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

GERARD J ARNS, Employee

AURORA HEALTH CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605440MW


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 approximately one year and two months, most recently as a laboratory assistant, for the employer, a health care business. His last day of work was July 18, 2006, when he was suspended from his employment. The employee was subsequently discharged by the employer. The issue to be decided is whether the actions of the employee which led to his discharge, constitute misconduct connected with the employment.

At the time of his hire in May, 2005, the employee was provided with a copy of the employer's employee handbook, containing its work rules. He acknowledged that he was responsible for knowledge of their contents. The employer's work rules allowed employees to apply for promotions or transfers, but those rules provided, in relevant part, that employees "must...have received no discipline within the prior six months to be eligible for a promotion or transfer." The employer's work rules also provided that falsification of transfer requests was grounds for discipline, up to and including discharge.

On November 16, 2005, the employer presented the employee with an Employee Disciplinary Notice which he was informed would be in effect for six months. This disciplinary notice had to do with the employee's conduct in using the employer's computers and work time to access the Wisconsin Circuit Court Access database to attempt to find information about any criminal record that might exist for a co-worker of the employee with whom he had had a dispute about return of some loaned CDs. The employee disagreed with the basis for the Employee Disciplinary Notice and asked the employer to reconsider its decision to issue it. The employer conducted a further investigation into the matter. On November 18, 2005, the employer reaffirmed the Employee Disciplinary Notice, reissuing it on that date. The employee received and acknowledged receipt of a copy of the Employee Disciplinary Notice on that date.

The employer's work rules provided for an internal appeal procedure, referred to as the "problem-solving procedure", by which employees could obtain review of disciplinary action taken against them. The first step in the problem-solving procedure was a discussion of the problem with the immediate supervisor who was to answer the employee's problem within three working days, the second step was a meeting with the employee's department manager or designee who was to give the employee a written decision within three working days, the third step was a meeting with the area administrator who was to give the employee a written decision within three working days, and the fourth step was a meeting with a problem-solving panel consisting of two corporation administrators, the administrator of the involved department, and the vice president of human resources or designee, which panel was after consideration to render a decision which would be final. The problem-solving procedure provided that it was "an accepted corporate procedure and employees are encouraged to use its various appeal steps without fear of retaliation." Nothing in the description of the problem-solving procedure in the employer's handbook stated that an employee who had been issued a disciplinary notice was somehow not considered to have even received that discipline until all the steps of the problem-solving procedure were completed.

Following the issuance of the Employee Disciplinary Notice to the employee in November, 2005, he timely initiated a review of that discipline through the problem-solving procedure. As part of this process, the employee had a second-step meeting on December 2, 2005, in which he met with his supervisor, Dorothy Ramsey, and Patricia Tarr, Director of Laboratory Client Services. In the course of this meeting, Tarr did not tell the employee anything to the effect that because he had initiated the problem-solving process the discipline which he had received in November was somehow on hold or not active. The commission finds that the employee's testimony, that Tarr did tell him something to that effect in that meeting, is not credible.

Subsequently, as a further part of the problem-solving procedure process, the employee had a third-step meeting on December 19, 2005, in which he met with Marie Cato, Director of Laboratory Operations. In the course of this meeting, Cato did not tell the employee anything to the effect that he was not "in active discipline" at that point. Immediately following this meeting, Cato prepared a written documentation of the meeting, which concluded by stating, "[t]he discipline is supported and will remain active." (emphasis supplied). A copy of this document was sent to the employee at or around this time, and he received that copy.

On February 2, 2006, the employer informed the employee by e-mail that a request for tuition reimbursement which the employee had filed was being denied. This e-mail expressly informed the employee that the reason his request was being denied was that in order to be eligible for the tuition reimbursement an employee must be free of any disciplinary action at the start of the course and that "[y]our management staff has indicated that you were in active disciplinary process." The e-mail further stated that the employee would be eligible for the tuition reimbursement "after your disciplinary process is complete." The employee received this e-mail.

Subsequent to receiving the e-mail informing him that his request for tuition reimbursement was being denied, the employee met with his supervisor Dorothy Ramsey and had a discussion concerning the denial. In this meeting, the employee told Ramsey that his request for tuition reimbursement had been denied, and she explained to him that it had been denied because he was in active discipline. The employee told Ramsey that he was aware that the denial had stated this as the reason but that he didn't think he would be in discipline since he was disputing it. In response, Ramsey explained to him that he was considered to stay in discipline status until the discipline was overturned. Ramsey made this point clear to the employee, and she was satisfied that he understood that he was considered to be in active discipline. The commission finds that the employee's testimony, that he never had any such discussion with Ramsey concerning the denial of his request for tuition reimbursement, is not credible.

In March, 2006, Ramsey prepared a performance evaluation for the employee, and on March 16, 2006 she met with him and went over it with him. In this evaluation, Ramsey gave the employee a rating of zero for Standard F18, which corresponded to (in part), "[u]nacceptable behavior is displayed and/or communications are inappropriate." Ramsey made a handwritten notation in the margin adjacent to this description which stated, in part, "In discipline for one instance," and below this she made a handwritten notation in the margin which stated, "Discipline ends May 16, 06." Ramsey made this last notation because in the course of her discussion of this part of the evaluation with the employee he had asked her when his discipline was over. The employee was aware that Ramsey made that notation on the page, and he signed the evaluation. He was aware that the employer considered him to be in discipline through May 16, 2006.

The employee was subsequently informed that his wage increase based upon merit would be delayed. Ramsey had a discussion with the employee about the fact that his merit raise was withheld. In this discussion, she told him that his merit raise would not go into effect until he was out of discipline.

On May 2, 2006, the employee completed an online application for transfer to another position with the employer. The directions for the application clearly provided, in relevant part, that an employee presently in disciplinary action was ineligible to apply for a transfer, and that an employee was not eligible for transfer if he had a record of disciplinary action within the six months immediately preceding the application. The application included a question, "Are you currently in discipline?" to which a "yes" or "no" answer was required. Despite the fact that he had been issued an Employee Disciplinary Notice on November 16, 2005 (reissued on November 18, 2005), and had been told on a number of occasions that he was in active discipline and would be considered to be in active discipline until May 16, 2006, when the employee completed and submitted the online application for transfer on May 2, 2006, he answered "No" to the question, "Are you currently in discipline?"

On May 7, 2006, the employee completed another online transfer application for a different position with the employer. The application had the same directions and questions as the one he submitted a few days earlier. Again, in completing this application, the employee answered "No" to the question, "Are you currently in discipline?"

On May 24, 2006, the employer presented the employee with another Employee Disciplinary Notice. This disciplinary notice had to do with the contents of an e-mail which the employee had sent on May 19, 2006 to an administrative assistant to the employer's vice president of human resources, about scheduling of a fourth-step problem-solving procedure meeting concerning the employee's first Employee Disciplinary Notice. In this e-mail the employee had, among other things, suggested that the recipient of the e-mail had "a disability that restricts your thought processes" and had written, in capital letters, "SHAME ON YOU!". Following the issuance of the Employee Disciplinary Notice to the employee on May 24, 2006, he timely initiated a review of that discipline through the problem-solving procedure.

On May 25, 2006, the employee completed another online transfer application for a different position with the employer. The application had the same directions as those he submitted earlier in May, 2006. Despite the fact that he had been issued a new Employee Disciplinary Notice on the previous day, in completing the application, the employee answered "No" to the question, "Are you currently in discipline?"

On June 8, 2006, the employee was interviewed by a member of the employer's human resources department concerning one of his applications for transfer. When the interviewer asked him if he was currently in discipline, he stated to her that he was not.

The employer has approximately 2,000 employees at its West Allis campus. It has a centralized employment department that handles hiring. That department is not involved in the issuance of discipline, and it is not automatically notified every time any employee is issued an Employee Disciplinary Notice. The employer's human relations department is also not automatically notified every time an employee applies for a transfer. The information solicited by the on-line transfer application form and by questions in transfer application interviews, as to whether an applicant is currently in discipline, is thus information which is needed by, and relied on by, the organizational unit of the employer which handles such transfer applications.

On June 28, Patricia Tarr learned from a supervisor that the employee was applying for transfers to different positions with the employer. Tarr contacted Naomi Pichotta, the director of human resources, to inquire how this could be so considering that he was in active discipline. On July 3, 2006, Pichotta attempted to contact the employer's department that handled hiring to learn more about the matter, and at that time she left a voice mail for Lisa Terry, the person who had interviewed the employee. On July 8, Terry contacted Pichotta, and at that time Pichotta learned that the employee had filed several applications for transfer in which he had answered "No" to the question, "Are you currently in discipline?" and that in an interview with Terry he had told her directly that he was not in discipline. Pichotta contacted her supervisor to ask what she should do and he advised her to investigate the matter further.

On July 10, 2006, the employee completed yet another online transfer application for a different position with the employer. The application had the same directions as those he submitted earlier in May, 2006. Again, in completing the application, the employee answered "No" to the question, "Are you currently in discipline?"

On July 18, 2006, the employer's manager of loss prevention, Robert Solie, met with the employee and questioned him about the transfer applications he had submitted in May and June of 2006. The employee admitted to filing the applications. The employer inquired how he could submit those transfer applications given that he had been issued Employee Disciplinary Notices on November 16, 2005, and May 24, 2006. The employee responded by making the assertion that he was not in discipline at the time he submitted them because he had availed himself of the appeal process concerning both warnings. The employee further asserted to Solie, that Patricia Tarr had told him that so long as he was engaging in the problem-solving procedure, nothing took effect of those disciplinary notices until the problem-solving procedure goes through all its steps. Solie then informed the employee that he was suspended further investigation.

Subsequently, Naomi Pichotta discussed the matter with Dwight Morgan, the employer's vice president for human resources, on July 20, 2006, and they concurred that the employee should be terminated. Pichotta attempted to contact the employee by telephone on the afternoon of July 20 in order to set up a time for him to come in and meet with her on the following day so that she could convey the decision to him; she was unable to reach him directly but did leave a voice mail message to this effect for him. The employee heard this message on the afternoon of July 21, 2006 and attempted a return call but was unable to reach Pichotta and ended up leaving a message for her. The employee ultimately learned that he was discharged on the evening of July 21 when he attempted to log in to the employer's website from his computer at home and received a message indicating that his access had been removed due to termination.

The discharge decision was subsequently confirmed by an Employee Disciplinary Notice issued to the employee on July 26, 2006, indicating that the employee was terminated for falsification of records, and describing that offense specifically as involving the employee's actions in falsely stating on transfer applications filed on May 2, May 7, May 25, and July 10, and in an interview on June 8, 2006, that he was not in active discipline. The disciplinary notice expressly referred to the employer's work rule prohibiting "[f]alsification or unauthorized altering of corporation and/or affiliate records, employment applications, transfer requests, time records, patient records, etc." The employee received this disciplinary notice by mail on July 27. In addition, the discharge was confirmed internally through the completion on July 26, 2006 (by the employee's then immediate supervisor, Chris Kitzke) of an on-line termination form.

The employer's reason for deciding to discharge the employee was its dissatisfaction with his having repeatedly conveyed false information concerning his disciplinary status in the course of applying for transfers to other positions. The employer was not motivated by any other reason in arriving at its decision to discharge the employee.

Under the circumstances, the employee's conduct in repeatedly conveying false information concerning his disciplinary status when seeking transfers within the workplace evinced a wilful and substantial disregard of the employee's interests and of the standards of conduct that the employer had a right to expect, and therefore constituted misconduct connected with the employment.

The commission therefore finds, that in week 29 of 2006, the employee was discharged for misconduct connected with the work the employer, within the meaning of section 108.04(5) of the statutes.

DECISION

The Findings of Fact and Conclusions of Law of the administrative law judge are modified to conform with the foregoing and, as modified, the decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 29 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 which would have been paid had the discharge not occurred.

Dated and mailed May 23, 2007
arnsger . urr : 110 :    MC 630.07  MC 630.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


NOTE: 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 and for a reimbursement employer, to the fund's administrative account.

 

MEMORANDUM OPINION

This case concerns the discharge of Gerard Arns by his employer, Aurora Health Care Inc., because of Arns' stating on transfer applications that he was not in active discipline status (a factor which affected his right to obtain a transfer) when in fact he was.

The employer's employee handbook provided, in the "Promotion and/or Transfer Guidelines" section, that "[y]ou must be in your current position for at least six months and have received no discipline within the prior six months to be eligible for a promotion and/or transfer" (emphasis added). It is clear from the record, that Arns had indeed received disciplinary notices from the employer, on both November 18, 2005 and May 24, 2006.

The on-line transfer forms which Arns filled out, contained the following very prominent notice:

You must meet the following requirements to be eligible to apply for a transfer:
. . .
Must not have a current (within the last 6 months) record of disciplinary action. Employees currently in disciplinary action are INELIGIBLE to apply for transfer.

It is clear, that through May 16, 2006, and also after May 24, 2006, Arns had a record of having received disciplinary action notices from the employer within the last 6 months.

Beyond this, numerous other facts established by the record -- including Cato's response to Arns' problem-solving procedure appeal, telling him that his discipline would "remain active", the circumstances surrounding the denial of Arns' request for tuition reimbursement and the denial of his merit pay increase, and the performance evaluation in which Ramsey responded to Arns' question about his disciplinary status by making an express written notation on it telling him he was "in discipline" and "discipline ends May 16, 06" -- make it clear that Arns was in active disciplinary status subsequent to the disciplinary action notices he received on November 18, 2005 and May 24, 2006.

When he was asked how he could have possibly arrived at the conclusion that he somehow was not in disciplinary status during these times, when everything pointed precisely to the fact that he was, the only thing Arns claimed as the basis for his supposed belief on this point was the statement in Aurora's problem-solving procedure that "employees are encouraged to use its various appeal steps without fear of retaliation." However, this statement is obviously meant as an assurance that a person may use the problem-solving procedure to challenge an adverse action (discipline) which has been taken against them, without fear that any further adverse action will be taken against them because of the fact that they were challenging the initial discipline. That is precisely what "retaliation" means. No reasonable person could seriously think that the phrase "without fear of retaliation" in the description of the problem-solving procedure, somehow meant that no discipline even went into effect unless and until all of the steps of the problem-solving procedure were completed. The commission does not believe that Arns really thought that. Rather, it concludes that Arns understood full well that he was considered to be in active disciplinary action, but that he intentionally, and repeatedly, misrepresented his status in the course of applying for transfers.

Evidence in the record supports this assessment as to the true state of Arns' subjective beliefs concerning his status. The complaint which Arns filed with the Equal Rights Division on May 30, 2006, in which he noted that the employer's imposition of discipline on him prohibited his advancement to other positions and precluded him from receiving a wage increase, clearly shows that by at least that point he understood full well that the effects of being in discipline status applied event though the problem-solving procedure was being pursued -- and that these effects included a prohibition on transferring to other positions.

It is true, that the employer ultimately had the ability to determine directly from its own disciplinary records whether or not the employee was indeed in active discipline status at any given time. The commission considered the question of whether this somehow lessened the culpability of the employee's conduct in lying on his transfer applications. It concluded that it did not lessen his culpability. As is described in the findings made above, given the size of the employer it had an institutional structure in which information about specific disciplinary actions was not routinely shared with the unit responsible for receiving and handling transfer applications. It was entirely reasonable under the circumstances, that the hiring department would place reliance on self-reporting by transfer applicants regarding their disciplinary status. In these circumstances, the question posed by the transfer application as to the applicant's disciplinary status was thus clearly material, notwithstanding that the hiring department might have an independent method to check the accuracy of the answer given. Simply put, it does not excuse a lie to assert that the person being lied to had a way to find out that they were being lied to.

Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997); Krueger v. Voith Paper Fabrics Appleton Inc. (LIRC, Sep. 15, 2006). The commission concludes that the repeated, intentional falsifications engaged in by the employee here were sufficiently egregious to constitute misconduct within the meaning of Wis. Stat. § 108.04(5).

The commission has carefully considered Arns' arguments but finds them to be without any colorable merit.

Arns' argument that the employer somehow encouraged his dishonesty by not warning him against continuing to engage in it, is wholly unpersuasive. The fact that certain representatives of the employer may have known that Arns was applying for transfers but did not immediately tell him that he should not do so, does not show that they were somehow conniving to find a way to be able to discharge him. While the applicable employer rules and policies state that employees in active disciplinary process are ineligible to even apply for transfers, it does not appear that there would be any disciplinary response to an employee who applied for a transfer notwithstanding the fact that they were in discipline, so long as that employee was honest in their application and disclosed the fact that they were in discipline. In such a case, the transfer application would simply be rejected. That is not what happened here. Arns was not discharged for applying for the transfers; he was discharged for being untruthful in those applications by asserting that he was not in discipline when in fact he was. Even if (as Arns argued) Ramsey, Tarr and Kitzke knew that he was applying for transfers notwithstanding that he was in discipline, Arns did not assert, much less prove, that any of them knew that he was lying on his transfer applications. When this fact did come to the knowledge of the employer, it acted promptly.

There is also no persuasive evidence -- indeed, no evidence of any kind -- that the employer bore any discriminatory animus against Arns or took any adverse action against him (either the disciplinary actions imposed on November 18, 2005 and May 24, 2006, or the eventual decision to discharge him) because of any prohibited reason. Specifically, there is no evidence that the employer acted because of any desire to retaliate against Arns because of his having invoked the problem-solving procedure, because it thought he had opposed or would oppose some alleged discriminatory conduct by the employer, or indeed because of any other reason than the reason which is so clearly disclosed by this record: dissatisfaction with the fact that he had intentionally, and repeatedly, been untruthful in the course of applying for transfers.

 

NOTE: The commission has substituted its own findings of fact for those made by the administrative law judge, simply in order to be able to set out more fully the reasons it arrived at the same ultimate conclusion and result as that reached by the administrative law judge. The commission had no disagreement with the material findings of fact made by the administrative law judge. It agreed with those findings, and specifically with the view of the administrative law judge that the employee was not credible. In that respect, the commission notes that the administrative law judge found:

The employee contended that his discharge was not for misconduct because, at the time he submitted his transfer applications and was interviewed by human resources, he believed he was not in active discipline as he was pursing appeals of the warnings issued him by the employer. This contention cannot be sustained ...The credible evidence in this matter shows that the employee submitted transfer applications to the employer which intentionally misrepresented his disciplinary status at the workplace. Furthermore, he misled the employer concerning that same status when interviewed for a transfer position.

The commission agrees. The employee's contention that he believed he was not in active discipline, was simply not credible, for the reasons discussed above. The credible evidence is, as the administrative law judge stated, that the employee intentionally misrepresented his disciplinary status, and that he misled the employer.

 

cc: Attorney Steven A. Burk, Quarles & Brady LLP


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