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

TONYA M RAYFORD, Employee

MEDICAL COLLEGE OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601072MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2007, 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 July 20, 2007
rayfoto . usd : 115 : 1    MC 660.01 MC 664

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked 2.5 years as an administrative assistant 2/surgery scheduler for the employer, a health care teaching and care facility. She coordinated the surgery schedules of two pediatric surgeons (Conley and Sulman).

On September 27, 2006, the employee's supervisor, Tammy Yambor, issued a written warning/corrective action (exhibit #2) for scheduling errors attributable to the employee which had occurred on August 30 (12 errors that required rescheduling surgeries), September 5, September 13, September 25, and September 26. These scheduling errors had generated patient and surgeon/faculty complaints, and had compromised the delivery of care to surgical patients.

The employee did not offer any explanation for her errors when she and her supervisor met to discuss this written warning on or around October 5.

On November 9, it was discovered that the employee had failed to enter the rescheduled dates for a patient's pre-op appointment, surgery, and post-op appointment into the surgery schedule. The patient's parent was very upset and contacted the surgeon who had to fit the appointments into his schedule, the surgery team's schedule, and the operating room schedule.

On November 27, Yambor received a complaint from Children's Hospital, where the surgeries were performed, that the employee's numerous and continuing scheduling errors over the previous six months had a negative impact on patient care.

On November 27, it was discovered that the employee had made two scheduling errors, one of which resulted in the cancellation of a surgery for which the patient and his/her family had taken time off from work, traveled from another state, and rented hotel rooms. As a result of this error, the employer had to reimburse the family for the expenses they had incurred.

Yambor conducted a coaching session to discuss each of these errors/issues with the employee. The employee did not offer any explanation other than she had made mistakes.

On December 7, 2006, Yambor issued the employee a final written warning for these performance failures, which indicated that "[f]ailure to make immediate and sustaining improvement may result in further disciplinary action, up to and including termination from employment without further notice."

On December 11, Dr. Conley contacted Yambor with concerns that, in regard to three patients, the employee's failure to promptly schedule surgeries had compromised patient care. Dr. Conley cited one instance where a tumor on the face of a 17-month-old child had grown from 1.5 centimeters in July to more than 4 centimeters by the time the surgery took place in December, even though, in July, surgeries were typically being scheduled six weeks after an initial appointment, and this surgery should have been scheduled two weeks after the child's July appointment. As a consequence of this delay, a much larger incision had to be made in the child's face and the surgery required twice as much operating room time.

On December 12, Yambor became aware that the employee had made two surgery scheduling errors in regard to patients of Dr. Conley. In regard to the first, the employee had failed to record a rescheduled surgery date on Dr. Conley's schedule. In regard to the second, the employee had failed to record a rescheduled surgery date in the office surgery schedule.

The employee offered no explanations for these scheduling errors, other than she had made mistakes.

Later in December of 2006, Yambor conducted a week of one-on-one retraining of the employee. As a part of this training, Yambor and the employee developed a checklist for the employee to use in carrying out her scheduling duties. This checklist contained seven elements.

The employee, however, continued to make scheduling errors. Yambor noted that, at least once, the employee had checked off on the checklist that she had scheduled the operating room for a surgery, but a review of the operating room schedule revealed that she had not. The employee could not explain these errors.

On January 15, 2007, Yambor was contacted by Dr. Sulman with concerns about scheduling errors made by the employee. In regard to one, the employee failed to reserve the auditory brain stem revoke response (ABR) facility as ordered. In regard to another, according to Dr. Sulman, the employee had scheduled an adenoidectomy for a patient but had failed to also schedule the tonsillectomy as ordered. The employee disputed that Dr. Sulman's orders had included the tonsillectomy.

On January 17, 2007, Dr. Sulman was scheduled to attend a meeting of the graduate medical education council, of which she was a member. Dr. Sulman had placed this meeting on her schedule some time in advance. Despite this, the employee scheduled Dr. Sulman for surgeries that day.

Dr. Sulman also complained to Yambor in January that the employee was not providing either her surgery schedule or surgical patient histories to her in a timely manner. The employee's explanation was that she was so busy double-checking her work and using the checklist that she was getting behind.

The employee was discharged based on her continuing scheduling errors on January 17, 2007.

The administrative law judge concluded that, since the employee, given her occasional successful performance of her scheduling duties, was capable of performing them, her continuing scheduling errors demonstrate a failure to "devote proper attention to her duties to foreclose the chance of errors;" and, given the significant consequence of these errors, this failure constitutes misconduct. The commission agrees.

Although the employee attributes her continuing scheduling errors to the addition of Dr. Sulman's scheduling to her duties, this is not persuasive since she concedes, and the record shows, that, although she had made some errors during the entire 19 months of her employment, the increase in the number and significance of these errors began in August, before she had begun scheduling Dr. Sulman's surgeries.

It should also be noted that the consequence of the employee's errors, occurring as they did in a health care setting, were significant, and this significance was magnified by the fact that the affected patients were children.

Unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of her or, in the alternative, with a very high degree of negligence. Lazarus v. Aurora Health Care Inc. (LIRC, Jan. 8, 1997); Banach v. Eagle River Super 8 Motel, UI Hearing no. 02200553RH (LIRC July 11, 2002); Smith v. Monarch Corp., UI Hearing No. 03606737MW (LIRC May 4, 2004).

Here, the administrative law judge did not credit the employee's testimony that she was consistently working to the best of her ability. There is no persuasive reason to overturn this credibility determination, particularly where the employee had periods of her employment, including weeks after Dr. Sulman's scheduling was added to her duties, when she performed satisfactorily. Also relevant is the fact that the employee, after she began using the checklist tool she and her supervisor developed, would check off a task on the checklist when, in fact, she had not completed it. This reveals a high degree of carelessness or perhaps even willfulness by the employee.

In contrast to those cases in which the commission has not found misconduct based on unsatisfactory quality/quantity of work, the employee here did repeat specific errors after counseling (see, Smith, supra.);  did at times demonstrate the ability to satisfactorily perform her job on a consistent basis (see, Van Lanen v. Aurora Medical Group, Inc., UI Hearing No. 06402787GB (LIRC Feb. 28, 2007); Merfeld v. Capitol Ford Sales, Inc., UI Hearing No. 04000310MD (LIRC Nov. 12, 2004)); and did not establish mitigating factors such as possible attribution to other workers or distraction by the assignment of other duties (see, Mankin v. Baptistas Bakery, Inc., UI Hearing No. 05606641MW (LIRC March 3, 2006)).

Instead, as the administrative law judge found, the record shows that the employee failed to make a serious and consistent effort to improve her performance in those areas in which the employer provided frequent counseling and retraining. See, Silvia v. Ameritech Information Systems, Inc., UI Hearing No. 98606805MW (LIRC April 15, 1999) (employee's failure to make serious effort to improve accuracy of his work despite warning was misconduct); Williams v. E & B Insulation LLC, UI Hearing No. 99200129LX (LIRC May 6, 1999) (lack of effort to improve performance misconduct); Banach, supra. (failure to adequately explain continuing deficiencies in carrying out duties admits able to perform was misconduct).



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