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Fran Pesoli v. the Department of Employment Security

December 19, 2012

FRAN PESOLI,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY; THE BOARD OF REVIEW; AND ADVOCATE HEALTH HOSPITAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. 10 L 51359 Honorable Alexander P. White, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Neville

PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Steele and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 Fran Pesoli appeals from an order of the circuit court affirming the decision of the Board of Review of the Illinois Department of Employment Security (Board) which denied Pesoli's claim for unemployment insurance benefits pursuant to section 602(A) of the Illinois Unemployment Insurance Act (Act). 820 ILCS 405/602(A) (West 2008). On appeal, Pesoli contends that the evidence does not support the Board's finding that she was discharged for misconduct connected with her work.

¶ 2 We find that the Board's finding that Pesoli accessed a patient's confidential hospital records outside of her job responsibilities was not contrary to the manifest weight of the evidence. We hold that the Board's decision, that Pesoli was ineligible for unemployment insurance benefits under section 602(A) of the Act based on misconduct connected with her work, was not clearly erroneous because Pesoli was aware of her employer's confidentiality rule or policy and she disregarded the policy, which made her conduct willful, deliberate and potentially harmful to her employer. Accordingly, we affirm the Board's decision.

¶ 3 Background

¶ 4 Pesoli worked as a secretary in the radiation oncology services department at Advocate Lutheran General Hospital (Advocate) from August 1997 until her discharge on September 28, 2009.*fn1 Advocate discharged Pesoli for accessing a patient's hospital records which was a violation of Advocate's confidentiality policy and 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 titles 18, 26, 29 and 42 of the United States Code).

¶ 5 Advocate's confidentiality policy provides in pertinent part as follows:

"Associates may only access computerized data from an Advocate system when necessary for the proper performance of their job responsibilities. All information contained in any Advocate computerized information system constitutes private, confidential information."

"If an associate wrongfully uses and/or discloses confidential information, the associate may be subject to corrective action up to and including termination of their employment."

Advocate's confidentiality policy explained to its employees when they could access a patient's computerized data and made it clear that wrongful use or disclosure of the information could lead to termination of their employment.

¶ 6 Pesoli applied for unemployment insurance benefits with the Illinois Department of Employment Security (Department). The claims adjudicator found Pesoli eligible for benefits. Advocate appealed the claims adjudicator's decision and argued that Pesoli was ineligible for unemployment insurance benefits because she was discharged for "misconduct" based on section 602(A) of the Act. 820 ILCS 405/602(A) (West 2008).

¶ 7 Section 602(A) of the Act provides in pertinent part:

"An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work ***. *** For purposes of this subsection, the term 'misconduct' means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the ...


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