             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tammy H. Chimics,                              :
                             Petitioner        :
                                               :
       v.                                      :    No. 1298 C.D. 2017 and
                                               :    No. 1299 C.D. 2017
Unemployment Compensation                      :    SUBMITTED: November 9, 2018
Board of Review,                               :
                    Respondent                 :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                   FILED: March 13, 2019

       Tammy Chimics (Claimant) petitions this Court for review of the August 22,
2017 Orders 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 following her termination for
willful misconduct. After careful review, we affirm.
                                          Background
       Claimant has worked as a high school language arts teacher for the Troy Area
School District (District) since August 25, 1999. Notes of Testimony (N.T.), 6/27/17,
at 30. In the fall of 2016, the District initiated an investigation into allegations that the
high school boys’ basketball coach (Co-worker), had physically assaulted a player. Id.

       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 provides that an employee is ineligible for UC benefits for any week “[i]n
which [her] employment is due to [her] discharge . . . from work for willful misconduct connected
with [her] work.” 43 P.S. § 802(e).
at 26. Co-worker and Claimant were dating at the time. Id. at 31. Claimant assisted
Co-worker throughout the investigation by gathering and organizing documents related
to the investigation. Id. Seeking additional input on the investigation, Claimant used
her District email address to forward those documents to individuals outside the
District’s employ. Id. at 33-34. As a result of these actions, Claimant was accused of
violating several District policies, including a confidentiality policy which prohibited
the release of confidential and sensitive information. Id. at 14, 16, 20. Claimant was
suspended without pay effective April 17, 2017 and terminated by the school board on
May 9, 2017.2 Id. at 12, 29.
       Claimant applied for UC benefits with the local service center.3 In her claimant
questionnaire, Claimant admitted to having violated the District’s policy, but asserted
it was not done “intentionally or maliciously.” Certified Record, (C.R.), Item No. 2.
Claimant maintained that, if she had known she was violating the District’s policy, she
would have used her personal email address, rather than her District email address. Id.
       The Altoona Service Center (Service Center) granted Claimant benefits for the
period of time during which she was merely suspended for violating the District’s
policies. C.R., Item No. 4. For the period following Claimant’s termination from
employment, she was deemed ineligible for benefits under Section 402(e) of the Law.
Id. Both the District and Claimant appealed. C.R., Item No. 5.



       2
         Claimant was reinstated to her teaching position at the commencement of the 2017-2018
school year. Claimant’s Br. at 7. Consequently, her claim for benefits is limited to that period during
which she was suspended or terminated by the District.

       3
         For reasons not entirely clear in the record, Claimant initiated two claims for UC benefits.
Separate determinations were issued by the Service Center. C.R., Item No. 4. The Referee held one
hearing for both appeals but issued separate decisions, as did the Board. Id., Item Nos. 9, 12. The
appeals from the Board’s orders were consolidated by an order of this Court dated November 17,
2017.

                                                  2
      A hearing was held before the Referee on June 27, 2017. The District presented
the testimony of its Superintendent of Schools, Charles Young. Claimant testified on
her own behalf.
      Mr. Young testified that, in the course of investigating the allegations against
Co-worker, he was tasked by the school board to determine the source of “leaks of
information” which identified to the public the students and parents who lodged
complaints against Co-worker. Id. at 14. A review of Co-worker’s District email
account indicated he shared documents related to the investigation with Claimant. Id.
A subsequent review of Claimant’s District email account revealed she forwarded those
documents, which identified, by name, the student allegedly assaulted by Co-worker
as well as the parent who made the initial complaint, to Wayne Holland and Mariah
Castle. Id. at 24-25, Ex. Nos. E-9 – E-12. Neither Mr. Holland nor Ms. Castle were
employed by the District. Id. at 22, 25.
      Mr. Young testified that the District has a confidentiality policy which is
reviewed annually with District employees. Id. at 25. Employees are required to sign
an acknowledgement that they read and understand the policy. Id. Claimant signed
such an acknowledgment on August 24, 2016. N.T., 6/27/17, Ex. No. E-1. The policy
provides in relevant part that employees are to secure confidential information in their
charge. Id. An employee who reads confidential information is prohibited from
discussing it with another person. Id. Employees may only use student and other
confidential records if a legitimate need exists. Id. Employees who violate the policy
are subject to discipline or discharge, depending on the facts and circumstances of the
violation.   Id.   Essentially, the policy requires that “identifiable information on
students” be kept private and “not broadcast to anybody who does not have an
educational need to know.” Id. at 16. Claimant had no legitimate reason to possess
documents related to the investigation of Co-worker. Id. at 15. Once she obtained such


                                           3
information, however, Claimant should have refrained from disclosing it to anyone
else. Id. at 20.
       While investigating potential violations of the confidentiality policy, Mr. Young
discovered that Claimant also used her District email account to send what he deemed
“press releases” to the Daily Review, a local newspaper, and WETM, a local news
affiliate. Id. at 17-18. The January 17, 2017 email to the Daily Review contains the
following text:

              [Co-worker] conducts his first 3rd and 4th grade basketball
              practice of the season at the Commons Building Saturday
              morning on the heels of his suspension from his Varsity
              coaching position which was handed to him by the school
              district on Thursday, Dec. 29th. Although the district voted
              in an executive session held on Wednesday, Dec. 28 th to
              suspend [Co-worker], a violation of the Sunshine Act,[4] he
              has not been restricted from coaching 3rd and 4th grade
              basketball nor has he been suspended from his teaching
              position at the Troy High School. His suspension without
              pay is pending a [Children and Youth Services] investigation
              where allegations were brought to the administration that
              [Co-worker] “in some fashion” “struck” a player at a practice
              in November.        Although high school administration
              conducted an investigation of [its] own prior to Dec. 28th
              speaking to players twice about allegations ranging from
              making a player run for conditioning purposes after being
              late one hour to practice to hitting a player, the school board
              still decided in the Dec. 28th executive session to suspend
              him. Both high school investigations were concluded
              “unfounded” on all allegations. A school board meeting is
              being held on Tuesday, Jan. 10th where supporters of [Co-
              worker] are planning to ask questions of the school board
              concerning the decision to suspend him in an executive
              session and not in an open board meeting.



       4
        The Sunshine Act provides that the public has the right to be notified of and present at
meetings of agencies at which any agency business is discussed or acted upon. 65 Pa.C.S. §§ 701-
716.

                                               4
N.T., 6/27/17, Ex. No. E-3. The text of the email sent to WETM differed only slightly,
noting that the school board meeting took place and questions from Co-worker’s
supporters were not answered. Id., Ex. No. E-4. Mr. Young testified that Claimant’s
conduct violated District policy, as press releases must first be approved by the
Superintendent. Id. at 16.
      Claimant did not deny the conduct which led to her termination. She testified
the documents were forwarded to Mr. Holland upon his request, as he was a friend of
Co-worker. Id. at 33. The documents were shared with Ms. Castle, a friend to both
Claimant and Co-worker, “to see if there was anything she could shed light on.” Id. at
34.   At that time, Claimant did not believe she was violating the District’s
confidentiality policy, and she did not believe the emails sent to the Daily Review and
WETM constituted press releases. Id. Claimant asserted the matter of Co-worker’s
suspension was well-known before she disclosed information to Mr. Holland and Ms.
Castle, as “[a]ll the kids were talking about it at school.” Id. at 37.
      The Referee found that the District had a confidentiality policy which prohibited
the disclosure of private student information, and Claimant acknowledged her receipt
of that policy on August 24, 2016. Referee’s Decision, Findings of Fact (F.F.) Nos. 5-
6. The Referee reasoned that Claimant should have known she was violating the
District’s policy when she revealed confidential information to individuals not
employed by the District and her conduct rose to the level of willful misconduct.
Referee’s Decision at 3. The Referee further found Claimant sent press releases to the
Daily Review and WETM without authorization from the Superintendent. F.F. No. 12.
As a result of these policy violations, Claimant was ineligible for benefits under Section
402(e) of the Law, and the Service Center’s grant of benefits was reversed. Id. at 3.
      Claimant appealed to the Board, which adopted and incorporated the Referee’s
findings and conclusions. Bd.’s Order at 1. Additionally, the Board discredited


                                             5
Claimant’s testimony that she was not aware of the District’s press release policy and
that she did not believe her emails to news outlets constituted press releases. Id.
Accordingly, the Board affirmed the Referee. Id. These appeals followed.
                                                Issue
       On appeal,5 Claimant argues the Board erred in finding her violation of the
District’s policies constituted willful misconduct. Claimant does not dispute she
violated the policies but maintains her violations were not willful. Claimant asserts
that, even if her conduct violated any policies, she had good cause for her actions, as
she was assisting her boyfriend with accusations that could result in the loss of his job
and the initiation of criminal charges. Claimant implies her disclosure of confidential
information was of no consequence because the “entire community” knew about the
circumstances of Co-worker’s suspension from his position as basketball coach.
Claimant’s Br. at 15.
                                            Discussion
       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 proving “the existence of a reasonable work rule and

       5
          This Court’s review 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.
Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 n.2 (Pa. Cmwlth. 2010).

                                                  6
its deliberate violation, [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).
      An employee establishes good cause where her actions are justified or reasonable
under the circumstances. Bell Socialization Servs., Inc. v. Unemployment Comp. Bd.
of Review, 74 A.3d 1146, 1147 (Pa. Cmwlth. 2013). A claimant does not have good
cause to violate a work rule where reasonable alternative means exist to address the
concerns that led to the violation of the work rule. Arbster v. Unemployment Comp.
Bd. of Review, 690 A.2d 805, 810 (Pa. Cmwlth. 1997).
      The Board’s findings are conclusive on appeal so long as the record, taken as a
whole, contains substantial evidence to support those findings.       Spiropoulos v.
Unemployment Comp. Bd. of Review, 654 A.2d 642, 644 (Pa. Cmwlth. 1995).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. at 644, n4.
      Here, the District established through the testimony of Mr. Young that it had a
policy which prohibited the disclosure of confidential information, and Claimant was
aware of that policy. F.F. Nos. 5-6. A violation of the policy could result in
termination, depending on the circumstances. N.T., 6/27/17, Ex. No. 1. Claimant came
into possession of confidential information when it was forwarded to her by Co-worker.
Id. at 14. Claimant violated the District’s confidentiality policy when she then
forwarded that information to individuals not employed by the District. Id., Ex. Nos.
E-9 – E-12.
      Claimant’s assertion that her violation of the confidentiality policy was not
willful is contradicted by the record. Claimant deliberately forwarded confidential
information to non-District employees, and nothing in the record suggests that her
actions were in any way inadvertent or an act of absent-mindedness. While use of a


                                          7
private email address might have allowed Claimant’s violation to go undetected, such
an action would still constitute a policy violation, as the policy prohibits anyone who
obtains confidential information from discussing it with others. Such information may
only be used by an employee with a “legitimate educational need” to do so, and the
policy contains no exception for information known in certain circles of the community
at large. N.T., 6/27/17, Ex. No. E-1. It strains credulity that a teacher employed with
the District for 18 years, who has received annual training on the District’s
confidentiality policy, would not realize her conduct constituted a violation of that
policy.
      As to Claimant’s violation of the District’s press release policy, the Board
explicitly discredited Claimant’s testimony that she was unaware of the policy and that
she did not believe her emails constituted press releases. It is well settled that the Board
is the ultimate factfinder in UC cases and empowered to determine the credibility of
witnesses. Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa.
Cmwlth. 2000).
      Based on Claimant’s admissions and Mr. Young’s testimony, we conclude the
record contains substantial evidence to support the Board’s finding that Claimant
deliberately violated the District’s press release and confidentiality policies.
      Because Employer satisfied its burden of proof, the burden then shifted to
Claimant to establish good cause for violating the District’s policies. Claimant’s
assertion of good cause is rooted in the consequences that Co-worker faced as the result
of the assault allegations against him.
      On several occasions, this Court has been tasked with determining whether a
claimant’s release of confidential information in contravention of an employer’s policy
was excused for good cause. In Spiropoulos, 654 A.2d at 644, a former prison
employee was denied UC benefits for copying confidential inmate records and


                                             8
providing them to a prisoner advocacy group, in violation of the employer’s policy.
This Court concluded the claimant’s actions did not constitute good cause, even
assuming he acted out of legitimate concern for the rights of inmates. Id. at 645. The
claimant in Arbster was a nurse who accessed confidential medical records for a patient
not under her care. 690 A.2d at 807. Despite the fact that the patient was the claimant’s
mother, the Court concluded the claimant lacked good cause for violating her
employer’s confidentiality policy because alternative means existed, such as the receipt
of written authorization to view the records, which could have addressed any concerns
with the care being provided to her mother. Id. at 809-10.
      Claimant’s derogation of her responsibility to safeguard confidential information
in an effort to help her boyfriend was not just or reasonable. Accordingly, we conclude
that Claimant failed to demonstrate good cause for violating the District’s policy.
                                      Conclusion
      Based on the evidence of record, we conclude that Claimant was discharged for
willful misconduct under Section 402(e) of the Law and is, therefore, ineligible for UC
benefits. Accordingly, we affirm the Board’s Orders.



                                          _______________________________
                                          ELLEN CEISLER, Judge




                                           9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tammy H. Chimics,                       :
                        Petitioner      :
                                        :
      v.                                :   No. 1298 C.D. 2017
                                        :   No. 1299 C.D. 2017
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER

      AND NOW, this 13th day of March, 2019, the Orders of the Unemployment
Compensation Board of Review, dated August 22, 2017, are hereby affirmed.



                                      ________________________________
                                      ELLEN CEISLER, Judge
