Kriger Construction, Inc. v. Unemployment Compensation Board of Review, 021020 PACCA, 26 C.D. 2019

Docket Nº:26 C.D. 2019
Opinion Judge:PATRICIA A. McCULLOUGH, JUDGE
Party Name:Kriger Construction, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge
Case Date:February 10, 2020
Court:Commonwealth Court of Pennsylvania
 
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Kriger Construction, Inc., Petitioner

v.

Unemployment Compensation Board of Review, Respondent

No. 26 C.D. 2019

Commonwealth Court of Pennsylvania

February 10, 2020

OPINION NOT REPORTED

Submitted: November 8, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

MEMORANDUM OPINION

PATRICIA A. McCULLOUGH, JUDGE

Kriger Construction, Inc. (Employer) petitions for review of the December 11, 2018 order of the Unemployment Compensation Board of Review (Board), which found Shelly L. Alexander (Claimant) not ineligible for unemployment compensation (UC) benefits under section 402(b) of the Unemployment Compensation Law (Law).1 The Board's order reversed a referee's decision that found Claimant ineligible for UC benefits.

Facts and Procedural History

Claimant worked as a full-time project manager for Employer from May 2, 2016, until April 6, 2018, when she voluntarily resigned her position. (Board Findings of Fact (F.F.) Nos. 1, 8; Reproduced Record (R.R.) at 33a, Notes of Testimony (N.T.) at 6.) Claimant applied for UC benefits and on April 27, 2018, a local service center found her not ineligible for benefits under section 402(b) of the Law. (Certified Record (C.R.) at Item No. 4.) In particular, the local service center determined Claimant voluntarily quit because of harassment from Employer's vice president, Claimant exhausted all alternatives prior to quitting, and, therefore, Claimant had a necessitous and compelling reason for quitting. Id.

Employer appealed and a referee conducted a hearing on June 26, 2018, at which Claimant and two witnesses on behalf of Employer testified. At the hearing, Claimant testified that she quit because she was sexually harassed by Employer's vice president and because of an ongoing hostile work environment, while Employer's witnesses testified that Claimant quit after she was reprimanded for misuse of a company vehicle. Following the hearing, the referee found that Claimant had been assigned a company vehicle and that Claimant "abused the use of the company vehicle by returning home from an eating and drinking establishment in the company vehicle at an extremely excessive rate of speed, which was tracked by [Employer's] GPS system." (Referee F.F. Nos. 5-6.) The referee also found that "[w]hen the company vehicle was taken away from [Claimant], [she] voluntarily quit work . . . without ever indicating to [Employer] any harassment, medical or other specific reason as to why she was quitting." (Referee F.F. No. 7.) The referee further found that Claimant "never made any complaint to [Employer's] president . . . concerning any sexual or other harassment or mistreatment." (Referee F.F. No. 8.) Accordingly, the referee concluded that Claimant did not voluntarily quit because of a compelling and necessitous reason and that Claimant was ineligible for UC benefits under section 402(b) of the Law.

Claimant appealed the referee's decision to the Board. By decision dated December 11, 2018, the Board reversed the referee's decision and found Claimant eligible for UC benefits. The Board made the following, pertinent, findings of facts: 2. In or around December 2016, [Claimant] was sexually harassed by the vice president at a Christmas party.

3. [Claimant] told the vice president that she was not interested in him, and no further sexual comments were made to [Claimant].

4. The vice president assigned [Claimant] to a project manager whom [Claimant] did not get along with.

5. The project manager yelled at [Claimant] and belittled her on a regular basis, such as calling her stupid and incompetent.

6. [Claimant] complained about the situation to another project manager, the vice president, and the [Equal Employment Opportunity (EEO)] officer.

7. The vice president did nothing about the situation and laughed at [Claimant].

8. [Claimant] voluntarily quit due to a hostile work environment.

(Board F.F. Nos. 2-8.)

The Board noted that under Pennsylvania law, an employee who is subjected to unjust accusations, abusive conduct, or profanity at the workplace has a necessitous and compelling reason to terminate employment, provided that notice has been given to the employer of the conduct and the employer has been given an opportunity to remedy the conduct. (Board decision at 2.) The Board concluded that Claimant quit due to a hostile work environment. It observed that Claimant testified at the hearing that Employer's vice president told her he wanted to have sex with her and touched her inappropriately at the December 2016 Christmas party. Id. The Board also noted Claimant testified she told the vice president his advances were unwelcome and that he stopped. Id. Therefore, the Board concluded the proximate cause of Claimant leaving her employment was not sexual harassment because it "stopped long ago" and was "remote in time." Id.

However, the Board also observed Claimant "testified that the vice president retaliated against her by assigning her to a project manager that she did not like," which resulted "in her being yelled at and belittled on a regular basis" and being called "stupid and incompetent." Id. The Board credited this testimony. Id. The Board further noted that Claimant stated she complained to the vice president and the EEO officer, but that nothing was done and, in fact, the vice president laughed at Claimant. Id. The Board also found this testimony credible. Accordingly, the Board concluded that Claimant proved she was subjected to a hostile work environment and that Claimant made a good faith effort to preserve her employment. Id. Thus, the Board determined Claimant was not ineligible for benefits under section 402(b) of the Law.

Discussion

Employer now petitions this Court for review of the Board's order, 2arguing the Board erred in concluding that Claimant had a necessitous and compelling reason to voluntarily quit her employment due to a hostile work environment and that the Board's findings of fact are not supported by competent evidence of record. Essentially, Employer advocates a different set of events regarding Claimant's voluntary termination of her employment than that found by the Board. Employer argues that Claimant never made...

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