Frigm v. Unemployment Compensation Bd. of Review

• Decision Date: 24 May 1994
• Citation: 642 A.2d 629,164 Pa.Cmwlth. 282
• Parties: Bonnie FRIGM, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 629

642 A.2d 629

164 Pa.Cmwlth. 282

Bonnie FRIGM, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 14, 1994.

Decided May 24, 1994.

John G. Bergdoll, for petitioner.

Sarah Yerger Nauss, for respondent.

Before COLINS and NEWMAN, JJ., and KELTON, Senior Judge.

KELTON, Senior Judge.

Claimant Bonnie Frigm petitions for review of the May 6, 1993 order of the Unemployment Compensation Board of Review (Board), in which the Board affirmed the decision of the Referee to deny Claimant benefits due to willful misconduct under Section 402(e) of the Unemployment Compensation Law. ¹

The issues before us are: (1) whether substantial evidence supports the Board's conclusion that Claimant breached her employer's confidentiality rule by disclosing to a newspaper reporter information which her employer considered confidential; (2) whether a denial of benefits violates Claimant's right to free speech and; (3) whether Claimant's employer failed to follow its progressive disciplinary system in discharging her. ² We affirm.

Background

The facts as found by the Board are summarized as follows. Claimant last worked for Employer, Access-York, as a Child Play Therapist from February 1988 to November 11, 1992. Employer operates a battered women's shelter and requires confidentiality from its employees. Claimant was aware of Employer's confidentiality rule. In November 1992, a newspaper reporter, who had knowledge of intimate details of one of Employer's clients, contacted Employer. Employer was concerned that a newspaper report containing such information about the client could jeopardize the client's safety. The Board found that on November 13, 1992, Claimant admitted to Employer that she had given confidential information concerning the client to the reporter. Claimant had been concerned with Employer's handling of the client's case. The newspaper did not publish the story. After a two-week suspension, Employer discharged Claimant for a breach of confidentiality. Claimant alleges that other employees had given confidential information to the newspaper.

The Bureau of Unemployment Compensation Benefits and Allowances issued a determination denying Claimant benefits for willful misconduct. The Referee affirmed the Bureau's decision. On appeal, the Board held that Employer had met its burden of showing that Claimant was discharged for willful misconduct due to her knowing breach of Employer's confidentiality rules. The Board denied Claimant benefits, holding that Claimant failed to establish good cause for her work-rule violation.

On appeal to this Court, Claimant argues that there is insufficient evidence in the record to support the Board's finding that she breached Employer's confidentiality rule. Specifically, Claimant asserts that she gave the reporter only limited information, containing nothing confidential. In the alternative, Claimant contends that her breach of the confidentiality rule was justified because it was in the best interest of the client and the client's child. Further, Claimant argues that a denial of benefits violates her right to free speech. Additionally, Claimant argues that her single act of alleged misconduct does not render her ineligible for benefits because Employer did not follow its progressive disciplinary policy in discharging her.

The Board contends that the record shows that Claimant gave confidential information to the reporter which would have permitted identification of a specific mother and child at the shelter and that this disclosure would have compromised the anonymity of the clients involved. Because the information jeopardized the safety of the mother and child, the Board argues that Claimant's speech did not concern a matter of public interest within first amendment protection. Further, the Board argues that Claimant should have attempted to resolve the issue with Employer before approaching the press. Finally, the Board argues that Claimant's misconduct was a dischargeable offense under Employer's progressive disciplinary policy, which provides for disciplinary action up to immediate discharge for conduct, which in the opinion of the Executive Director or Board of Directors, makes the employee unfit for future service.

Discussion

I. Work Rule Violation

Under Section 402(e) of the Act, a claimant who is discharged for willful misconduct connected with his or her work is ineligible for unemployment compensation. 43 P.S. § 802(e). The employer bears the burden of proving willful misconduct. County of Luzerne v. Unemployment Compensation Board of Review, 148 Pa.Commonwealth Ct. 473, 611 A.2d 1335 (1992). In cases involving a work-rule violation, the employer must establish the existence of a reasonable work rule and the fact of its violation. Williams v. Unemployment Compensation Board of Review, 141 Pa.Commonwealth Ct. 667, 596 A.2d 1191 (1991). The burden then shifts to the claimant to show good cause for his or her action. Id.

Employer's policy, of which Claimant was aware, prohibited disclosure of confidential information with respect to the identities and plans of clients. The policy did, however, permit disclosures necessary to accomplish a service plan or for a life-saving emergency.

Claimant does not dispute the reasonableness of Employer's policy. Claimant maintains that she did not reveal any information to the reporter which she considered confidential. Employer's Executive Director, however, testified as follows:

[Referee]:

Let me ask you, ma'am, to present any statements that you might have come here, today, to mention, as to why [Claimant] is no longer with [Employer]....

[Witness]:

I received a phone call from a reporter, who proceeded to talk about a lot of situation, very intimate details, about a woman and her children who are in our shelter. And I was extremely surprised to here [sic] that information because confidentiality is our chief issue, pretty much, in the shelter, among employees and staff. And the reporter proceeded to tell me a great deal of very intimate information about a woman and her child, and questioned me as to why we chose to take certain actions in regards to dealing with this woman and her child. And I asked her, first of all, where she got that information. And, of course, she refused to tell me. And eventually, I ended the conversation by my saying that I am not at liberty to discuss anything involving a situation between the staff or between a woman and the staff. Because the woman's safety was certainly going to be jeopardized by that information, particularly in that the reporter was asking questions, and I assumed was planning on doing a story about this case. I was extremely upset about that. I had no idea where the woman got her information. I went to work the next morning at my office and I received a phone message saying that [Claimant] had called me an [sic] left a message for me to call her back. When I did speak to [Claimant], I did call her back, she told me that she wanted to tell me that she had called the reporter and had given her the information. And at that point, I told her that I was extremely surprised and told [Claimant] that we would have to discuss it and that when she came into the office again we would talk about it. Then, I guess it was later that day--I guess I next saw [Claimant]--nothing was done at that point. And then when I saw [Claimant] when she next came into the office, I told her, asked her to again tell me what had happened. She told me that she had called the reporter and gave her the information and that she decided that she had no other choice at that time and decided that she was going to do that.

(N.T. at 6-7).

....

[Claimant's representative]:

Okay. You mentioned again that the story gave intimate details about the mother and the child. How many other mothers and child's [sic] are there that would have six-year old children?

[Witness]:

Probably the only one that had the dynamics of that family.

[Claimant's representative]:

But do you know specifically the details that would have made those dynamics available, or that would have listed the facts that people would recognize that?

[Witness]:

I think that the dynamics of that child and the mother were so outstanding to me, and I don't know any women who are in the shelter. But I knew that as soon as she mentioned the family to me, I knew immediately who it was. And my concern was that if the batterer read the details, he may, just may, not necessarily would, but may recognize that that was his wife and children that he was trying to find.

(N.T. at 15) We also note that Claimant, in her initial discharge interview with the Job Center, reported the following facts:

I talked to a newspaper reporter who called...