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


REDINA E NEUBAUER, Employe

MILWAUKEE SCHOOL OF ENGINEERING CORP, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96607193MW


On October 8, 1996, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 39 of 1996 the employe was discharged for misconduct connected with her employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On November 21, 1996, the appeal tribunal issued a decision affirming the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision. Based upon its initial review, the commission ordered this matter remanded for further testimony on the merits. A remand hearing was held on May 22, 1997, and the matter is again before the commission.

Based on the applicable law, records and evidence in this matter, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an educational institution, for approximately four years as a dispatcher. Her last day of work was September 21, 1996 (week 38).

The employe's job responsibilities included answering radio calls from patrol officers, answering telephones, and responding to alarms. In December of 1995 the employe was transferred from the second shift to the third shift, and began working from midnight until 8:00 a.m. The employe was also frequently required to work large amounts of overtime, particularly prior to February of 1996, at which point the employer hired a replacement for the employe's former second-shift position.

On December 16, 1995, the employer discovered the employe sleeping on the job at 6:20 a.m. The employe was at the end of a 12-hour shift and was physically exhausted. She had worked 68 hours that week. The employe was issued a verbal warning as a result of her sleeping on that occasion.

On September 8, 1996, the employe was again found sleeping on the job. The employe, who was working approximately 40-48 hours a week at this point, indicated that she did not know why she had fallen asleep. She further explained that she did not feel herself getting drowsy but suddenly "blacked out" and was asleep. The employe was issued a 3-day suspension and was notified that further instances of sleeping could lead to the termination of her employment.

On September 21, 1996, the employe was again found sleeping on the job at approximately 5:45 a.m. The employer asked the employe why she was sleeping, and the employe responded that she did not know but was going to see a doctor to find out.

On September 24 (week 39) the employe saw her doctor, who ran some blood tests and speculated that the employe might have sleep apnea. Later that day the employe presented the employer with a doctor's note indicating that she was under a physician's care and evaluation for extreme fatigue. However, the employer deemed this unsatisfactory and discharged the employe that afternoon.

The question to resolve is whether the employe was discharged for misconduct.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court stated, 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 employe, 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 employe'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."

While sleeping on the job is a very serious matter, it will not be considered misconduct absent some evidence that it was done in deliberate disregard of the employer's interests or that it amounted to negligence of a certain degree or recurrence. The level of negligence defined as misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05-0234 (Wis. Ct. App. Feb. 29, 1996)(truck driver who fell asleep behind the wheel did not engage in misconduct).

The evidence in this case does not support a finding of misconduct pursuant to the standards articulated above. The employe fell asleep at work on three separate occasions during her four years of employment. In the first instance, the employe dozed off from sheer exhaustion at the end of a 12-hour shift and a 68-hour work week. With respect to the latter two incidents, the employe credibly testified that she did all she could to stay awake, including drinking caffeinated beverages and taking special vitamins, but could not prevent herself from falling asleep. The record contains nothing to suggest that the employe's sleeping was deliberate, nor is there any reason to believe that she failed to report to work well-rested or engaged in any off-duty conduct which might have had an adverse effect on her ability to stay awake. Further, while the appeal tribunal's decision found that the employe could have requested an extra break if she felt herself falling asleep, the employe testified that she did not feel sleep coming on and did not realize that she had any need for an extra break. Consequently, the commission is unconvinced that there were any additional measures the employe could have taken which would have enabled her to stay awake.

The employer does not allege that the employe deliberately chose to sleep on work time, but contends that it cannot have a dispatcher who sleeps on the job. The commission agrees that the employer has little use for a dispatcher who is unable to stay awake and does not question the employer's decision to discharge the employe. However, in the absence of any evidence of wilful misconduct, the employe's discharge was not for a reason that adversely affects her eligibility for unemployment benefits.

The commission, therefore, finds that in week 39 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 39 of 1996, provided she is otherwise qualified.

Dated and mailed: February 18, 1998
neubare.rev : 164 : 3   MC 659.02

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Although the commission did remand this matter so that the employe could present medical evidence on her behalf, the commission's decision is unaffected by the fact that the employe's physicians were unable to diagnose a sleep disorder. While evidence establishing that the employe's sleeping on the job was due to a medical condition would have definitively resolved the issues in this case, the lack of such evidence is by no means conclusive. If anything, the fact that the employe made the effort to seek medical attention for her somnolence lends support to her testimony that her sleeping was a matter over which she had no control.

NOTE: The commission consulted with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that this was a close case and that he had no reason to doubt the employe's testimony that she tried to stay awake. The commission agrees with the appeal tribunal's assessment of the employe's credibility, but has reached a different legal conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY JON DEITRICH
ADELMAN ADELMAN & MURRAY

KEVIN MORIN
DIRECTOR OF HUMAN RESOURCES
MILWAUKEE SCHOOL OF ENGINEERING


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