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

LOUISA L HOLMES, Employe

RANCH COMMUNITY SERVICES INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96604430MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked just over four years as a residential counselor/aide for the employer, an organization that serves developmentally disabled adults. The employe's first day of work was January 20, 1992 and her last day of work was April 24, 1996. On April 25, 1996, her employment was suspended pending investigation of allegations of resident abuse. The employe was discharged on May 20, 1996 (week 21) for verbal and physical abuse of clients and conduct adversely affecting the health and welfare of clients.

The employer services developmentally disabled adults in two settings - a day service rehabilitation program and a residential setting. The employe worked in the latter setting. Specifically, the employe worked at the employer's 50th Street Group Home located in Milwaukee proper. The employe was off work December of 1994, January of 1995, and up until the last week of February of 1995 due to illness. Anna Rademan, group home manager of the 50th Street Group Home until January of 1995, took her place during her absence.

During the time period at issue the 50th Street Group Home was staffed by four residential counselors during the weekdays-- the employe, Latoya Muslim, Rose Stark, and Jolene. Another counselor, Nancy, worked Saturday noon until 6:00 p.m. and Sunday as needed by the weekend staff person Jolene. The employe worked second shift from 3:00 p.m. to 11:00 p.m., Monday through Friday. That shift overlapped with Rose Stark's shift of 4:00 p.m. to 9:00 p.m. The residential counselors are assigned to assist the clients with accessing services in the community and in independent living including feeding, bathing, and dressing. The staff is also assigned to distribute medicine.

During the time period at issue the 50th Street Group Home had six residents/clients. Troy Moore, who is in his late 20's to mid-30's, is considered borderline intelligent. Mr. Moore suffers from Prader-Willi Syndrome, a condition which causes him to have an insatiable appetite. Mr. Moore also has a heart condition and his heart operates at 50 percent of normal capacity. Mr. Moore came to the 50th Street Group Home in September of 1995. The other members of the group home are considered mildly retarded including Gilbert, who is in his late 50's, Wesley, who is in his 60's, and James, who is in his late 20's. Donald Kossman is in his 60's, has cerebral palsy and suffers from a speech defect. Finally, there is Derrick who is non-verbal and severely mentally retarded.

Usually each group home has a group home manager. The employe acted as lead staff worker from April 2, 1995, until January 21, 1996, during which time there was no group home manager. The last group home manager at 50th street was Barb Williams who was manager from January 21 or 22, until she left on March 22, 1996. At that time, changes were made at the 50th Street Group Home. Specifically, the staff was given warnings for medication errors. The medication errors, along with reports by Ms. Williams that she had difficulty with the staff in cooperation and getting the staff to work as a team, led the employer to transfer regular staff. Jolene was not transferred because she was resigning. Nancy was a day staff worker who did relief work in the group homes. Nancy was not transferred because she was not considered regular staff, but just a fill in until someone was found for the position. The transfer was a lateral transfer in that it did not result in the loss of pay, change in shifts, or a different title. On March 25 the employe and Ms. Muslim went to the EEOC and filed a complaint against the employer.

John Jones has been an instructor for the employer approximately seven years teaching behavior skills, community living skills, job coaching, and also prepares clients for community placement. He is familiar with Mr. Kossman, Derrick and Mr. Moore. Mr. Jones worked in residential homes when needed. Beginning in late March or early April of 1996 he began working at the 50th Street Group Home as a lead staff worker with Patricia Amann. He was not aware of what happened prior to his arrival at 50th Street Group Home. Mr. Jones knew Mr. Moore approximately six months as a student in his day program. Mr. Moore attended the day program from approximately 6:15 a.m. until about 3:15 p.m. A few days before April 24 he was at dinner at the 50th Street Group Home and a resident was acting up. Mr. Moore asked Mr. Jones why he didn't get out the stick. Mr. Jones asked what stick. Mr. Moore said the stick that the staff used to calm behavior down. Mr. Moore led Mr. Jones to a closet in the living room but there was no stick. Mr. Kossman commented that he was glad the other staff was gone stating that "they treated him as if he wasn't human." Mr. Jones let the matter go because he believed he needed more time and evidence.

Prior to April 24, Ms. Amann had invited Mr. Kossman and Mr. Moore over to the Crestwood Home for dinner. They did go over for dinner on April 24. When dinner was over Mr. Kossman was stalling because he did not want to go back to the 50th Street Group Home. Mr. Kossman and Mr. Moore commented that they wanted to come back and Ms. Amann said that she had to alternate and could not invite the same people over. Ms. Amann then commented that it was too bad that Derrick couldn't come because he acted up. Mr. Kossman then asked for another cup of coffee and Ms. Amann agreed that he could have a quick one. Mr. Kossman then commented that Derrick never used to be that bad until they started being mean to him. Mr. Kossman started talking about Derrick being hit with the stick by the employe, Latoya and Rose. Mr. Moore agreed with Mr. Kossman's statements. They both referred to the object that the employe used to hit Derrick as the "Derrick stick." Prior to taking Mr. Kossman and Mr. Moore back to the 50th Street Group Home Ms. Amann contacted Melanie Bohl. Ms. Bohl was the director of residential services since May of 1995, and the employe's supervisor since December of 1995.

In the car on the way back to the 50th Street facility Mr. Kossman kept saying to Ms. Amann, "I don't lie, I don't lie." Mr. Kossman said that Mr. Moore made up stories but that he didn't. When they got to the 50th Street Group Home she asked Mr. Kossman to show her the stick. Mr. Kossman went to the front closet but the stick was not there. Then Mr. Kossman went to the file cabinet and pulled out the bottom drawer and there was no stick there. (Ms. Amann had recently redone the files and had not seen a stick.) Mr. Kossman also looked in the basement, where there was some construction going on, but did not find the stick. Mr. Kossman said the stick was a piece of wood that looked like the wooden part of a hanger you hang pants on. At the hearing Mr. Moore described the wooden object as looking like an arm of a rocking chair "a couple of inches long." Mr. Moore testified that all staff hit Derrick accept Nancy. According to Mr. Moore, the employe slammed him against a wall once.

The employe would take away privileges from Mr. Moore, such as dating, if he misbehaved. This was pursuant to an agreement made with his social worker and the employer. Mr. Moore had a similar agreement when he transferred from the 50th Street Group Home to another of the employer's facilities. Other items were withheld from Mr. Moore, such as cigarettes, food, soda, and money, pursuant to doctor's orders. The employe took a radio away from Derrick after he threw it at a sleeping Gilbert, through a window, and into a neighbor's yard. The employe did not yell at clients, but would raise her voice, for example, to call clients who were in their rooms to dinner. The employe did not play music at a disruptive level.

The employer conducted interviews with other clients and Ms. Williams. The employe was interviewed regarding the allegations of client abuse on May 3, at which time she denied engaging in any physical or verbal abuse of clients, or withholding items from clients in violation of the employer's policies. After conducting such interviews the employer considered the allegations against the employe to be true and discharged her as a result.

The issue to be decided is whether the employe was discharged for misconduct connected with her work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to 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 the right to expect of his 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 employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good- faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employer's case rests primarily on the accusations of Mr. Moore and Mr. Kossman, the former providing the only sworn testimony in support of the employer's allegations. Mr. Moore is not a truthful individual. The employer and Mr. Moore himself acknowledge that he lies. Mr. Moore lies when it is to his benefit or there is something in it for him. Mr. Moore has been caught stealing and has lied about doing so. Mr. Moore has been inconsistent in his allegations against the employe. When interviewed by Ms. Bohl and Ms. Tarkowski, Mr. Moore claimed that the employe and other staff yelled at them and swore at them saying things like "fuck you" and "you bastard." Under oath at the hearing Mr. Moore testified that the staff did not swear and, specifically, that the employe did not use language like "fuck you" or "you bastard."

Donald Kossman is a racist. Mr. Kossman was the one who initially implicated the employe, along with two other workers, Ms. Muslim and Ms. Stark, all of whom are African-American. It was not until after repeated inquiries by Ms. Amann, who herself questioned whether the accusations were racially motivated, that Jolene's name got mentioned. Mr. Kossman has demonstrated his hatred of African-Americans on a number of occasions both by his actions and by his racially repugnant comments. Further, on one occasion Mr. Kossman told Ms. Muslim that some day "they" would be all gone and he would be happy. In addition, after throwing a tantrum in front of the employe, Ms. Rademan heard Mr. Kossman say about the employe, "She's a nigger, she's a bitch, I hate niggers, she's a fucking bitch" and, "I hate all niggers, I'll get her. I'll get her some day."

Finally, Mr. Moore's explanation for not reporting the alleged abuse against Derrick, that the employe was always around, simply does not ring true. The overwhelming evidence is that Mr. Moore had innumerable opportunities to report the alleged abuse. Mr. Moore could have reported the abuse to individuals outside of the employer's facility such as his social worker, his parents, and his doctors. Further, Mr. Moore could have reported the allegations to Mr. Jones or Mr. Coon, both of whom he had contact with at the day program. Most significantly, Mr. Moore had a number of opportunities to report the alleged abuse to Ms. Rademan when she was at the day program with him. His allegation that every time he went to report it the employe was there is simply not true. Indeed, the more credible testimony is that for the majority of the time Mr. Moore was at the day program the employe was not. Further, Ms. Rademan's testimony established that Mr. Kossman also had the opportunity to report the alleged abuse to Ms. Rademan when the employe was not around.

The commission has considered the employer's argument that Mr. Moore was hesitant to report the abuse until the employe left out of fear of retribution. However, Mr. Moore has repeatedly offered his own explanation for failing to report the allegations against the employe and the commission is therefore hesitant to accept the employer's explanations for his inaction, particularly since by his own testimony Mr. Moore was not himself abused by the employe. (1)

The commission finds that the employe did not engage in physical or verbal abuse of clients nor did she engage in conduct adversely affecting the health and welfare of the employer's clients. Specifically, the employe did not physically strike any client, and in particular Derrick. The employe did not verbally abuse the clients. The employe did not withhold privileges other than pursuant to doctors' orders, pursuant to an agreement between the client, the client's social worker, and the employer, or to protect the safety and property of the clients.

The commission therefore finds that in week 21 of 1996, the employe was discharged from her employment but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 21 of 1996, if she is otherwise qualified.

Dated and mailed: February 9, 1998
holmelo.urr : 132 : 1 MC 610.25  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. As reflected in her decision, the administrative law judge indicated that she did not find Mr. Moore to be particularly credible, but did find the employe to be credible. After an independent review of the record the commission has found no compelling reason to disturb such credibility determinations. The commission notes that the employer did not present the testimony of Ms. Williams, whom it claims actually spoke to the employe about the stick. Despite the employer's position to the contrary, the commission believes Ms. Williams' testimony would have been very relevant. Her in person testimony would have been at least as relevant as the statement she gave to the employer during the investigation, exhibit J, which the employer sought to introduce at the hearing.

The employer argues that the administrative law judge erred in failing to accept into the record a number of proposed exhibits on the grounds of hearsay. The commission agrees that the administrative law judge erred in failing to admit the proposed exhibits into the record and considered the same in reaching a decision. Wis. Stat. § 108.09 (5)(a) provides:

"Except as provided in s. 901.05 [relating to HIV testing], the manner in which claims shall be presented, the reports thereon required from the employe and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties."

The applicable department rule is contained in Wis. Admin. Code § ILHR 140.12 (1) (now § DWD 140.16 (1)), which provides:

"Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The administrative law judge shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible; but irrelevant, immaterial and repetitious evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats. . . ."

Accordingly, the hearsay nature of any document submitted by the employer was not grounds for refusing to admit the documents into the record. The commission has considered all the documents submitted by the employer including the lettered exhibits excluded by the administrative law judge. However, after considering such evidence the commission nonetheless affirms the administrative law judge's finding of no misconduct. In the end the determination in this case rested on credibility. The employe was a credible witness and denied the allegations made against her. While the employer made a valid business decision in discharging the employe, it did not establish that her discharge was for misconduct connected with her work.

The employer argues in its petition that the ALJ refused to allow the employer to bring Troy Moore to the hearing to testify in person. The employer further states, "Unfortunately, counsel's presentation of the issue to ALJ Parker was not made part of the record." The employer does not indicate when this presentation occurred. The transcript provided, which had some accuracy problems, does not reflect any such presentation nor does the synopsis reflect such presentation. The employer correctly notes that the current administrative rules are quite liberal in permitting a witness to testify by telephone. See Wis. Admin. Code § DWD 140.11 (1). (2) Because there was no record of a request by the employer to have Mr. Moore appear in person, and refusal by the administrative law judge of such request, the commission did question the administrative law judge regarding this issue at the time of the credibility conference. The administrative law judge indicated that no such request had been made, she denied no such request, and in fact, would have preferred that Mr. Moore testify in person.

NOTE: Pursuant to Wis. Stat. § 108.101 (1), no finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under chapter 108 is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under chapter 108, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under chapter 108.

cc: ATTORNEY THOMAS L FRENN
PETRIE & STOCKING SC

ATTORNEY ALLAN D KREZMINSKI

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Footnotes:

(1)( Back ) While Mr. Moore stated that the employe slammed him against the wall because he got upset about something, the commission simply cannot accept such characterization as proof of abuse without more information regarding what Mr. Moore was doing that caused the employe to "slam" him against the wall.

(2)( Back ) Wis. Admin. Code § DWD 140.11 (1) became effective on July 1, 1997, therefore Wis. Admin. Code § ILHR 140.11 (1) was in effect at the time of the hearing. However, the only difference in the two is that an additional justification for conducting a telephone hearing was added, namely, when necessary to ensure a prompt hearing.