K. Mann v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Mann, :
Petitioner :
: No. 1056 C.D. 2019
v. :
: SUBMITTED: June 9, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 22, 2021
Kimberly Mann (Claimant) petitions for review of the order of the
Unemployment Compensation Board of Review (Board), dated July 19, 2019,
affirming the decision of a referee, which denied her benefits under section 402(b) of
the Unemployment Compensation Law (Law).2 The Board concluded that Claimant
failed to establish a necessitous and compelling reason to voluntarily terminate her
employment. Upon review, we affirm.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b)
(relating to voluntary separation from employment without cause of a necessitous and compelling
nature).
Claimant worked full-time as the Director of Human Resources for
Happier Living Home Care3 (Employer) until December 14, 2018, when she
voluntarily resigned from her position.4 (F.F. Nos. 1, 11, (Certified Record (C.R.) at
Item No. 15; Notes of Testimony (N.T.) at 7-8.) Claimant applied for unemployment
compensation benefits and by decision mailed March 20, 2018, the local service center
found her not ineligible for benefits under section 402(b) of the Law. (C.R. at Item No.
7.) In particular, the local service center determined that Claimant satisfied her burden
of proving that she had a necessitous and compelling reason to quit because Employer
“had someone that was not an employee audit the employee files [which allowed that
person] to have access to employee personal [sic] records,” and there was no alternative
available for Claimant to resolve the situation. Id.
Employer appealed the local service center’s determination to a referee,
and a hearing was convened on April 30, 2019. (C.R. at Item Nos. 8, 10.) At the
hearing, Claimant testified that she last worked on December 17, 2018. (C.R. at Item
No. 11, N.T. at 8.) Claimant explained that she verbally informed Employer’s
executive director, Dawn Reed-Seeger, of her intention to voluntarily end her
employment. (N.T. at 2-3, 8.) Claimant testified that she resigned because she was
asked to participate in “illegal activity” that she believed was in violation of the Health
Insurance Portability and Accountability Act of 1996 (HIPAA).5 (N.T. at 8.) Claimant
3
Employer subsequently changed its name to Wyncote Wellness. (Certified Record (C.R.) at
Item No. 8.)
4
Claimant verbally resigned on December 14, 2018, and identified the effective date of her
resignation as December 28, 2018; however, Employer did not accept this date, and accepted
Claimant’s resignation effective as of December 17, 2018. (Findings of Fact (F.F.) Nos. 11-12.)
5
Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26,
29, and 42 U.S.C.).
2
also testified that she believed Employer’s actions violated other employment laws,
constituted employment practices that she would not support, and placed her
professional reputation in jeopardy. (N.T. at 8, 11.)
Particularly, Claimant testified that the alleged illegal activity occurred
with regard to an internal audit process that she instituted to ensure necessary
information was in each employee’s file. (N.T. at 8.) Claimant explained that members
of Employer’s administrative staff were to conduct and participate in the audit. Id.However, Claimant testified that “someone who was not an employee” was asked by
Employer to audit the files, and she advised Ms. Reed-Seeger and Dominic Connor,
the owner, on December 7, 2018, that this activity was “in direct violation of HIPAA”
due to the presence of confidential information in the files.6 (N.T. at 8, 15.) Claimant
maintained that Ms. Reed-Seeger did not respond to her comment, and subsequently,
she witnessed Ms. Reed-Seeger, Mr. Connor, and the person she believed not to be an
employee, in the conference room reviewing employee files. (N.T. at 15.)
Specifically, Claimant explained that due to the confidential nature of the
information in the employee files, it was a violation of HIPAA to have an unemployed
person review the files. (N.T. at 11.) Nevertheless, when asked why she believed
Employer’s practices violated the law, Claimant reiterated that there were confidential
documents in the files and that HIPAA regulations have “all kinds of guidelines around
who should be reviewing files,” and that employees have to approve individuals to
review the files who would not reasonably be allowed to do so under the law. (N.T. at
19.) She also testified that it was understood that Employer would not permit non-
employees to review these files and that she knew the person asked to review the files
6
Specifically, Claimant explained that there was sensitive and confidential information in the
files including “social security numbers, addresses, birthdates, [and] criminal background results.”
(N.T. at 11.)
3
was not an employee. (N.T. at 19, 20.) Claimant testified that she did not report a
HIPAA violation, a privacy violation, or otherwise, to any relevant authority. (N.T. at
19.)
With regard to her personal involvement in the activity, Claimant testified
that after the completed audits came back to her, she was required to “sign off” on or
approve them. (N.T. at 11.) More specifically, she explained that, as part of the process
for everything that went into an employment file, she “signed off” on it, indicating that
she “read it, [] took a look at it, [and knew] this particular person audited the files.” Id.When asked by the referee if Claimant would have been personally liable for this
activity, Claimant responded that she was unaware if she would be personally liable,
but stated that she “would [not have] felt comfortable” continuing to support activity
she knew violated the law. (N.T. at 16.) Claimant testified that, as a certified7 human
resources professional, she felt that her professional reputation would be in jeopardy
and she felt responsible “for anything that takes place [that has] to do with employment
law.” (N.T. at 11.) Moreover, Claimant testified that as a certified human resources
professional she felt responsible to protect employees’ rights, and that she felt that
Employer’s actions were contrary to her advice as it related to employment law. (N.T.
at 10.) Additionally, Claimant explained that she felt the alleged illegal activity would
come back on her because she was the Human Resources Director. (N.T. at 11.)
Ms. Reed-Seeger testified on behalf of Employer. Ms. Reed-Seeger
maintained that Claimant verbally resigned because she needed a position that was
“more of a challenging experience . . . .” (N.T. at 12.) Ms. Reed-Seeger maintained
that Employer has an application on file with regard to the unnamed individual who
7
Claimant testified that she was certified through the Society of Human Resources
Management and has been working in human resources for at least 15 years. (N.T. at 12.)
4
was allegedly a non-employee.8 (N.T. at 20.) Ms. Reed-Seeger clarified that the
individual’s position was temporary, that his first day was December 7, 2018, and that
he was qualified to conduct the audit because he could “go through paperwork” and
organize it. (N.T. at 23.) Ms. Reed-Seeger testified that this individual would not read
the information in the file, but acknowledged that he was nevertheless handling the
files in some manner. (N.T. at 23-24.)
In response to Ms. Reed-Seeger’s testimony as to Claimant’s reason for
quitting, Claimant maintains that she quit because of Employer’s practices, the way
that Employer was “sort of” following policies and procedures, and Employer’s
activity with regard to the audits. (N.T. at 16.) Claimant testified that as Employer’s
Human Resources Director, she knew about everyone who was hired because the hiring
process had to go through her, that she was unaware that an individual had been hired
to assist with the audit, and that she did not see an employment file for a new employee.
(N.T. at 24.) Claimant testified that when she raised this issue to Mr. Connor and Ms.
Reed-Seeger, neither told her that this individual had been hired. (N.T. at 24.)
The referee issued his decision, reversing the determination of the local
service center. The referee concluded that Claimant failed to satisfy her burden because
she did not provide competent evidence as to any specific action Employer required
her to do; that the individual performing the audit was not an employee; and that she
failed to identify what laws were violated, how they were violated, or what laws were
at issue. (Referee’s decision at 4.) Moreover, the referee stated that Claimant actually
acknowledged that she did not take steps to ascertain whether Employer violated any
law, and that “Claimant’s unsubstantiated and subjective belief” that Employer’s
actions constituted a HIPAA violation was not supported by record evidence. Id. In
8
Yet, when asked if she had a name for this individual, Ms. Reed-Seeger testified that she did
not. (N.T. at 22.)
5
sum, the referee concluded that Claimant was ineligible for benefits under section
402(b) of the Law because Claimant’s decision to quit was personal in nature, and as
such, she failed to establish that she had a necessitous and compelling reason to leave
her employment or that she acted with ordinary common sense in attempting to
preserve her employment. Id. Claimant subsequently appealed to the Board.
The Board issued its decision, dated July 19, 2019, and made its own
findings of fact, which provide, in relevant part, as follows: Employer was required to
perform background checks before hiring employees. (F.F. No. 2.) Claimant instituted
a process, which utilized members of Employer’s administrative staff, to audit
employee files which contained sensitive information such as social security numbers,
addresses, birthdates, criminal background results, and personal medical information.
(F.F. No. 3.) The audit involved ensuring that each employee file contained the
required items. Id. On December 7, 2018, Mr. Connor and Ms. Reed-Seeger
“performed their own audit of the files with the help of an outside individual whom
[Claimant] believed to be a friend or colleague of the owner.” (F.F. No. 5.) Claimant
believed that this conduct involved HIPAA or other employment laws, and expressed
her concerns to Ms. Reed-Seeger on December 7, 2018, to which Ms. Reed-Seeger did
not respond. (F.F. Nos. 6-7.) Ms. Reed-Seeger and Mr. Connor reviewed the
paperwork in the file, checked off what was missing, and gave the file to the unnamed
individual to organize the paperwork, and the audit documentation was signed by Ms.
Reed-Seeger and Mr. Connor. (F.F. Nos. 8-9.) Claimant was unaware if she could be
held personally liable if Employer was cited for a HIPAA violation. (F.F. No. 10.)
Claimant tendered her verbal resignation to Ms. Reed-Seeger on December 14, 2018,
and her resignation was effective on December 17, 2018. (F.F. Nos. 11-12.) Claimant
6
voluntarily ended her employment after alleging that Employer was engaged in illegal
activity. (F.F. No. 13.)
The Board affirmed the referee’s decision and denied Claimant benefits.
(Board’s decision at 3.) The Board concluded that even if the individual who helped
with the audit was not an employee, Claimant failed to establish that HIPAA applied
in that situation, that HIPAA laws were violated, or that any other law applied and/or
was violated. Id. The Board also explained that Claimant admitted that she was
unaware if she could be personally liable if Employer was cited and that her “vague
testimony” about her reputation and violation of employment laws was insufficient to
carry her burden of proof. Id. The Board also concluded that while Claimant alleged
Employer’s activity violated the law, she failed to prove that the activity actually
violated the law or was of such a nature that it could be viewed as highly questionable.
Id. Claimant subsequently appealed to this Court.
Discussion
On appeal,9 Claimant raises the single issue of whether she had a
necessitous and compelling reason to quit her employment when Employer was
engaged in potentially illegal, and ethically questionable, conduct that put her
professional reputation in jeopardy. Claimant argues that because she reasonably
believed the disclosure of confidential employee information violated the law, she had
a necessitous and compelling reason to voluntarily end her employment. Claimant
9
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether findings of fact are supported by
substantial evidence. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1162
n.2 (Pa. Cmwlth. 2013). “[S]ubstantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Chartiers Community Mental Health and Retardation
Center v. Unemployment Compensation Board of Review, 134 A.3d 1165, 1170 (Pa. Cmwlth. 2016).
7
maintains that under Tom Tobin Wholesale v. Unemployment Compensation Board of
Review, 600 A.2d 680, 681 (Pa. Cmwlth. 1991), a claimant merely needs to show that
she reasonably believed that her employer was engaging in illegal activity in order to
prove a necessitous and compelling reason to terminate employment. As such,
Claimant argues that the Board’s conclusion was erroneous because Claimant only had
to show that she “reasonably believed” that Employer’s conduct violated the law, and
she was not required to establish the specific laws that applied or were violated.
(Claimant’s Br. at 13) (emphasis omitted). Claimant then argues that her belief that
HIPAA was violated was reasonable because “HIPAA is generally known because of
the ‘Privacy Rule,’”10 and Claimant knew the files contained personal medical
information. Claimant also asserts that her belief was reasonable because the
Americans with Disabilities Act, 42 U.S.C. §§12101-12213, and the Family and
Medical Leave Act, 29 U.S.C. §§2601-2654, both have regulations that relate to the
maintenance of confidential medical records and that the disclosure of social security
numbers and other identification is subject to other privacy restrictions.
Second, Claimant argues that she could not continue working because
Employer was engaged in a “highly questionable” practice. (Claimant’s Br. at 14.)
Claimant acknowledges that under Ayres v. Unemployment Compensation Board of
Review, 598 A.2d 1083 (Pa. Cmwlth. 1991), personal beliefs, even if sincere, without
more are insufficient to support a finding that a claimant had a necessitous and
compelling reason to quit and that an employer’s practice must be highly questionable,
10
The “HIPAA privacy rule prohibits disclosure of a patient’s personal health information.
HIPAA regulations define ‘health information’ as information that ‘relates to the past, present or
future physical or mental health or condition of an individual; the provision of health care to an
individual.’” Lancaster Emergency Medical Services Association v. Unemployment Compensation
Board of Review (Pa. Cmwlth., No. 1749 C.D. 2014, filed June 4, 2015) (unreported) (citing 45 C.F.R.
§160.103).
8
at best, so that the avoidance of the action would be prudent. Claimant maintains that
here, she knew “something was wrong about a random individual” conducting the audit
and that she evaluated the situation as “highly questionable” based on her years of
experience in human resources. (Claimant’s Br. at 16.)
Finally, Claimant argues that she had good cause to leave her employment
because of the threat to her personal and professional reputation. To support this
position, Claimant points to Share v. Unemployment Compensation Board of Review,
512 A.2d 794 (Pa. Cmwlth. 1986), where we reversed the Board’s decision denying
benefits because the employer’s behavior so affected the claimant’s personal and
professional integrity that the claimant remained eligible for benefits. Claimant argues
that similarly, here, she was asked to risk her professional reputation due to Employer’s
actions.
In response, the Board argues that Claimant failed to prove that she had a
necessitous and compelling reason to voluntarily quit. The Board argues Claimant was
required to try to determine the illegality of the activity prior to quitting, and because
she failed to do so her actions were not reasonable. The Board alternatively argues that
Claimant failed to demonstrate that Employer’s conduct was highly questionable or put
her personal or professional integrity in jeopardy.
In support of its first point, the Board relies on Telesound Rentals, Inc. v.
Unemployment Compensation Board of Review, 616 A.2d 190 (Pa. Cmwlth. 1992), for
the proposition that if a claimant mistakenly believes an employer’s actions are illegal
and fails to make an effort to verify the illegality of the actions, a necessitous and
compelling reason does not exist. Moreover, the Board maintains that vague references
to laws are insufficient to satisfy a claimant’s burden of proof in this regard. The Board
maintains that here, Claimant failed to cite to any specific provision of the law to
9
establish the purported illegality of Employer’s conduct, nor did she make any effort
to ascertain the legality of said conduct. The Board argues that Claimant’s personal
belief that the conduct was illegal is insufficient to carry her burden.
In support of its second point, the Board argues that Claimant also failed
to prove that Employer’s conduct was highly questionable or placed her personal and
professional reputation at risk. The Board agrees that a claimant may also prove a
necessitous and compelling reason existed to voluntarily terminate employment if the
claimant was required to perform highly questionable activities that affected her
personal and professional integrity. The Board maintains, however, that mere distaste
or dislike is insufficient to carry this burden, and that subjective beliefs without a
demonstration of illegality, immorality, or unethicality, are insufficient. Factually, the
Board argues that Employer’s actions were not highly questionable due to the need to
hire additional help, and it highlights Ms. Reed-Seeger’s testimony that the individual
in question applied, interviewed, and was qualified.
We turn to the merits of the instant matter. Section 402(b) of the Law
provides that an employee shall be ineligible for unemployment compensation benefits
for any week in which she voluntarily left her employment without a necessitous and
compelling reason. 43 P.S. §802(b). “Whether an employee has a necessitous and
compelling reason to voluntarily quit employment is a question of law fully reviewable
by this Court.” Brunswick Hotel & Conference Center, LLC v. Unemployment
Compensation Board of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant
who voluntarily terminates her employment bears the burden of proving that a
necessitous and compelling cause existed. Petrill v. Unemployment Compensation
Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). An employee who claims to
have left employment for a necessitous and compelling reason must prove that “(1)
10
circumstances existed which produced real and substantial pressure to terminate
employment; (2) such circumstances would compel a reasonable person to act in the
same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant
made a reasonable effort to preserve her employment.” Brunswick Hotel, 906 A.2d at
660.
Generally, where an employer requires an employee to partake in an
unlawful activity, adequate cause exists to terminate employment. Kroepil v.
Unemployment Compensation Board of Review, 411 A.2d 1320 (Pa. Cmwlth. 1980).
The same is true even if an employee is not required to partake in the illegal activities,
but is nevertheless employed by an employer that engages in illegal activities as a
regular part of its business. Gould v. Unemployment Compensation Board of Review,
430 A.2d 731, 732 (Pa. Cmwlth. 1981). Moreover, even if there is no illegal activity
in question, a claimant can prove a necessitous and compelling reason existed if her
employer required her to take actions that were unethical or in violation of professional
standards. Ayres, 598 A.2d at 1086; Share, 512 A.2d at 795. In Ayres, we explained
that
where there is no express violation of law, regulation or
professional ethics . . . an employee does not establish cause
of a compelling or necessitous nature in this type of case
unless the employee proves that the duties required by
employer so affected his or her professional and personal
integrity that it would justify the voluntary quit. The practice
of [the employer], at best, must be highly questionable so
that avoidance of the practice would be the prudent course of
action.
598 A.2d 1087 (citations omitted) (emphasis added).
In Miller v. Unemployment Compensation Board of Review, 458 A.2d
334, 335 (Pa. Cmwlth. 1983), we explained that “unsubstantiated beliefs standing alone
11
will not suffice” to carry a claimant’s burden that she ended her employment with a
necessitous and compelling cause. Similarly, in Ayres, the claimant argued that her
employer’s sales techniques were “unethical and against her conscience,” however, we
explained that the claimant “presented her own sincere but unsubstantiated beliefs
without reference to an applicable code, regulation[,] or other statute.” 598 A.2d at
1087. We explained that even though the claimant had a “sincere, but very personal
disagreement” with her employer’s practices, her personal feelings alone were
insufficient to establish a necessitous and compelling reason. Id. Additionally, we
stated that subjective beliefs without a “demonstration that the duties of employment
conflict with any objective standard of ethics, legality[,] or morality,” do not constitute
a necessitous and compelling reason to end employment. Id.Presently, although Claimant appears to have believed that Employer’s
conduct was illegal or highly questionable, her beliefs were not confirmed by the
findings of the Board. While the Board found that Claimant “believed that [Employer]
violated [HIPAA] and/or other employment laws,” it also found that Claimant was
unaware if she could be liable for Employer’s actions. (F.F. Nos. 6, 10) (emphasis
added). The Board concluded that Claimant did not establish that Employer’s actions
were highly questionable or that her personal or professional reputation was at risk.
The Board’s findings support its conclusion that Claimant failed to demonstrate
Employer’s actions conflicted with “any objective standard of ethics, legality[,] or
morality.” Ayres, 598 A.2d at 1087. As the Board found, Claimant presented no
evidence aside from her personal belief that the person reviewing the files was not an
agent or employee of Employer, or otherwise eligible to review the files.
Importantly, the Board explained that “[o]n appeal (from the referee’s
decision) [C]laimant argues that she does not have to prove a violation of the law, only
12
that [Employer’s] activity was ‘highly questionable.’ However, [C]laimant testified
repeatedly at the hearing that she quit because [Employer’s] activity violated the law,
not because it was ‘highly questionable.’” (Board’s decision at 3.) Nevertheless, the
Board concluded that either way, Claimant had failed to prove that Employer allowing
the unknown individual to help in the audit was highly questionable because she did
not know who the person was. Id. Accordingly, the Board’s conclusion rests on
Claimant’s beliefs as to the legality of Employer’s conduct, not whether it was highly
questionable. Nevertheless, we address Claimant’s contention that Employer’s
conduct was “highly questionable.”
Our decision in Tom Tobin is instructive. In that case, the claimant was
employed as a computer analyst and was asked to alter a computer program for what
he believed were “illegal purposes.” Tom Tobin, 600 A.2d at 682. The claimant
confronted his employer about the alterations, and the employer acknowledged the
illegality of its actions. Id. The claimant voluntarily ended his employment because
he was required to partake in the illegal alterations. Id. The claimant subsequently
admitted that no illegal activity occurred because the program that was being altered
was not operational at the time he ended his employment. Id. This case is easily
distinguishable as Employer here made no concession that its activities were illegal, in
fact Employer asserted its actions were legal.
Share, cited by Claimant, is also instructive. The claimant in Share was
employed as an accountant. 512 A.2d at 794. Her supervisor directed her to make
inaccurate entries into the employer’s books. Id. The claimant refused to do this, and
reported the activity to an audit committee, which investigated the matter. Id. Before
the investigation was over, the claimant voluntarily terminated her employment. Id.The claimant presented evidence that, even though the practices were not illegal, they
13
were “improper in an accounting sense.” Id. at 795. We stated that Share was
controlled by Zinman v. Unemployment Compensation Board of Review, 305 A.2d 380(Pa. Cmwlth. 1973), explaining that “[e]ven if the directives of [the claimant’s
supervisor] did not order the [claimant] to engage in an illegal act, these directives were
such that we believe the claimant followed a prudent course in leaving the employer’s
employ and that benefits should be allowed.” Share, 512 A.2d at 795. Thus, even
though conduct may not be illegal, highly questionable conduct in derogation of one’s
professional and ethical responsibilities can support a conclusion that the claimant had
a necessitous and compelling reason to leave her employment. Here, however, the
Board’s findings indicate that Claimant did not present evidence that she was asked to
undertake any questionable conduct.
Finally, in Telesound, the claimant was employed as an accounts manager,
and as a quality control measure, the employer began having “fake customers”
telephone employees and record the conversations. 616 A.2d at 191. The claimant
believed this practice to be illegal, and thus, voluntarily terminated his employment.
Id. Nevertheless, the conduct at issue was determined to be lawful and the Board found
that claimant was ineligible for benefits. Id. The issue on appeal in Telesound was
“whether [a claimant’s] erroneous belief that [his employer] was engaged in illegal
activity can satisfy [a claimant’s] burden of showing cause of a necessitous and
compelling nature for terminating employment.” Id. at 192. We noted that the record
contained no evidence that the claimant “attempted to ascertain the true state of the law
before terminating employment,” and “[a]s such, the reasonableness of [the claimant’s]
belief is irrelevant, and [the claimant] has not satisfied his burden of showing” a
necessitous and compelling reason existed to voluntarily terminate his employment.
Id.
14
Here, the Board neither found that Claimant was requested to sign nor did
sign the completed audits, rather, Ms. Reed-Seeger and Mr. Connor did. (F.F. No. 9.)
The Board concluded Claimant did not establish Employer’s actions were highly
questionable or that her personal or professional reputation was at risk, notwithstanding
her personal beliefs. Moreover, the Board concluded Claimant failed to demonstrate
Employer’s actions conflicted with “any objective standard of ethics, legality[,] or
morality.” Ayres, 598 A.2d at 1087. Specifically, the Board found Claimant presented
no evidence aside from her personal belief that the person reviewing the files was not
an agent or employee of Employer, or otherwise eligible to review the files. Although
Claimant’s beliefs may have been sincere, based on the Board’s findings we cannot
find the Board erred in its conclusion.
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Mann, :
Petitioner :
: No. 1056 C.D. 2019
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 22nd day of January, 2021, the July 19, 2019 order of
the Unemployment Compensation Board of Review that determined that Kimberly
Mann was ineligible for benefits is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge