THOMAS R BUDDE, Employee

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

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed March 6, 2008
buddeth . usd : 145 : 1  MC 657

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

In its petition for commission review, the employer argues that it would like to appeal the ALJ's decision to award benefits to the employee. The employer argues that the employee was discharged after it was determined that he failed to perform the requirements of his position, provided false information in log books documenting his contact with segregation offenders and failed to respond to his pager and provided false information to his supervisors when they investigated the incident.

The employer argues that at the hearing, it presented the testimony of Dr Tammy Zimmel, the psychologist supervisor, as well as the employer's human resource director. The employer indicated that it made this decision in an effort to protect the identity of its clients. The commission notes that information that may have helped the employer prove its case would be likely to contain either personal or protected heath information about the employer's clients. There are numerous employers in similar situations, for example, hospitals, clinics and nursing homes are all required to safeguard medical information of clients. This extra protection for the clients can make it more challenging to present firsthand evidence in for example, a situation where the employer alleges that the worker has been guilty of abuse or neglect of clients. The employer will often be unable to present the testimony of the patients or residents. Generally an employer in such a situation will present the records but will redact any identifying information.

For example, with respect to the allegation that the employee failed to respond to the pager, the employer's comments that the employee was paged numerous times was hearsay, as the employer failed to present the testimony of the individuals who allegedly attempted to page the employee. Those individuals were co-workers rather than clients. The employee did make an admission, but his testimony was that there was only one page and that he saw that in the morning.

The employer also alleged that the employee stopped performing his rounds. The employee explained at the hearing that the employee was never warned about failing to perform the rounds, and that he was unable to do all of his duties so he determined which were the most critical. As such, he was not aware that the employer considered this particular aspect of his job to be so critical he could be discharged for failing to do it. The employer did not demonstrate that the employee was intentionally shirking his duties, and if a more competent person could perform all aspects of the job, this does not automatically result in a finding that the employee was purposely failing to perform his work. He may have simply been less competent than an ideal candidate. The employer did not instruct him to do his rounds or fill in his log book at the time he made the rounds until the employer issued a letter of investigation. The employee then attempted to copy the information from his notes into the logbook but made some transcription errors. The employer did allege that the employee had overlapping times, which would give rise to an inference that he was falsifying the logs. The employer failed to bring copies of these logs to the hearing. While written accounts by witnesses who are not at the hearing to testify, for example, a written report about an argument between workers, is hearsay and the commission could not make a finding based solely upon that, in this case, the employer alleged that the records were logbooks that were filled out by the employee that contained serious discrepancies. In this case, the logbooks were the basis of the employer's conclusion that the employee was falsifying the logs, and the employer should have brought this documentation to the hearing, rather than simply have a person who saw these logbooks testify.

Finally, the employer argues that the employee had prior warnings for unrelated performance problems that informed him that any future failure in work performance could result in his discharge. However, the employee had not been warned specifically about the logbooks and was never given the opportunity to correct the behavior and continue his employment. When the employer brought the importance of the logbooks to his attention, the employee attempted to rectify the problem by filling out the books. Under the circumstances presented in this case, the employer failed to establish that the employee's discharge was for misconduct connected with his work.

ANN L. CRUMP, Commissioner, (dissenting):

I respectfully dissent from the majority opinion in this case.

The employee worked for about four and a half years as a psychologist associate at the Racine Youthful Offender Correctional Facility. The facility housed 14 to 24-year-old offenders. The employee was, by virtue of his employment, responsible for the clinical needs of the clients in this facility.

The employee worked flexible hours amounting to a work schedule that consisted of a Monday through Friday schedule with Thursdays scheduled as off. He was familiar with the policies and rules of the Correctional Facility.

The employee was on call and failed to answer either his pager, provided by the facility or his cell phone, also provided by the facility. His reasons for not answering were mixed. He either did not hear his pager/cell phone or he claimed they were out of order. In any event, he did not respond to emergencies when required.

In addition, despite being familiar with the rules and the purpose of documenting client contacts in logs provided at the place of employment, the employee consistently failed to complete these logs in a timely fashion. When the employer brought this to his attention, he filled out the logs which were weeks out of date, with information that the employer insists could not be accurate. In one case the employee claimed to be in two different buildings at the same time.

In the past, the commission has consistently held that "those who provide direct care in nursing homes or other comparable facilities to a very high standard, due to the fragile and vulnerable population that they serve." Sayre v. Applewood Homes, Inc. (LIRC, April 29, 2004). The commission has even found that a single instance of sleeping was misconduct in a daycare setting. Washington v. LIRC and Meritus Education Resources Co. Case No. 97-CV-010214 (Milwaukee Co. Cir. Ct. May 15, 1998). Generally an isolated instance of sleeping, with no prior warnings and no evidence to demonstrate that the employee intentionally decided to nap instead of working, would not be considered misconduct.

Similarly, Wis. Admin. Code § 132.05(2) states that "Discharge of an employee by an employing unit for misconduct connected with his or her employment under 108.04(5) may include the discharge of an employee by a health care facility for abuse of a patient. Abuse of a patient includes, but is not limited to:

(b) Any gross or repeated failure to provide treatment or care without good cause which reasonably could adversely affect a patient's health or well-being;"

This is a case of a critical employee who has a Masters Degree in psychology and who holds the position of a Psychological Associate, and who renders care to children or young adults with emotional problems. He does not respond to pagers or telephone calls despite being on call. He willfully failed to complete the contact logs as required by the employer, after acknowledging the importance of the logs in the prevention of suicides. The employer, in my view, has made a clear case of willful misconduct.

The majority does not dispute the information but feels that the employer did not present the case with all the evidence it had available to it. Therefore, they have granted unemployment insurance benefits.

I respectfully disagree with that decision and would apply a higher standard to the employee given his position as a caretaker at a health care facility that houses youthful offenders.

/s/ Ann L. Crump, Commissioner

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