            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jami M. Dantry,                                :
                              Petitioner       :
                                               :
                 v.                            :   No. 1665 C.D. 2017
                                               :   Argued: October 15, 2018
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: January 31, 2019


                 Petitioner Jami M. Dantry (Claimant) petitions for review of an order
of the Unemployment Compensation Board of Review (Board). The Board affirmed
an Unemployment Compensation Referee’s (Referee) decision, which determined
Claimant ineligible for unemployment compensation benefits pursuant to
Section 402(e) of the Unemployment Compensation Law (Law).1 For the reasons
set forth below, we reverse in part and remand the matter to the Board for
consideration of an issue that it did not address.



       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
                   Claimant applied for unemployment compensation benefits after being
discharged from her employment as an Occupational Therapist for Hope Learning
Center (Employer).2 On May 3, 2017, the Erie Unemployment Compensation
Center (Service Center) issued a notice of determination, finding Claimant ineligible
for benefits under the Law. Claimant appealed the notice of determination, and a
Referee conducted a hearing. At the hearing, Asha Persaud testified on behalf of
Employer, and Claimant testified on her own behalf.3
                   Ms. Persaud, Executive Director for Employer, testified that Employer
discharged Claimant for violations of HIPAA4 and FERPA5 and for insubordination.
(Reproduced Record (R.R.) at 6a.) Ms. Persaud then testified that the final incident
which led to Claimant’s termination was that Claimant forwarded an email with
sensitive client information to Claimant’s personal email account in direct violation
of HIPAA and FERPA. (Id.) More specifically, Ms. Persaud testified that while she
did not know the exact section of HIPAA or FERPA that Claimant violated, she
knew that Claimant’s conduct of sending a client’s information to a personal email
account constituted a violation, because Claimant included the client’s name,
parent’s name, and information regarding services received in an email she sent to
her unsecured personal email account. (Id. at 12a.) Additionally, Ms. Persaud


          2
          Employer intervened in this matter, and the Board notified the Court that it would not be
filing a brief or participating in oral argument of this matter.
         Employer presented a second witness, Jacob Robinson, Employer’s Finance Director,
          3

who testified for the purpose of admitting documents into the record.
          4
         HIPAA refers to the Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and
42 U.S.C.).
          5
              FERPA refers to the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g
(1974).

                                                 2
testified that Employer has a policy that prohibits employees from violating HIPAA
or FERPA. (Id. at 10a.) The rule is located in the employee handbook and included
in a confidentiality statement that Claimant signed. (Id.) Employer did not produce
the handbook or the confidentiality statement for the record. (Id.) Ms. Persaud
testified that she did not know whether Claimant actually received HIPAA/FERPA
training, although Claimant signed a form indicating that she did receive the training
on September 8, 2016. (Id.) Ms. Persaud additionally testified that Claimant
engaged in an act of insubordination which led to her termination when she went to
another employee requesting that said employee go above the supervisor to have an
evaluation reassigned to her. (Id. at 7a.) Ms. Persaud next testified that, prior to the
act of insubordination, Claimant received two written warnings for (1) being
disrespectful to her co-workers and failing to comply with company policies,
and (2) insubordination as a result of failing to follow directions and violating
company rules requiring Claimant to advise Employer of any email from a school
district rather than respond to it directly. (Id. at 9a, 12a.)
              Claimant testified that she did not receive HIPAA/FERPA training. (Id.
at 17a.) With regard to the form containing her signature acknowledging receipt of
such training, Claimant explained that she signed the form along with a bunch of
other papers after a full day of work. (Id.) Claimant additionally testified that she
had good cause to send the email to herself, as she believed that Employer was
fraudulently billing for her services. (Id.; Petitioner’s Br. at 9.) More specifically,
Employer asked Claimant to provide services to students who Claimant had asked
Employer to discharge. (Id.) Employer also asked Claimant to prepare patient
reports to be sent out with her clients’ report cards. (Id.) Claimant then testified that
she noticed that all of her reports were being submitted at midnight, which was not


                                            3
when she was completing them. (Id.) Claimant took steps to ensure that her time
was being billed appropriately by moving all of her appointments to her schedule.
(Id.) Employer told Claimant that she was not allowed to do this, and Employer
changed the date and time of billing back. (Id.) Claimant additionally discovered
that several of her patients had been treated by someone else prior to Claimant
providing treatment to them and were about to go over the amount of sessions agreed
to in their individual education programs (IEPs). (Id. at 18a.) Claimant sent an
urgent email to her supervisor without response, so she called Employer and spoke
to a human resources representative who told her to speak to Ms. Persaud. (Id.)
Claimant talked to Ms. Persaud after work, and Ms. Persaud stated that Claimant
was mistaken in her assessment of the billing. (Id.) Claimant disagreed. (Id.)
Claimant further testified that she could lose her occupational therapist license for
overbilling or double billing clients. (Id.) As such, she was merely protecting herself
in case of an audit by Employer or by her licensing board. (Id. at 17a.)
                The Referee admitted into evidence a redacted copy of the email that
Claimant forwarded to her personal email account and that Employer contends
contains “individually identifiable health information.” (Id. at 54a-55a.) The email,
dated February 25, 2017, appears to forward two emails addressed to various
individuals employed by Employer and various individuals employed by a school
district. Although now redacted, the email appears to identify an elementary school
student of the district by name and gender.6 The email further discloses that the
student was assigned to a specific person’s classroom. The email also indicates the




        6
         It is possible that the email only refers to the student by first name, but this is difficult to
ascertain due to the redactions.

                                                   4
student’s diagnosis and that the student had recently been reevaluated. Finally, the
email reveals the type of therapies included in the student’s IEP.
             Following the hearing, the Referee issued a decision, in which he
affirmed the determination of the Service Center, concluding that Claimant was
ineligible for unemployment compensation benefits.          Claimant appealed the
Referee’s decision to the Board, and the Board affirmed. In so doing, the Board
made the following findings of fact:
             1. The claimant was last employed as an occupational
                therapist by the employer The Hope Learning Center
                from September 8, 2016 and her last day of work was
                March 22, 2017.
             2. The claimant had concerns about how the employer
                was billing and assigning appointments.
             3. The employer has a policy requiring employees to
                comply with HIPAA and FERPA regulations.
             4. HIPAA regulations require, among other things,
                covered entities to ensure compliance with the security
                of protected health information by their employees.
                45 C.F.R. § 164.306.
             5. The claimant signed an acknowledgement of this
                policy and was aware of the requirement.
             6. The claimant received previous progressive
                disciplinary actions for insubordination.
             7. The claimant forwarded an email from her work email
                to her personal email account.
             8. The email contained personal health information about
                one of the claimant’s students.
             9. The claimant was discharged for violating the
                employer’s HIPAA and FERPA policy and for
                insubordination.
(Board’s Decision at 1-2, attached to Petitioner’s Br. as Appendix “A.”)




                                          5
              Based on the above findings, the Board concluded that Claimant was
ineligible for benefits under the Law because Employer terminated her employment
due to willful misconduct. The Board reasoned:
              Although the claimant testified that she did not receive any
              HIPAA training from the employer, the claimant was on
              constructive notice that she was required to comply with
              HIPAA. Additionally, the form signed by the claimant
              instructs employees to contact their compliance officer if
              they have questions about HIPAA or FERPA. While the
              claimant’s counsel argues that the claimant did not share
              the protected information with anyone, HIPAA requires
              covered entities like the employer to protect sensitive
              information and the claimant sending an email with
              protected health information to her web based,
              non-encrypted personal email is a violation of that
              requirement.
(Id. at 2.) The Board further reasoned:
              At the hearing, the claimant testified that she had raised
              concerns to her supervisors about how the employer was
              billing, however, her concerns are not good cause for
              violating the employer’s HIPAA policy. The Board
              credits the testimony of the employer witnesses that the
              claimant was discharged for violation of the HIPAA
              policy and for insubordination.
(Id. at 3.)
              On appeal to this Court,7 Claimant argues that substantial evidence of
record does not exist to support the Board’s findings that there was a policy
regarding HIPAA or FERPA and that Claimant violated the policy. Claimant also
argues that the Board erred in concluding that her conduct rose to the level of willful


       7
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.


                                               6
misconduct under Section 402(e) of the Law or, alternatively, the Board erred in
failing to conclude that she had good cause for her actions.8
             First, we will address whether the Board’s findings of fact are supported
by substantial evidence. Substantial evidence is defined as relevant evidence upon
which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp.
Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there
is substantial evidence to support the Board’s findings, this Court must examine the
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. (Id.) A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole. Taylor
v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s
findings of fact are conclusive on appeal only so long as the record taken as a whole
contains substantial evidence to support them.               Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984).
             In an unemployment case, the Board is the ultimate fact finder and is,
therefore, entitled to make its own determinations as to witness credibility and
evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383,
1386 (Pa. 1985). The Board is also empowered to resolve conflicts in the evidence.
DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa.
Cmwlth. 2004). “The fact that [a party] may have produced witnesses who gave a
different version of the events, or that [the party] might view the testimony
differently than the Board is not grounds for reversal if substantial evidence supports


      8
        We have paraphrased Claimant’s issues on appeal based upon our review of Claimant’s
statement of questions involved and the arguments contained in her brief.

                                            7
the Board’s findings.”          Tapco, Inc. v. Unemployment Comp. Bd. of Review,
650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in
the record that could support a contrary conclusion, it does not follow that the
findings of fact are not supported by substantial evidence.                          Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
                Claimant contends that the Board’s findings that Employer had a
HIPAA policy and Claimant violated it are not supported by substantial evidence of
record. Claimant points to her own testimony and argues that the Board erred in
accepting Ms. Persaud’s testimony over hers. As to the specific finding of a
violation of HIPAA or Employer’s HIPAA policy, Claimant argues: (1) Employer
offered no evidence that Claimant’s actions constituted a “disclosure” under
HIPAA; (2) Employer offered no evidence as to what information was contained in
the email; and (3) Employer offered no evidence that the email Claimant forwarded
contained “individually identifiable health information.”9
                Here, the Board resolved any conflicts in the testimony in favor of
Employer and rejected the testimony of Claimant as not credible. (Board’s Decision
at 3.) The testimony of Ms. Persaud that Claimant signed a form stating that there
was a work policy requiring compliance with HIPAA and that she was trained


       9
           Under HIPAA’s regulations, “individually identifiable health information” is defined as
       information which relates to the physical or mental health of an individual, the
       provision of health care to an individual or the payment for the provision of health
       care to an individual and (i) that identifies the individual; or (ii) with respect to
       which there is a reasonable basis to believe the information can be used to identify
       the individual.
45 C.F.R. § 160.103. Such information could include the individual’s name, social security
number, address, telephone number, medical record number, or health plan number. See 45 C.F.R.
§ 164.514(b) (directing such information to be removed to de-identify individually identifiable
health information).

                                                 8
regarding the HIPAA policy supports the Board’s finding that Employer had a policy
requiring employees to comply with HIPAA and that Claimant constructively knew
of the policy. (Board’s Decision and Order at 1.) Although Employer contends that
Claimant’s conduct violated HIPAA, it did not cite any provisions of HIPAA that it
claims Claimant’s conduct violated or any legal authority for the proposition that
Claimant’s conduct violated HIPAA.              Further, Employer did not provide any
evidence of the content of its HIPAA policy, other than testimony that the policy
prohibits employees from violating HIPAA. Without more, we cannot conclude that
substantial evidence exists to support a finding that Claimant violated HIPAA or
Employer’s HIPAA policy, although substantial evidence does exist to support
finding that Employer has some type of HIPAA policy.10
               We address next Claimant’s contention that the Board erred in
concluding that her conduct rose to the level of willful misconduct under
Section 402(e) of the Law.11 Section 402(e) of the Law provides, in part, that “[a]n
employe shall be ineligible for compensation for any week . . . [i]n which his
employment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work.” The employer bears the burden of proving
that the claimant’s unemployment is due to the claimant’s willful misconduct.
Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth.



       10
          An unemployment compensation case is not the proper forum under which this Court
should determine whether particular conduct constitutes a violation of an unspecified provision of
HIPAA, particularly when presented with only a general argument and no citation to legal support
for the position.
       11
          Whether or not an employee’s actions amount to willful misconduct is a question of law
subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203,
1205 (Pa. Cmwlth. 1981).

                                                9
2008). The term “willful misconduct” is not defined by statute. The courts have
defined “willful misconduct” as follows:
               (a) wanton or willful disregard for an employer’s
               interests; (b) deliberate violation of an employer’s
               rules; (c) disregard for standards of behavior which an
               employer can rightfully expect of an employee;
               or (d) negligence indicating an intentional disregard of the
               employer’s interest or an employee’s duties or obligations.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). An
employer seeking to prove willful misconduct by showing that the claimant violated
the employer’s rules or policies must prove the existence of the rule or policy and
that the claimant violated it. Walsh, 943 A.2d at 369. In the event that the court
finds that a claimant’s conduct constitutes willful misconduct, a claimant can still
receive benefits if he can show that he had good cause for his willful misconduct.
Walsh, 943 A.2d at 369. A claimant bears the burden of proving good cause for his
actions. Id.
               Here, Claimant argues that the Board erred in concluding that her
conduct rose to the level of willful misconduct, because, contrary to the Board’s
finding, Employer failed to establish that Claimant violated HIPAA or Employer’s
HIPAA policy. As discussed above, we agree with Claimant that, in the absence of
specifics regarding Employer’s HIPAA policy or some legal authority identified by
Employer to support a HIPAA violation, the Board erred in concluding that
Employer met its burden to prove that Claimant’s conduct rose to the level of willful
misconduct based upon a violation of HIPAA or Employer’s HIPAA policy.
               Our analysis, however, does not end here. Employer contends that,
even if Claimant’s conduct of forwarding an email from her work account to her
personal account did not rise to the level of willful misconduct, the Board correctly
concluded that Claimant engaged in insubordination that constituted willful
                                           10
misconduct. Employer misapprehends the Board’s opinion and order. The Board,
while finding that insubordination was one of the bases upon which Employer
terminated Claimant’s employment, did not make any findings relating to whether
Claimant engaged in insubordination when she allegedly attempted to go over the
head of her supervisor to get a case assigned to her, nor did it conclude that
Claimant’s alleged insubordination constituted willful misconduct. Thus, because
the Board did not consider Employer’s argument that Claimant’s alleged
insubordination constituted willful misconduct, we must remand the matter to the
Board to consider this issue.
             Accordingly, we reverse the decision of the Board with respect to its
determination that Claimant’s conduct rose to the level of willful misconduct based
on a violation of HIPAA or Employer’s HIPAA policy, and we remand this matter
to the Board to consider Employer’s contention that Claimant’s alleged
insubordination constitutes willful misconduct.




                                         P. KEVIN BROBSON, Judge




                                        11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jami M. Dantry,                          :
                         Petitioner      :
                                         :
            v.                           :   No. 1665 C.D. 2017
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


            AND NOW, this 31st day of January, 2019, the order of the
Unemployment Compensation Board of Review (Board) is REVERSED to the
extent that it concluded that Jami M. Dantry’s (Claimant) conduct rose to the level
of willful misconduct based on a violation of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified
as amended in scattered sections of 18, 26, 29, and 42 U.S.C.), or Hope Learning
Center’s HIPAA policy, and the matter is REMANDED to the Board for the issuance
of a decision determining whether Claimant’s alleged insubordination constitutes
willful misconduct.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
