TRACY S FRANKS, Employee

PROFESSIONAL HEALTH CARE SERVICES 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 almost one year as a nursing assistant in assignments provided by the employer. His last day of work was December 26, 2005. He was discharged on January 3, 2006 (week 1).

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

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' within the meaning of the statute."

The employer received an anonymous call indicating that the employee used drugs. The employer considered this probable cause for a drug test and on December 26, the administrator called the employee and instructed him to report for a drug test. The employee indicated he would take the drug test the next day. The employee on December 27, appeared at the workplace and took a drug testing form. He was told to get the test that day, immediately. The employee indicated he would get tested, but failed to do so. The administrator called the employee shortly after 8:30 a.m. on December 28, and asked why he had not taken the test. The employee stated that he was at the dentist. The administrator told the employee to take the test as soon as he could. The employer called the employee the next day and asked why he had not taken the test on December 28. The employee stated that he had gotten food poisoning from a Chinese restaurant. The administrator told the employee to take the test immediately. The employee agreed to do so. The employee went to the testing facility but never actually took a test. The lab reported to the employer that the sample was cold. On January 3, the employer questioned the employee about the drug test. The employee said that he could not urinate enough to take the test and denied bringing in his own specimen.

At the hearing, the employee presented a medical excuse to verify that he had food poisoning and that he had gone to the emergency room. The treatment date was clearly written over, and it is clear from Exhibit 4 that the discharge instruction sheet was filled out in 2004. The original diagnosis appears to be "URI" suggesting that the employee had an "upper respiratory infection" or cold. It is also clear that the rest of the diagnosis "Urinary tract infection - Vomiting," was added or at least written with a different pen as it is much darker than the rest of the writing. Further, the new date is December 30, 2005. The employee was supposed to have taken the test on December 28, so the fact that he was "seen" on December 30 is not supportive of his claim that he was unable to take the test because of food poisoning.

The employee explained that, when he ultimately did take the test, his sample was cold because he was still sick from the food poisoning and when he was urinating, the cup slipped from his hands and went into the toilet. He flushed the toilet right away and the cup went down. He then caught the cup and brought it up, as it floated back up after he flushed. He reached in the toilet and took the cup out and was informed by the lab worker that the sample would not have a proper temperature since the cup had been flushed down the toilet and he would have to go again. The employee argued that he was unable to fill the cup the second time.

The employee met with the administrator and the payroll manager on January 3 at the employer's place of business. The employee explained that he could not give a sample. The administrator asked the employee if the employee used drugs and the employee replied that he did not. The administrator asked the employee why he was not willing to take a drug test if that was the case. The employee indicated he had trouble filling the cup and as a result he had voided into the toilet. The employee later indicated he had used marijuana over the weekend. The administrator then discharged the employee because of the entire drug testing incident.

The employee's explanations for refusing to take the test on three separate occasions are not credible. If the employee had a dentist appointment but was asked at the last minute to take a cancellation, there is no reason that he could not have informed the dentist that he could not take the cancellation. The employee did not indicate that he needed to take the first available dental appointment because there was an emergency situation. The employee informed the employer that he could not take the test the next day because he got food poisoning from a Chinese restaurant. The commission does not find his assertion in this regard or his testimony that he went to the emergency room for this condition to be credible. Finally, the commission concludes that the employee, when he finally did report to the test site, brought his own sample and then failed to give a sample when the first sample he gave turned out to be unacceptable.

The commission notes that the employer's drug testing policy does not specifically address the consequences of refusing to take the test. The employer considered that because it would discharge a worker for a positive test, it did not specifically need to address off-duty use. In addition, as pointed out by the ALJ, the employer does not have a clearly articulated policy addressing the use of drugs outside of work that do not result in a worker's being impaired at work. In addition, while the employer argued that the test was required because the employer had a reasonable suspicion that the employee might have been taking drugs, that portion of the policy addresses only workers who show signs of being unfit for duty or who have documented patterns of unsafe work behavior. It does not address the anonymous tip, which has only of questionable reliability. However, the employer discharged him not only for refusal to take the test, but for his behavior at the drug testing facility, which was deceitful. Further, it was apparent that the employee was simply trying to avoid the test, and he was lying about the reasons therefore. In addition, the employee admitted to using marijuana, even though he denied using crack cocaine. Under the circumstances, the employee's actions demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 1 of 2006, the employee was discharged, and that his discharge was for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for each of weeks 1 of 2006 through 22 of 2006, amounting to a total of $5,157.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 1 of 2006 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 that would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,157.00 to the Unemployment Reserve Fund. The employee has not requalified.

Dated and mailed November 2, 2006
franktr . urr : 145 : 1 MC 652.2   MC 630.01

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the employee was not a particularly credible witness, and that his demeanor was not particularly good. However, the ALJ did note that the employee was angry at being made to take the test at a time when he had food poisoning. The ALJ did point out that the employee had a document to corroborate what happened but that this document was suspect. The ALJ pointed out that on the other side, the employer's witness did not remember the events very clearly and as such, the ALJ did not consider his testimony to be especially reliable. The commission notes that the employee's medical document does not square with the employee's explanation that he sought medical attention for food poisoning, for example, a urinary tract infection would not commonly be associated with food poisoning.

NOTE: For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

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uploaded 2006/11/06