STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266- 9850)
JEANNINE CHILDS, Employee
MADISON PSYCHIATRIC ASSOCIATES, LTD., Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-001801 MD
A Department Deputy's Initial Determination held, that in week 16 of 1989, the employe was discharged for misconduct connected with her work. As a result, benefits were denied.
The employe timely appealed the Initial Determination, and a hearing was held on July 6, 1989 before Administrative Law Judge David C. Wagner, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on July 7, 1989, reversed the Initial Determination and found the employe eligible for benefits.
The employer timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and the applicable law, and having considered the arguments presented by the employer in its petition, the Commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked as a receptionist for the employer, a psychiatric and mental health clinic, for three years. Her last day of work was Thursday, April 20, 1989 (week 16), when she was discharged. The issue for decision is whether she was discharged for misconduct connected with her employment within the meaning of section 108.04 (5), Stats.
Relations between the employe and the other receptionists with whom she worked were not good. On Friday, April 14, 1989, three of the other receptionists, Susie Conners, Marla McCullough, and a relief worker, Roseanne, went to see Ann Johnson, the clinic manager, to complain about the employe. Johnson also discussed the employe that day with Dr. Salinger, one of the clinic's 15 clinicians. After that meeting was held, the employe found out about it and became angry. She confronted Johnson in Johnson's office; she also had some confrontations with other receptionists and with some of the clinicians, and she subsequently left work early that afternoon.
In the following week, there were a number of meetings of the governing bodies of the clinic. The clinic is governed by a board, which is made up of some of the partners and owners; there is also an executive committee of the board, which is composed of four of the board members. The executive committee of the board apparently includes the president of the corporation, Dr. Miezio. These meetings were also attended by Ann Johnson, and some were attended as well by the employe. In these meetings, complaints against the employe were discussed, and the employe expressed her points of view and her feelings. At the last of these meetings held on Thursday, April 20, 1989 (week 16), the employe was discharged. The decision was made by the executive committee of the board. Johnson was not the decision-maker.
As a general matter, conduct of an employe occurring after his or her discharge, or occurring prior to the discharge but discovered by the employer only after the discharge, cannot be found to be disqualifying misconduct, because it cannot have formed the basis for the discharge decision. Marathon Electric Manufacturing Corporation v. Industrial Comm., 269 Wis. 394, 411a (1954), see also, Fox Valley VTAE District v. LIRC and Scharenbroch, (Outagamie County Circuit Court, Case No. 89-CV-399, December 19, 1989. It is implicit in this rule, that the conduct of an employe alleged by an employer to constitute disqualifying misconduct must actually be the employer's reason for the discharge. Since the employer bears the burden of establishing disqualifying misconduct, Consolidated Construction Company, Inc. v. DILHR, 71 Wis. 2d 811, 820 (1976), it follows that the employer bears the burden of proving what its reasons were for terminating the employe.
It is not necessary that this proof be offered by the decision-makers. Other persons may be able to present evidence of what the reasons were, as for example by testimony of what the decision-maker said the reason was or by introduction of a written statement of the reasons for the discharge prepared by the decision-maker. (Although such evidence would not necessarily be competent to prove the truth of the reasons thus asserted, it would be acceptable as proof of what the reasons were.) Proof of the reasons for the discharge must nevertheless be offered in some fashion, so that the finder of fact is not required to speculate as to the employer's reasons for the discharge. Applying these principles here, the Commission agrees with the Administrative Law Judge, that it is difficult in this case to discern the employer's reasons for discharging the employe, or even who made the decision.
It does not appear that the employe was given any written statement of the reasons for her termination. Thus, no such evidence can be looked to as an indication of what the employer's reasons were. The employer presented testimony from three witnesses, Ann Johnson, Susie Conners, and Marla McCullough. Comers and McCullough were not the decision-makers and were not present at the meetings during week 16 of 1989, including the final meeting at which the employe was discharged, and thus they could not offer direct evidence as to why the discharge occurred. They did, however, offer evidence of their complaints against the employe which they communicated to Johnson prior to the discharge. Ann Johnson testified both concerning the complaints of other receptionists regarding the employe (and about her own observations of actions by the employe), and about the meetings during week 16 of 1989, including the meeting in which the employe was discharged. The employe also testified with respect to the discharge meeting.
The only direct indication in Johnson's testimony as to the employer's reasons for terminating the employe, was that the executive committee's choice came down to the employe's behavior on the 14th, the day on which the employe apparently had an angry outburst after finding out about the meeting between the other receptionists and Johnson. The employe herself provided a more definite assertion as to what reasons were advanced. She testified that, when she was discharged, Dr. Miezio told her that "they could no longer tolerate what was going on", that he had heard that she had threatened to kill everyone in the office, and that the three other receptionists would quit because of her, and that he could not have it.
This evidence with respect to the employer's reason for terminating the employe having been identified, the inquiry turns to the matter of whether there is also evidence proving that the reasons were valid, i.e., that the employe actually did what was alleged.
There is no direct evidence in the record that the employe ever threatened to kill anyone. The most that appears is assertions by the other receptionists that the employe made a number of vague comments, such as references to a man in Chicago who killed his mechanic and to the fact that the employe was unhappy with her own mechanic, that the employe said that she had owned and carried a gun when she lived in Chicago, that the employe allegedly talked about using pencils and heels as weapons, and that the employe allegedly said such things to her co-workers as that she hoped they had a nice life, and that they would have to suffer the consequences if they went to Ann Johnson.
Neither unfounded paranoia nor general unease may substitute for actual proof, when the allegation is that an employe was discharged for threatening to kill other employes. The employer simply failed to prove that such threats were made. Therefore, to the extent that the employe was discharged because of this, the employer failed to prove that she was discharged for misconduct.
Although it does not establish it in a direct manner, the evidence also suggests that the employer was motivated to terminate the employe because of allegedly deficient work, because of poor relations with her co-workers (apart from the matter of the alleged but unproven death threats), and because of her outburst on April 14. Accepting for the sake of discussion that the evidence establishes these as reasons of the employer for the discharge, the Commission considers that the validity of these reasons was not proven adequately to meet the employer's burden.
Complaints about the employe's work performance, raised by the employer's witnesses, included failure to do her job of filing or checking in patients and refusing to sign a statement she (and other employes) were requested to sign attesting to the fact that they were aware of how to operate the building security system. Additionally, a number of other allegedly unsatisfactory job behaviors were referred to, such as a case in which the employe asked a patient to provide a case number that had been requested by a doctor when the employe should have done it herself, one in which she transferred a telephone call to another person, and one in which she made a critical comment concerning one of the clinicians to a patient, suggesting that the clinician always ran late. This evidence as to inadequate work performance was vague and anecdotal. It is contradicted by the employe's performance evaluation, which shows that in December 1988, only four months prior to her discharge, the employe received 38 scores of excellent, 20 ratings of very good, 47 ratings of satisfactory, and only 14 ratings of needs improvement, on the evaluation instrument. There were no indications on the evaluation of specific dissatisfaction with the employe's performance; rather, there were the indications, "has made strides to get on team, ability to accept feed back has improved a lot, energetic, seems to feel overburdened most of the time, is receptionist detail work her forte? Lovely warm personality, great job with appointment book, resists taking responsibility for decisions, great with patients." The employer introduced no credible evidence that the employe had ever been counseled concerning inadequate job performance. Assuming for the sake of discussion that inadequate job performance was a reason for the discharge, the Commission considers that the employer simply failed to prove that the employe's job performance was actually so inadequate as to justify a conclusion that it reflected misconduct.
The matter of the employe's poor relations with her co-workers certainly seems to be where the principal problems lay. However, in this respect as well, the employer's evidence is not convincing. The complaints describe a degenerating situation -- there are allegations that the employe would get flustered and irate in front of patients, that she would sometimes be upset and angry and have an outburst and then be okay, that she once told Conners that she (the employe) would lose her job and that it would be on Conners' head, that she drew a small picture of a skull and crossbones on her desk drawer, that she sometimes told other employes to get out of her chair, that she kept notes and memos concerning what other employes had done, and that she made the above-referenced comments concerning violence. However, the Commission considers that there is substantial evidence that the poor interpersonal relationships in the office may have been at least in part the responsibilty of others. The complainant, who was black, was the only minority employe in the office. It was not disputed that, during her employment, Marla McCullough made overtly racist comments in the employe's presence on a number of occasions. Thus, McCullough once referred to a patient who had just telephoned the office as a "nigger," in the employe's presence. McCullough had also used the terms "spearchucker" and "jungle bunny" in the employe's presence. The Commission rejects as unconvincing, McCullough's explanation that these references were inadvertent or that she did not fully appreciate their offensiveness. She conceded that she recognized the offensiveness of the term "nigger" immediately upon using it. Furthermore, the offensiveness of these terms is patent. They serve no function in the English language other than as racial epithets, and no one hears or learns these terms in any other context. McCullough's use of such language in the office in which the employe worked is significant in two respects. It suggests that she may have had some latent bias against the employe because of her race, which might color her testimony, and it also suggests that any tension between the two of them may have been at least in part a result of her bias and her use of these offensive terms and, thus, that the bad feelings on the employe's part were therefore somewhat more understandable.
While the degeneration of relationships between co-workers to such an extent as this is obviously unsatisfactory in any employment context, and perhaps particularly so in the case of a psychiatric clinic, and while it may be conceded to form a reasonable basis for an employer to decide to terminate the employe or employes deemed by the employer to be the focus of the problem, the Commission nevertheless concludes that, given all of the circumstances here, the employe was not guilty of misconduct connected with her employment with respect to these problems between her and the other receptionist.
A final possibility as to the employer's reasons for discharging the employe, and one that is suggested by Johnson's testimony, is that the precipitating event was the employe's outburst on Friday, April 14, 1989, when she reacted angrily after learning of the meetings between Johnson and the other receptionists. Even accepting that the employe acted inappropriately, however, the Commission finds her conduct to be significantly mitigated by the fact, as found by the Commission, that Ann Johnson called the employe a "bitch" that day when the employe confronted her concerning the meeting. The Commission makes this finding on the basis of the employe's testimony that Johnson did so, on the basis of Marla McCullough's testimony that Ann Johnson told her that she had called the employe a "bitch", and in light of Ann Johnson's testimony that she was "upset and angry" at the time and that she "may have said what a bitch". The Commission considers that an employer should not be heard to assert that an angry and disruptive outburst by an employee constitutes misconduct when that outburst has been thus provoked by a supervisor.
In summary, the Commission finds that the employer's evidence was inadequate to meet its burden of proving why it terminated the employe and that its reasons were founded in fact. While the evidence makes it apparent that relationships in the employer's workplace had degenerated to the point at which something had to be done, and while the employer may have taken the steps that it considered most reasonable under the circumstances, it has not satisfied the Commission that the behavior of the employe, on the basis of which it decided to terminate her, rose to the level of misconduct.
The Commission therefore finds that in week 16 of 1989, the employe was discharged but not for misconduct connected with her employment, within the meaning of section 108.04 (5) of the Statutes.
DECISION
The Appeal Tribunal Decision is affirmed. Accordingly, the employe is eligible for benefits, if she is otherwise qualified.
Dated and mailed May 16, 1990
110 - CD1011 MC 665.01 PC 714.03 MC 640.05
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
NOTE: The Commission had no disagreement with the material findings of fact of the Administrative Law Judge. It has issued it own decision in this matter in order to more fully set forth the basis on which it arrived at the decision to affirm the result of the Appeal Tribunal.The Commission would expressly note that it has had no occasion to consider or decide the question of whether the employe was subjected to any conduct, by the employer or for which the employer was responsible, which constituted employment discrimination in volation of applicable laws. That issue was not one before the Appeal Tribunal, it was not directly litigated, and the resolution of that issue was not necessary to the decision in this case.
In its petition for Commission review, the employer has argued that the Appeal Tribunal improperly ruled against its position because of its failure to present direct testimony from the members of its board of directors. As the foregoing decision reflects, it is not the judgment of the Commission that the employer in this case failed to meet its burden of proof because of the identity of its witnesses. Rather, to the extent that the decision turns on the employer's failure to adequately prove even what its reasons for the discharge were, it was not the identity of the witnesses, but the inadequacy of the testimony they presented, that brought about that result.
cc: John W. Markson, Attorney
Bell, Metzner, Gierhart & Moore, S.C.
Gregory J. Paradise, Attorney
Mohs, MacDonald & Widder
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