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 LEA VITT

, 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

Une mployment Compensation (UC) Board of Review’s (UCBR) February 12, 2016

order reversing the Referee’s decision granting Claimant UC benefits

. The sole issue

be for e this Court is whether the UCBR erred by determining that Claimant committed

willful miscondu ct 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 (Agree ment) that required Employer’s treatment

staff, including Claimant, to minimize self

- disclosure to clients. Claimant signed the

A greement acknowledging her understanding of its terms which included the warning

1 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 289 7, as amended , 43 P.S. §

802(e) (referring to willful misconduct)

.2

that “failure to abide by any of the above gu idelines may result in immediate

termination.” Original Record (O.R.) Item No. 3, 16A, Agreement at 1.

Employer provided grievance forms to clients so that c lients could report

unsatisfactory conditions or treatment. Employer required staff to immediate ly

forward client grievance forms to Employer’s Program Director Jennifer Lembach

(Lembach), or Employer’s C linical D irector.

On February 16, 201 5 , 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 J une 11, 2015, during a disciplinary c onference 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 C linic al D irector. 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 fe eling 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 , violat ing the Agreement, and fail ing 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

. O n September 11, 2015,3

the Referee revers ed the UC Service Center’s Determination and grant ed 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 Claima n t was eligible for UC be nefits 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 unemploymen t 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 disrega rd 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

int erest 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

viol ating 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

subs tantial 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).4 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 be low []

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, t he UCBR found that Claimant committed wil lful 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 interactio n.”

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 ther e after 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).5

Clai mant admitted:

[Employer’ s l awyer (] 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 yo u 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 ther eof

. 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. Notab ly, 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 benefi ts so long as one of those reaso ns 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.6 For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lisamarie Tracey, : Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 378 C.D. 2016 Respondent :

O R D E R

AND NOW, this 19 th day of December , 201 6

, the Unemployment

Compensation Board of Review’s February 12, 2016 o rder is affirmed.

___________________________ ANNE E. COVEY, Judge