Opinion
No. CV 09-5031909S
June 9, 2010
MEMORANDUM OF DECISION
This unemployment compensation appeal had its beginnings when, on a Saturday, a mother who was supervised by the plaintiff, Eddie Tosado, brought her thirteen-year-old daughter into work with her at The Wellpoint Companies, Inc. (Wellpoint). In order to occupy the child's time while her mother attended to her duties, she allowed the child to help in the process by stapling papers that had on them medical information. The plaintiff was advised of this incident by another staff employee he supervised. That employee was of the opinion that to allow the 13-year-old child to staple the documents that related to medical premiums was a possible violation of Protected Health Information (PHI). Upon being notified of this, the documents stapled by the child where inspected by the plaintiff and he determined that they did not contain PHI. The plaintiff cautioned the employee not to do it again.
When the staff member who reported the incident to the plaintiff learned that the plaintiff would not pursue a compliance complaint, she filed a complaint against the plaintiff. Thereafter, the employee who brought her daughter to work was terminated. The plaintiff was instructed by the compliance supervisor to keep the investigation confidential. However, the plaintiff received a call from the terminated employee, who told him that the complaint against him was filed to get him into trouble. She then provided the plaintiff with a copy of an email indicating that two employees (including the employee who reported the incident) were attempting to have the plaintiff terminated because they did not approve of his management style. The plaintiff spoke to Wellpoint's director of human resources and told her that he believed that the original complaint was filed as an attack against him. Thereafter, the plaintiff was discharged. At the time of his discharge, the plaintiff was told he had not been truthful and his integrity was questioned, based upon his communication with the terminated employee and director of human resources. The plaintiff received no warnings prior to his termination.
Wellpoint submitted a statement in response to the plaintiff's claim for unemployment benefits claiming the following: the plaintiff was discharged for violating Wellpoint's Confidentiality and Standards of Ethical Business Conduct after an investigation and during such investigation, the plaintiff was instructed to maintain confidentiality regarding the investigation. The plaintiff breached these instructions. In addition, the plaintiff violated the policy by "failing to report a potential breach of policy, and failing to take the expected actions of a manager within the organization."
The adjudicator at the hearing concluded that the plaintiff's actions did not rise to the level of willful misconduct and approved the plaintiff's claim for unemployment compensation benefits. In addition, the adjudicator made the following findings. The plaintiff was discharged from Wellpoint for violating company policy. In late November 2008, the claimant was notified of the incident. The plaintiff did not pursue a compliance complaint. Instead, he gave the employee a verbal warning. That employee was later discharged after another employee reported the incident. The plaintiff was advised not to have any contact with the discharged employee. However, the discharged employee contacted the plaintiff and advised him that he was the target of the complaint. He then sent the discharged employee an email to thank her and asked that she put the information in writing. In his decision, the adjudicator stated that "[a]lthough the claimant may have been guilty of an error in judgment in not pursuing the original complaint, he had the authority, as manager of the team, to deal with the situation as he saw fit . . . [He] may have also been guilty of an error in judgment in responding to the discharged employee, but again, that was an error in judgment, and does not rise to the level of willful misconduct, especially since he was told he was the target of the original complaint."
On February 12, 2009, Wellpoint appealed the adjudicator's decision on the issue of whether the plaintiff was discharged for reasons other than willful misconduct. The appeals referee (referee) heard Wellpoint's appeal on March 3, 2009 and on March 13, 2009, the referee issued his decision, in which he dismissed Wellpoint's appeal, upheld the adjudicator's award and made the following findings of fact. The plaintiff was employed as a manager at Wellpoint from October 2004 until December 17, 2008. The plaintiff was terminated for an alleged breach of Wellpoint's confidentiality policy. On November 22, 2008, an employee brought her daughter to work and allowed her to staple bills containing potentially protected health information. On November 25, 2008, another employee informed the plaintiff of the incident. The plaintiff verbally warned the employee who brought her daughter to work. When the plaintiff viewed the documents at issue to which the thirteen-year-old child was exposed, he found no protected health information. As a result, he did not inform Wellpoint's compliance supervisor about the incident. The plaintiff informed the director of human resources that he believed the information on the bills the child handled was not protected health information because they contained only the member's name and a group identification number. During an interview on November 25, 2008, the plaintiff was instructed not to discuss the investigation with anyone. The plaintiff was aware that the employee who notified him of the potential violation had been previously disciplined and was prone to share confidential information. The plaintiff asked her to not share information regarding the incident with other employees. The plaintiff was aware that he was required to report all known or suspected violations of Wellpoint standards and that he was expected to keep enrollee information private. On December 3, 2008, Wellpoint management perceived that the plaintiff was resistant to providing information for its investigation. Specifically, he was not forthcoming regarding his contact with the discharged employee. On December 10, 2008, the discharged employee sent an email to the plaintiff, in which she apologized and warned him regarding "malicious intent." The plaintiff responded to that email with the following statement: "Thank you for sending this. I really appreciate it." On one or more occasions, the plaintiff brought his son to work with him without incident.
In his conclusions of law, the referee found that Wellpoint failed to undermine the plaintiff's testimony that he did not believe that the bills contained protected health information. In addition, he concluded that the record did not establish that the plaintiff actively exchanged emails with the discharged employee against the direction of management. Furthermore, the referee found that the plaintiff's history of issues with the employee who filed the complaint may have clouded his judgment and, in fact, the plaintiff acknowledged that his judgment may have lapsed in not reporting the potential breach of confidentiality. The referee noted that errors in judgment lack the requisite culpability to be considered willful misconduct because errors do not demonstrate an intentional, substantial disregard of the employer's interest or an intentional disregard of the duties, obligation and responsibilities the employee owes to his employer. Consequently, the referee concluded, the plaintiff was not disqualified from receiving unemployment benefits.
Thereafter, Wellpoint appealed the decision of the referee to the Employment Security Board of Review (board) on the issue of whether the plaintiff was discharged for reasons other than willful misconduct. After reviewing the record, including a tape recording of the referee's hearing, but hearing no further evidence, the board reversed the referee's decision and sustained Wellpoint's appeal. In doing so, the board adopted the referee's findings of fact, but modified five of the referee's findings. Specifically, the board found that: (1) the plaintiff did not report a suspected or known violation of Wellpoint's policy regarding protected health information even though the invoices contained at least the member's names; (2) the plaintiff told the employee who reported the violation to keep quiet about the violation; (3) the plaintiff spoke to his director about the investigation; (4) the discharged employee emailed the plaintiff telling him that the complaint was filed in an effort to sabotage him; and (5) after the plaintiff received that email, he met with the employee who filed the complaint and asked her to speak to his director on his behalf.
The board concluded, that, based on these findings, the plaintiff's conduct constituted deliberate misconduct in willful disregard for the employer's interests. Alternatively, the board concluded that the plaintiff's "failure to report the suspected violations of the visitor's policy [that is, the presence of the thirteen-year-old girl] and ethics policy constituted knowing violations of reasonable, effectively communicated and uniformly enforced employer policies which were reasonably applied to discharge [the plaintiff]." Therefore, the board concluded, the plaintiff was discharged "for willful misconduct under either the deliberate misconduct or rule violation definitions." (Internal quotation marks omitted.)
The plaintiff, appearing pro se, filed this appeal and thereafter the board filed the record with the Superior Court. The limited scope of review of administrative agency decisions permitted by the Superior Court is well settled. "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . ." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, (2003). Furthermore, "[a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." (Internal quotation marks omitted.) Id., 417-18.
"[T]he remedial purpose of the Unemployment Compensation Act is to provide relief for its primary beneficiaries, those who are unemployed without fault or for cause; but this beneficent remedial purpose does not support the grant of benefits to an employee guilty of willful misconduct." (Citation omitted.) United Parcel Service, Inc., v. Administrator, 209 Conn. 381, 388, (1988). Accordingly, General Statutes § 31-236(a)(2)(B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if "in the opinion of the administrator, the individual has been discharged . . . [for] willful misconduct in the course of the individual's employment . . ." "[W]illful misconduct means deliberate misconduct in willful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer . . ." (Internal quotation marks omitted.) General Statutes § 31-236(a)(16); see Regs., Conn. State Agencies § 31-236-26. "Whether the circumstances of an employee's termination constitute willful misconduct on the employee's part is a mixed question of law and fact." United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386.
In support of his appeal, the plaintiff argues that his conduct was not willful misconduct. He asserts that it was his professional opinion that the documents involved in the incident did not contain PHI. In addition, he argues that he asked the reporting employee to avoid discussing the incident with other employees in order to keep the other employees on his team free from distractions. Finally, he argues that he believed he was doing the right thing in discussing the incident with his director but at most made an error in judgment. Due to the limited scope of review, this court will consider only "whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, (1996).
The plaintiff also argues that the board made incorrect findings of fact. However, the Court notes that the plaintiff failed to file a motion for correction, pursuant to Practice Book § 22-4. A plaintiff who fails to file such a motion cannot "challenge the board's findings on appeal to the Superior Court." Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 175, (2009). Accordingly, this court may not consider the plaintiff's allegations that the board erroneously made findings of fact.
Pursuant to § 31-236-26a of the Regulations of Connecticut State Agencies, in order to conclude that an employee was discharged for willful misconduct the board must make three preliminary findings. First, the board must find that a claimant's conduct constitutes misconduct. "To find that any act or omission is misconduct the administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee." Regs., Conn. State Agencies § 31-236-26a(a). Next, the board must determine that such misconduct was deliberate. "To determine that misconduct is deliberate, the administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission." Regs., Conn. State Agencies § 31-236-26a(b). Finally, the board must conclude that a claimant's conduct was in willful disregard of an employer's interest. "To find that deliberate misconduct is in willful disregard of the employer's interest, the administrator must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or made the same omission, despite knowing it was contrary to the employer's expectation or interest." Regs., Conn. State Agencies § 31-236-26a(c).
Here, the board concluded that the plaintiff's actions "that led to his discharge constituted deliberate misconduct in willful disregard for the employer's interests." Namely, he: (1) did not report a "suspicion" that an employee may have violated Health Insurance Portability and Accountability (HIPAA) or protected health information policies; (2) advised an employee to "keep quiet" about the possible violation; and (3) did not maintain confidentiality during the investigation, despite being told not to discuss the investigation. This court finds that the board's conclusion that the plaintiff was terminated for willful misconduct is unsupported by the evidence, and therefore, unreasonable.
Regarding the plaintiff's failure to report a possible violation of HIPAA or Wellpoint's protected health information policies, the plaintiff argues that it was his opinion that the documents did not contain protected health information and therefore, it was not necessary to report the incident. "[W]illful misconduct refers to conduct evincing a willful disregard of an employer's interest such as deliberate violations of the employer's procedures or a disregard of expected standards of behavior . . . Willful misconduct includes deliberate disobedience or the intentional violation of a known rule." (Citations omitted; internal quotations omitted; emphasis added.) Bailey v. Administrator, Unemployment Compensation Act, 3 Conn.App. 494, 495 (1985). "The breach of a rule by one who knows at the time that he is breaking the rule is a willful breach; but if by direct proof or out of the circumstances, it appears to have been the result of thoughtlessness or inadvertence, the breach cannot be held to have been willful." (Internal quotation marks omitted.) Pascal v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New London, Docket No. CV 04 4000859 (April 11, 2005, Hurley, J.).
Here, the board found that the plaintiff did not report a suspected or known violation of Wellpoint's policy regarding protected health information even though the invoices contained at least the member's names. This finding of fact cannot reasonably support a conclusion that the plaintiff's failure to report the incident was either deliberate disobedience or an intentional violation of a Wellpoint rule because there is no reference in to the plaintiff's state of mind at the time he decided not to report the incident. Whether the plaintiff is guilty of incompetence and should have remembered that a member's name is included in Wellpoint's definition of protected health information is irrelevant. "Unsatisfactory work performance that is not attributable to a claimant's reckless indifference to or willful disregard of the reasonable requirements of the job generally does not constitute deliberate or willful misconduct." White v. Connecticut Unemployment Comp., Superior Court, Judicial District of Hartford, Docket No. CV 00 0802668 (January 15, 2002, Hennessey, J.).
The court notes that, throughout the record, the plaintiff repeatedly asserted that he did not report the suspected violation because it was his opinion that the documents at issue did not contain protected health information. This assertion was included in the findings of fact made by both the adjudicator and the referee. The board's findings of fact and conclusions of law neither credit nor reject this assertion. If the board found that assertion not credible, it should have specified that finding and its reason for such a conclusion. Furthermore, it is axiomatic that credibility is not determined merely by reading the record as the board did in this case rather it is determined by the trier of the fact — in this case the referee. Just as "[i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . [so should it be with the referee who hears the actual evidence]. Credibility must be assessed . . . not by reading the cold printed record [as the board does], but by observing firsthand the witness' conduct, demeanor and attitude . . ." (Citation omitted; internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004); the board should defer to the referee who hears the evidence and was able to assess the credibility of the plaintiff.
Next, regarding the plaintiff's instruction to the employee to "keep quiet" about the investigation, the plaintiff asserts that he gave that direction in order to maintain a productive environment among his employees. In its findings of fact, the board states that the plaintiff told the employee to "keep quiet about the violation she suspected. He perceived [that employee] as a `trouble maker' out to harm her fellow employee." In its conclusion of law, the board states that the plaintiff "concealed the suspected HIPAA violation by failing to report the incident and telling the reporting employee to keep quiet. The [plaintiff's] perception of the reporting employee as a trouble maker does not sufficiently mitigate his actions . . ." Again, this court is unpersuaded that the board's conclusions are supported by the evidence. The board's finding of fact that the plaintiff viewed the employee as a trouble maker who hoped to harm another employee does not support its legal conclusion that the plaintiff is guilty of willful misconduct because he sought to conceal the violation and directed the employee to keep quiet with that goal in mind. In fact, the board's conclusion that the employee sought to conceal the incident is wholly unsupported by the record and therefore unreasonable.
As for the plaintiff's failure to maintain confidentiality regarding the investigation, the plaintiff asserts that, at the time, he felt that he had a right to discuss the incident with his director and that at most it was an error in judgment, but he is not guilty of willful misconduct. According to the record, the plaintiff was advised not to discuss the investigation regarding the incident. Thereafter, the plaintiff discussed the incident with his director, the reporting employee and the terminated employee. Under the law, to be considered willful misconduct, such conduct must be in willful disregard of the employer's interest. Regs., Conn. State Agencies § 31-236-26a(c). To support such a conclusion the board must find that "(1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or made the same omission, despite knowing it was contrary to the employer's expectation or interest." Regs., Conn. State Agencies § 31-236-26a(c). Here, the board appears to have failed to consider that the plaintiff was motivated or influenced by a mitigating circumstance of a compelling nature; specifically, that his job was in jeopardy and that he was asked by his supervisor what had occurred. Accordingly, the plaintiff's failure to maintain confidentiality during the investigation cannot reasonably be held to constitute willful misconduct.
The court next considers the board's alternative conclusion, that the plaintiff's "failure to report the suspected violations of the visitor's policy and ethics policy also constituted knowing violations of reasonable, effectively communicated and uniformly enforced employer policies which were reasonably applied to discharge the claimant." Pursuant to § 31-236(a)(16), a party may be guilty of willful misconduct if such party committed "a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence . . ." "To find that an individual engaged in a single knowing violation of a rule or policy of the employer, the Administrator must find that: (1) the individual knew of such rule or policy, or should have known of such rule or policy . . . (2) the individual's conduct violated the particular rule or policy; and (3) the individual was aware he was engaged in such conduct." Regs. Conn. State Agencies § 31-236-26b(a).
The court notes that, after a careful review of the record, it finds that Wellpoint did not assert that the plaintiff was terminated for a failure to report a violation of Wellpoint's visitor policy. As such, the court will not consider this in its review of the record pursuant to the plaintiff's appeal.
Here, the plaintiff argues that during his years at Wellpoint he had not received any type of corrective action and that, rather than terminating his employment, Wellpoint could have warned him to prevent similar mistakes. "To find that a rule or policy of an employer was reasonably applied, the Administrator must find: (1) that the adverse personnel action is appropriate in light of the violation of the rule or policy and the employer's lawful business interest . . . (2) that there were no compelling circumstances which would have prevented the individual from adhering to the rule or policy." Regs., Conn. State Agencies § 31-236-26b(d). The record does not indicate to this court that the board considered whether the rule of the employer was reasonably applied, in light of the plaintiff's employment history with Wellpoint, or the existence of any compelling circumstance. The board makes the legal conclusion that Wellpoint reasonably applied its policies to discharge the plaintiff, but made no finding of fact to support its conclusion. Consequently, the plaintiff's failure to report the incident cannot reasonably be held to be a knowing violation of Wellpoint's policy which was reasonably applied to discharge the plaintiff.
Finally, this case must be viewed from the perspective that it was commenced when a 13-year-old child was brought into work by her mother on a Saturday when the plaintiff, her supervisor, was not there and that the child was allowed to staple documents together in order to give her a task while her mother performed her job. Even if the information on the documents could be classified as confidential information, it was the hands of a 13-year-old child.
For the aforementioned reasons, the court concludes that the plaintiff's appeal is sustained and the decision of the board is reversed.