           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Renee Smith,                           :
                             Petitioner       :
                                              :
                     v.                       :    No. 1634 C.D. 2017
                                              :    SUBMITTED: March 16, 2018
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                           FILED: May 31, 2018


              Nicole Renee Smith (Claimant) petitions pro se for review of an order
of the Unemployment Compensation Board of Review (Board) that affirmed the
decision of a referee denying her unemployment compensation benefits and
concluding that her actions constituted willful misconduct under Section 402(e) of
the Unemployment Compensation Law (Law).1 We affirm.
              The facts are as follows.2          XPO Logistics (Employer) employed
Claimant as a full-time operations supervisor from March 2014 to March 2017, at a
final annual pay rate of $52,000. (Jun. 23, 2017, Decision of Referee, Finding of


    1
     Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
    2
     The Board adopted and incorporated the referee’s findings and conclusions. (Oct. 10, 2017,
Decision of Board at 1.)
Fact (F.F.) No. 1.) Claimant was aware of Employer’s non-fraternization policy,
which, in pertinent part, provided:

              [A]ll management is prohibited from dating or pursuing
              romantic or sexual relationships with employees whom
              they supervise, directly or indirectly. Employees who
              violate this policy will be subject to discipline, up to and
              including termination of employment.

(Jun. 20, 2017, Hearing, Employer’s Ex. No. 17.)
              Claimant had a relationship with an hourly employee and, based on an
anonymous report, Employer conducted an investigation. (F.F. Nos. 5 and 6.) After
an initial denial, she subsequently “acknowledged that she had previously had a
sexual relationship with the employee.” (Id., Nos. 7 and 8.) The fact finder rejected
her testimony that the relationship ended before she became the employee’s
supervisor. (Jun. 23, 2017, Decision of Referee at 2-3.) Employer discharged her
“for violation of the policy and for failing to disclose the relationship when first
questioned.” (F.F. No. 9.) Subsequently, the Duquesne UC Service Center issued a
determination granting benefits. After a hearing at which both Claimant and
Employer appeared and presented testimony and evidence, the referee reversed.
Claimant appealed to the Board, which affirmed. In addition, it made an additional
finding crediting “the employer’s testimony that the claimant was dishonest about
her relationship in the [initial] meeting, and that [she] later stated to the employer
that she did have a relationship with a subordinate employee in violation of
employer’s policy.”3 (Oct. 10, 2017, Decision of Board at 1.) Her petition for review
to this Court followed.

    3
      This Court may not disturb the Board’s credibility findings or reweigh the evidence. Oliver
v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (holding that “the
Board is the ultimate factfinding body empowered to resolve conflicts in evidence, to determine
the credibility of witnesses, and to determine the weight to be accorded evidence.”).


                                               2
             Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n which [her] unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with [her] work . . . .” The term “willful misconduct” has been defined to include:
(1) the deliberate violation of work rules; and (2) the disregard of standards of
behavior which an employer can rightfully expect of its employee. Glatfelter Barber
Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth.
2008). The employer bears the initial burden of proving that the claimant engaged
in willful misconduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158,
1162 (Pa. Cmwlth. 2012). If the willful misconduct charge is based upon a violation
of a work rule, the employer must prove the existence of the rule and its deliberate
violation.   Id.   Once the employer establishes a prima facie case of willful
misconduct, the burden then shifts to the claimant to demonstrate good cause for her
conduct. Id. The claimant has good cause if her action “is justifiable or reasonable
under the circumstances.” Frumento v. Unemployment Comp. Bd. of Review, 351
A.2d 631, 634 (Pa. 1976).
             On appeal, Claimant maintains that the Board erred in determining that
she violated the policy and that Employer offered no concrete evidence that she
engaged in a relationship with an hourly employee. The record, however, belies
Claimant’s assertions.

             [Referee:] You were in a romantic relationship or sexual
             relationship with him?
             [Claimant:] I can’t say that one night it didn’t happen.
                   ....
             [Referee:] While you were employed?



                                          3
               [Claimant:] Yes. Because he was like my best friend.
               Yeah. So that – fine.

(Jun. 20, 2017, Hearing, Notes of Testimony at 15.)
               In addition, Claimant further acknowledged that the relationship
occurred while she was a management employee. In that regard, she testified:

               [Referee:] Okay. Were you in Management at the time?
               [Claimant:] Yes.
               [Referee:] And he was an hourly employee at the time?
               [Claimant:]   Yeah.   He was on inbound, I was on
               outbound.
(Id. at 18.)
               As the Board asserts, a party’s words constitute an admission and may
be used against him or her. Evans v. Unemployment Comp. Bd. of Review, 484 A.2d
822, 826-27 (Pa. Cmwlth. 1984). Here, Claimant admitted to a relationship with an
hourly employee while employed as management. In addition, the fact finder
rejected her testimony that the relationship ended before she became the employee’s
supervisor. Those factors are the essential components of Employer’s policy.
               Moreover, to the extent that Claimant asserted that many employees
broke Employer’s policy with impunity, she submitted no competent evidence in
support and, therefore, failed to establish disparate treatment.     See Walker v.
Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)
(holding that hearsay evidence, admitted without objection, may only support a
finding if it is corroborated by any competent evidence of record). Further, to the
extent that she challenges the relationship policy as unreasonable, we similarly
cannot consider her assertions in her brief that delving into her personal life
constitutes a violation of privacy and that her life outside of work should not be an


                                          4
issue if it does not affect her performance, dedication, and work ethic. By failing to
proffer such evidence at the hearing, she waived her opportunity to do so. See Yost,
42 A.3d at 1165 (contentions not raised before the referee or Board are waived).
Moreover, even if this issue had not been waived, it is devoid of merit. Non-
fraternization policies, particularly those which apply to supervisors and employees
who are supervised, are not only common but designed to promote a professional
and non-predatory workplace environment, and are well within the valid
prerogatives of employers. In addition, dishonesty when asked about the behavior
is below the standard of conduct that an employer can rightfully expect.
              Accordingly, mindful that Employer discharged Claimant for violation
of the policy and dishonesty, we agree that her actions constituted willful
misconduct.4 For the above reasons, therefore, we affirm.



                                           _____________________________________
                                           BONNIE BRIGANCE LEADBETTER,
                                           Senior Judge




    4
     Whether a claimant’s actions constitute willful misconduct is a question of law over which
we exercise plenary review. Yost, 42 A.3d at 1162.


                                              5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Renee Smith,                    :
                       Petitioner      :
                                       :
                 v.                    :   No. 1634 C.D. 2017
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                    ORDER


           AND NOW, this 31st day of May, 2018, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.



                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
