Good Samaritan Hospital v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Good Samaritan Hospital, :
Petitioner :
:
v. : No. 1224 C.D. 2015
: SUBMITTED: March 4, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 28, 2016
Employer, Good Samaritan Hospital, petitions for review of an order
of the Unemployment Compensation Board of Review (Board) that affirmed a
referee’s decision finding Claimant, Michael B. Umberger, eligible for
unemployment compensation benefits because his actions did not constitute willful
misconduct under Section 402(e) of the Unemployment Compensation Law
(Law).1 We reverse.
From March 2013 to November 2014, Claimant worked as a full-time
registered nurse for Employer at a final hourly rate of $26.65. Referee’s March 27,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
2015, Decision, Finding of Fact (F.F.) No. 1. Employer has an e-mail policy
prohibiting chain letters and other forms of repetitive mass mailings on its e-mail
system and considers any misuse of its system to be a security compromise,
warranting an immediate documented warning. Id., No. 2. Repeated warnings for
the same activities may amount to a security breach, warranting the immediate
suspension of the offending employee’s access to Employer’s computer system
and a referral to its human resources department for possible sanctions.2 Id., Nos.
4 and 5. In addition, Employer has a progressive disciplinary process, which
includes a verbal warning, a written warning, suspension and termination.
Employer’s discipline policy, however, permits it to bypass these disciplinary steps
dependent upon the severity of the circumstances. Id., Nos. 6 and 7. Claimant was
aware of Employer’s policies. Id., No. 8.
Following Employer’s denial of Claimant’s application for a religious
exemption from the flu vaccine required for its employees, Claimant composed an
e-mail stating that Employer planned to discharge him due to its denial of his
application, expressing his disappointment with its decision and asking recipients
in a similar situation to contact him. Id., No. 13. When Claimant attempted to
send that e-mail to all of Employer’s employees at once, however, he was unable
to do so, “because he did not have permission to use that distribution list.” Id., No.
2
Employer’s manual defines a “security compromise” as follows: “[A]n unintentional act
caused by a poor security practice though no violation of patient or GSHS [Good Samaritan
Hospital Systems] Information Resources has occurred (e.g. walking away from computer in a
common area without locking it or logging off).” Original Record (O.R.), Item No. 3, Employer
Separation Information at 7; Reproduced Record (R.R.) at 27a. It defines a “security breach” as
follows: “[A] willful or premeditated act that violates, or has the potential to violate, the security
and integrity of patient or GSHS Information Resources (e.g. sharing passwords, sharing
unauthorized copies of electronic information, etc.).” Id.
2
11. Consequently, he chose to send his e-mail successively to groups of
employees.3 Id., No. 12. A few hours later and notwithstanding the absence of
disciplinary actions in his employment record, Employer discharged Claimant
from employment for violation of its e-mail policy. Id., Nos. 14 and 15. Claimant
subsequently applied for unemployment compensation benefits and the UC Service
Center found him to be ineligible.
After a hearing at which both Claimant and Employer appeared and
presented evidence, the referee reversed. In determining that Employer failed to
establish that it discharged Claimant for actions that constituted willful
misconduct, the referee reasoned as follows:
[T]he record establishes that the claimant sent one mass
email. The employer’s policy refers to repetitive mass
mailings. Accordingly, it is unclear that a single mass
mailing is in violation of the policy. Even if the mass
email otherwise qualifies as misuse of the employer’s
email, the employer does not adequately explain how a
single mass email constitutes a serious circumstances
[sic] which would justify bypassing all lower steps of
discipline when the claimant had no previous disciplinary
actions.
Referee’s March 27, 2015, Decision at 2. The Board affirmed, adopting and
incorporating all of the referee’s findings and conclusions. In addition, it
determined that Employer failed to provide sufficient justification for discharging
Claimant where its policy specifically provided for a documented warning for the
3
The record reflects that, on the day of his discharge from employment, Claimant sent his e-
mail thirteen times and in relatively quick succession to large groups of different employees.
O.R., Item No. 16, March 23, 2015, Hearing Transcript, Employer Exhibit No. 4; R.R. at 17a-
19a.
3
first offense of a security compromise. Employer’s timely petition for review
followed and we have before us briefs from Employer, the Board and Claimant.4
Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n which his unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work . . . .” 43 P.S. § 802(e). The term “willful misconduct” has been
defined to include (1) the wanton and willful disregard of the employer’s interests;
(2) the deliberate violation of rules; (3) the disregard of standards of behavior that
an employer can rightfully expect of its employee; or (4) negligence that manifests
culpability, wrongful intent, evil design, or intentional and substantial disregard for
the employer’s interests or the employee’s duties and obligations. Glatfelter
Barber Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa.
Cmwlth. 2008). The employer bears the initial burden of proving that a claimant
engaged in willful misconduct and, if the willful misconduct charge is based upon
a violation of a work rule, the employer must prove the existence of the rule, its
reasonableness, and that the employee was aware of the rule. Brown v.
Unemployment Comp. Bd. of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012). Once
an employer satisfies its prima facie case, the burden shifts to the claimant to
demonstrate that the rule was unreasonable or that he had good cause for his
conduct. Id. The claimant has good cause if his action “is justifiable or reasonable
under the circumstances[.]” Frumento v. Unemployment Comp. Bd. of Review, 351
A.2d 631, 634 (Pa. 1976).
4
Whether a claimant’s actions constitute willful misconduct is a question of law over which
we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162
(Pa. Cmwlth. 2012).
4
On appeal, Employer argues that the record does not support the fact-
finding that Claimant’s actions constituted a security compromise rather than a
security breach, where again a security compromise warrants only a documented
warning for the first offense while a security breach warrants an immediate
suspension pending an investigation. It emphasizes that Claimant sent thirteen
successive, albeit identical, e-mails to large groups of employees and argues that
those repetitive actions constituted a security breach justifying immediate
termination. In addition, Employer maintains that there is no support for the
determination that it failed to provide sufficient grounds for terminating Claimant’s
employment when the nominal discipline was an immediate documented warning
but it chose immediate discharge.5
Contrary to Employer’s contention, the record supports the Board’s
findings that Employer discharged Claimant for violation of its e-mail policy, that
any misuse of e-mail is a security compromise and that the nominal discipline for
that violation is an immediate documented warning.6 Consistent with Employer’s
5
As the Board observes, Employer in its statement of objections to the determination did not
specify, by number, the fact-findings that it was contesting. It is clear, however, that Employer
is challenging the Board’s interpretation and application of Employer’s policies and the Board’s
subsequent conclusion that, based on those policies, Employer’s decision to terminate Claimant’s
employment was unwarranted. July 24, 2015, Amended Petition for Review, ¶ 5 at 2.
6
The support in the record is found both in the documentary evidence and the testimony of
one of Employer’s witnesses. Specifically, the letter that Employer sent to Claimant confirming
his discharge provides as follows: “On November 25, 2014 between 10:10am and 11:55am you
sent mass emails to multiple groups of employees. This repetitive mass emailing is a direct
violation of policy AD-12 Systems Assurance, a copy of which is enclosed.” O.R., Item No. 3,
Employer Separation Information at 3; R.R. at 7a. Pursuant to that policy: “Chain letters and
other forms of repetitive mass mailings are not allowed. Any misuse of Email will be considered
a Security Compromise.” Id. at 6; R.R. at 26a. In addition, as one of Employer’s witnesses
testified: “Michael returned my phone call and I told him that he was going to be terminated
effective immediately due to misuse of the email system.” March 23, 2015, Hearing Notes of
Testimony (N.T.) at 22; R.R. at 26a (emphasis added). Regarding the nominal discipline for
(Footnote continued on next page…)
5
argument, however, the record does not support the Board’s determination that
Claimant sent one mass e-mail.7 Regardless, as the Board also found, Employer’s
disciplinary policies permit it to bypass disciplinary steps due to the severity of
some circumstances. Specifically, Employer’s policy provides:
Any or all disciplinary steps may be bypassed due to the
seriousness of some circumstances, behaviors or conduct.
Immediate suspension or discharge may be warranted.
Nothing in this policy will be construed to limit the rights
of GSHS to suspend or discharge an employee
immediately for reasons set forth anywhere in this policy.
Original Record (O.R.), Item No. 3, Employer Separation Information at 12;
Reproduced Record (R.R.) at 32a. In this regard, Employer’s policies provide that
discipline for the violation of any of its policies may include immediate discharge.
Id. at 13; R.R. at 33a. Accordingly, notwithstanding the fact that Employer’s
policies provide for a sanction short of discharge, its policies also give it discretion
to impose enhanced discipline for even the first offense of the conduct in question.
Employer next argues that there is no support for the determination
that it failed to provide sufficient justification for terminating Claimant’s
employment when the nominal discipline was an immediate documented warning.
In this regard, the parties do not dispute the reasonableness of the rule, but that
Employer’s chosen discipline in response to Claimant’s violation was excessive
_____________________________
(continued…)
misuse of e-mail, Employer’s policy, in pertinent part, provides: “The instance of a Security
Compromise will be cause for an immediate documented warning . . . .” O.R., Item No. 3,
Employer Separation Information, at 4-5; R.R. at 24-25a.
7
Claimant testified that when he was unable to select the option to send his e-mail to
“everybody,” he “pick[ed] sections” of e-mail recipients. March 23, 2015, Hearing, N.T. at 37-
38; R.R. at 81a-82a. As Employer’s Exhibit No. 4 indicates, Claimant made his selections
thirteen times. See supra note 3. Accordingly, even though Claimant’s e-mail was identical, he
sent it thirteen times.
6
and contrary to Employer’s policies. In effect, their real dispute goes to the
essential issue of whether Claimant’s actions constituted sufficiently severe
misconduct as to warrant the enhanced discipline.
Notwithstanding the Board’s unsupported determination that Claimant
sent one mass e-mail, it is beyond dispute that, within a relatively short time period
and in thirteen successive e-mails, Claimant accomplished with only a few
keystrokes what Employer’s restriction on its employees’ ability to choose the “all
employee” e-mail distribution list prevented him from doing even faster initially:
sending repetitive mass e-mails to large groups of different employees.8 Even if
we examine the evidence in the light most favorable to Claimant, in whose favor
the Board found, giving him the benefit of all inferences that can logically and
reasonably be drawn,9 the evidence reflects Claimant’s acknowledgement of
Employer’s e-mail policies and his deliberate decision to flout Employer’s
prohibition against mass e-mails by circumventing the restrictions on the
distribution list and sending thirteen e-mails.10 Accordingly, we conclude that
Claimant’s actions constituted willful misconduct.
Furthermore, the fact that Employer’s policies provide for discipline
short of discharge does not negate Claimant’s termination for willful misconduct
where its policies clearly afford it discretion to impose a different and greater
sanction for his actions and it chose to do so. See Johnson v. Unemployment
Comp. Bd. of Review, 744 A.2d 817, 821 (Pa. Cmwlth. 2000); Seton Co. v.
8
While it is true that Employer’s policies also provide that, multiple warnings for the same
activity may constitute a security breach, Employer, as a practical matter, most likely did not
have the opportunity to issue any warnings given the relatively quick succession of Claimant’s e-
mails.
9
Owen v. Unemployment Comp. Bd. of Review, 363 A.2d 852, 854 (Pa. Cmwlth. 1976).
10
March 23, 2015 Hearing, N.T. at 37-41; R.R. at 81-85a.
7
Unemployment Comp. Bd. of Review, 663 A.2d 296, 299 (Pa. Cmwlth. 1995). In
this regard, the Board’s reliance on Unemployment Compensation Board of Review
v. Schmid, 341 A.2d 553, 555 (Pa. Cmwlth. 1975), is misplaced. In Schmid, we
held that the claimant’s tardiness did not constitute willful misconduct where the
employer’s rule provided that any worker receiving three disciplinary sanctions of
“two days off without pay” would be discharged and claimant had received only
two. In support, we observed that, where “the employer gave notice that although
tardiness was inimical to its interest, it was not sufficiently inimicable to result in
discharge until the employee had received three “two days off without pay”
penalties[,]” claimant’s conduct did not constitute willful misconduct. In the
present case, however, Employer’s disciplinary policy did not limit the sanctions
that it could impose for the conduct at issue, up to and including discharge.
Moreover, we reject Claimant’s efforts to establish that his actions
were justifiable or reasonable under the circumstances. Claimant maintains that
the content of his e-mail supports the fact that he had good cause for violating
Employer’s rule prohibiting misuse of its e-mail system and that it did not result in
any harm to Employer’s interests. The content of Claimant’s e-mail, however, is
irrelevant. He chose to override Employer’s restriction on its employees’ ability to
choose the “all employee” e-mail distribution list by sending thirteen successive
and repetitive mass e-mails to large groups of employees. Pursuant to Employer’s
policies, the reason that it provides e-mail to its employees is as follows:
“Electronic mail (“Email”) is provided by the GSHS [Good Samaritan Hospital
Systems] to assist in conducting the business of the GSHS.” O.R., Item No. 3,
Employer Separation Information, at 6; R.R. at 26a. In that regard, Claimant
admitted that, instead of directly addressing his concerns with Employer’s denial
8
of his application with human resources personnel, he instead chose to send
repetitive mass e-mails in violation of Employer’s e-mail policies. March 23,
2015, Hearing, Notes of Testimony at 38, 45; R.R. at 82a, 89a.
Accordingly, having concluded that Claimant’s conduct constitutes
willful misconduct for which he failed to demonstrate good cause, we reverse.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
Judge McCullough concurs in the result only.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Good Samaritan Hospital, :
Petitioner :
:
v. : No. 1224 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 28th day of July 2016, the order of the
Unemployment Compensation Board of Review is hereby REVERSED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge