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

GINGER R SHAGER, Employee

LUTHERAN SOCIAL SERVICES OF
WISCONSIN & UPPER MICHIGAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201086EC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about four and one-half years as a case manager for the employer, a nonprofit business that provides services to women recovering from alcohol and drug abuse. Her last day of work was April 18, 2005 (week 17). She was discharged on April 20, 2005 (week 17).

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

The employer had a policy that provided for disciplinary action, including discharge, for failure to carry out the employer's policies or the instructions of a supervisor, for dishonesty, negligence or falsification or records, and for the careless or inefficient performance of duties including failure, inability, or lack of effort required to maintain proper standards of performance. The employee received a copy of the policy in September of 2004.

The employee's supervisor required her subordinates to meet with her on a weekly or biweekly basis to discuss treatment plans for clients. The employee failed to initiate meetings with the supervisor regarding her caseload in March of 2004. On one occasion, the employee indicated to the supervisor that she hated a client. The supervisor had concerns regarding the amount of time that the employee was in the office rather than meeting with clients. On March 23, 2004, the supervisor gave the employee a written warning which required the employee to meet with the supervisor on a weekly basis regarding caseload. The employee was required to complete a time study report. She was required to record appointments in the case manager appointment book. She was also instructed to have a more positive attitude during staff meetings and treat clients with respect. She was told to reduce the amount of personal telephone calls. She was also instructed to contact the supervisor for additional assignments when she was not actively working with clients.

In August of 2004, the employee was given a written warning for not recording appointments in the case manager appointment book. The employee left the office on a Monday morning in order to deal with a client who was in crisis. On the following morning, she had appointments out of the office. She failed to record her whereabouts in the case manger appointment book, although other workers knew where she was.

The workers were required to enter work time on a computerized time and attendance system. A policy prohibited overtime without supervisor approval. The employee was aware of this policy.

The employee was permitted flexibility in the arrangement of her work hours. She arranged her work schedule in order to be off of work on Fridays. During the calendar week ending March 12, 2005 (week 11), the employee worked Monday through Thursday. On March 15, 2005, the supervisor told the employee that she was required to work Monday through Friday unless she received approval to be off of work.

In March of 2005, the supervisor discovered that the employee was meeting with former clients whose cases had been closed. Because the employee had failed to meet with the supervisor on a weekly basis to discuss her caseload, the supervisor was unaware that the employee was meeting with former clients.

After being instructed to work on Fridays, the employee worked one hour on Friday, March 18, 2005. The employee did not work on Friday, March 25, 2005, as it was Good Friday. On Friday, April 1, 2005, the employee reported that she had worked nine hours. She did not report that she had taken a one-hour lunch on her time card. She also reported that she had worked two hours of overtime during the calendar week ending April 9, 2005 (week 15). She did not have approval to work overtime during that week. She worked one and a half hours on Friday, April 8, 2005. The employee reported that she had worked overtime during the calendar week ending April 16, 2005 (week 16). She did not have supervisory approval for overtime. After the employee was suspended on April 18, 2005, she changed the time card to reflect that she did not work overtime.

The employee was suspended for one day on April 18, 2005. The corrective action report set forth the facts and events leading to the employee's suspension. The report indicated that the employee had been taking Fridays off or leaving early without approval, and had her hours in by Friday despite having only 6 clients. The report further stated that the employee demonstrated a lack of ethical boundaries with closed clients. Finally, the report indicated that there were discrepancies in the hours the employee reported on her time card versus the actual hours worked, as well as unapproved overtime. The report indicated that failure to improve and/or future work rule or policy violations could result in future discipline up to and including termination. When the employee reported for work on April 20, 2005, she was discharged.

The commission has consistently held that the employer has to show that the employee engaged in some other act of misconduct, after a written warning or other disciplinary action has been imposed, in order to prove that the employee was discharged for misconduct. Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Rash v. Maynard Steel Casing Co., UI Hearing No. 00606695MW (LIRC Dec. 5, 2000); Pierce v. The Kelch Corp., UI Hearing No. 00602402MW (LIRC May 31, 2000).

The record does not reflect any actions on the part of the employee subsequent to the imposition of the suspension that would constitute misconduct connected with the employee's employment. Indeed, the employee was discharged from her employment when she next appeared for work. The employee was advised that her employment would end if she failed to improve her performance or again violated the employer's rules or policies. No such failure or violation occurred.
Further, from the record it appears that the only thing the employer may have discovered after it suspended the employee was that she neglected to record a one-hour lunch on April 5. That lunch was taken with the employee's supervisor. The commission cannot conclude that the employee intentionally misrepresented her hours given that her supervisor would be checking her time card.

The commission therefore finds that in week 17 of 2005, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2005, if she is otherwise qualified. There is no overpayment as a result of this decision. The initial Benefit Computation is not set aside.

Dated and mailed September 14, 2005
shagegi . urr : 132 : 1 : MC 688.1 MC 699.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. However, the commission's reversal is not based on witness credibility but on the lack of evidence that the employee violated the employer's policies after the imposition of discipline on April 18, 2005.

cc: Lutheran Social Services Of Wisconsin (Eau Claire, Wisconsin)


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uploaded 2005/09/20