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07/21/97 CHERYL D. ANDREWS v. UNEMPLOYMENT

July 21, 1997

CHERYL D. ANDREWS, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-358240. State Agency Unemployment Compensation Board of Review.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: July 21, 1997

Cheryl Andrews (Claimant) petitions for review of an order from the Unemployment Compensation Board of Review (Board) affirming the decision of the referee to deny benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). *fn1 We reverse.

Claimant began her employment as a packer on first shift with R & B, Inc. (Employer) in May 1996. Subsequently, Mr. Forest, a supervisor, told Claimant that she would have more job opportunity if she transferred from first shift to third shift. In June 1996, Claimant accepted the shift change so that she could advance from a packer to a line lead who supervises the packers. On September 18, 1996, Claimant was called into the office of her new supervisor, James Witherspoon (Witherspoon) for a performance evaluation. After Witherspoon gave Claimant an outstanding evaluation, Claimant inquired about her promotion to a line lead position. In response to Claimant's inquiry, Witherspoon stated that Claimant "would be able to get any position [she] wanted to get if [she] would just come over to his house and sleep with him." (H.T. at 5). Claimant responded by saying, "I'll get mine the old fashioned way, I will earn it." (H.T. at 5).

On the same date, a co-worker, who held the position of line lead, began training Claimant for the position of line lead. Later that day, while Claimant was still receiving training, Witherspoon approached Claimant and said, "remember how you got that position" and "remember what you have to do," while he simultaneously rubbed his shoulder near Claimant's breast. (H.T. at 5). After September 18, 1996, Witherspoon repeatedly harassed Claimant with statements such as, "remember how you got that position," and "when are you coming over to my house?" (H.T. at 5). After consistently refusing Witherspoon's advances, Claimant was finally demoted on September 24, 1996, and a co-worker, named Donna, was promoted to fill the position of line lead on third shift. (H.T. at 5-6). Donna not only permitted Witherspoon to hug her and openly touch her buttocks, breasts, face, and hair but also returned these physical gestures in kind. (H.T. at 6). After Claimant was demoted, Witherspoon told Claimant that she "should have done what he asked [her] to do." (H.T. at 6).

On September 26, 1996, Claimant reported Witherspoon's offensive conduct to his supervisor, Paul Horace, and she requested a shift change do get away from Witherspoon and Donna, who was also verbally abusing Claimant by this time. (H.T. at 6-8). Claimant sought medical treatment for the stress and anxiety that resulted from being subject to persistent abuse at her job. (H.T. at 8). Claimant also met with second level supervisor Greg Churello wherein she informed Mr. Churello that she could no longer work under these conditions. (H.T. at 7). Claimant pleaded with Mr. Horace and Mr. Churello to transfer her to another shift on at least five different occasions. (H.T. at 7). Claimant also testified that she did not report these incidents to principal management officials because she feared that she would lose her job. (H.T. at 9). At the hearing before the referee, Claimant offered the testimony of a co-worker who testified that she was also a victim of Witherspoon's advances, and she witnessed Witherspoon harassing other women at work, including Claimant. The co-worker also testified that she never reported Witherspoon because the management structure at work was very intimidating and because Employer has a record of regularly firing employees in groups of approximately twenty at a time.

On October 8, 1996, Claimant voluntarily ceased reporting to work, and she was subsequently notified by Employer that she was being laid off effective October 25, 1996. The Philadelphia North Job Center issued a notice of determination, dated November 13, 1996, wherein it denied benefits. Claimant subsequently appealed, and after a full hearing, which Employer failed to attend after receiving proper notice, the referee affirmed the denial of benefits. The Board affirmed.

Claimant raises the following issues for our consideration: (1) whether the Board erred in finding that Claimant failed to notify employer that she was being sexually harassed by Witherspoon; and (2) whether the Board erred in concluding that Claimant had a duty to report sexual harassment to her employer where her harasser, Mr. Witherspoon, was a management official of the Employer. *fn2

Section 402 of the Law, 43 P.S. § 802, provides, in relevant part, the following:

An employe shall be ineligible for compensation for any week --

(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act . . . .

43 P.S. ยง 802(b). In the instant case, Claimant had the burden of proving that she quit for a necessitous and compelling reason. Peddicord v. Unemployment Compensation Board of Review, 166 Pa. Commw. 676, 647 A.2d 295, 298 (Pa. Commw. 1994). Additionally, Claimant was the only party to present any evidence of record because Employer failed to appear at the hearing even though it received proper notice. (H.T. at 1). Consequently, Claimant and her co-worker were the only individuals to testify at the hearing. (H.T. at 3-13). We have previously held that, where only the burdened party presents evidence and does not prevail before the Board, our review is limited to determining whether the Board ...


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