Appeal from the Order of the Unemployment Compensation Board of Review, in case of Donna Homan, No. B-246415.
Peter B. Macky, for petitioner.
Clifford F. Blaze, Chief Counsel, for respondent.
Janie Slamon, with her, Bryan A. Snapp, for intervenor, Pennsylvania Power & Light Company.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Barbieri.
[ 107 Pa. Commw. Page 174]
Donna Homan (Petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) which upheld a referee's determination that she is ineligible for benefits under Section 402(b) of the Unemployment Compensation Law*fn1 for voluntarily terminating her employment without cause of a necessitous and compelling nature. We reverse.
Petitioner was employed as a clerk-steno in the Construction Department at Pennsylvania Power and Light Company's Montour Susquehanna Steam Electric Station for approximately two (2) years. Petitioner was the only female employee working in a storeroom with approximately three hundred (300) men. Petitioner terminated her employment on May 3, 1985, because of sexual harassment from some of the men with whom she worked.
Prior to quitting, the record shows that Petitioner complained to her supervisors of harassment which included: (1) that the union steward asked her out on several occasions and she did not like it; (2) that a subforeman
[ 107 Pa. Commw. Page 175]
asked her out and was difficult to work with after she refused by not giving her necessary information to do her job and giving her "a rough time;" and (3) that male workers pounded on the door of a bathroom she had to share with them while she was inside. The Board found that Petitioner had been subjected to sexual remarks from male employees; had received several notes on her car containing remarks of a sexual nature; and was kissed by a male employee against her will.
Petitioner testified that she did not continue to complain to her supervisors about these latter incidents of harassment because she was embarrassed, and recognized the total indifference of her supervisors to her concerns. Petitioner stated: "[T]he other times I complained about something, it didn't do any good, . . . I didn't get a very encouraging response."*fn2 For example, when she complained about the subforeman her supervisor responded that "some people never grow up."*fn3
The Board determined that Petitioner was ineligible for benefits because she did not take appropriate action to report the incidents to her supervisor. The decision was based on findings that Petitioner had never filed a formal complaint of sexual harassment and had not complained about each specific incident of sexual harassment. On appeal, Petitioner contends that the Board erred in determining she had not established a cause of necessitous and compelling nature for voluntarily quitting her job.*fn4
Sexual harassment can be a necessitous and compelling reason for quitting, provided the employee has taken
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reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 94 Pa. Commonwealth Ct. 67, 502 A.2d 782 (1986). Petitioner bears the burden of proving she took such steps. Colduvell v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 185, 408 A.2d 1207 (1979). Whether a claimant has established a cause of necessitous and compelling nature is a question of law reviewable by this court. Adamski v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 639, 441 A.2d 502 (1982). This court has held that a claimant must take "common sense action" so that the employer is given "an opportunity to understand" what she is objecting to. Colduvell, 48 Pa. Commonwealth Ct. at 187, 408 A.2d at 1208.
Petitioner asserts that she took reasonable and prudent steps. Petitioner argues she is not required to complain about each and every incident and is not required to make a formal complaint of sexual harassment. She contends that under the circumstances present here, the actions she took were sufficient to meet her burden ...