IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet E. Decker, :

Petitioner :

:

v. : No. 293 C.D. 2019

: SUBMITTED: September 20, 2019 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: November 4 , 2019

Janet E. Decker (Claimant) petitions for review, pro se , of the January 24,

2019 Order of the Unemployment Compensation Board of Review (Board)

affirming the decision of a Referee to deny Claimant unemployment compensation

(UC) benefits. The Board concluded that Claimant was ineligible for UC benefits

under S ection 402(b) of the Unemployment Compensation Law (Law) 1 because she

voluntarily quit her employment without cause of a necessitous and compelling

nature. We affirm the Board’s Order.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(b). Section 402(b) of the Law provides that an employee shall be ineligible for UC benefits for any week “[i]n which his [or her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.” 43 P.S. § 802(b).2 Background

C laimant worked as a part

- time commercial cleaner for Cl ass A Cleaning

L

. L

. C

. (Employer), a commercial and residential cleaning service, from April 22,

2018 through September 11, 2018. Bd.’s Finding of Fact (F.F.) Nos. 1, 3.

Claimant’s job duties were to dust, sweep, vacuum, and clean. Id. No. 4. Claimant’ s
primary assignment for E mployer was to clean the offices of Employer’s client,

Masco Cabinetry (Masco)

. Id. No. 5.

On September 10, 2018, Claimant’ s shift was scheduled to begin at 3:00 p.m.

Id. No. 6. Shortly before beginning her shift , Claimant met with Employer’ s
president , St anley Nichols, concerning allegations that Claimant had not completed

all of her job duties the previous evening

. Id. No. 7 ; Notes of Testimony (N.T.),

12 /3/18, at 9

. During his meeting with C laimant

, Mr. Nichols contacted the

employee in charge of the Masco account

, Kayli e Ingersol

, who told Mr. Nichols

that Masco was dissatisfied because crumbs had not been vacuumed from an office

the previous evening , which attracted ants

. Bd.’s F.F. No. 8 ; N.T., 12/3/18, at 9 , 15

.
C lai mant was upset about the allegation that she had failed to complete her assigned

work , but she did not inform Mr. Nichols about her dissatisfaction with th e
allegation. Bd.’s F.F. No. 9.

Around 1:00 a.m. on September 11, 2018, after she had completed her shift,

C laimant left a handwritten resignation letter in Mr. Nichols’ internal mailbox. Id.

No. 10 ; N.T., 12/3/18, at 10

- 12 & Claimant’s Ex. 1. E mployer had continuing work

available for Claimant had she not resigned. Bd.’s F.F. No. 11.

Claimant filed a claim for UC benefits with the local UC Service Center

. The

Service Center found that although “ Claimant had a necessitous and compelling

reason for quitting ,” she did not inform Employer of her reason and “ there was a3

reasonable expectation that the E mployer could have provided an alternative to

resolve the situation .” Record (R.) Item No. 5. Thus, the Service Center denied
Claimant’s claim for UC benefits under Section 402(b) of the Law.

Claimant timely appealed to the Referee, who held a telepho ne hearing on

December 3, 2018. Claimant appeared pro se and testified on her own behalf.

Employer presented the testimony of its president , Mr. Nichols

. Following the

hearing, the Referee determined :

[C] laimant testified [that] s he became upset after [Mr. Nichols] made allegations about [C] laimant ’ s failure to perform her job duties. Furthermore, [C] laimant testified [that] she was upset that [ Mr. Nichols] had embarrassed her when he contacted [ Ms. Ingersol ] on September 10, 2018 about complaints whi ch were made by [Masco] about [C] laimant not completing her job duties. Also, [C] laimant testified [that Mr. Nichols] informed her that if he were to remove [C] laimant from [Masco] , he was unsure whether he would be able to provide hours to [C] laimant.

[ Mr. Nichols] testified [that] he did not embarrass [C] laimant and wanted to emphasize that [C] laimant is required to perform her job duties and that her failure to perform her job duties could jeopardize [E]mployer’ s contract with [Masco]

.
After a careful review of the testimony and the documentary evidence in the record, the [R] eferee finds [ that C]l aimant has failed to meet her burden. While the [R] eferee understands [C] l aimant’ s concerns, nevertheless, the [R] eferee finds that [ Mr. Nichol s] provided credible testimony that he had good cause to critique [C]laimant’s job performance. [C]laimant’ s displeasure with [ Mr. Nichols] critiquing her job performance would not warrant [C] laimant being eligible for [UC] benefits.

Ref.’s Order, 12/4/18 , at 2

- 3. The Referee concluded that Claimant failed to

establish that she had a necessitous and compelling reason to quit and , thus, a ffirmed

the denial of UC benefits under Section 402(b) of the Law.4

Claimant timely appealed to the Board, which adopted and incorporated the
Referee’s Findings of Fact and Conclusions of Law and further concluded:

[C] laimant asserts that she notified [ Mr. Nichols ] about why she resigned when she left a note for him on September 1 1 , 2018, the day of [her] separation [from employment]

. The Board determines that because the note was a resignation letter and not an attempt to resolve issues with her supervisor, [C] laimant did not attempt to preserve the employment relationship as required by Section 402(b) of the Law.

Bd.’s Order, 1/24/19, at 1. Th erefore , the Board affirmed the Referee’s decision.

Claimant now appeals to this Court. 2

Analysis

A claimant who voluntarily terminates h er employment has the burden to

establish a necessitous and compelling reason for doing so. Petrill v. Unemployment

Comp. Bd. of Review , 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must

prove that: (1) circumstances existed that produced real and su bstantial pressure to

terminate employment; (2) such circumstances would compel a reasonable person

to act in the same manner; (3) the claimant acted with ordinary common sense; and

(4) the claimant made a reasonable effort to preserve h er employment. Bru nswick

Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review , 906 A.2d

657, 660 (Pa. Cmwlth. 2006).

It is well settled that r esentment of a supervisor’s reprimand, absent unjust

accusations, abusive conduct, or profane language

, do es not consti tute a necessitous

and compelling reason to voluntarily terminate one’s employment. Krieger v.

Unemployment Comp. Bd. of Review , 415 A.2d 160, 161 (Pa. Cmwlth. 1980)

.

2 Our scope of review is limited to determining whether the 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 Adm inistrative Agency Law, 2 Pa. C.S. §
704.5

Furthermore, “ an emotional upset over a reprimand imposed by the employer does

not as a rule constitute ‘ cause of a necessitous and compelling nature. ’” Yasgur v.

Unemployment Comp. Bd. of Review , 328 A.2d 908, 910 (Pa. Cmwlth. 197 4 )

(citation omitted).

Here, Claimant contends that she was compelled to quit because Employer

created a hosti le

, uncomfortable work environ m e nt and because she was singled out,

embarrassed, and humiliated in front of her co

- worker s

. 3 Claimant also asserts that

Mr. Nichols unjustifiably threatened he r job

. We conclude that t he record belies

these claims

. Contrary to Claimant’ s contention , the record contains no evidence that Mr.

Nichols used harassing or abusive language during his meeting with Claimant on
September 10, 2018

. Moreover, t he meeting occurred behind closed doors

, and Mr.

Nichols testified th at he chose to confront Claimant privately rather than post
anything on Masco’s communication board

. N.T. , 12/3/18, at 15

. 4 Mr. Nich ols

described what transpired during the meeting as follows:

3 In her Petition for Appeal to the Referee, Claimant stated that she quit as a result of “being threatened to [lose] my job over some stupid ants that were in a chair and being embarrassed [and] humiliated” by Mr. Nichols. R. Item No. 6.

4 Mr. Nichols testified:

[Ms. Ingersol] brought [Masco’s complaint] to my attention, and just like as always [sic] , I always bring it to the teammate’ s attention. We are a team and communication is the key. We even have a comm unication board over at Masco.
Instead of [Ms. Ingersol] writing it on the board to save embarrassment, I thought it would be better to bring [Claimant] in [to] the office and talk to her directly, because everybody can see that board at Masco

.

N.T., 12/3 /18, at 15.6

I just brought it to [Claimant’s] attention that we had [received] a complaint from M asco, [which] brought [the complaint] to [ Ms. Ingersol’s ] attention [on] this day, [stating that] there w [ere] crumbs, there was food all over the place that we missed, it was bringing on ants, and [Masco] wanted us to do a better job. And that’ s basically what I relayed to [Claimant]

.

Id. Mr. Nichols testified that after this discussion, Claimant did not indicate that she

was upset

, so he was “shock[ed]” when he arrived at work the next morning and

learned that Claimant had resigned. Id. at 15

- 16.

As stated above, dissatisfaction with a supervisor ’ s reprimand or criticism is

not a necessitous or compelling reason to voluntarily quit

. See Lauffer v.

Unemployment Comp. Bd. of Review

, 434 A.2d 249, 251 (Pa. Cmwl th. 1981)

( concluding that even if a supervisor’s accusations regarding the claimant’s work

performance were untrue, they were not delivered in an offensive or profane manner

and were not so uncalled for as to leave the claimant wi th no alternative but to resign,

as work performance is a legitimate concern of a supervisor). Here, Claimant failed

to demonstrate that Mr. Nichols reprimanded her in a profane or offensive manner

or that he made unjust accusations about her work performance. As this Court

recognized in Lauffer , comments directly related to work performance are legitimate

concerns of any supervisor and do not amount to a necessitous or compelling cause.

Id.

We also reject Claimant’s contention that Employer had threatened her job

.
Accordi ng to Claimant, when Mr. Nichols told her that he did not know where her

hours would com e from, she believed he was threatening to fire her

. However, Mr.

Nichols credibly testified:

Th e only thing I said was, if Masc o drops us from its account, we’ re

no t going to have any hours. That’s a true fact, that’ s not a threat. In7

our contract, we have to keep the tidiness and cleanliness of that

account or [Masco] can void the contract.

N.T., 12/3/18, at 16. In fact , Claimant admitted on the record that Mr. N ichols “ did

not threaten to fire ” her during their conversation. Id. at 12.

Finally , a claimant who voluntarily quits “ must take common sense action to

obviate the problem so that

. . . she does not have to terminate employment, and this

i s accomplished by informing one’ s superiors of the harassing, humiliating[,] or

abusive conduct.” Porco v. Unemployment Comp. Bd. of Review , 828 A.2d 426, 428

(Pa. Cmwlth. 2003). Here, Claimant testified that immediately after she completed

her shift on the morning of September 1 1 , 2018, “ I came back, and I was just so

upset about it, I made the decision that I’ m not going to work there any longer .”

N.T., 12/3/18, at 10. When asked if she spoke with Mr. Nichols about her feelings

after their conversation, Claimant rep lied, “I d id not verbally talk to him after that

conversation .” Id. Mr. Nichols also testified that Claimant did not reach out to him

regarding her dissatisfaction with the reprimand before submitting her resignation

letter. Id. at 16.

We conclude th at, b y quitting shortly after being reprimanded without

informing Employer of any alleged harassment or dissatisfaction with the reprimand,

Claimant did not make a reasonable effort to preser v e her employment. Therefore,

we agree with the Board that Claimant failed to satisfy her burden of proving that

she had a necessitous and compelling reason to voluntarily quit her employment

under Section 402(b) of the Law

. 5

5 In her appellate brief, Claimant makes numerous assertions regarding factual matters that were not presented to either the Referee or the Board

. Because such allegations are outside the record, we may not consider them. See Hollingsworth v. Unemployment Comp

. B d. of Review

, 189 A.3d 1109, 1113 (Pa. Cmwlth. 2018) (“[B] ecause mere allegations are no substitute for record evidence, this Court cannot consider th e averments of fact in [the] [c]laimant’ s brief when8 Conclusion
Accordingly, we affirm the Board’s Order.

__________________________________ ELLEN CEISLER , J udge

determining whether the Board er red in issuing its findings .”); Pa. T pk. Comm’n v. Unemployment Comp. Bd. of Review , 991 A.2d 971, 974 (Pa. Cmwlth. 2010) ( “This Court may not consider any evidence that is not part of the certified record on appeal .”).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet E. Decker, :

Petitioner :

:

v. : No. 293 C.D. 2019

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 4 th day of November, 20 19, the O rder of the Unemployment

Compensation Board of Review, dated January 24, 2019

, is hereby AFFIRMED.

__________________________________ ELLEN CEISLER , J udge