RAVEN L GREEN, Employee

AMERICAN BAPTIST HOMES OF THE MIDWEST, Employer

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 its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed April 22, 2003
greenra . usd : 115 : 9  4  MC 605.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The issue is whether the employee's discharge was for misconduct connected with her employment.

Although the employee's attendance record may not have justified discharge in another setting, she was employed in a skilled nursing facility which requires a certain level of staffing 24 hours a day in order to meet patient care, patient safety, and licensing requirements. The importance of regular attendance is emphasized in the employer's employee handbook (excerpted in hearing exhibit #3) which states that a "positive attendance record is essential," that "[r]epeated and excessive concerns in this area will lead to disciplinary action, up to and including discontinuing your employment," and that "an employee who is absent without notice (no-call/no-show) is subject to automatic termination pending review by your Department Head Supervisor and the facility Administrator."

Although most of the employee's absences were for illness, she also had two days of absence for a non-valid reason in July, one in August, and one already in September, in addition to the September 9 no call/no show. Although the no call/no show would have been sufficient pursuant to the employer's policies to justify discharge, the employee also had several recent absences for non-valid reasons, no reason for the no call/no show absence on September 9, and a recent warning that her job was in jeopardy due to her inadequate attendance record. This is sufficient, taking into account the nature of the employer's business, to demonstrate misconduct.

The employee argues, at least by implication, that, because she wasn't usually scheduled to work on Mondays, she would not reasonably have expected to be placed on the work schedule for Monday, September 9. However, the employer credibly testified that the employee was scheduled to work on September 9. The employee testified that, although it was her practice to copy down her work schedule once it was posted, she couldn't remember whether she copied down her schedule for the period during which September 9 fell. She also testified that there were some Mondays that she could work and did work, but that she didn't remember if she had agreed to work on Monday, September 9, or not. Finally in this regard, the employee's attendance record indicates that one of the employee's absences in June and one in July were Mondays. Even if these were the only Mondays she was scheduled to work in those months, this still would demonstrate that, even though she may not have been scheduled to work every Monday, the employee was scheduled on Mondays often enough that it would have been unreasonable for her to have assumed that she wasn't scheduled to work on Monday, September 9. The commission concludes that the preponderance of the credible evidence establishes that the employee was scheduled to work on Monday, September 9.

In her petition, the employee argues that, since she had a valid excuse for her absence on September 9, i.e., her wrist injury for which she had obtained a medical excuse, the employer failed to prove misconduct. However, the reason the employee's absence on September 9 played a part in her discharge did not relate to the reason for the absence but instead to the fact that she failed to provide proper notice of the absence to the employer. The employee also argues that, because she called in on September 7 and advised the employer of the fact of her injury, the employer should have known when she didn't appear for her shift on September 9 that she was unable to work. However, according to the employee's testimony, she simply notified Carrie, the second shift nurse on duty, that she was going in to the emergency room to get stitches in her wrist and wouldn't be able to work on Sunday. This was not sufficient to put the employer on notice that she wouldn't be showing up for her shift on Monday, September 9.

JAMES T. FLYNN, Commissioner, (dissenting):

I respectfully dissent from the majority opinion in this case. In order to prove misconduct, an employer must show that the employee's actions were intentional. See, Boynton Cab Co. v. Neubeck, et al., 237 Wis. 249, 296 N.W. 636 (1941). I find credible the employee's assertion that she wasn't aware that she had been scheduled to work on Monday, September 9,  i.e., the date of the alleged no call/no show absence which led to her discharge. The employee testified that she did not usually work on Mondays, that she had a regular practice of making a record of her schedule once it was posted, that she would agree to work some Mondays if the employer asked her to, and that, "if I knew I was supposed to work, ... I would have written it down." As a result, I conclude that the requisite intent has not been demonstrated and misconduct has not been shown.

/s/ James T. Flynn, Commissioner

cc: 
American Baptist Homes of the Midwest - Hales Corners, WI

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