Tuesday, November 01, 2016

UC - vol. quit - sexual harassment, racial slurs - duty to act reasonably

Serrano v. UCBR – Cmwlth. Court – October 31, 2016

Held:  Incidents of sexual harassment and racial slurs justified claimant’s vol. quit, but she was nonetheless disqualified for failing to act reasonably, “with common sense,” in the face of those things.  Specifically, after reporting the problems to the employer, resigning from her job, and then returning to work w/agreement of the employer, she “always said that [things] were fine” when the employer made regular requests to her about how things were going.

Reporting of harassment, racial slurs
Sexual harassment and racial slurs may present adequate pressure to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. UCBR, 828 A.2d 426, 428 (Pa. Cmwlth. 2003); see also Peddicord v. UCBR, 647 A.2d 295, 298 (Pa. Cmwlth. 1994).   A claimant normally will not meet the requirement to make a reasonable effort to preserve employment unless the claimant notifies the employer of the harassment. Martin v. UCBR, 749 A.2d 541, 544 (Pa. Cmwlth. 2000). However, failure to report harassment may be excused where the record evidence reveals that doing so would be futile. Id. Moreover, “there is a certain level of conduct that an employee will not be required to tolerate and the Court will not place all responsibility upon an employee to resolve his or her work dilemma. Ultimately the employer bears the responsibility for eliminating harassment against employees in the workplace.” Comitalo v. UCBR, 737 A.2d 342, 345 (Pa. Cmwlth. 1999).

The decision in Mercy Hospital of Pittsburgh v. UnemploymentCompensation Board of Review, 654 A.2d 264 (Pa. Cmwlth. 1995), is directly 9 applicable.   There is no requirement to afford an employer a second attempt to rectify the situation, where  there is no evidence to suggest that the second attempt to end the harassment would be any different than the first attempt.   Here, Claimant satisfied the notification requirement by bringing her complaints to her supervisors  when she initially decided to quit. This notice afforded Employer the opportunity to rectify the situation. Claimant was not required to endure the alleged abusive behavior indefinitely, or to afford Employer more than one opportunity to address the alleged harassment. Her initial report to Employer provided the requisite notice to allow Employer to attempt to alleviate the harassment. Lending further credence to her efforts to continue an employment relationship is the fact that Claimant resigned but then agreed to return to work. This demonstrates Claimant’s willingness to allow Employer to remedy the problem and maintain her position. The Referee and the Board erred because the failure to notify Employer of the continuing harassment after Claimant’s return to work was not the fatal flaw in her claim.

Failure to act reasonably, with common sense
Nevertheless, the court affirmed the decision of the Board on other grounds.   The court found that Claimant was unable to demonstrate the third requirement of a necessitous and compelling reason for her voluntary quit, i.e.— that she acted with common sense. The Referee found that the employer “would regularly request the claimant’s assessment of the situation with the coworker, and the claimant always responded that they were fine.”   Whether or not there were, in fact, additional incidents of harassment after Claimant’s return to work, Claimant now maintains that she continued to have a conflict with the dispatch supervisor. Thus, Claimant was untruthful when she reported to employer that “they were fine.” Claimant’s knowing misrepresentation of the conflict is distinct from merely failing to report harassment a second time. We conclude that Claimant did not act with common sense, because she misrepresented the employment situation to Employer. Claimant, therefore, has failed to demonstrate a necessitous and compelling reason for her voluntary quit. Thus, pursuant to Section 402(b) of the Law, Claimant is ineligible for unemployment compensation benefits.

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