               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lisamarie Tracey,                          :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 378 C.D. 2016
                    Respondent             :   Submitted: October 7, 2016


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: December 19, 2016


             Lisamarie Tracey (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) February 12, 2016
order reversing the Referee’s decision granting Claimant UC benefits. The sole issue
before this Court is whether the UCBR erred by determining that Claimant committed
willful misconduct under Section 402(e) of the UC Law (Law).1 After review, we
affirm.
             Claimant was employed as a full-time licensed practical nurse with
Employer from September 9, 2013 through July 8, 2015. Employer maintained a
Therapeutic Boundaries Agreement (Agreement) that required Employer’s treatment
staff, including Claimant, to minimize self-disclosure to clients. Claimant signed the
Agreement acknowledging her understanding of its terms which included the warning

      1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
that “failure to abide by any of the above guidelines may result in immediate
termination.” Original Record (O.R.) Item No. 3, 16A, Agreement at 1.
            Employer provided grievance forms to clients so that clients could report
unsatisfactory conditions or treatment.    Employer required staff to immediately
forward client grievance forms to Employer’s Program Director Jennifer Lembach
(Lembach), or Employer’s Clinical Director.
            On February 16, 2015, Claimant received a verbal warning for violating
the Agreement by sharing personal information about her son while discussing
treatment with a client. Employer’s Eastern Region Director of Nursing Cynthia
Campbell (Campbell), informed Claimant that “[Claimant] could not do that.” O.R.
Item No. 8, Notes of Testimony, September 10, 2015 (N.T.) at 36.
            On June 11, 2015, during a disciplinary conference pertaining to an
insubordination complaint against Claimant, Lembach noticed that Claimant was in
possession of grievance forms dated June 8, 2011 that had not been submitted to
Lembach or to Employer’s Clinical Director. Claimant could not clearly explain why
she had not submitted the grievance forms as required.
            Employer received a grievance on June 19, 2015, wherein a client
reported feeling uncomfortable when Claimant talked about medication Claimant was
taking, and her belief that Employer was attempting to discharge her.          When
questioned by Employer’s management, Claimant admitted to speaking with the
client about her son’s autism diagnosis and medication.
            On July 14, 2015, Employer terminated Claimant’s employment for,
inter alia, violating the Agreement, and failing to immediately submit client
grievance forms.
            Claimant applied for UC benefits. On August 10, 2015 the Scranton UC
Service Center found Claimant ineligible for benefits under Section 402(e) of the
Law. Claimant appealed and a Referee hearing was held. On September 11, 2015,
                                          2
the Referee reversed the UC Service Center’s Determination and granted Claimant
UC benefits. Employer appealed to the UCBR. On February 12, 2016, the UCBR
reversed the Referee’s Decision and found Claimant ineligible for UC benefits under
Section 402(e) of the Law. Claimant appealed to this Court.2
              Claimant argues that the UCBR erred in disregarding the Referee’s
determinations that Claimant was eligible for UC benefits and that Employer did not
meet its burden of establishing willful misconduct. We disagree.
              This Court has explained that:

              Section 402(e) of the Law provides that an employee is
              ineligible for unemployment compensation benefits when
              his unemployment is due to discharge from work for willful
              misconduct connected to his work. The employer bears the
              burden of proving willful misconduct in an unemployment
              compensation case. Willful misconduct has been defined as
              (1) an act of wanton or willful disregard of the employer’s
              interest; (2) a deliberate violation of the employer’s rules;
              (3) a disregard of standards of behavior which the employer
              has a right to expect of an employee; or (4) negligence
              indicating an intentional disregard of the employer’s
              interest or a disregard of the employee’s duties and
              obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted). Further,

              [w]hen an employee is discharged for violating a work rule,
              the employer must prove the existence of the work rule, the
              reasonableness of the rule, the claimant’s awareness of the
              rule, and the fact of its violation. The burden then shifts to
              the employee to prove that he or she had good cause for
              violating the rule. An employee establishes good cause by


       2
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 3
              showing that his or her conduct was justified or reasonable
              under the circumstances.

Adams v. Unemployment Comp. Bd. of Review, 56 A.3d 76, 79 (Pa. Cmwlth. 2012)
(citations omitted). Moreover,

              the [UCBR] is the ultimate fact-finder in unemployment
              compensation matters and is empowered to resolve all
              conflicts in evidence, witness credibility, and weight
              accorded the evidence. It is irrelevant whether the record
              contains evidence to support findings other than those made
              by the fact-finder; the critical inquiry is whether there is
              evidence to support the findings actually made. Where
              substantial evidence[3] supports the [UCBR’s] findings, they
              are conclusive on appeal. . . . [T]he prevailing party below[]
              is entitled to the benefit of all reasonable inferences drawn
              from the evidence.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted).
              Here, the UCBR found that Claimant committed willful misconduct by
violating the Agreement and by not immediately submitting client grievances. With
respect to whether Claimant violated the Agreement, Lembach explained the policy
considerations behind the Agreement’s restriction on personal disclosure: “The basis
of [Employer’s] program is focused on ethics and boundaries, one of which is not
personal disclosure, so that’s a significant part of our training that we’re not to
disclose personal information about ourselves with respect to client interaction.”
N.T. at 12. Campbell testified that Claimant had received a verbal warning on
February 16, 2015 for discussing personal matters with a client, and that Claimant
was informed that she was not thereafter to discuss herself or her son with clients.




       3
         “Substantial evidence is evidence which a reasonable mind might accept as adequate to
support a conclusion.” Wheelock Hatchery, Inc. v. Unemployment Comp. Bd. of Review, 648 A.2d
103, 105 n.3 (Pa. Cmwlth. 1994).
                                              4
Claimant admitted:

              [Employer’s lawyer (]EL[):] . . . . [Campbell] has testified
              that it has been – or had been an ongoing discussion
              between you and her about whether it was appropriate to
              talk about your son or yourself. Do you remember having
              any of those conversations talking about your son or
              yourself with clients?
              [Claimant:] I remember the conversation talking about my
              son and you said myself. I told her I did not talk about
              myself, but I did talk about my son.
              EL[:] Okay. And did she tell you that you can’t do that,
              that that is against [Employer’s] policy?
              [Claimant:] She told me I could not do that.

N.T. at 35-36 (emphasis added). Despite receiving this direction, Claimant admitted
speaking with a client about her son’s autism.4 See N.T. at 31.
              Based on our review of the record, substantial evidence supports the
UCBR’s findings that Employer proved the existence of the work rule prohibiting
self-disclosure and its reasonableness, plus Claimant’s awareness of the work rule
and her violation thereof. Claimant did not demonstrate good cause for violating the
rule. Accordingly, we hold that the UCBR properly found Claimant ineligible for UC
benefits under Section 402(e) of the Law.5




       4
          Claimant testified that she believed written orientation materials overrode Campbell’s
directions. See N.T. at 37. Notably, Claimant did not testify that she ever approached Campbell to
seek clarification before simply disregarding Campbell’s orders.
        5
          Employer terminated Claimant’s employment for multiple reasons. However, Claimant is
disqualified from receiving UC benefits so long as one of those reasons constitutes willful
misconduct. See Anderson v. Unemployment Comp. Bd. of Review, 485 A.2d 900 (Pa. Cmwlth.
1985). Thus, we need not address whether Claimant’s failure to immediately submit client
grievances constituted willful misconduct.


                                                5
For all of the above reasons, the UCBR’s order is affirmed.


                         ___________________________
                         ANNE E. COVEY, Judge




                             6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lisamarie Tracey,                       :
                         Petitioner     :
                                        :
                    v.                  :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 378 C.D. 2016
                    Respondent          :


                                      ORDER


            AND NOW, this 19th day of December, 2016, the Unemployment
Compensation Board of Review’s February 12, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
