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A former customer service assistant who routinely complained to her employer of sexual harassment by co-workers had a compelling reason to quit her job, despite the fact that her employer conducted an internal investigation into the problem and circulated a memo stressing the company’s zero-tolerance policy, a Pennsylvania Commonwealth Court panel has ruled. In Collier Stone Co. v. Unemployment Compensation Board of Review, the judges affirmed the board’s decision, concluding that claimant Lisa Konkeil is entitled to benefits. The referee had initially found that Konkeil should not be allowed benefits. The panel determined that Collier Stone had not done enough to combat the continued harassment of Konkeil. “Employer was aware of claimant’s complaints of harassment and that claimant’s co-workers were � making her job difficult to carry out,” Judge Renee Cohn Jubelirer wrote. “While employer was aware of claimant’s complaints, and did take some steps to address them, the harassment in the workplace continued for eight months without being rectified by employer.” Cohn Jubelirer was joined by Judge Bernard L. McGinley and Senior Judge Joseph F. McCloskey. According to Cohn Jubelirer’s opinion, Konkeil’s employment lasted from July 2003 to April 2004. She complained to her bosses of incidents of harassment that she claimed began in September 2003. Konkeil alleged that, on various occasions, co-workers looked down her shirt, called her derogatory names, and that one shook his genitals in front of her, according to the opinion. In February 2004, Collier Stone began an investigation into the alleged exposed genitals incident, according to the opinion, but ultimately found that there was no evidence, save Konkeil’s word, to support her claims. However, the company did pass out an “urgent action memo” several days later to all employees when they picked up their paychecks. That document reminded workers of Collier Stone’s zero-tolerance policy on sexual harassment and promised that any such actions would result in dismissal, according to the opinion. But the harassment continued, the board found. One day in April 2004, while Konkeil was turning her car into the company parking lot, according to the opinion, a co-worker almost hit her and then made gestures insinuating that Konkeil was crazy and possibly suicidal. “The board further found that, although employer took steps to address claimant’s complaints,” Cohn Jubelirer wrote, “they proved to be insufficient. It also found claimant’s testimony credible that her co-workers retaliated against her because they knew she had complained � . Thus, it determined that claimant had proven a necessitous and compelling reason to quit and awarded her benefits.” Konkeil had argued that her case was basically identical to Comitalo v. UCBR, which the Commonwealth Court ruled on in 1999. (None of the judges who heard Collier Stone were involved in the Comitalo decision.) In Comitalo, Cohn Jubelirer wrote, the court granted benefits to a claimant who asserted that she had been repeatedly sexually harassed by her manager, as well as by the manager who replaced the first one after the claimant had complained to her employer. The board found against her, but the Commonwealth Court reversed. “Specifically,” Cohn Jubelirer wrote, referring to Comitalo, “the employer, after being advised of the complaints, which were supported by the record, did not take immediate action to protect the claimant from further harassment.” Citing Pennsylvania case precedent, Cohn Jubelirer wrote that unemployment cases involving sexual harassment allegations fall into two categories: Either the claimant did not report the incident(s), or he or she did and the employer did not effectively address the situation. “The evidence of record establishes that claimant complained to employer on several occasions about the sexual harassment that she was subjected to by different co-workers,” Cohn Jubelirer wrote. Collier Stone was represented by attorneys from McKenna & Chiodo in Pittsburgh. A call to the firm seeking comment was not immediately returned. Pennsylvania Department of Labor & Industry spokesman Barry Ciccocioppo said his office was pleased that the court supported the board’s position. “Clearly in this case the court agreed that not enough was done on the employer’s part” to combat the harassment of Konkeil, Ciccocioppo said.

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