              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert A. Heidel, Jr.,                       :
                   Petitioner                :
                                             :
       v.                                    : No. 849 C.D. 2018
                                             : ARGUED: February 14, 2019
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :

BEFORE:         HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                      FILED: March 6, 2019

       Robert A. Heidel, Jr. (Claimant) petitions for review of the June 1, 2018 Order
of the Unemployment Compensation Board of Review (Board) affirming the Referee’s
decision to deny Claimant unemployment compensation (UC) benefits. The Board
concluded that Claimant was ineligible for UC benefits under Section 402(e) of the
Unemployment Compensation Law (Law)1 because he was discharged from work for
willful misconduct. We affirm the Board’s Order.
                                           Background
       Claimant worked as a full-time MAT technician/shift leader2 for Huntingdon
Fiberglass Products, LLC (Employer) from April 5, 1977 through November 9, 2017.
Bd.’s Finding of Fact (F.F.) No. 1. On November 9, 2017, Claimant hugged a female

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law states that an employee shall be ineligible for UC benefits for any week
“[i]n which his unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work.” 43 P.S. § 802(e).

       2
           The record does not indicate what a “MAT technician” is.
subordinate and licked her earlobe with his tongue. Id. No. 4. Employer immediately
suspended Claimant pending an investigation. Id. No. 5. During the investigation,
Claimant admitted to Employer that he had, in fact, hugged the female subordinate and
licked her earlobe with his tongue, but stated that he did so in an attempt to cheer her
up. Id. No. 6; Notes of Testimony (N.T.), 1/31/18, at 7, 16, 20.
      On November 10, 2017, Employer discharged Claimant for violating its anti-
harassment policy, which provides that unwelcome advances and touching, as well as
obscene gestures, are prohibited in the workplace. Bd.’s F.F. No. 2. Claimant was
made aware of Employer’s anti-harassment policy in May 2014, when Employer gave
Claimant a revised employee handbook containing the policy. Id. No. 3.
      Claimant filed a claim for UC benefits, which the local Service Center denied.
The Service Center found that Claimant’s acts of hugging a female subordinate and
licking her ear demonstrated a disregard of the standards of behavior that Employer
had the right to expect of its employees. Not. of Determination, 12/4/17, at 1. The
Service Center also found that Claimant did not establish good cause for his conduct,
rejecting his assertion that he was merely attempting to “cheer up” his subordinate. Id.
Because Employer sustained its burden of proof and Claimant did not establish good
cause for his actions, the Service Center determined that Claimant was ineligible for
UC benefits under Section 402(e) of the Law. Id.
      Claimant timely appealed to the Referee, who held a hearing on January 31,
2018. Claimant appeared with counsel via telephone and testified on his own behalf.
Employer presented the testimony of its Chief Operating Officer, Kyle Frank, who
investigated the incident between Claimant and the female subordinate.3 Following the
hearing, the Referee found that Employer satisfied its burden of proving that


      3
         Gloria Carbaugh, Employer’s Human Resource Manager, was also present at the hearing,
but she did not testify.

                                             2
Claimant’s acts of hugging and licking the ear of his subordinate constituted willful
misconduct. Ref.’s Order at 2. Therefore, the Referee concluded that Claimant was
ineligible for UC benefits under Section 402(e) of the Law. Id.
       Claimant timely appealed to the Board, which adopted the Referee’s Findings of
Fact and Conclusions of Law and affirmed the Referee’s decision. The Board further
concluded:

       On appeal, [C]laimant alleges he did not lick his subordinate’s ear, but
       rather kissed it, that the record lacks evidence [that] it was unwanted, and
       that it was not an obscene gesture. [C]laimant testified he told [E]mployer
       [that] he licked his subordinate’s ear, so his allegation of different conduct
       is unconvincing. Although the Board agrees that [C]laimant’s actions
       were not obscene gestures and acknowledges that licking and kissing may
       be slightly different in magnitude, they both, like the hug, are intimate
       forms of touch, different from a tap on the shoulder or handshake that one
       can reasonably expect in social situations. This type of intimate contact
       would require affirmative consent to be acceptable. The absence of
       [C]laimant being pushed away and verbally admonished at the moment,
       especially considering his position of power over the subordinate, does
       not establish consent. Generally, a complaint of sexual harassment may
       be brought by anyone made uncomfortable by inappropriate conduct, not
       just he or she who was touched, so a complaint by a different employee
       would establish willful misconduct, even absent a [work] policy.

Bd.’s Order at 1. Claimant now petitions for review of that decision.4
                                              Issue
       Claimant presents one question for our review: Did Employer meet its burden
of proving that Claimant’s discharge was the result of willful misconduct under Section
402(e) of the Law?




       4
         Our scope of review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether constitutional
rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

                                                3
                                        Analysis
      Our Court has defined “willful misconduct” as a wanton or willful disregard of
the employer’s interests, a deliberate violation of the employer’s rules, a disregard of
the standards of behavior that the employer has a right to expect of its employees, or
negligence indicating an intentional disregard of the employer’s interests or of the
employee’s duties and obligations. Miller v. Unemployment Comp. Bd. of Review, 83
A.3d 484, 486-87 (Pa. Cmwlth. 2014). An employer seeking to prove that a claimant
committed willful misconduct by violating a work policy “must demonstrate the
existence of the policy, its reasonableness, and its violation.”            Klampfer v.
Unemployment Comp. Bd. of Review, 182 A.3d 495, 500 (Pa. Cmwlth. 2018). If the
employer satisfies its burden of proof, then “the burden shifts to the claimant to
demonstrate good cause for violating the rule.”        Chester Cmty. Charter Sch. v.
Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016).
      At the hearing, Mr. Frank testified that Employer has an anti-harassment policy,
which prohibits employees from engaging in unwelcome advances and touching of
other employees. N.T., 1/31/18, at 5, 7-8. Employer distributed the policy to all
employees in May 2014 in the company’s employee handbook. Id. at 5, 8. Mr. Frank
testified that an employee may be discharged for his or her first violation of the policy.
Id. at 5. Although Employer did not provide training to its employees regarding the
anti-harassment policy, “when [the handbook was] handed out to the employees,
[Employer] instructed everybody to come to [management] with any questions they
may have on the polic[y].” Id. at 8. Mr. Frank further testified that he knew that
“[Claimant] . . . had the anti-harassment policy” and, in his opinion, “an average person
could be expected to believe that those kind of actions [(hugging and licking a co-
worker’s ear)] are unwanted.” Id. at 10. In response, Claimant testified that he did not
recall ever receiving Employer’s anti-harassment policy and he had no reason to


                                            4
believe that his conduct toward the female subordinate was a violation of the policy.
Id. at 15-17.
      The Board, however, credited Mr. Frank’s testimony. It is well settled that the
Board is the ultimate fact-finder in UC cases and is empowered to resolve conflicts in
the evidence and determine the credibility of witnesses.         Metro. Edison Co. v.
Unemployment Comp. Bd. of Review, 606 A.2d 955, 957 (Pa. Cmwlth. 1992). A
witness’s credible testimony may be sufficient to establish the existence of a work
policy. See Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 608-09
(Pa. Cmwlth. 2011) (finding the testimony of the employer’s witnesses sufficient to
support the Board’s finding regarding the existence of a policy prohibiting the use of
cell phones while on duty). We conclude that Mr. Frank’s credible testimony was
sufficient to support the Board’s determination that Claimant was aware, or should
have been aware, of Employer’s anti-harassment policy and that Claimant intentionally
violated the policy by hugging his female subordinate and licking her ear in the
workplace.
      Furthermore, even if Claimant had not violated Employer’s anti-harassment
policy, his behavior toward the female subordinate demonstrated a disregard of the
standards of behavior that Employer had a right to expect of its employees. This Court
has recognized that “the existence of a specific rule is not necessary where the employer
has a right to expect a certain standard of behavior, that standard is obvious to the
employee, and the employee’s conduct is so inimical to the employer’s interests that
discharge is a natural result.” Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d
1159, 1162 (Pa. Cmwlth. 2013); see Biggs v. Unemployment Comp. Bd. of Review, 443
A.2d 1204, 1206 n.3 (Pa. Cmwlth. 1982). We conclude that Claimant’s acts of hugging
and licking the ear of a female subordinate were clearly beneath the standards of
appropriate behavior in the workplace, particularly where Claimant was in a position


                                           5
of power over the female subordinate. Cf. Stover v. Unemployment Comp. Bd. of
Review, 461 A.2d 906, 907-08 (Pa. Cmwlth. 1982) (concluding that the claimant’s act
of running his fingers through a female co-worker’s hair was a disregard of the
standards of behavior that the employer can rightfully expect of its employees).
      We also conclude that Claimant failed to establish good cause for his conduct.
Claimant contends that he did not intend anything sexual in his conduct toward the
female subordinate and that he was merely trying to “cheer her up.” N.T., 1/31/18, at
16. According to Claimant, he and the subordinate had a friendly relationship; neither
the subordinate nor any witnesses to the incident said that his conduct was
inappropriate; and after Employer told Claimant his conduct was inappropriate, he
apologized and promised never to do it again. Id. at 15-18. The Board, however, did
not believe that Claimant’s conduct was merely an innocent gesture of consolation
between co-workers. Rather, the Board found that Claimant’s behavior toward the
female subordinate was an “intimate form[] of touch, different from a tap on the
shoulder or handshake that one can reasonably expect in social situations. This type of
intimate contact would require affirmative consent to be acceptable.” Bd.’s Order at
1. We agree.
      Although Claimant repeatedly characterizes his actions as a “mere hug and a
peck on the earlobe,” Claimant’s Br. at 15, 18-19, the Board credited Mr. Frank’s
testimony that Claimant admitted to licking his subordinate’s ear with his tongue, Bd.’s
F.F. No. 6. Claimant does not dispute this fact, admitting that he put his arms around
the subordinate, his tongue touched her ear “momentarily,” and bodily fluid “might
have been” transferred. N.T., 1/31/18, at 16; see Record (R.) Item No. 2 at 1.
      While Claimant maintains that there is no evidence that his conduct was
unwelcome, Claimant’s Br. at 16, Claimant testified that the subordinate did not invite
him to hug her or to lick her ear, N.T., 1/31/18, at 20. Claimant also admitted that his


                                           6
conduct was wrong. Id.; R. Item No. 2 at 1.5 In fact, on his Claimant Questionnaire
filed with the Department of Labor and Industry, Claimant stated that the subordinate
“went straight to the union president” after the incident, R. Item No. 2 at 3, also
indicating that the conduct was unwelcome. Where the Board’s factual findings are
supported by substantial, credible evidence, those findings are conclusive on appeal.
Brandt v. Unemployment Comp. Bd. of Review, 643 A.2d 78, 79 (Pa. 1994). We agree
with the Board’s conclusion that

         [t]his type of intimate contact would require affirmative consent to be
         acceptable. The absence of [C]laimant being pushed away and verbally
         admonished at the moment, especially considering his position of power
         over the subordinate, does not establish consent.

Bd.’s Order at 1.
         Finally, Claimant asserts that before discharging him for the November 9, 2017
incident, Employer had never reprimanded Claimant for inappropriate behavior toward
a female co-worker in his 40 years with the company. Claimant contends that one
infraction cannot be the basis for a willful misconduct determination. We reject this
claim.
         “It is well settled that a single inciden[t] of misconduct can constitute willful
misconduct.” Jones v. Unemployment Comp. Bd. of Review, 373 A.2d 791, 792 (Pa.

         5
             Claimant testified as follows:

         [Mr. Frank]: [D]id [the female subordinate] invite you to grab her and lick her?

         [Claimant]: No, she didn’t invite me. She was just standing there and I just gave her
         a hug when – before we started working.

         [Mr. Frank]: [D]o you feel that you need[ed] training to tell you that it is wrong to
         lick a co[-]worker?

         [Claimant]: No, I – I know what I did was – was wrong.

N.T., 1/31/18, at 20.

                                                   7
Cmwlth. 1977). Moreover, an absence of prior warnings is not a defense in a willful
misconduct case where, as here, Claimant admitted to the misconduct. This Court has
explained:

      The [claimant] . . . contends that he received no forewarning of the
      consequences of his misconduct and that his abrupt dismissal in lieu of
      some lesser discipline somehow indicates “personal motives” on the part
      of his supervisors[,] which [the claimant] contends were the real cause for
      his dismissal. Of course, the lack of prior warnings is not a defense in
      willful misconduct cases of this nature. The admitted misconduct on the
      part of the [claimant] was sufficient to warrant discharge and denial of
      unemployment compensation benefits . . . .

Placid v. Unemployment Comp. Bd. of Review, 427 A.2d 748, 750 (Pa. Cmwlth. 1981)
(emphasis added) (internal citation omitted).
                                     Conclusion
      Based on the evidence of record, we conclude that Claimant was discharged for
willful misconduct under Section 402(e) of the Law and, therefore, is ineligible for UC
benefits. Accordingly, we affirm the Board’s Order.



                                      _______________________________
                                      ELLEN CEISLER, Judge




                                          8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert A. Heidel, Jr.,            :
                   Petitioner     :
                                  :
      v.                          : No. 849 C.D. 2018
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :

                                ORDER


      AND NOW, this 6th day of March, 2019, the Order of the Unemployment
Compensation Board of Review, dated June 1, 2018, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
