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

EVELYN K KITOWSKI, Employee

HARMONY LIVING CENTERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003064WR


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 and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked almost four years as a cook and residential aide for the employer, an operator of assisted living facilities. Her last day of work was June 2, 2005 when she was discharged for "whiting out" a time on her timecard, working longer than allowed, performing work at home off the clock and allegedly being rude and unfair to residents.

In March 2005, the employee was directed to retake the employer's resident rights training because of complaints regarding her treatment of the residents. The employee initially refused but agreed to take the training when she was warned that failure to do so would jeopardize her employment. The employee was warned to give residents food and drink choices and to lower her voice and speak softer to the residents as her tone of voice was taken wrong at times. In the employer's documents supporting its retraining decision, the administrative assistant wrote the following:

. . . On the positive side - Evelyn is very hard working, she will cover extra hours when we are in a bind whenever she can, I think she really believes she is encouraging the residents, not "bullying" them. When she is not giving choices she is trying to be efficient in work - not looking at the lack of daily choice. She really cares about the residents and many of the staff. . .

At the end of the employee's employment, the employer cut her hours due to low census; the employer's facility could house up to 40 residents but had only 22-23 residents at that time.

On May 23, 2005, although the employer prohibits writing on or altering timecards, the employee changed her punch out time using white out to thirty minutes after her scheduled end time. She notified the employer's administrative assistant when she made the alteration.

On May 30, 2005, the employee worked on resident menus and food orders at home and "off the clock" because she was unable to complete all her work during her scheduled hours.

On May 31, 2005, the employer informed the employee that she would be disciplined for altering her time card and taking work home and that she should report to work on June 2, 2005 (week 23).

However, on June 1, 2005, an ombudsman spoke with the employee's manager about additional resident complaints and accusations that the employee violated Wis. Admin. Code § HFS 83.21 (g), requiring that residents be treated with courtesy, respect and full recognition of the resident's dignity and individuality by all employees. Although the investigation had not yet started, the employer decided to terminate the employee the next day, June 2, 2005 (week 23). At the time of termination, the employee declined to comment when offered the opportunity by the employer.

Based upon a survey completed on June 30, 2005, the Department of Health and Family Services presented the employer with a "STATEMENT OF DEFICIENCIES AND PLAN OF CORRECTION." The report cites to interviews, post discharge, that were prompted by the complaints to the ombudsman. It does not reflect that the employee was, and the employee denied, being questioned about the allegations. Further, it also references a May 31, 2005 performance counseling which was never given to the employee.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits; thus, the issue before the commission is whether the employee's discharge was for misconduct.

The employer contended that the employee's discharge was for misconduct connected with her employment. Specifically, it argued that the employee engaged in continuing discourteous treatment of residents after warning, altering her timecard and working off the clock. The employer's misconduct contention cannot be sustained. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, 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 employee, 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 employee'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' with in the meaning of the statute."

The incidents where the employee altered her timecard and was working off the clock were isolated incidents of poor judgment, not misconduct; there is no evidence that the employee was attempting to be paid for time that she did not work or that she was dishonest regarding her inability to complete her work.

As for the allegation of repeated discourteous treatment of residents after warning, the employer failed to present any eyewitnesses to the alleged discourteous treatment and while the "STATEMENT OF DEFICIENCIES AND PLAN OF CORRECTION" is admissible, it is not binding upon the commission. See Wis. Stat. § 108.101(4). The employee credibly denied any intentional rude or discourteous treatment of residents. While the employee admitted that she placed food and beverages out according to the resident's predetermined choices, she also testified that, if and when asked, she would accommodate the resident requests for other items. Further, while the employee's voice may have had a tone or volume level easily susceptible to misinterpretation, there is no evidence that the employee intentionally took that tone or volume level. Instead, the commission finds that any deficiencies related to the alleged rude and/or discourteous treatment were unintended.

The commission therefore finds that as of week 23 of 2005, the employee's discharge was 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 employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 4, 2006
kitowev . urr : 150 : 1  MC 660.01  PC 714

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge prior to reversing his decision. The administrative law judge did not credit the employee's denials of her alleged rude or discourteous treatment. In particular, he cited to the employee's very abrupt demeanor and absolute denials without explanation at the hearing. The commission respectfully disagrees with this credibility assessment. Specifically, the employer's own evidence suggest that the employee's brusque manner was not intentional or even something that the employee was conscious of. The commission finds that ALJ's demeanor observations at the hearing are consistent with this and that this does not reflect a lack of credibility. Instead, the commission credits her denials of repeated intentional rude and/or discourteous treatment after warning. Under these circumstances, given the lack of firsthand evidence, the employee's credible testimony, and the employer's earlier admissions that the employee's behavior was not intentional, the commission respectfully reverses the ALJ's decision.

cc: Harmony Living Center (Wisconsin Rapids, Wisconsin)


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