LORI J SEARCY, Employee

LIFELINE SERVICES OF FOND DU LAC INC, 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 makes the following:

The employee worked for about ten months as a human resources coordinator for the employer, a business that operates group homes serving developmentally disabled adults. Her last day of work for the employer was May 31, 2005 (week 23).

Following the resignation of the employer's assistant administrator in March of 2005, the employer's owner/administrator assigned the employee to perform some of the tasks associated with that vacant position. Among those tasks the employee was assigned to perform were occasional investigations of alleged incidents of resident abuse or neglect and the preparation of written reports for each such alleged incident based on her investigations as to whether the alleged incidents were "substantiated." At no time did the employee advise the employer that she objected to being assigned any of the job duties that had formerly been carried out by the employer's assistant administrator.

Pursuant to its service contracts with a county government agency, Creative Care Options (CCO), the employer provided group home services to disabled individuals whom the county had referred to the employer for such services. Under the terms of its contract with CCO, within 24 hours after receiving complaint of resident abuse or neglect (i.e. a "critical event"), the employer was required to forward to CCO its investigative report concerning the alleged incident of abuse or neglect, whether or not the resident's allegations were deemed to be substantiated by the employer's investigation. Complaints by residents of inappropriate conduct by the employer's staff that did not involve allegations of abusive or neglectful behavior toward the resident were defined by the employer and by CCO not to constitute a "critical event" to which the 24-hour reporting rule applied; reporting to CCO such non-critical event complaints was not mandatory under the employer's contract with CCO and was discretionary with the employer. As a matter of practice, however, the employer generally forwarded to CCO any and all reports connected with the complaints of residents that had been referred to the employer by CCO; CCO expected the employer to do so, regardless of whether the allegations of the resident complaint indicated the occurrence of abusive or neglectful behavior.

Throughout March and April of 2005, the employee became increasingly upset over several hiring choices and business management, and business restructuring decisions that the employer's owner had made and implemented over those months. The employee considered the owner to have shown poor management skills and highly questionable business judgment in the operation of the employer's business.

In early May 2005, the employer received two separate complaints from one of its residents. In one of the resident's complaints the resident alleged that one of the employer's staff had physically and emotionally abused the resident. The second complaint lodged by the resident alleged that one of the employer's staff had "crawled" into the (resident's) bed and slept with (the resident)." The second complaint did not allege that there had occurred any physical or emotional abuse of any sort, nor any inappropriate touching of the resident by the staff member. Following the employee's investigations of both complaints that had been made by the resident, the employee concluded that the resident's allegations in each instance were "unsubstantiated." The employee prepared handwritten investigative reports concerning each complaint and, upon the instruction of the employer's owner, on or about May 19, she then typed her investigation report concerning the first complaint and forwarded it to CCO. The owner instructed the employee that, because the second complaint did not indicate any abuse or neglect had occurred, it did not constitute a "critical event" and that she should not forward her investigative report concerning that complaint to CCO. Following the owner's instructions, the employee did not type her investigative report for the second complaint or send it to CCO. Pursuant to the owner's instructions at that time, she did not forward the report to CCO.

On May 23, 2005, the employee received a phone call from a CCO case manager, asking her why she had not forwarded to CCO her investigative report for the resident's complaint alleging that one of the employer's staff persons had slept with the resident in the resident's bed. The employee advised the CCO case manager that she had been following the owner's instructions. The employee later overheard the employer's owner tell the CCO case manager that the owner did not know why the employee had failed to send along to CCO her investigative report of that incident. The owner then advised the employee to type up her investigative report from her handwritten version, to "backdate it," and to send it over to the CCO case manager. The employee did not express to the owner any objection to the owner's instructions. Because she felt it was not appropriate to "backdate" her investigative report, however, she did not do so. Otherwise, per the owner's instructions to her on May 23 she typed her investigative report for the resident's second complaint and forwarded it on to the CCO case manager who had asked for it.

On May 23, 2005, the employee gave the employer's owner her two-week resignation, indicating that her last day of work for the employer would be June 4, 2005 (week 23).

On the morning of May 31, 2005 (week 23), the employee received a report that a worker, whom the employee had previously advised would not be scheduled to work for the employer over the holiday weekend of July 2-4, had subsequently been scheduled by the employer's owner to work during that weekend. The employee also heard a report on that day that the employer's owner had instructed a staff person at one of the employer's group homes to "keep a log" of instances in which the group homes resident manager was absent from his scheduled work and/or was unavailable to be contacted by the staff of the group home the employer had assigned him to manager. The employee considered the owner's actions in each of those instances, as reported to her, to be inappropriate. The employee then approached the employer's owner and said to the owner, "I can't do this anymore. This is my last day." The employee then left the employer's premises before the end of her shift that day. The employee never again worked for the employer.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employee argued that she quit her work with good cause attributable to the employer. The commission agrees.

The employee was instructed by the employer not to send a report to CCO. The employee questioned the employer about it and explained why she believed the report needed to be sent, but the employer told her not to send the report. The employee did not send the report. She later over heard the employer blame her for not sending the report over. Finally, the employer instructed her to falsify the report by backdating it. The employer's actions placed the employee in a potentially serious position. The employer specifically instructed her not to send the report. Had this been the only incident, the commission would not have concluded that the employee had good cause for quitting. However the owner blamed the employee for not sending the report, and then instructed the employee to backdate the report. This was dishonest. The employer's actions in shifting blame for the employer's actions to the employee and instructing the employee to backdate the report were so egregious as to give rise to good cause attributable to the employer for quitting.

The commission therefore finds that in week 23 of 2005, the employee quit her work with the employer with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2005, if otherwise qualified

Dated and mailed September 30, 2005
searclo2 . urr : 145 : 2  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing the ALJ's decision. The commission did not reverse the ALJ's decision based on a differing assessment of witness credibility. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when applying the law to the facts found by the ALJ.

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uploaded 2005/10/10