IN THE COMMONWEALTH COURT OF PENNSYLVANIA Angelo Scott, :

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angelo Scott,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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: No. 637 C.D. 2014
: Submitted: September 19, 2014
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HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS
FILED: November 7, 2014
Angelo Scott (Claimant), pro se, petitions for review of an order of
the Unemployment Compensation Board of Review (Board) holding that he is
ineligible for unemployment compensation benefits under Section 402(b) of the
Unemployment Compensation Law (the Law)1 because he voluntarily quit his job
without a necessitous and compelling reason. We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. §
802(b). Section 402(b) provides, in relevant part, that “[a]n employe 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 ….” Id.
The facts found by the Board concerning Claimant’s employment
with XTL Inc. (Employer) and his separation from that employment are as follows:
2. The Claimant was employed as a Warehouse Associate
from October 19, 2012 until July 18, 2013; at the time of
separation he was working full time and was earning $18.91
per hour.
3. On July 18, 2013, the Claimant and the co-worker were
nearly involved in an accident involving vehicles operated by
each of them in the Employer’s warehouse facility.
4. A verbal altercation between the Claimant and the coworker arose out of the near-accident. During the altercation,
the Claimant and his co-worker used profanity.
5. Later the same day, the co-worker involved in the verbal
altercation approached the Claimant and, in the presence of
the union shop steward, told the Claimant, “I’m going to make
it easy for you. I will stay away from you and you stay the f--away from me.”
6. The Claimant reported the altercation with his co-worker to
the Employer and his union representative.
7. The Employer initiated an investigation into the incident
and found that no violation of the Employer’s workplace
violence prohibition had occurred.
8. The Claimant refused an offer of mediation of the situation
and refused an assignment to a different area of the
Employer’s facility.
9. The Claimant’s physician advised him that due to a medical
condition he should not return to work on or about July 25,
2013. The Claimant’s physician did not release him to return
to work until September 19, 2013.
10. The Claimant did not return to work when released to do
so by his physician because he believed the situation would
2
not change and feared another confrontation with his coworker.
(Record Item (R. Item) 15, Referee’s Decision and Order, Findings of Fact (F.F.)
¶¶2-10; R. Item 20, Board Decision and Order.)
The
Unemployment
Compensation
Service
Center
issued
a
determination that Claimant was ineligible for benefits because he had voluntarily
quit his employment without a necessitous and compelling reason.
Claimant
appealed, and the referee conducted a hearing at which Claimant was represented
by counsel.
(R. Item 14, Referee’s Hearing Transcript (H.T.) at 1.)
Three
witnesses testified at the referee’s hearing: Claimant, Employer’s human resources
manager and an employee who witnessed the confrontation at issue. (R. Item 14,
H.T. at 1-2, 24.) On December 20, 2013, the referee issued a decision affirming
the Service Center’s determination that Claimant was ineligible for benefits under
Section 402(b) of the Law because he had voluntarily left his job without a
necessitous and compelling reason. (R. Item 15, Referee’s Decision at 2-3.) 2
Claimant appealed the referee’s decision to the Board. On March 6,
2014, the Board affirmed the referee’s decision and adopted and incorporated the
referee’s factual findings and conclusions.
(R. Item 20, Board Decision and
Order.) Claimant then filed the instant petition for review appealing the Board’s
2
The referee also held that Claimant was ineligible for benefits under Section 401(d)(1) of the
Law, 43 P.S. § 801(d)(1), for the period from July 25, 2013 through September 19, 2013 because
he was not able to work and available for suitable work due to his physician’s instructions, and
modified the Service Center’s determination in this respect. Claimant has not asserted that the
Board’s affirmance of this determination was in error, arguing only that the referee and Board
erred in holding that he did not show necessitous and compelling safety reasons for leaving his
employment. In any event, there is no error in this determination, as the finding that Claimant
was unable to work at all during the July 25, 2013 through September 19, 2013 period is
supported by substantial evidence. (R. Item 14, H.T. at 9-12, 19 & Claimant Exs. 1, 2.)
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order to this Court.3 Claimant argues that he resigned from his job because he was
in fear for his safety and that this safety concern constituted necessitous and
compelling circumstances for leaving that employment. Contrary to Claimant’s
assertions, the Board’s rejection of this claim is both factually supported and
legally correct.
A claimant seeking benefits after voluntarily quitting his job has the
burden to demonstrate that he had a necessitous and compelling reason for doing
so. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299
(Pa. Cmwlth. 2013); Green Tree School v. Unemployment Compensation Board of
Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009); Nolan v. Unemployment
Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002);
Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d
1031, 1033 (Pa. Cmwlth. 2002). To prove a necessitous and compelling reason for
leaving employment, the claimant must not only show circumstances that produced
real and substantial pressure to terminate employment and would compel a
reasonable person to act in the same manner, but must also show that he acted with
ordinary common sense and made reasonable efforts to preserve his employment.
Mathis, 64 A.3d at 299-300; Pennsylvania Gaming Control Board v.
Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth.
2012); Craighead-Jenkins, 796 A.2d at 1033 & n.3. Where the claimant has failed
to take all necessary and reasonable steps to preserve the employment relationship,
3
Our review is limited to determining whether necessary findings of fact are supported by
substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Mathis v.
Unemployment Compensation Board of Review, 64 A.3d 293, 297 n.6 (Pa. Cmwlth. 2013).
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he cannot demonstrate a necessitous and compelling reason for leaving his job and
is ineligible for benefits. Nolan, 797 A.2d at 1046-47; PECO Energy Co. v.
Unemployment Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth.
1996).
Concern for personal safety, including fear of physical attacks by coworkers, can constitute necessitous and compelling reasons for leaving
employment. Green Tree School, 982 A.2d at 577; Department of Corrections v.
Unemployment Compensation Board of Review, 547 A.2d 470, 473 (Pa. Cmwlth.
1988); Howell v. Unemployment Compensation Board of Review, 501 A.2d 718,
719 (Pa. Cmwlth. 1985). The mere fact that the claimant is subjectively afraid,
however, is not sufficient; the safety risk must be objectively real to constitute a
sufficient reason for resigning from one’s job. Green Tree School, 982 A.2d at
578.
Moreover, even where the safety concern is real and serious, the
claimant must show that he made a reasonable attempt to seek protection from the
danger and that the employer’s response gave him no choice but to leave his
employment.
Department of Corrections, 547 A.2d at 474; Iaconelli v.
Unemployment Compensation Board of Review, 423 A.2d 754, 756 (Pa. Cmwlth.
1980); Mackanic v. Unemployment Compensation Board of Review, 390 A.2d 884,
886 (Pa. Cmwlth. 1978).
If the employer has offered alternative work
arrangements that could solve the safety issue, quitting without even attempting to
work under those arrangements does not constitute a reasonable attempt to
preserve employment and bars the claimant from benefits.
Department of
Corrections, 547 A.2d at 474; Iaconelli, 423 A.2d at 756-57; Mackanic, 390 A.2d
at 886. “If the employer promises to take action to alleviate the problem, good
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faith requires that the employee continue working until or unless the employer’s
action proves ineffectual.” Craighead-Jenkins, 796 A.2d at 1034.
Here, Claimant showed neither a real danger sufficient to force him
to leave his job nor a reasonable effort to maintain his employment. The only
conduct found by the Board consisted of a co-worker using profanity toward
Claimant in a heated argument following a near-collision on the job and later the
same day. (R. Item 15, Referee’s Decision and Order, F.F. ¶¶3-5; R. Item 20,
Board Decision and Order.) There was no physical attack by the co-worker. Nor
was there any expressed threat to harm Claimant in the future; to the contrary,
Claimant testified that the co-worker’s only statement of his future intent was “I’m
going to make things easy for you, you stay away from me and I stay the F away
from you.” (R. Item 14, H.T. at 13.) Compare Department of Corrections, 547
A.2d at 473 (supervisor repeatedly invited claimant to fight with him, saying “I’m
gonna beat your ass, I’m gonna beat it bad”); Howell, 501 A.2d at 719 (claimant
was struck twice at work by co-worker); Iaconelli, 423 A.2d at 756 (co-worker
threatened to meet claimant outside in the parking lot that evening); Mackanic, 390
A.2d at 886 (claimant was repeatedly told by co-workers that he and his family
would be “dealt with” if he didn’t reduce his production output and threatening
calls were made to claimant’s wife).
In addition, Employer offered to mediate the situation between
Claimant and the co-worker and offered to assign Claimant to a different area of
the warehouse to reduce contact between him and the co-worker. (R. Item 15,
Referee’s Decision and Order, F.F. ¶8; R. Item 20, Board Decision and Order; R.
Item 14, H.T. at 17, 21.) Claimant, however, refused those offers and resigned
without any attempt to see if they could resolve the problem.
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(R. Item 15,
Referee’s Decision and Order, F.F. ¶8; R. Item 20, Board Decision and Order; R.
Item 14, H.T. at 17, 19, 21.) Claimant asserted that he had no obligation to see if
these proposed solutions could work because the co-worker’s job as a forklift
operator could bring him into any part of the warehouse and contends that the only
sufficient response would have been to move Claimant or the co-worker to a
different shift, which was not possible due to union seniority requirements. (R.
Item 14, H.T. at 17, 19, 28.) We do not agree.
The evidence before the referee showed that Employer’s warehouse
facility was large, as much as a football field in length. (Id., H.T. at 15.) Given the
absence of a physical attack or clear threat of future assault, Claimant’s refusal to
even try the offer of assignment to a different part of the facility and see if that kept
him away from the co-worker did not satisfy his obligation to take reasonable steps
to preserve his employment.
Department of Corrections, 547 A.2d at 474
(claimant could not show necessitous and compelling reasons for leaving his job
where he turned down employer’s offer of a transfer so he would no longer work
under supervisor who threatened to fight him); Iaconelli, 423 A.2d at 756-57
(claimant could not show necessitous and compelling reasons for leaving his job
where he did not seek an emergency transfer although he knew such a procedure
was available); Mackanic, 390 A.2d at 886 (claimant could not show necessitous
and compelling reasons for leaving his job due to threats from co-workers to him
and his family where he turned down employer’s offer of a transfer to another
department of its large plant and made no attempt to determine the nature and type
of those alternative jobs).
Claimant contends that the Board erred in refusing to consider alleged
evidence that the co-worker had a criminal record. This argument likewise fails.
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No such evidence was introduced in the record at or before the referee’s hearing.
Claimant submitted the document in question, a print-out purporting to be a court
summary of 10 to 20 year-old criminal charges, all but one of which were
dismissals, in a January 28, 2014 fax communication to the Board in his appeal
from the referee’s decision. (R. Item 18, Claimant Additional Information for
Appeal). The Board cannot consider such post-hearing factual communications as
evidence in making its determination. Han v. Unemployment Compensation Board
of Review, 42 A.3d 1155, 1157 (Pa. Cmwlth. 2012); Croft v. Unemployment
Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (en banc);
Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 737-38
(Pa. Cmwlth. 1990). Moreover, Claimant has admitted that he had this document
before the referee hearing and chose not to introduce it on the advice of his
counsel. (R. Item 16, Claimant’s Appeal from Referee’s Decision; R. Item 2,
Claimant Questionnaire.)
Claimant also argues that the Board erred in finding credible the
testimony of the Employer witness who was present during the July 2013
confrontation between Claimant and the co-worker and in failing to find that there
had been a prior incident three months earlier in which the same co-worker had
insulted Claimant. These contentions are without merit. The Board is the ultimate
fact finder and the arbiter of witness credibility. Mathis, 64 A.3d at 299; Bruce v.
Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth.
2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). “That Claimant may have given
‘a different version of the events, or ... might view the testimony differently than
the Board, is not grounds for reversal if substantial evidence supports the Board’s
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findings.’” Bruce, 2 A.3d at 671-72 (quoting Tapco, Inc. v. Unemployment
Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994)). The Board’s
findings concerning the July 2013 confrontation are supported by the testimony of
Employer’s eyewitness (R. Item 14, H.T. at 24-27), and are therefore supported by
substantial evidence.
The Board was not required to reject the competent
testimony of that witness nor was it required to credit Claimant’s testimony
concerning that incident or the earlier incident. Ductmate Industries, Inc., 949
A.2d at 344. Moreover, even if the Board had found Claimant’s testimony credible
in its entirety, Claimant’s own version of events did not show a danger to
Claimant’s safety that could excuse him from trying Employer’s offer to transfer
him to a different part of the building before concluding that he had to resign.
For the foregoing reasons, we affirm the Board’s denial of benefits.
____________________________________
JAMES GARDNER COLINS, Senior Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angelo Scott,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
:
:
:
:
: No. 637 C.D. 2014
:
:
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:
:
ORDER
AND NOW, this 7th day of November, 2014, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED. Petitioner’s request to expedite, filed October 6, 2014, is
dismissed as moot.
____________________________________
JAMES GARDNER COLINS, Senior Judge