Thursday, January 14, 2010

UC - voluntary quit - sexual harassment

Miscoe Chiropratic Clinic v. UCBR - January 13, 2010 - unpublished memorandum opinion

The court rejected the employer's appeal and upheld the UCBR decision that claimant had good cause to quit her job because of sexual harassment by her employer, himself.

The court said that "[i]In order to establish a necessitous and compelling cause to leave employment, a claimant must establish that circumstances that produced real and substantial pressure to terminate employment existed; a reasonable person would act in the same manner; she acted with common sense; and she made a reasonable effort to preserve her employment. First Fed. Sav. Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008).

Sexual harassment may constitute a necessitous and compelling reason to voluntarily leave employment if the claimant can show that she acted with common sense and prudence to alleviate the sexual harassment. Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998). Such common sense action includes providing the employer an opportunity to understand the nature of a claimant’s objections and to take steps to resolve those objections. Collier Stone Co. v. UCBR, 876 A.2d 481 (Pa. Cmwlth. 2005).

Where a mechanism, such as an employment policy, exists to deal with problems of sexual harassment, a claimant must make a good faith effort to utilize that mechanism. Hussey Copper Ltd. However, a claimant is not required to perform a futile act. Mauro v. UCBR, 751 A.2d 276 (Pa. Cmwlth. 2000). Further, where a claimant’s supervisor has knowledge of harassment against a claimant, the employer is deemed to have the knowledge as well, and the claimant is not required to report the harassment to higher levels of management. Peddicord v. UCBR, 647 A.2d 295 (Pa. Cmwlth. 1994).

Ultimately, the employer is responsible for eliminating harassment in the workplace. Collier Stone Co. We agree with the Board that Claimant would have committed a futile act by reporting the harassment to the office manager or Dr. Miscoe. It is undisputed that Dr. Miscoe is in charge of Employer’s office and is the only person in the office with the authority to terminate an employee. As the Board found, Dr. Miscoe grabbed and hugged Claimant, attempted to kiss her several times a week, and made inappropriate sexual comments to her. Claimant had no obligation to report the harassment to the office manager or Dr. Miscoe because the facts found by the Board establish that such report would have been futile. Accordingly, we affirm the Board’s order.