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

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.
3

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, 
4

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 
5

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).
6

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.
7

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 
8

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 
9

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

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bell Socialization Services, Inc., :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 747 C.D. 2015

Respondent :

O R D E R

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