                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bell Socialization Services, Inc.,            :
                    Petitioner                :
                                              :
                v.                            :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 747 C.D. 2015
                 Respondent                   :   Submitted: September 11, 2015

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: November 17, 2015
                Bell Socialization Services, Inc. (Employer) petitions for review of
the Order of the Unemployment Compensation Board of Review (Board) which
affirmed the Referee’s grant of benefits to Tiffany M. Smith (Claimant) after
finding that Claimant’s conduct did not rise to the level of willful misconduct
under Section 402(e) of the Unemployment Compensation Law (Law).1


                The facts, as originally found by the Referee and incorporated by the
Board, are as follows:

                1. The claimant was employed from August 5, 2010
                until September 27, 2014, at Bell Socialization Services
                [Employer] as a full-time Senior Residential Service
                Worker, earning $10.18 per hour.


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
2. The employer has policies, of which the claimant was
aware, in which an employee who violates the rights of a
resident’s care or an employee who engages in
negligence, mistreatment or insensitivity to the needs of a
client will be subject to disciplinary action up to and
including termination.

3. As part of the claimant’s job responsibilities, she was
required to take residents on outings.

4. The claimant’s son plays football, and she spoke to
the residents for several weeks about attending her son’s
football game on September 27, 2014.

5. On September 27, 2014, the claimant was on duty
with a co-worker, where residents Josh and Charles lived.

6. On September 27, 2014, the claimant asked Charles if
he wanted to go to the football game. Charles did not say
anything, he got dressed and went into the van.

7. The other resident, Josh, got into the claimant’s car.

8. The claimant asked Charles a second time if he
wanted to go to the football game. Charles said nothing.

9. The claimant instructed her co-worker to take Charles
to the football game in the company van if Charles
wanted to go to the football game.

10. A third co-worker, an LPN, spoke to Charles who
appeared to be upset because he did not want to go to the
football game. The LPN asked Charles about going to
the football game, but Charles remained in the van and
did not exit it.

11. The claimant’s co-worker transported Charles to the
football game.

12. The claimant did not force Charles to go to the
football game.



                             2
13. On September 27, 2014, Charles’ girlfriend arrived
at the facility at approximately 9:00 a.m.

14. Charles and his girlfriend asked the claimant if it was
okay if they ‘made out.’

15. The claimant said it was okay, but they could not
have sex because Charles knew that he had to be tested
and had to purchase condoms.

16. The claimant noticed a large mark on Charles’
girlfriend’s neck. The claimant advised his girlfriend that
she would be speaking to the girl’s father.

17. After the claimant’s co-worker also arrived, Charles’
girlfriend told the claimant and her co-worker that she
wanted to have sex with Charles.

18. Charles’ girlfriend pointed to her body and referred
to both vaginal and anal sex.

19. The claimant asked a clarifying question to the
girlfriend and informed her that the claimant would not
allow someone to do that to the claimant.

20. There were no other residents involved in the
conversation between the claimant, the co-worker,
Charles and his girlfriend.

21. On November 10, 2014, the claimant was discharged
for allegedly violating Charles’ rights when she allegedly
took him to an activity in which he did not want to
participate and for engaging in a conversation regarding
sexual activity, which violated the policy regarding
negligence, mistreatment or insensitivity to the needs of a
resident.
….
REASONING:...
….
The claimant was discharged for allegedly violating the
rights of a resident’s care and for alleged negligence,
mistreatment or insensitivity to the resident. The
claimant worked in a group home where a resident,

                            3
Charles, resided. The claimant had spoken to the
residents of the home about going to her son’s football
game on September 27, 2014. On the day of the game,
the claimant asked Charles on two separate occasions
whether he wanted to go to the game. On his own,
Charles got dressed and went into the employer’s van.
Charles informed an LPN that he did not want to go to
the football game but he did not exit the van when he had
the opportunity to do so. The claimant drove her own her
own car with the other resident while her co-worker
drove Charles in the employer’s van.

The second incident occurred the same day when the
claimant answered questions raised by Charles’ girlfriend
in regard to sexual activity. Charles’ girlfriend informed
the claimant that she wanted to have sex with Charles,
both anally and vaginally. The claimant asked some
clarifying questions and advised the girlfriend that the
claimant, personally, would not allow anyone to do that
to the claimant. The claimant also advised Charles’s
girlfriend that she could not have sex with Charles until
he was tested and purchased condoms.
….
There is no competent evidence in the record to show
that Charles was forced to go to a football game against
his will. In fact, the employer’s witness testified that she
asked Charles if he wanted to go to the game but he did
not exit the van when he had the opportunity to do so. In
fact, the claimant did not actually transport Charles to the
game. A co-worker did in the employer’s van. Charles
had the opportunity to stay behind, but he chose not to do
so for whatever reason. The employer has failed to meet
its burden on this point.

In regard to the second incident where the claimant
engaged in a conversation regarding sexual activity, the
employer also fails to meet its burden. Legitimate
concerns were raised in front of the claimant regarding
sexual activity between Charles and his girlfriend. The
claimant acted responsibly and answered the questions
and cautioned the pair against engaging in such activity
until Charles was tested and had to [sic] opportunity to
purchase condoms. There is no competent evidence in

                             4
              the record to show that the claimant was insensitive or
              engaged in any type of negligence or mistreatment of
              Charles or his girlfriend. The claimant’s actions do not
              rise to the level of willful misconduct in this case.
              Accordingly, benefits are granted.

Referee’s Decision, February 3, 2015, (Decision), Findings of Fact (F.F.) Nos. 1-
21 and Reasoning at 1-21; Reproduced Record (R.R.) at 71a-73a.


              The Board affirmed.


              On appeal, Employer contends that the Board erred when it concluded
that Claimant did not commit willful misconduct.2


              Whether a claimant’s conduct rises to the level of willful misconduct
is a question of law subject to this Court’s review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991).                       Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
standards of behavior which an employer can rightfully expect from the employee,
or negligence which manifests culpability, wrongful intent, evil design, or
intentional and substantial disregard for the employer’s interest or employee’s
duties and obligations. Frick v. Unemployment Compensation Board of Review,
375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that
it discharged an employee for willful misconduct.               City of Beaver Falls v.


       2
          This Court’s review in an unemployment compensation case is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment
Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).



                                              5
Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982).
The employer bears the burden of proving the existence of the work rule and its
violation.   Once the employer establishes that, the burden then shifts to the
claimant to prove that the violation was for good cause. Park v. Unemployment
Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).


              In the present case, Employer argues that Claimant was terminated for
willful misconduct because Claimant violated Employer’s policy which prohibited
employees from engaging in negligence, mistreatment, and/or insensitivity to the
needs of Employer’s residents.3


              Britta Schwab (Ms. Schwab), human resources coordinator for
Employer, testified that Claimant was terminated because she did not respect
Charles’ confidentiality when she engaged in conversations regarding his sexual
activity in front of two other individuals. Notes of Testimony, January 7, 2015,
(N.T.) at 7. Ms. Schwab noted that Claimant received a manual which outlined
Employer’s policies and procedures and Claimant underwent yearly training for
her position. N.T. at 8. Ms. Schwab explained that if a resident initiated a
conversation of a private or sexual nature, Claimant should have “redirected the
conversation and to take it to a more private place.” N.T. at 9-10.


              Pattie Reese (Ms. Reese), incident manager and program coordinator
for Employer, provided annual training to Claimant for incident management,

       3
         Before this Court, Employer does not challenge the Board’s determination that
Claimant did not commit willful misconduct regarding Charles’ attendance at the football game.



                                              6
client sensitivity, rights violations, misuse of funds, and other incidents. N.T. at
11. Ms. Reese’s investigation revealed that Claimant had a conversation of a
sexual nature with Charles “in the living room.” N.T. at 13. Claimant was trained
to answer resident questions but that it should be done “privately” and that
“personal experiences” should not be discussed. N.T. at 13-14.


            Claimant testified that she did not violate Charles’ confidentiality
when she engaged in conversations regarding his sexual activity.           Claimant
explained that the doors to the house were always locked and that only five people
were in the house at the time the conversation occurred- four of whom were
involved in the conversation. Another resident was in the house but in his room.
N.T. at 23. Claimant clarified:

            Me, Sheri Lynn [phonetic], which is Charles’ girlfriend,
            and Charles. Josh [another resident] was there, but he
            was in his room.         There was no other staff in
            there….They [Charles and Sheri Lynn] asked me if they
            could go make out, and I told them it was okay for them
            to make out, that they couldn’t have sex….we have a
            protocol that we had to do. If he wanted to do anything
            with her, anything intimate, he had to go get checked.
            She had to go get checked, and he needed to provide
            some protection…They proceeded to make out. She
            came out of the sun room, and she had this big old huge
            suck mark on her neck that looked like he could’ve put
            his hands on her….So I got nervous because her dad was
            upset when he found out that they made out the first
            time….Darnell came in about 12:00. We all sat in the
            living room. We all conversated [sic].
            ….
            We were talking about love, relationships, and
            sex….Charles’ girlfriend proceeded to say that she
            wanted to have sex today….And then she was like- - she
            pointed- - she was like I like it here and here, and I asked
            her did you - - are you saying you like anal sex? And she

                                         7
             said yes. And I said okay. I said I don’t personally
             myself I don’t like that. I wouldn’t let nobody [sic] do
             that to me.
N.T. at 21-22.


             Claimant admitted that she asked Sheri Lynn to clarify “what she was
talking about” when Sheri Lynn pointed to her body. N.T. at 23.          Claimant
testified that Sheri Lynn “asked do I like to have sex.” N.T. at 24. When asked if
Claimant thought it was proper to “talk about whether you would or wouldn’t have
anal sex in front of Charles and Darnell” with another resident on the premises,
Claimant responded, “If she asked me a question and I’m answering her, yes.”
N.T. at 23. Claimant testified that during her training she was never told that she
could not talk about her “own sexual ideas or thoughts with individuals.” N.T. at
23.


             The Board adopted the Referee’s reasoning that:

             Legitimate concerns were raised in front of the claimant
             regarding sexual activity between Charles and his
             girlfriend. The claimant acted responsibly and answered
             the questions and cautioned the pair against engaging in
             such activity until Charles was tested and had to [sic]
             opportunity to purchase condoms. There is no competent
             evidence in the record to show that the claimant was
             insensitive or engaged in any type of negligence or
             mistreatment of Charles or his girlfriend.
Decision at 3.


             In unemployment compensation proceedings, the Board is the
ultimate fact-finding body empowered to resolve conflicts in evidence, to
determine the credibility of witnesses, and to determine the weight to be accorded

                                        8
evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328
(Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the
record, taken as a whole, provides substantial evidence to support the findings.
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa.
1977). Claimant’s testimony provided support for the challenged findings.


             It was Employer’s burden to prove it had a policy or rule, that
Claimant was aware of the rule, and that Claimant violated that rule. Employer
failed to establish that Claimant was aware of a policy which prohibited her from
talking about her own sexual thoughts or ideas based on Claimant’s credible
testimony.


             With respect to Employer’s argument that Claimant committed willful
misconduct when she talked with Charles and his girlfriend in Employer’s
common area, Claimant credibly testified that the conversation involved only
herself, Charles, Sheri Lynn, and Darnell Brown. No one else was present. Even
if Employer’s policy required Claimant to address such issues in a private setting,
this Court does not view the setting as insufficiently private given that few people
were there and the doors to the residence were locked.


             Accordingly, the decision of the Board is affirmed.


                                      ____________________________
                                      BERNARD L. McGINLEY, Judge




                                         9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bell Socialization Services, Inc.,     :
                    Petitioner         :
                                       :
             v.                        :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 747 C.D. 2015
                 Respondent            :


                                     ORDER


             AND NOW, this 17th day of November, 2015, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.



                                       ____________________________
                                       BERNARD L. McGINLEY, Judge
