           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rhonda L. George,                             :
                            Petitioner        :
                                              :
                     v.                       :    No. 249 C.D. 2015
                                              :    SUBMITTED: August 21, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: November 3, 2015




              Claimant Rhonda L. George petitions pro se for review of the order of
the Unemployment Compensation Board of Review (Board) affirming the denial
of her application for benefits due to disqualifying willful misconduct.1 Because
the issues raised on appeal to this court were waived below, we affirm.
              Briefly and generally, the binding factual findings demonstrate that
Claimant worked from home as a Medicare inside sales representative for Capital

    1
      Pursuant to Section 402(e) of the Unemployment Compensation Law, Second Ex. Sess.,
P.L. (1937) 2897, as amended, 43 P.S. § 802(e), disqualifying willful misconduct precludes the
grant of unemployment compensation benefits.
Blue Cross (Employer). Claimant was aware that her phone calls and computer
use could be monitored.2 Because Employer became concerned that Claimant was
releasing personal health information to a health advocate acting on behalf of
clients/beneficiaries without the required power of attorney or verbal consent
communicated to Employer, Employer directed Claimant, by email, as follows:
“[U]ntil we know how patient advocates fit in and what legal rights they have to
speak on behalf of the beneficiaries, please refrain from providing beneficiary
information to advocates.” Certified Record, Hearing, Notes of Testimony (July
24, 2014), Employer Exhibit 4 (email dated May 19, 2014).           Following the
aforesaid directive, Employer monitored Claimant’s phone recordings and
discovered that she once again inappropriately accessed and released protected
health information. As a result, she was terminated.
            Claimant appeared at the hearing before the referee, represented by
non-attorney representative Beverly Gordon-Jones, the health advocate that she
had released information to without proper authorization. During the hearing,
Employer adduced the testimony of several witnesses regarding Employer’s rules
and policies, the monitoring and recording of employee phone calls, and its
investigation into Claimant’s improper access and release of protected health
information to Gordon-Jones. Employer also offered and played a recording of a
phone conversation between Claimant and Gordon-Jones.        Neither Claimant nor
Gordon-Jones objected to the recording and Claimant essentially identified her
voice and the voice of Gordon-Jones on the recording. Based upon the evidence,
the referee concluded that Claimant committed willful misconduct when she

   2
      Employer provided Claimant with phone and computer equipment for work-related
purposes.



                                         2
improperly used Employer’s resources to access and release protected information
in violation of known work rules.
               Claimant’s appeal to the Board challenged the appropriateness and
legality of Employer’s practice of recording employee phone calls and Employer’s
alleged failure to adhere to a progressive discipline policy in terminating
Claimant.3       Regarding whether Claimant violated a known work rule or
Employer’s directive, Claimant contended the issue was moot because the
applications for the subject beneficiaries were processed before Employer directed
her to refrain from releasing information to the beneficiaries’ health advocate. In
addition to adopting the referee’s findings and conclusions, the Board stated in its
order:

               Whether the employer notified the claimant of her
               violation before or after processing the application is
               immaterial to whether the claimant did what she was told
               to not do. Even if the employer improperly recorded
               calls, the advocate may have a private cause of action
               against the employer, but the claimant is not protected by
               a third party’s rights. The claimant has not shown that a
               coworker who was progressively disciplined was
               similarly situated, so there is no evidence of disparate
               treatment. . . . The referee’s order is affirmed.
Board’s order (December 11, 2014).
               In her appeal to this court, Claimant argues for the first time that the
audio recording of the telephone call was improperly admitted because it was not
authenticated. Claimant also argues the audio recording itself fails to demonstrate
willful misconduct because it is unclear who the parties are discussing on the
recording. In addition, Claimant contends for the first time that the record lacks

   3
       The appeal papers were filed by Gordon-Jones.



                                               3
substantial evidence to support a finding that she disclosed protected health
information or improperly accessed records after being directed to refrain from that
practice.
            These contentions have all been waived as a result of Claimant’s
failure to raise them below. Lewis v. Unemployment Comp. Bd. of Review, 42
A.3d 375, 379 n.8 (Pa. Cmwlth. 2012). Even if they were not waived, there is no
merit to them. Considering the testimony of Employer’s witness as well as that of
Claimant and Gordon-Jones, the audio recording was sufficiently authenticated.
Moreover, reviewing the record as a whole, there is substantial evidence to support
the finding that Claimant committed the conduct for which she was terminated.
            The Board’s order is affirmed.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge




                                         4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rhonda L. George,                        :
                         Petitioner      :
                                         :
                    v.                   :     No. 249 C.D. 2015
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


           AND NOW, this 3rd day of November, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge
