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


FAYE A WEINKE, Employe

MEMORIAL HOSPITAL OF IOWA COUNTY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95002772DV


On May 6, 1995, the Department of Industry, Labor and Human Relations (department) issued an initial determination holding that the employe was discharged for misconduct connected with her employment. Consequently, benefits were denied. The employe appealed and a hearing was held before an administrative law judge. On July 14, 1995, the administrative law judge issued his appeal tribunal decision affirming the initial determination. The employe has timely petitioned for review.

Based upon the applicable law, records and evidence in this case, and after a conference with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about four months as a shift supervisor for the employer, a nursing facility. Her last day of work was March 26, 1995. She was discharged on March 28, 1995 (week 13).

The employe worked 11 p.m. to 7 a.m. as a night shift supervisor. She also worked 7 p.m. to 7 a.m. on weekends. She supervised two certified nursing assistants (CNAs). The employe's qualifications for her job positions are unclear from the record. The employer previously contended that the employe misrepresented herself as a registered nurse. However, the employer presented no evidence at the hearing to prove that the employe misrepresented herself when she applied for the job position. The employe denied any misrepresentation, but did state that she had been a director of nursing at another facility before she worked for the employer.

The employe was discharged after state inspectors executed a surprise inspection of the facility in the early morning hours of March 23, 1995, and discovered many violations. The employer was fined $10,000 for the violations. Specifically, the inspectors discovered an outside door open on the lower floor of the facility during the nighttime hours, inoperable alarms, and no one attending the residents on the first floor. The evidence shows that the facility had 14 residents in seven rooms on the first floor. Presumably, a similar number of residents were present on the second floor. State regulations required all outside doors to be locked during evening hours and for employes to be in close proximity to all residents. It is undisputed that at the time of the inspection the employe and the two CNA's were on the second floor of the facility.

The employe was pregnant and had a lifting restriction. Therefore, she could not assist the CNA's when they performed rounds. Rounds were performed at 1 and 4 a.m. and consisted of lifting and repositioning the residents. The employe had an office on the second floor. She testified that she was trained to stay in the office while the two CNA's performed rounds. This meant that when both of the CNA's were on the second floor, no one was in close proximity to the residents on the first floor. The employe further stated that she was trained to monitor the residents on the first floor during that time period by watching their call lights. The employe further testified that an outside door would be opened from time to time because the CNA's would take smoking breaks. She did not consider it her responsibility to monitor the outside doors. She stated that she was never given a key to the doors and did not know how to lock them. In addition, she stated that an alarm on one door was disconnected because it rang continuously if it was connected properly. The employe denied any wrongdoing.

The discharge letter dated March 27, 1995, besides stating as a reason for dismissal the allegation that the employe falsified her employment application, also gave a laundry list of reasons for the employe's dismissal. In addition to the reasons stated above, the letter also gave as a reason for the employe's dismissal that the employe informed a CNA that the administrator was angry at her for taking lengthy smoking breaks and that she would be fired. The CNA testified against the employe at the hearing and said that the administrator was not angry at her. The CNA said the employe had told her that they would not be able to go outside any longer for breaks, but that the administrator disagreed with that order.

At the hearing the employer raised new reasons for the employe's discharge which were not documented in the discharge letter. The CNA testified that in March of 1995, the employe administered an IV containing a drug to a resident without authorization. In addition, the CNA stated that she overheard the employe say in reference to the resident that if she (the resident) did not die soon, she was going to kill her herself. In effect, the employer accused the employe of patient abuse under Wis. Admin. Code sec. ILHR 132.05. In regard to giving the drug to the resident, the employe said it was self-administered by a pump and she claimed that she had authority to give the drug. She denied making the remark described by the CNA.

The issue is whether the employe's actions constituted misconduct. Misconduct has been defined as an intentional and substantial disregard of the employer's interests or of the standard of conduct that an employer has the right to expect from its employes. Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60 (1941); Wehr Steel Co. v. ILHR Dept., 106 Wis. 2d 111, 116 (1982).

The administrative law judge concluded that the reasons stated in the March 27, 1995 discharge letter were not sufficient standing alone to constitute misconduct on the part of the employe. The commission agrees with this conclusion. The employer presented no proof that the employe had misrepresented her job qualifications when she applied for employment. In addition, the employe, who had only worked for the employer for 4 months, stated that she was trained to stay on the second floor while the CNA's did rounds and to monitor the residents on the first floor by the call lights. The CNA's were responsible for the outside doors which they opened and closed when they went outside for smoking breaks. One time the employe attempted to discipline the CNA's for taking lengthy smoking breaks, but the administrator countermanded her order. Also, the employe was not responsible for a faulty alarm which did not work. On redirect, the administrator testified that it was not the employe's fault that the first floor was not always covered, it was not the employe's responsibility to lock the door initially, and that the alarm panel had been worked on over the weekend because of problems with the front door. Based on this testimony, the employer clearly did not establish misconduct on the part of the employe.

The administrative law judge found misconduct based upon the testimony of the CNA who stated that the employe had administered a drug to a resident through an IV pump without authorization and that the employe had made a comment about killing the same resident. The CNA who testified against the employe was the same one who the employe had attempted to discipline for taking lengthy smoking breaks. The administrative law judge found that the employe's actions against the resident as described by the CNA were patient abuse under Wis. Admin. Code sec. ILHR 132.05, and therefore constituted misconduct.

The commission concludes that the administrative law judge erred by considering the allegations of patient abuse against the employe. Those allegations were not stated in the March 27, 1995 discharge letter, and the employe had no knowledge of them until she heard the testimony offered against her at the hearing. As such, those allegations came as a complete surprise to the employe and she did not have time to prepare an adequate defense.

The Wisconsin Supreme Court has emphasized in many cases that the principles of fair play require due process in administrative procedures. State ex. rel Richey v. Neenah Police and Fire Comm., 48 Wis. 2d 575, 580 (1970). Due process of law requires that an individual have notice of and an opportunity to defend against charges brought against the individual. Durkin v. Bd. of Police & Fire Comm., 48 Wis. 2d 112, 122 (1970).

"The principle of fair play is an important factor in a consideration of due process of law. Parties in the legal proceedings have a right to be apprised of the issues involved, and to be heard on such issues. A finding or order made in the proceedings in which there has not been a `full hearing' is a denial of due process and is void . . ." Id.

See also Bituminous Casualty Co. v. ILHR Dept., 97 Wis. 2d 730, 735 (Ct. App. 1980); Mutual Federal S. & L. Assn. v. Savings & Loan Adv. Comm., 38 Wis. 2d 381, 391 (1968).

Historically, the commission has not allowed an employer to present evidence of misconduct accumulated after a discharge has been made to buttress the reasons given for the discharge at the time of the discharge. In No. 61-A-951, the employer could not use evidence that the employe was living with a woman not his wife to buttress the real reason for discharge, which was that the quality of his work was below standard. In No. 54-A-34A, the employer could not use the employe's alcoholism as a reason for discharge when the real reason the employe was discharged was because work was slow. In Boynton Cab, supra, the employe was reprimanded on January 23, 1939, for not remitting 15 cents of a fare to the employer. However, he was not discharged at that time and he was not discharged until February 25, 1939, and then for his driving record. However, his driving record was not sufficiently egregious to constitute misconduct and the employer could not use the evidence of the retention of the fee to prove misconduct.

In this case, the employe, appearing without counsel, was "blindsided" by the allegations of patient abuse with no prior warning. As such, the employe had no notice of those allegations and her constitutional right to due process was violated. The administrative law judge should have excluded all evidence regarding conduct unrelated to the reasons for discharge set forth in the March 27, 1995 letter of discharge. Because of the seriousness of the charges, the employe had a constitutional right to be informed of the new allegations an appreciable period of time prior to the hearing so that she could prepare a proper defense. Because that opportunity was not provided to the employe in this case, the commission concludes that the evidence of patient abuse should be excluded from the evidence. Without the evidence of patient abuse, there is insufficient evidence of misconduct in the record. The commission therefore reverses the appeal tribunal decision.

The commission therefore finds that in week 13 of 1995, the employe was discharged, but not for misconduct, within the meaning of section 108.04(5) of the Statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed: May 13, 1996
weomlfa.urr : 180 : 2  MC 630.20  MC 610.25  MC 665.08  PC 713

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness demeanor and credibility. The commission reverses as a matter of law on the basis of mostly undisputed facts.

cc:
ATTORNEY WILLIAM G SKEMP
WILLIAM G SKEMP LAW FIRM SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]