                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Access Ability, Inc.,                          :
                   Petitioner                  :
                                               :   No. 2136 C.D. 2014
              v.                               :
                                               :   Submitted: July 17, 2015
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                               FILED: August 18, 2015


              Access Ability, Inc. (Employer) petitions for review of the October 28,
2014 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s determination that Linda S. Heberling (Claimant) had a
necessitous and compelling reason to terminate her employment and, therefore, was
not ineligible for benefits pursuant to section 402(b) of the Unemployment
Compensation Law (Law).1 We affirm.
              Claimant worked as a full-time administrative assistant for Employer
from September 14, 2009, through April 10, 2014. Claimant voluntarily resigned

       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 benefits for any week
“in which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and
compelling nature. . . .” Id.
from her employment on April 10, 2014, after Ham Malek, Employer’s president,
threatened her with a suspension and a lawsuit. (Findings of Fact Nos. 1, 7.) The
local service center granted Claimant’s application for benefits, and Employer
appealed. The referee convened a hearing at which Claimant, Malek, and Pam
Beattie, Employer’s operations manager, testified.
             Claimant testified that she was not discharged but voluntarily left her
employment on April 10, 2014. (Notes of Testimony (N.T.) at 5.) Claimant said that
she quit because Malek created “a continuous hostile environment;” made “threats of
suspension and firing on a repeated basis;” and subjected her and other staff members
to “emotional abuse . . . for a very long time.” (N.T. at 5.) Claimant stated that she
first informed Beattie, her immediate supervisor, of Malek’s activities, and later told
Malek “that what he was doing was abuse,” (N.T at 12); nevertheless, she said, Malek
continued his objectionable conduct, and there were no other high-ranking officials to
whom Claimant could have voiced her complaints. (N.T. at 13.)
             Claimant explained that approximately four months after she was hired,
Malek began to engage in discussions with her regarding her work performance.
According to Claimant, Malek’s comments consisted of “innuendos and false
accusations,” and when Claimant would try to explain or defend her actions, Malek
would call her “names,” most oftentimes a “debater.” (N.T. at 5.) Claimant testified
that Malek would tell her not to respond to his criticisms and would not give her the
opportunity to explain or defend her conduct. In addition, Claimant stated that she
and other co-workers were repeatedly suspended and threatened with being
discharged. (N.T. at 6.) Claimant elaborated on one instance when               Malek
suspended her; she arrived at work the next day, told him that the suspension was




                                          2
unwarranted, and Malek admitted that he had been upset with a technician the day
before. (N.T. at 12.)
             Claimant further testified that there was “a lot of derogatory language
that was addressed to [her] and to others.” (N.T. at 6.) Claimant stated that near the
end of her employment, Malek started telling her that she was “lying,” “cheating,”
and had “too big an ego.” (N.T. at 6.) Claimant stated that although not directed at
her, Malek used “foul language” at the office, (N.T. at 6), and introduced into
evidence an email sent to her and Beattie, wherein Malek ridiculed Beattie and asked
her to make some kind of response, even if it was just “a courtesy reply to say F U.”
(Supplemental R.R. at 6b.) Claimant testified that while there were constant threats
of suspension and “[a]buse was always present in the office,” it escalated six months
before she left. (N.T. at 12.) Claimant testified that she told Malek that if he
suspended her again, she would quit and not come back. (N.T. at 11.)
             Claimant said that on April 10, 2014, she received a phone call from
Employer’s salesman, who is a contractor and not part of Employer’s immediate
staff. Claimant stated that she and the salesman engaged in a private conversation,
which she characterized as “niceties between him and me,” and then transferred the
call to Beattie. (N.T. at 11.) Claimant testified that when the call ended, Malek
called her back to the office and asked her what the salesman said; in response,
Claimant stated that the salesman said he wanted to talk to Beattie. Claimant testified
that Malek then wanted to know what else the salesman said, and Claimant told
Malek that she would not disclose the private conversation between them. According
to Claimant, Malek immediately became upset, told her that he would suspend her,
informed her that he could fire her, and said that he could commence a lawsuit




                                          3
against her. Claimant stated that at this point, she told Malek that she quit, walked
out of the office, and handed in her resignation the next day. (N.T. at 10-12, 14.)2
              Beattie testified that she was present at the April 10, 2014 meeting.
According to Beattie, Malek told Claimant that he has a right to know what is being
said in the office; Claimant refused to disclose the requested information; and Malek
never specifically said that Claimant was suspended. On cross-examination, Beattie
agreed that Employer’s policies do not “spell out” the infractions that Employer cited
Claimant for, nor do they list when or under what circumstances an employee could
be suspended. Beattie also stated that she has heard Malek swear in the workplace,
and that during a meeting he accused members of the staff as being “liars” and
“cheaters.” (N.T. at 20-21, 23-25.)
              Malek testified that he is Employer’s president and that at the April 10,
2014 meeting, he asked Claimant if the salesperson needed business forms and
inquired as to whether the salesperson had been disrespectful to Claimant. Malek
stated that Claimant would not answer his questions; he then told Claimant that, as
the employer, he has the right to know the content of business conversations between
two co-workers; and he warned Claimant that her failure to disclose the conversation
would result in disciplinary action.          Malek said that Claimant left during their
discussion and that he never told Claimant that she was actually suspended or
terminated. (N.T. at 26, 29-31.)



       2
         On cross-examination, Claimant stated that she had made mistakes at work; admitted that
she received suspension letters from Employer; and acknowledged that in a letter dated June 25,
2012, Employer said that she would be fired if she continued to do certain activities and/or commit
specified errors. (N.T. at 14-17.)




                                                4
            Malek testified that he did not call Claimant “names” and did not use
vulgar or profane language in her presence. He said that he described a co-worker as
a liar and cheater at a meeting that Claimant attended because the co-worker took the
company car after work hours, got into a wreck, and falsified his work records.
Malek also stated that Claimant got suspended twice, once when she sent an invoice
to the wrong contractor and payment was delayed, and on another occasion when she
failed to place stamps on outgoing mail. According to Malek, the suspensions were
for a half day or a few days, without pay, adding that it is an employer’s right to
remedy an infraction. When asked why he continued to employ Claimant despite
those previous incidents, Malek testified that she was referred to him by a fellow co-
member of the church and he was aware that she was going through a difficult time
following a divorce. Malek stated that early on he learned that Claimant could not
perform the job tasks that she said she could do at the interview, and he
accommodated Claimant by reducing her job responsibilities in order for her to
maintain her employment. (N.T. at 31-36.)
            At the conclusion of the hearing, the referee found that Malek’s
testimony was evasive and inconsistent with documentary evidence, accepted
Claimant’s testimony as being more credible than that of Employer’s witnesses, and
rejected the testimony of Employer’s witnesses where it is inconsistent with
Claimant’s testimony and evidence. (Referee’s decision at 2.)
            Relying on Claimant’s credible testimony, the referee found that Malek
used abusive language toward employees and frequently threatened to suspend
employees without pay; Claimant informed Beattie and Malek about the conditions
that she believed made her work environment hostile; and she voluntarily left her
employment after Malek threatened her with a suspension and a lawsuit. Based upon



                                          5
these facts, the referee concluded that Claimant had a necessitous and compelling
reason to voluntarily leave her employment and was eligible for benefits. (Findings
of Fact Nos. 1-7; Referee’s decision at 2.)
              Employer appealed to the Board. By decision dated October 28, 2014,
the Board affirmed the referee’s decision, adopting and incorporating the referee’s
findings and conclusions.
              On appeal to this Court,3 Employer argues that the Board’s finding that
Malek engaged in abusive conduct is not supported by substantial evidence.
Employer alternatively contends that the Board’s factual findings are inadequate to
support its legal conclusion that Claimant voluntarily left her employment for a
necessitous and compelling reason.
              Initially, we note that in unemployment compensation proceedings, the
Board is the ultimate fact-finder, empowered to determine the credibility of the
witnesses and to resolve conflicts in the evidence.             Curran v. Unemployment
Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).                       The
Board’s findings are binding and conclusive on appeal if the record, when examined
as a whole, contains substantial evidence to support those findings.               Mathis v.
Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth.
2013). In determining whether substantial evidence exists, we view the record in the
light most favorable to the party that prevailed before the Board and give that party
the benefit of all reasonable inferences that can be drawn from the evidence. Big
Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492,

       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799
n.3 (Pa. Cmwlth. 1997).



                                              6
494-95 (Pa. Cmwlth. 2012).           Substantial evidence is defined as such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion.
Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa.
Cmwlth. 1999).
              Pursuant to section 402(b) of the Law, an employee is ineligible for
benefits if she voluntarily terminates her employment without cause of a necessitous
and compelling nature. 43 P.S. §802(b). Thus, a claimant seeking benefits after
voluntarily quitting her job has the burden to demonstrate real and substantial
pressure to terminate employment that would compel a reasonable person under
similar circumstances to act in the same manner.                 Dopson v. Unemployment
Compensation Board of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009). The
claimant must further demonstrate that she acted with ordinary common sense and
made a reasonable effort to preserve her employment. First Federal Savings Bank v.
Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth.
2008). More specifically, the claimant “must take common sense action to obviate
the problem so that . . . she does not have to terminate employment, and this is
accomplished by informing one’s superiors of the harassing, humiliating or abusive
conduct.” Porco v. Unemployment Compensation Board of Review, 828 A.2d 426,
428 (Pa. Cmwlth. 2003).4 Whether an employee has a necessitous and compelling
reason to voluntarily quit employment is a question of law fully reviewable by this
Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282,
1284 (Pa. Cmwlth. 1981).


       4
         Here, Employer does not contend that Claimant failed to make a reasonable effort to
preserve her employment or that she did not act with common sense in informing Beattie and Malek
about the work-place conduct that she found to be objectionable.



                                               7
            This Court has held that mere resentment of a reprimand, disappointment
with wages, and personality conflicts do not constitute a necessitous and compelling
cause to voluntarily quit. Lynn v. Unemployment Compensation Board of Review,
427 A.2d 736, 737 (Pa. Cmwlth. 1981); accord Ann Kearney Astolfi, DMD, P.C. v.
Unemployment Compensation Board of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth.
2010) (“Astolfi”).   However, it is well established that “a claimant need not
indefinitely subject herself to unjust accusations and abusive conduct.” Berardi v.
Unemployment Compensation Board of Review, 458 A.2d 668, 670 (Pa. Cmwlth.
1983). Accordingly, this Court has also held that a claimant may demonstrate a
necessitous and compelling cause to quit when the claimant is continuously subject to
unjust accusations or abusive conduct, Whisner v. Unemployment Compensation
Board of Review, 446 A.2d 336, 338 (Pa. Cmwlth. 1982), or where the relationship
with a supervisor or co-worker has deteriorated to the point where working conditions
are intolerable. Karloff v. Unemployment Compensation Board of Review, 531 A.2d
582, 854 (Pa. Cmwlth. 1987).
            In First Federal, the claimant worked as a vice president who chaired
committee meetings. During the meetings, a senior vice president was generally
“disruptive, defiant, argumentative and also engaged in outbursts.” 957 A.2d at 814.
The senior vice president was “disrespectful toward [the claimant] in that in front of
other employees he told her that she did not know what she was doing and that she
shrugged responsibilities.” Id. After the claimant discussed these problems with
senior management, she eventually had a meeting with the employer’s president. At
this meeting, the president “attacked [the claimant’s] leadership skills and
competency, and referred to the [claimant’s previous] management team . . . as
criminals.” Id. The president also “subjected [the claimant] to discipline but refused



                                          8
to permit [the claimant] to respond, kept yelling at [the claimant], and told [the
claimant] to leave his office.” Id. Thereafter, the claimant voluntarily quit.
             Crediting the above facts, the Board in First Federal determined that the
president unjustly reprimanded the claimant with abusive language; the claimant was
unable to respond to the discipline imposed by the president; and the senior vice
president subjected the claimant to unwarranted criticism and ridicule. The Board
concluded that the claimant had voluntarily quit her employment for cause of a
necessitous and compelling nature. Id.
             On further appeal, this Court affirmed, stating:

             [The claimant] demonstrated more than a mere belief of
             unjust accusation, as the Board concluded that [the
             claimant] was, in fact, unjustly reprimanded with abusive
             language and that [the claimant] was subjected to
             intolerable working conditions. Board’s Opinion, at 3. The
             Board further determined that [the claimant] “could not
             respond to discipline and was subject to criticism and
             ridicule from a senior vice president that was uncalled for
             and incorrect.” Id. We agree with the Board’s conclusion
             that such circumstances existed which produced real and
             substantial pressure for [the claimant] to terminate her
             employment and that a reasonable person in the same
             circumstances would have acted similarly.

First Federal, 957 A.2d at 817.
             Here, the Board, as fact-finder, credited Claimant’s version of the
events, not Malek’s version, and it is Claimant’s testimony on which we must focus.
Viewing the evidence in the light most favorable to Claimant, her testimony
established that Malek continuously and increasingly subjected her to abusive
language, most notably by calling her, among other names, a liar and a cheater.
Claimant’s testimony also demonstrates that when assessing her work performance,
Malek made false accusations and imposed unwarranted disciplinary action; Malek


                                           9
would not allow Claimant to respond to his criticism, and he would denounce
Claimant when she tried to explain or defend her actions.                    Further, Claimant’s
testimony proved that she operated under the constant and unnecessary threat of
suspension, and, on April 14, 2014, was threatened with a suspension, termination,
and a lawsuit for failing to obey Malek’s unreasonable directive that she disclose the
content of personal communications unrelated to work.5
               Given this record, we conclude that Claimant’s testimony constituted
substantial evidence that supports the Board’s finding that Malek engaged in abusive
conduct. As in First Federal, Claimant was unjustly reprimanded, disciplined, and
threatened, had no opportunity to respond to comments/criticism, and endured verbal
ridicule on a continuous basis. This collective pattern of activity is substantially
similar to the facts in First Federal. Accordingly, we conclude that First Federal
controls our disposition of this case.
               Employer argues that our decision in Astolfi compels a contrary result;
however, we find that case to be readily distinguishable. In Astolfi, the claimant quit
her job as a receptionist and surgical assistant for the dentist/employer, alleging that
she had been subjected to verbal abuse by the dentist. The claimant testified that she
worked in a chaotic environment, complained to the dentist about a conflict between
two other employees, and the dentist told her to stop acting like “one of her children”
and to “deal with it.” 995 A.2d at 1287. The claimant further testified that on one
occasion, the dentist told her to “shape up” or she would be terminated and, when she
began to cry, the dentist stated that it was a sign of immaturity. Finally, the claimant


       5
        See Ellis (Etter) v. Unemployment Compensation Board of Review, 449 A.2d 881, 882 (Pa.
Cmwlth. 1982) (stating that a claimant will not be ineligible for benefits where she declines to obey
an employer’s unreasonable directive).



                                                 10
testified that the dentist yelled at her for speaking too long to a patient and told her
that she talks “way too much.” Id. On these facts, the Board concluded that the
claimant established a necessitous and compelling reason to quit.
             On appeal, this Court reversed, concluding that the claimant’s testimony
was legally insufficient to demonstrate a necessitous and compelling cause. We
reasoned:

             In short, [the claimant’s] testimony demonstrated
             “resentment” and “personality conflicts,” Lynn, 427 A.2d at
             737, but not an intolerable work environment. Being
             “yelled” at for talking too much to patients, which is the
             worst [the claimant] suffered, is not comparable to being
             called names or being unjustly accused of criminal conduct.
             Her work environment was uncomfortable, but not
             intolerable.

Astolfi, 995 A.2d at 1290. In reaching our decision in Astolfi, this Court distinguished
First Federal on the basis that the claimant in Astolfi “was not publicly reprimanded
or accused of being a criminal like her counterpart in First Federal.” Astolfi, 995
A.2d at 1289.
             Here, in contrast to the facts in Astolfi, Claimant was accused of being a
liar and a cheater in connection with her work and was publically reprimanded with
unwarranted threats of suspension. Accordingly, we conclude that the instant case is
much more akin to First Federal than it is to Astolfi and that Employer’s reliance on
Astofi is misplaced.
             Next, Employer argues that this case should be remanded to the Board
because it failed to determine whether Claimant was suspended or discharged for
willful misconduct. However, a willful misconduct analysis is only warranted where
a claimant is suspended or discharged/terminated from employment. See Middletown



                                          11
Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 224-25
(Pa. Cmwlth. 2012). Here, the Board specifically found that Claimant voluntarily
quit, (Finding of Fact No. 7), and because this finding is supported by substantial
evidence, (N.T. at 5, 11-12, 14), the Board did not err in analyzing this matter as a
voluntary quit case rather than as a willful misconduct case.
             Upon our review, we conclude that the Board’s findings are supported
by substantial evidence and that the Board did not commit legal error. Accordingly,
we affirm.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Access Ability, Inc.,                 :
                   Petitioner         :
                                      :    No. 2136 C.D. 2014
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


                                  ORDER


            AND NOW, this 18th day of August, 2015, the October 28, 2014 order
of the Unemployment Compensation Board of Review is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
