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

TRACY R STORCH, Employee

AMERICAN TV OF MADISON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09003644MD


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 19 of 2009, 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 January 20, 2010
storctr . usd : 115 : 1 MC 605.05 MC 605.09 PC 714.10

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked less than one year as a sales representative for the employer, a retailer.

During her tenure, the employee was tardy 15 times for periods ranging from 6 minutes to almost 8 hours; and absent 5 days. The employee attributed 8 instances of tardiness to sleep apnea/narcolepsy, 4 to traffic, 1 to personal issues, 1 to car trouble, and the final instance to her decision "to say goodbye to her horse." The employee attributed 2 of her absences to cold/flu, 1 to a stomach illness, 1 to an unspecified illness, and 1 to a reason she was unable to recall.

The employer provided written attendance warnings to the employee on 9/8/08, 1/17/09, and 3/2/09. The employee concedes that, when she received the 3/2/09 warning, the employer told her that she had accumulated 11 attendance points (which was 4 more than the 7 specified in the employer's policy as justifying termination), and she would be terminated if she accumulated another attendance point.

On 3/2/09, the employee disclosed to the employer for the first time that she had been diagnosed with sleep apnea/narcolepsy to which she attributed certain of her tardiness. On 3/2/09, the employer provided the employee with FMLA(1) forms and directed her to have them completed by a physician and returned to the employer by 3/16/09. During the subsequent 2 months of her employment, the employee never provided any completed medical forms to the employer.

Prior to the hearing, the department mailed a UCB-474 form to the employee with instructions to have it completed by her treating physician prior to hearing. The employee did not provide a completed form to the department before or during the hearing. At the July 27 hearing, the ALJ provided the employee a period of four days within which she could submit a completed UCB-474 form after the hearing date and have it incorporated into the hearing record, but the employee failed to do so. What the employee provided instead were uncertified medical records from 1980 in conjunction with a written statement that she had been unable to have the UCB-474 form completed. The employee had a period of 5 months (3/2/09-7/31/09) to provide a physician's statement regarding her medical condition to the employer and then to the ALJ. The employee testified at hearing that she had a medical appointment on May 28, 2009, for treatment/assessment of her sleep apnea/narcolepsy condition, and that her physician's office had advised her that the UCB-474 form had been completed. Even if, as she represents, her treating physician passed away, records of his/her examination/treatment of her would continue to be available. The employee has had sufficient opportunity to provide medical verification of her condition, and the commission declines to grant her request for more time to provide it.

The employee received a verbal warning when she was tardy on 3/30/09, but was not terminated that day because she had accumulated only a half point since the 3/2/09 warning.

Despite this final warning, the employee decided on 4/28/09 that she would stay at home to spend time with the horse she was selling rather than report to work, and was tardy by 3 hours as a result

The employee was discharged due to unsatisfactory attendance on 5/5/09.

The ALJ correctly held that Wis. Stat. § 108.04(5g) would not apply here. The remaining question then is whether the employer sustained its burden to prove misconduct.

It is undisputed that the employee was aware on and after 3/2/09 that her job was in jeopardy, and that she would be terminated if she accumulated another attendance point.

Although the employee represents that approximately half her tardies were attributable to sleep apnea/narcolepsy, when provided the opportunity to provide medical verification of this both to the employer and at hearing, she failed to do so.

In addition, 7 of her 15 tardies, and at least 1 of her absences, were due to reasons which were not valid or which the employee was unable to provide.

Finally, and most importantly, the employee, aware that she had an unacceptable number of tardies/absences due to illness and other reasons, and aware that her job was in jeopardy as a result, failed to make an effort to report to work whenever possible. As the commission has held, where an employee has a significant number of attendance failures for valid reasons such as illness, it is her responsibility to minimize the number of attendance failures for not valid reasons, and her failure to do so demonstrates a disregard of the employer's interests sufficient to sustain a conclusion of misconduct. See, James v. CI Dell Plastics, Inc., UI Hearing No. 01607536MW (LIRC March 13, 2002); Mancl v. Merry Maids, UI Hearing No. 03200419EC (LIRC Sept. 25, 2003); McMorris v. Deluxe Media Services, LLC, UI Hearing No. 06600579RC (LIRC April 21, 2006).

Here, the employee, aware on April 28, 2009, that her attendance record was unsatisfactory and the accumulation of another half an attendance point would result in her termination, chose to stay at home to spend time with the horse she was selling rather than report to work, and, as a result, was tardy by 3 hours. The commission agrees with the ALJ that this was not a valid reason, demonstrated a disregard of the employer's interests, and constitutes misconduct.

The commission notes that certain of the information relied upon by the employee in her petition, including that relating to her request for a "set schedule," and her representation that her supervisor had told her on April 28 that her 3-hour delay in arriving at work would "not be a problem," are not set forth in the hearing record, and were not relied upon in reaching this decision as a result.



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uploaded 2010/01/26


Footnotes:

(1)( Back ) Family and Medical Leave Act.