Unclaimed Freight Co. v. Unemployment Compensation Board of Review

FRIEDMAN, Judge,

dissenting.

I must respectfully dissent. Unlike the majority, I do not believe that Pennsylvania law requires Philip E. Kehr (Claimant), prior to quitting, to re-notify Unclaimed Freight Company (Employer) about Ronald J. Kett-ner’s verbal abuse and profanity over an eight year period. Indeed, I believe that Claimant’s many complaints about Kettner’s verbal abuse and profanity over the course of that time, made both to Kettner, the owner of the company, and to Emil Nettke, Employer’s general manager, afforded Employer numerous opportunities to correct the problem and thereby preserve Claimant’s employment.

There is no question here that Claimant quit his job with Employer because: (1) Kettner subjected Claimant to continual verbal abuse and profanity over an eight year period; (2) Claimant often complained, but Kettner did not modify his behavior; (3) the abuse caused Claimant to have recurring migraine headaches, for which he took large doses of barbiturates; and (4) Claimant’s doctor advised him that the large doses would damage his liver. (UCBR’s Findings of Fact, Nos. 1^4, 6.)

*381Nevertheless, because Claimant, afraid of yet another confrontation with Employer when asked his reasons for quitting, (R.R. at 10a), chose to tell Nettke that he was leaving work for personal reasons, the majority concludes that Claimant failed to give Employer an opportunity to preserve Claimant’s employment. (Majority op. at 379.) I cannot agree.

Where a claimant tells an employer about harassment, abuse, humiliation and degradation in the workplace and asks the employer to remedy the situation, but the employer fails to do so, this court has not required a claimant who continues to work under such conditions to re-notify the employer about the abuse prior to quitting. Danner v. Unemployment Compensation Board of Review, 66 Pa.Cmwlth. 252, 443 A.2d 1211 (1982). We have stated that an employee who has been subjected to harassment need not notify the employer of each and every incident and will be eligible for benefits so long as the claimant took “common sense” action that would give the employer an opportunity to understand the nature of the employee’s objection and to take prudent steps to resolve the problem. Tedesco Manufacturing Co. v. Unemployment Compensation Board of Review, 122 Pa.Cmwlth. 549, 552 A.2d 754 (1989); Homan v. Unemployment Compensation Board of Review, 107 Pa.Cmwlth. 172, 527 A.2d 1109 (1987). Here, Employer clearly understood from Claimant’s complaints that Claimant objected to Kettner’s verbal abuse and profanity. In spite of many opportunities over an eight year period to resolve the problem, Employer did nothing.

The majority distinguishes this line of cases from the situation before us here by concluding that, unlike those claimants, Claimant here deprived Employer of a chance to retain Claimant in its employ by giving Employer personal reasons for quitting. (Majority op. at 379.) However, Claimant gave Employer many opportunities over an eight year period to preserve Claimant’s employment; the response was always the same, i.e., no improvement. Unlike the majority, I believe that Claimant did all that was necessary; I would force Claimant to do no more.

The fact that Claimant gave personal reasons for quitting is mere surplusage. After eight years of humiliation, recurring migraine headaches and, finally, the threat of liver damage from his headache medication, I believe that Claimant was entitled to preserve his dignity by giving personal reasons for quitting. Indeed, there was no need for Claimant to tell Employer that his abuser, the owner of the company, had so destroyed his mental and physical well-being that he could no longer take it.

Because I believe that Claimant gave Employer many opportunities to correct his verbal abuse and profanity, I would affirm the UCBR’s award of benefits.