pacifico Ford (Employer), a car dealership, in September 2014. (Board
Decision, Findings of Fact (FOF) ¶¶ 1, 9.) Claimant filed for UC benefits. The
UC Service Center determined that Claimant was ineligible for benefits under
Section 402(b) of the Law because Claimant did not meet her burden to show
necessitous and compelling reasons for quitting her employment.         (Notice of
Determination, C.R. at Item 4.) Claimant appealed and a hearing was held before a
UC Referee (Referee). Claimant appeared pro se and testified on her own behalf.
Employer did not appear to present any evidence.


      Claimant testified as follows.   Her last day working for Employer was
September 9, 2014. (Hr’g Tr. at 2, C.R. at Item 8.) In the months preceding
Claimant leaving her employment, Claimant’s office was moved into a place
abutting a co-worker’s office because Employer was reconstructing its building.
(Hr’g Tr. at 4.) The two offices were separated by a glass partition. (Hr’g Tr. at
4.) Claimant wanted to keep the glass partition shut because her workload had
recently increased and this particular co-worker was loud and often complained.
(Hr’g Tr. at 4.) The co-worker, however, wanted to have the partition opened
because she had concerns about the temperature in her office and desired fresh air.
(Hr’g Tr. at 4.) Claimant stored books in front of the partition to prevent the co-
worker from opening the glass. (Hr’g Tr. at 4.)


                                        2
      At some point prior to Claimant’s separation of employment, Employer’s
Service Manager went into the co-worker’s office and noticed that it was warm.
(Hr’g Tr. at 5.) Service Manager then moved the books away from the glass
partition without discussing it with Claimant. (Hr’g Tr. at 5-6.) Claimant became
upset upon observing that her books were moved. (Hr’g Tr. at 6.) She was about
to go speak to Service Manager about the issue when Claimant heard Service
Manager hollering her name in a manner that made Claimant think that Service
Manager did not want to hear her complaint.             (Hr’g Tr. at 6.)     Instead of
responding to Service Manager, Claimant walked right by him and refused to
respond to his attempts to discuss the issue with her. (Hr’g Tr. at 6-7.) Claimant
also ignored phone calls from Service Manager. (Hr’g Tr. at 7.) Claimant refused
to speak to him because she needed time to cool off and knew that if she spoke to
him she “was going to blow [her] top.” (Hr’g Tr. at 8.) Service Manager then
approached Claimant and told her that she should go home until she was ready to
speak to him. (Hr’g Tr. at 7.) Claimant went home and received an email from
Employer’s General Manager directing Claimant to come back into work. (Hr’g
Tr. at 7.) When Claimant returned to work she met with Service Manager and a
representative from Employer’s Human Resources Department. (Hr’g Tr. at 7.)
At some point during the discussion, Service Manager stated that he was going to
write Claimant up for insubordination, and the Human Resources representative
did not object. (Hr’g Tr. at 7-8.) The conversation made Claimant upset and she
told the group “I can’t take it anymore. . . . You just don’t want to listen to me. . . .
I am giving you my two weeks [notice] and that’s that.” (Hr’g Tr. at 7.)




                                           3
      Although Claimant testified that the incident involving the moving of her
books was “the straw that broke the camel’s back,” (Hr’g Tr. at 6), Claimant also
testified to other reasons that caused her to leave her job. According to Claimant,
Service Manager refused to accept her recommendations on how to improve the
functioning of the service department in order to deal with all the recalls. (Hr’g Tr.
at 5-6.) Claimant also noted that she has asked for a pay raise for years to no avail.
(Hr’g Tr. at 10-11.) Further, General Manager once embarrassed Claimant in front
of others for choosing to buy a car from another dealership. (Hr’g Tr. at 11.) Prior
to the incident related to the moving of the books, Claimant thought she was
having a heart attack that caused her to miss a few days of work. (Hr’g Tr. at 11-
12.) Claimant visited a cardiologist and was diagnosed with esophageal spasms
brought on by stress. (Hr’g Tr. at 12.) Claimant told General Manager upon her
return to work that her health concerns were brought on by stress due to her
increased work load and that she needed a pay raise. (Hr’g Tr. at 12.) General
Manager refused to give her a raise and told her that he could sublet her job for
much less cost to Employer than maintaining Claimant on the payroll. (Hr’g Tr. at
12.) General Manager then denied Claimant’s request to sublet the work to her so
that she could work from home.          (Hr’g Tr. at 12.)      Claimant also began
experiencing nervousness and twitching in her eye that became progressively
worse as she became more upset at work. (Hr’g Tr. at 13.) Finally, Claimant
testified about an incident in 2012 when she was written up for leaving the
building without permission after she became upset with her co-workers joking
around outside her office when they should have been working. (Hr’g Tr. at 15-
16.) Claimant’s sister was very ill during this time period; however, none of
Claimant’s co-worker’s acknowledged or recognized that her sister’s illness is


                                          4
what caused Claimant to behave in such a manner. (Hr’g Tr. at 16-17.) Claimant
testified that “all of these things eat at a person” and she could not take it anymore.
(Hr’g Tr. at 17.)

      The Referee affirmed the UC Service Center’s determination that Claimant
was ineligible for UC benefits pursuant to Section 402(b) of the UC Law.
Claimant appealed the Referee’s decision to the Board.           After reviewing the
evidence presented, the Board made the following findings of fact:

   1. The claimant was last employed as a warranty administrator by
      Pacifico Ford at a final rate of approximately $1,100 per week. The
      claimant began employment on June 10, 2000, and her last day of
      work was September 9, 2014.

   2. The claimant made a suggestion to the service manager about
      changing the way the employer did rental bills, but the suggestion was
      denied by the service manager.

   3. The employer was doing construction on its building and the claimant
      shared an office with another employee.

   4. The employee would complain about the temperature of the office and
      that she needed fresh air.

   5. Prior to her separation of employment, the service manager went into
      the office and moved the claimant’s books because he believed it was
      hot in the office.

   6. The claimant was upset that the service manager moved the books and
      did not discuss it with her.

   7. The service manager made attempts to talk to the claimant, but she
      would walk away from him and not pick up his phone calls.

   8. The claimant met with the service manager and a human resources
      person and was notified that she was being written up for
      insubordination because she refused to speak to the service manager.

                                          5
      9. In mid-August, the claimant gave her two weeks’ notice and
        voluntarily quit her employment because the service manager moved
        her books and she received a write up for insubordination.

(FOF ¶¶ 1-9.)

        The Board recognized that the record included several reasons why Claimant
voluntarily terminated her employment; specifically, “dissatisfaction with her pay,
wanting to work from home as a sublet, esophageal spasms, eye twitches, a prior
write up, and past interactions with employees during her entire employment.”
(Board Decision at 2.) However, the Board pointed out that Claimant indicated on
her application for UC benefits “that she quit because she could no longer tolerate
her supervisor or general manager” and that she “testified that the ‘straw that broke
the camel’s back’ was when the service manager moved the books in her office
and she received a write up.” (Board Decision at 2.) Thus, the Board discredited
Claimant’s testimony that she quit for other reasons. (Board Decision at 2.) On
appeal to the Board, Claimant asserted that she quit due to health reasons and made
additional assertions; however, the Board was unable to consider evidence that was
not presented to the Referee. (Board Decision at 3.) The Board held that, because
Claimant “did not establish that her work environment was intolerable, that the
write up was unwarranted, or that she made reasonable efforts to preserve her
employment prior to quitting,” Claimant did not meet her burden to show
compelling and necessitous reasons to quit her employment. (Board Decision at
3.)    Accordingly, the Board determined that Claimant was ineligible for UC




                                         6
benefits pursuant to Section 402(b) of the Law. Claimant now petitions this Court
for review.2


       On appeal to this Court, Claimant argues that the Board’s conclusion that
she voluntarily quit without necessitous and compelling reasons is based on
insufficient, inadequate, and misleading findings of facts. Claimant contends that
the Board ignored the proffered reasons for her voluntarily termination.3




       2
         This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of facts are
supported by substantial evidence. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa.
2014).

       3
          Claimant also contends that the Referee’s conduct during her hearings was “insouciant”
and that the Referee “displayed [a] lack of interest” in her testimony. (Claimant’s Br. at 6.)
Claimant contends that, if the Referee had “listened earnestly to me rather than glancing at the
clock every so often, he would not have arrived at his conclusion.” (Claimant’s Br. at 6.) We
will construe Claimant’s averments as an argument that she did not receive a fair hearing.
However, Claimant did not raise these concerns in her appeal to the Board. (Claimant’s Petition
for Appeal from Referee’s Decision/Order, Dated 10/29/2014, C.R. at Item 10.) Issues not
raised to the Board are waived for purposes of appeal. Chapman v. Unemployment
Compensation Board of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011). Even if Claimant did
not waive this argument, a close review of the hearing transcript reveals that Claimant was given
a fair hearing. “A fair hearing is provided if the right to counsel and the right to cross-examine
and the right to testify freely are afforded.” Kogel v. Unemployment Compensation Board of
Review, 411 A.2d 1273, 1274 (Pa. Cmwlth. 1980). Here, the Referee gave Claimant ample time
to explain the facts underlying her case, asked Claimant clarifying questions throughout her
testimony that exhibited his attention to detail, and asked Claimant if she had anything else to
add before closing the hearing. Thus, “absent a showing that the referee improperly refused to
admit competent and material evidence,” this Court cannot hold that Claimant was not provided
a fair hearing. Lauffer v. Unemployment Compensation Board of Review, 493 A.2d 249, 251
(Pa. Cmwlth. 1981).

                                                7
      Under Section 402(b) of the Law, voluntary termination of employment
renders an employee ineligible for unemployment compensation benefits unless the
employee left for “cause of a necessitous and compelling nature.” 43 P.S. §
802(b).    “Whether a claimant has necessitous and compelling reasons for
terminating her employment is a question of law subject to appellate review.”
Wise v. Unemployment Compensation Board of Review, 111 A.3d 1256, 1261
(Pa. Cmwlth. 2015). The claimant has the burden of proving that he or she had a
necessitous and compelling cause for leaving employment.                Taylor v.
Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). A
necessitous and compelling cause “results from circumstances which produce
pressure to terminate employment that is both real and substantial, and which
would compel a reasonable person under the circumstances to act in the same
manner.”    Id. at 832-33.   A claimant has not demonstrated necessitous and
compelling cause when she “has failed to take all necessary and reasonable steps to
preserve the employment relationship.” Nolan v. Unemployment Compensation
Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002).


      In unemployment compensation cases, the Board is the ultimate factfinder
and its findings “are conclusive on appeal if the record contains substantial
evidence to support those findings.”        American General Life and Accident
Insurance Company v. Unemployment Compensation Board of Review, 648 A.2d
1245, 1248 (Pa. Cmwlth. 1994). “Substantial evidence is such relevant evidence
which a reasonable mind might accept as adequate to support a conclusion.” Id.
Although we cannot intrude on the Board’s fact-finding role, we must ensure that
cases are decided upon the evidence presented because an “adjudication cannot be


                                        8
in accordance with law if it is not decided on the basis of law and facts properly
adduced.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 (Pa. 2002). In cases where a claimant contends that
the factfinder “ignored overwhelming evidence without comment,” we apply a
“capricious disregard” standard. Wise, 111 A.3d at 1263. “A capricious disregard
of evidence occurs where the factfinder willfully and deliberately disregards
competent and relevant evidence that one of ordinary intelligence could not
possibly have avoided in reaching a result.” Id. at 1262. We have said that
capricious disregard “is just another name for the agency abusing its discretion and
is an error of law when the agency fails to give an indication that it has examined
countervailing substantive testimony that had to be considered at arriving at its
decision.” Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005).
When conducting such a review, we may not reweigh the evidence or make
credibility determinations. Wise, 111 A.3d at 1263.


      Applying the above principles, we conclude that the Board did not
capriciously disregard competent and relevant evidence. Claimant contends that
the Board disregarded her testimony that she resigned for a variety of reasons
including: (1) an increase in workload that caused her stress and health concerns;
(2) denial of her request to work from home; (3) insulting remarks made to her by
Service Manager; and (4) Service Manager reacting to her suggestions on running
the service department with condescension.        The Board did not ignore this
evidence without comment. The Board expressly rejected Claimant’s testimony
that she quit for these reasons as not credible. The Board explained that, although
the record contains numerous reasons why Claimant voluntarily quit, Claimant


                                         9
testified that “the ‘straw that broke the camel’s back’ was when the service
manager moved her books and she received a write up for insubordination.”
(Board Decision at 2.) In addition, Claimant did not present any evidence of health
issues, such as a medical record, or documentation of her requests. As such, we
conclude that the Board examined the evidence as a whole and used its discretion
to determine that all of Claimant’s justifications for her voluntary termination were
not credible except for her testimony on the incident involving the moving of her
books that resulted in her write up for insubordination.


      We also conclude that substantial evidence supports the Board’s findings
that Claimant voluntarily quit her employment because Service Manager moved
her books and she received a write up for insubordination. Claimant testified that
she became upset at the meeting with Service Manager and the Human Resources
representative where the incident was discussed and said, “I can’t take it anymore.
. . . You just don’t want to listen to me. . . . I am giving you my two weeks
[notice] and that’s that.”    (Hr’g Tr. at 7.)     Although Claimant’s voluntary
termination may have been partially motivated by wider concerns, substantial
evidence supports the Board’s finding that Claimant quit her employment due to
the incident where Service Manager moved her books.


      We now turn to the issue of whether the Board erred by holding that,
because Claimant “did not establish that her work environment was intolerable,
that the write up was unwarranted, or that she made reasonable efforts to preserve
her employment prior to quitting,” Claimant did not meet her burden to show



                                         10
compelling and necessitous reasons to quit. (Board Decision at 3.) As this Court
has explained:

      The law is clear. Resentment of a reprimand, absent unjust
      accusations, profane language or abusive conduct; mere
      disappointment with wages; and personality conflicts, absent an
      intolerable working atmosphere, do not amount to necessitous and
      compelling causes.

Lynn v. Unemployment Compensation Board of Review, 427 A.2d 736, 737 (Pa.
Cmwlth. 1981) (citations omitted). Our review of Claimant’s testimony reveals
that the working relationship between Claimant and Service Manager appeared to
be strained and that they resented each other. (Hr’g Tr. at 10.) However, there is
no evidence that Service Manager used profanity, exhibited abusive conduct
toward Claimant, or made unjust accusations against her when he attempted to
communicate with her about the book incident or during the meeting with the
Human Resources representative when Service Manager informed Claimant that he
was going to write her up for insubordination. As such, Claimant has not shown
that her contentious relationship with Service Manager resulted in an intolerable
work environment.


      In addition, there is no evidence that Claimant tried to preserve her
employment. The record demonstrates that Service Manager attempted to discuss
the moving of the books and opening of the glass partition with Claimant and that
Claimant avoided the discussion by ignoring Service Manager’s calls. At the
meeting where Claimant met with Service Manager and a Human Resources
representative to discuss the incident further, Claimant gave a two-week notice
after being told she was going to receive a write up as a result of ignoring Service

                                        11
Manager. There is no evidence that Claimant made any effort to resolve her
conflict with Service Manager or challenge the write up for insubordination before
terminating her employment. Therefore, Claimant did not “take all necessary and
reasonable steps to preserve the employment relationship.” Nolan, 797 A.2d at
1046. Accordingly, Claimant did not meet her burden to show a necessitous and
compelling reason for voluntarily quitting her employment.


      For the foregoing reasons, we affirm the Board’s Order.



                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                       12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Laura Gordon,                         :
                                      :
                       Petitioner     :
                                      :
           v.                         :   No. 290 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER



     NOW, September 3, 2015, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
