STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MICHELLE N MAYFIELD, Employee

RACINE COMMUNITY CARE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606469RC


On July 15, 2000, the Department of Workforce Development issued an initial determination which held that the employee quit her employment, but not for a reason allowing for immediate eligibility for unemployment insurance. The employee timely requested a hearing on the adverse determination, and hearing was held on August 21, 2000 in Racine, Wisconsin before a department administrative law judge. On August 25, 2000, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination (and finding that the separation was a discharge, not for misconduct). The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked almost four years as a certified nursing assistant for the employer, a health care facility. Her last day of work was June 25, 2000, and the separation from employment was on June 27 (week 27). The commission agrees with the administrative law judge that the separation was a discharge and not a quit by the employee; the commission concludes that the discharge was for misconduct for unemployment insurance purposes, however, and so reverses the appeal tribunal decision.

With regard to whether the separation was a quit or a discharge, the employer asserted that, in response to an instruction to leave work following allegedly inapproproprate behavior towards residents, the employee stated in effect that she would never come back to that place ever. In certain circumstances, this could constitute a quit. Here, however, before the employer purported accepted the quit by the employee two days subsequent, the employee was in contact with her union representative and making arrangements to grieve any discipline she was receiving. In addition, she and the employer were in some contact with regard to whether and when the employee was going to be allowed to return to work. Under this set of circumstances, the commission agrees with the administrative law judge that the employee did not quit the employment by making the statement in question.

Given that the separation was a discharge by the employer, the issue becomes whether the discharge was for misconduct for unemployment insurance purposes. In February of 1999, the employee was suspended, and received a formal written warning, for "conspiring" against her supervisor. Specifically, the employee had indicated to a co-worker that she was going to make up a story in which she refused to do something her supervisor told her to do, following which her supervisor called her a bitch. Such action violated the employer's work rule prohibiting any attempt to threaten, intimidate, coerce, or interfere with fellow employees, residents, supervisors, or guests.

The employee received another suspension, May 1- May 4, 2000, for a threat to a supervisor. On April 30, 2000, the employee had stated: "If Buska keeps talking that way to people the wrong person is going to come along and beat her ass." The employee admitted making this statement, but denied that it was a threat to Buska.

The incidents precipitating the discharge occurred on the evening of June 25, 2000. The employee, at approximately 5:25 p.m., had just returned from an unscheduled break, and for which she had not obtained permission from her supervisor as required by the employer's work rules. It was dinner time at the facility, and the nursing assistant supervisor directed the employee to feed residents at table 17 (instead of the employee's usual table, 16). The employee responded that that was not her table to feed, at which point the employee again was directed to feed the residents at table 17. The employee then began to feed a resident at that table, in an abrupt, aggressive, too rapid manner. The resident put up her hands in defense, at which point the employee stated: "If you don't want to eat then don't." Another resident at the same table wanted a cookie; the employee told her that if she wanted her cookie she had to hold it, the employee was not going to sit there and hold it for her. At this point the employee went to another table to pour milk into two cups for a resident. She spilled milk all over the resident's tray and, when the resident protested, pulled the resident's chair away from the table and wheeled the resident out of the room (without the resident having eaten yet). At this point, supervisory personnel of the employer were notified of the employee's behavior and she was instructed to leave the premises. The employee then stated in effect that she would never return to that place. The employer purported to accept her resignation two days later.

Misconduct for unemployment insurance purposes is conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his or her employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer. This standard is defined with respect to the abuse of a patient of a health care facility. Wisconsin Administrative Code § DWD 132.05(2) states that abuse of a patient includes, but is not limited to:

(a) Except when required for treatment, care or safety, any single or repeated intentional act or threat through contact or communication involving force, violence, harassment, deprivation, withholding care, sexual contact, sexual intercourse, or mental pressure, which causes physical pain or injury, or which reasonably could cause physical pain or injury, fear or severe emotional distress;

(b) Any gross or repeated failure to provide treatment or care without good cause which reasonably could adversely affect a patient's health, comfort or well-being;

(c) Any intentional act which subjects a patient to gross insult, ridicule or humiliation, or repeated failure to treat a patent with dignity and respect; and

(d) Knowingly permitting another person to do any of the acts in par. (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in par. (a), (b) or (c).

In the present case, the employee literally attempted to force feed a resident. She then spilled milk all over another resident's tray, did not clean it up, and then took that resident out of the dining area without the resident having eaten dinner. These actions by the employee constitute a withholding of care which reasonably could cause fear, proscribed by paragraph (a) above. In addition, the employee's actions were intentional and subjected the residents to humiliation, in violation of paragraph (c) above. As such, the employee's actions on her last day of work alone are sufficient to constitute misconduct for unemployment insurance purposes. The charge of misconduct is only strengthened by the employee's previous threats against co-workers and supervisory personnel.

The commission therefore finds that, in week 27 of 2000, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment insurance for weeks 27 - 33 and 35 of 2000, totaling $1,366.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2000, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $1,366.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed October 25, 2000
mayfimi.urr : 105 : 1   MC 610.25  MC 626

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission does not disagree with credibility assessments made by the administrative law judge; rather, the commission believes the employee's actions as a matter of law violated the administrative code definition of misconduct as applied to abuse of patients of health care facilities.

cc: LINCOLN LUTHERN OF RACINE INC
ATTN GARRY L CHILDERS


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