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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