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EDDIE C. TOSADO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL. (AC 32400)
Lavine, Robinson and Lavery, Js. Argued April 21--officially released July 19, 2011

(Appeal from Superior Court, judicial district of New Haven, Hon. Robert I. Berdon, judge trial referee.) Michael G. Durham, with whom, on the brief, was Matthew H. Geelan, for the appellant (defendant The Wellpoint Companies, Inc.). Eddie C. Tosado, pro se, the appellee (plaintiff).

Opinion

ROBINSON, J. The defendant, The Wellpoint Companies, Inc.,1 appeals from the judgment of the Superior Court sustaining the appeal by the pro se plaintiff, Eddie C. Tosado, from the determination of the employment security board of review (board) denying the plaintiff unemployment compensation benefits. On appeal, the defendant claims that the court improperly determined that the board's factual findings did not support the board's conclusion that the plaintiff was discharged for wilful misconduct. We agree and, accordingly, reverse the judgment of the trial court. The following facts and procedural history are relevant to our resolution of the defendant's appeal. From October, 2004, until December 17, 2008, the plaintiff was employed by the defendant as a full-time manager of enrollment and billing. On November 22, 2008, a subordinate of the plaintiff, Kenya Comfort, brought her sixteen year old daughter to work, allowing her to staple invoices that contained protected health information. Subsequently, on November 25, 2008, an associate of the plaintiff, Dawn Giammetti, informed the plaintiff via e-mail that Comfort had permitted her daughter to staple all of her invoices with an electric stapler. In the e-mail, Giammetti asserted that `` `[e]thically, due to [the Health Insurance Portability and Accountability Act (HIPAA)] and safety issue[s] it bothered [her].' '' The defendant's ``Standards of Ethical Business Conduct'' (policy) defined protected health care information to include member's names, addresses, telephone numbers and medical claim information. The invoices at issue contained at least members' names. Pursuant to the policy, the plaintiff was required to report all known or suspected violations of the policy. The plaintiff did not report that there was a known or suspected violation of the policy. In response to Giammetti's e-mail, the plaintiff told Giammetti to `` `keep quiet' '' about the violation of the policy that she had suspected. He perceived Giammetti as a `` `trouble maker' '' who had an agenda to harm her fellow employees. Subsequently, Giammetti reported the suspected violation of the policy and the plaintiff's failure to take action on the suspected violation of the policy to the defendant's human resources department (department). On the basis of the information provided by Giammetti, the department commenced an investigation into the matter. The department advised the plaintiff to keep the ensuing investigation confidential, directing him not to discuss the investigation with anyone. Despite being directed not to discuss the investigation with anyone, the plaintiff proceeded to discuss the matter with more than one individual. The plaintiff discussed the investigation with his director, Nicole

Collins. Also, on December 10, 2008, Comfort e-mailed the plaintiff to notify him that Giammetti and another employee had filed the complaint to sabotage him. In response to that e-mail, the plaintiff called Giammetti to a meeting. During the meeting, the plaintiff asked Giammetti to speak to his director on his behalf, and she agreed to do so. Subsequently, the plaintiff e-mailed Collins, stating that Giammetti was willing to talk to her `` `about the entire situation.' '' The plaintiff's employment was terminated on December 17, 2008, for violating the defendant's policy by failing to report a suspected violation of the policy and for failing to maintain confidentiality regarding the defendant's investigation of the matter. Following his termination, the plaintiff filed a claim for unemployment compensation benefits. In response to the plaintiff's claim, the defendant submitted a statement alleging the following: ``[The plaintiff] was discharged for violating company policy. . . . The [plaintiff] was reminded during the course of . . . [an] investigation to maintain confidentiality regarding the investigation. This confidentiality was breached. [The plaintiff] violated the policy by failing to report a potential breach of policy, and failing to take the expected actions of a manager within the organization.'' On January 29, 2009, after a hearing, an adjudicator granted the application for benefits, finding that the plaintiff was discharged for reasons other than wilful misconduct in the course of his employment. On February 12, 2009, the defendant appealed the adjudicator's determination to an appeals referee (referee) on the issue of whether the plaintiff was discharged for reasons other than wilful misconduct. After a de novo hearing, the referee issued his decision in which he dismissed the defendant's appeal and upheld the adjudicator's award. In his decision, the referee made several findings of fact and determined that the defendant had ``failed to undermine the [plaintiff's] testimony that he did not believe that the bills contained [protected health care information] material.'' The referee, therefore, determined that the plaintiff's failure to report the suspected violation of policy was due to an error in judgment. Accordingly, the referee concluded that the plaintiff was discharged for reasons other than wilful misconduct in the course of his employment. On March 25, 2009, the defendant filed a timely appeal to the board. After reviewing the record, including a tape recording of the referee's hearing, but hearing no further evidence, the board reversed the referee's decision and sustained the defendant's appeal. In doing so, the board adopted most of the referee's findings of fact but modified five of the findings. Importantly, the board adopted the referee's finding that the plaintiff ``was aware that [the policy] includ[ed] HIPAA requirements, which must be

followed when dealing with [protected health information],'' and that the plaintiff ``was aware that pursuant to [the policy], he was required to report all known or suspected violations of [the policy] . . . .'' (Internal quotation marks omitted.) The board concluded that the plaintiff's conduct constituted wilful misconduct on three separate bases: (1) the plaintiff's failure to report the suspected violation of the policy constituted deliberate misconduct in wilful disregard of the defendant's interests; (2) the plaintiff's failure to keep the investigation confidential constituted deliberate misconduct in wilful disregard of the defendant's interests; and (3) the plaintiff's ``failure to report the suspected violations of the visitor's policy and ethics policy constituted knowing violations of reasonable, effectively communicated and uniformly enforced employer policies which were reasonably applied to discharge [the plaintiff].'' Accordingly, the board concluded that the plaintiff was discharged ``for wilful misconduct under either the deliberate misconduct or rule violation definitions.'' (Internal quotation marks omitted.) The plaintiff appealed the board's decision to the Superior Court on September 7, 2009. The court conducted a hearing on February 22, 2010, at which it heard arguments from the plaintiff, the defendant and the administrator of the Unemployment Compensation Act. At the hearing, the plaintiff argued that the board erred in concluding that his conduct constituted wilful misconduct. The plaintiff argued that his failure to report the suspected violation did not constitute wilful misconduct because it was his professional opinion that the bills involved in the incident did not contain protected health care information. The plaintiff further argued that his discussion of the incident with Collins during the investigation did not constitute wilful misconduct because he believed that speaking with his director about the incident was the right course of action and, at most, constituted an error in judgment. Counsel for the administrator of the Unemployment Compensation Act countered that the board's conclusions were supported by the board's factual findings and that the plaintiff essentially was challenging those factual findings. Counsel further contended that, because the plaintiff failed to file a motion to correct pursuant to Practice Book

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