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

ROCHELLE N IVY, Employee

CAMEO CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11603943MW


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 eligible for benefits, if otherwise qualified.

Dated and mailed December 16, 2011
ivyro . usd : 102 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the adverse appeal tribunal decision which held that the employee's discharge was not for misconduct connected with the employment. In its petition for commission review, the employer provides additional information not presented at the hearing. The commission's review must be based on the evidence submitted at the hearing which has already been held. Wis. Admin. Code
§ LIRC 1.04. As such, the commission will not address or consider the factual assertions made by the employer which are not supported by the record.

The employee worked for approximately four years and two months as a certified nursing assistant for the employer, a skilled nursing facility. The employer discharged the employee on March 10, 2011 (week 11), for sleeping on the job. The employer has a written policy which provides that workers will be discharged if they sleep during their scheduled shifts. The employee was aware of this zero tolerance policy for sleeping.

On March 9, 2011, the employee dozed off while working alone with a group of residents who had a high risk of falling. The employee denied that she fell asleep intentionally. The assistant director of nursing observed the employee sleeping, unsuccessfully attempted to wake her by calling out her name and then "went to get another nurse to verify that the employee was sleeping." The administrative law judge asked the assistant director of nursing: "How long would you say you observed her sleeping from the time you saw her until you got your witness and she woke up?" The assistant director of nursing responded:

Oh, I don't know, I . . . five . . . 10 minutes at the most as I walked down hall, walked back to the falls group, went and found somebody and came back. And that's just . . . I mean I didn't time it, I just . . . that would be a guess.

The fact that the assistant director of nursing chose to leave a sleeping worker with the "high-risk falls group" for the sole purpose of obtaining a witness depreciates the seriousness of the employee's actions and constitutes a mitigating factor in this case.

The human resources representative testified that it is the job of the staff member assigned to the "falls group" to keep the residents "occupied" with activities, such as puzzles, magazines, radio and television. There is no indication in the record that the residents were not "occupied" while the employee briefly dozed. Moreover, the human resources representative testified that the discharge decision was "a very hard decision to make because Rochelle had been there for a long time, but we do have a zero tolerance on sleeping and it was felt that we couldn't make an exception for her because it is on our zero tolerance policy." It appears that the employer would not have discharged the employee had its policy included progressive discipline rather than "zero tolerance." The employee had never been previously reprimanded for sleeping on the job.

The commission has addressed the issue of workers who fall asleep while on duty in the past. The commission began differentiating between those workers who intended to sleep while on duty versus those who inadvertently fell asleep in Aiken v. Village of Elm Grove and LIRC, Case No. 786-525 (Wis. Cir. Ct. Milwaukee County March 10, 1988). In Aiken, the employee operated heavy equipment and was caught multiple times sleeping on the job. The commission found misconduct because the employee felt drowsy just prior to the final incident, drove the equipment into a concealed area and then went to sleep, as opposed to inadvertently falling asleep. The circuit court affirmed because the employee's actions on the final occasion were deliberate.

The commission did not consistently follow the reasoning set forth in Aiken until the Dane County Circuit Court issued its decision in McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., Case No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994), aff'd, Case No. 95-0234, unpublished slip op. (Wis. Ct. App. Feb. 29, 1996). In McKibbin, the employee was an over-the-road truck driver who "fell asleep at the wheel of his rig. It rolled over and damage in the amount of $19,000 resulted. He was discharged. [The commission] found misconduct, reasoning that the employee's falling asleep at the wheel was negligence of such a degree that it would constitute misconduct despite the fact that it was a single incident." The circuit court reversed and cited a Wisconsin Supreme Court decision, Parchia v. Parchia, 24 Wis.2d 659, 668, 130 N.W.2d 205 (1964), which found "that falling asleep at the wheel of a vehicle does not automatically establish gross negligence, and that evidence that the driver had been aware before the incident of drowsiness or intermittent sleeping was also necessary." As a result, the circuit court found that McKibbin's actions did not amount to gross negligence.

The commission has cited the McKibbin case and its legal reasoning in subsequent decisions involving manufacturing workers, grocery store stockers and other workers who do not provide care to vulnerable populations. On February 24, 2000, the commission issued its decision in Jackson v. Snap On Tools Mfg Co., UI Dec. Hearing No. 99607424MW, which held:

Rule violations which may justify discharge, do not always amount to misconduct. Sleeping on the job in cases of which one of the inherent responsibilities is to be alert and a failure to do so will create an imminent threat to the safety and welfare of person and property may amount to misconduct even where there is only a single instance of sleeping. If that degree of responsibility is not present, "[I]n order to find misconduct in cases of sleeping on the job the employer must demonstrate that the employe acted intentionally." (Citation omitted).

This case makes a distinction between workers based upon their job duties. While it appears to support a bright line rule for misconduct per se when a worker who is responsible for the safety of person and property falls asleep, the commission has declined to adopt such a rule.(1) Instead, the commission looks to the particular facts in each case prior to making the ultimate finding whether a worker's actions amounted to misconduct connected with the employment. This is abundantly clear when reviewing the commission's decisions involving security guards, truck drivers and other workers who are responsible for the "safety and welfare of . . . property[.]" See, e.g., Santini v. Akal Security Inc., UI Dec. Hearing No. 06000114JF (LIRC July 7, 2006) (misconduct where a security guard at a federal courthouse intentionally concealed himself and fell asleep during his shift); Neubauer v. Milwaukee School of Engineering Corp., UI Dec. Hearing No. 96607193MW (LIRC Feb. 18, 1998) (no misconduct where a dispatcher responsible for answering radio calls from patrol officers and responding to alarms unintentionally fell asleep on three separate occasions during her employment). Similarly, the commission has also looked to the facts in cases involving workers who fall asleep while caring for vulnerable populations, such as the elderly or children. Deciding cases based upon the facts does not demonstrate inconsistency on the part of the commission; cases with analogous facts have been treated the same.

The facts of the present case are akin to those in Le Breck v. Home Instead Senior Care No. 149, UI Dec. Hearing No. 03402554GB (LIRC April 13, 2004), and Ford v. AC Management LLC, UI Dec. Hearing No. 09201529WU (LIRC Nov. 20, 2009). In Le Breck, the employee was a caregiver/companion for clients of the employer, a non-medical in-home care provider. On May 16, 2003, the employee reported to the employer that she had fallen asleep while sitting with a client who "had Alzheimer's disease and had problems with wandering." On June 4, the employee again self-reported that she had fallen asleep while sitting with the same client on May 28, 2003. The commission, in finding no misconduct, stated: "[T]he employee did not intend to fall asleep on May 16 or May 28 and therefore did not demonstrate willful disregard of the employer's interests. The commission further finds that the employee's conduct did not demonstrate more than ordinary negligence on two occasions." (Emphasis added).(2)

In Ford, the employee worked as a caregiver for the employer, an assisted living facility. She dozed off for about 10 minutes while sitting in the kitchen reviewing a medication record. A coworker awakened her. The commission found no misconduct and stated: "The employee did not intend to fall asleep and engaged in no conduct that would render sleeping on the job likely." (Emphasis added). The commission further stated:

The appeal tribunal found misconduct on the theory that employees who engage in direct patient care are held to a high standard due to the fragile and vulnerable populations they serve. However, in deciding if an employee who falls asleep on the job has engaged in misconduct, the emphasis is not on the employee's position description, but on whether he or she deliberately went to sleep or acted with such a high degree of negligence that his or her conduct could be classified as gross negligence. Here, the employee did not intend to sleep, but inadvertently dozed off while sitting down to read medication records. The mere fact that the employee worked with vulnerable clients does not render her actions misconduct. (Emphasis added).

While the commission has found misconduct at times where a worker falls asleep while caring for a vulnerable population, the present case is distinguishable on the facts. In Washington v. Meritus Education Resources Co., Case No. 97-CV-010214 (Wis. Cir. Ct. Milwaukee County May 15, 1998), the employee was "sitting on a couch, kind of cuddled in the corner[,]" while responsible for a classroom of four and five-year olds. (Emphasis added). In Cannon v. Childtime Children's Centers, UI Dec. Hearing No. 04608505MW (LIRC Jan. 13, 2005), the employee "was lying on the floor with her eyes closed while she alone was responsible for a room full of young children." (Emphasis added). In the present case, the employee did not engage in conduct that would render sleeping on the job likely, such as cuddling in the corner on a couch or lying on the floor.

In Thomas v. San Camillo Inc., UI Dec. Hearing No. 01608885MW (LIRC May 15, 2002), the employee worked as a residential aide and certified nursing assistant for the employer, a residential care facility for the elderly. The employee was assigned to the Alzheimer's/Dementia unit. A maintenance worker observed the employee leaning back in a chair with her eyes closed for one and a half to two minutes. The commission stated: "Although the instance here was isolated, the employee's job duties as a CNA on an Alzheimer's/Dementia unit required her to be alert at all times and the employee's failure to do so created an immediate threat to the safety and welfare of the resident in the room with her as well as the other residents on the unit. Furthermore, there was no proof of mitigating circumstances regarding the employee's conduct." (Emphasis added). Therefore, the commission found misconduct. In contrast to Thomas, mitigating circumstances exist in the present case; the assistant director of nursing chose to leave the employee with the residents despite her belief that the employee was sleeping. This factual dissimilarity coupled with the employer's admitted reluctance to discharge the employee differentiates the Thomas case from the case at issue.

The commission found misconduct in Opara v. Marian Franciscan Center Inc., UI Dec. Hearing No. 02611358MW (LIRC May 30, 2003), where the employee, a certified nursing assistant, fell asleep because she had "removed herself from the immediate vicinity of the eight residents for whom she was responsible that night, and was discovered by her supervisor with her head down on a table and the lights off." (Emphasis added). The employee in the present case inadvertently fell asleep while performing her job duties. She made no attempt to conceal herself, nor did she engage in any conduct that would render it likely that she would fall asleep.

Although the commission found misconduct in McLean v. Genesis Behavioral Services Inc., UI Dec. Hearing No. 03608636MW (LIRC May 7, 2004), it stated: "While dozing off once during a shift might not amount to misconduct, the employee in this case dozed off three times." (Emphasis added). The employee had been previously warned for similar behavior prior to his discharge. In the case at issue, the employee dozed off once during her shift, had never been previously warned, and the assistant director of nursing was incredibly vague when testifying about the length of time.

In light of the commission's unwillingness to find misconduct per se in cases involving a worker who falls asleep while caring for a vulnerable population, the crucial question becomes whether the employee's unintentional actions amounted to gross negligence.

After a careful and thorough review of the present case and the commission's past decisions on this issue, the commission concludes that the employee's actions do not rise to the level of gross negligence. There is no indication in the record that the employee was neglecting her duties at the time she fell asleep. She did not attempt to conceal herself, nor did she engage in any conduct that would render sleeping likely. Although the employee was responsible for caring for a vulnerable population, her actions in unintentionally dozing off for a brief period did not create an immediate threat to the safety and welfare of the residents. The assistant director of nursing clearly felt comfortable letting the employee sleep while she went to retrieve another worker to witness the policy violation. If the employee's actions truly exposed the residents to an immediate risk of harm, it is counterintuitive that the assistant director of nursing would leave the residents unattended while the employee dozed.(3) For the foregoing reasons, the commission agrees with the findings of the administrative law judge and affirms the appeal tribunal decision.


LAURIE R. MCCALLUM, Commissioner (dissenting):

I respectfully dissent from the majority's decision.

Misconduct is not a standard that is imposed in a vacuum-certain actions have been held to constitute misconduct in some contexts but not in others.

One of the factors reviewed to determine whether a particular action satisfies the misconduct standard is the potential consequence of the action to the employer or its clients. See, e.g., Barnes v. Methodist Manor, Inc., UI Dec. Hearing No. 03603466MW (LIRC Jan. 7, 2004); Kashevarof v. Milwaukee Brewing Co., UI Dec. Hearing No. 01609424MW (LIRC Feb. 28, 2002); Quinn v. Children's Pantry Family Resource Center, Inc., UI Dec. Hearing No. 09605631 (LIRC Jan. 7, 2010).

In regard to sleeping on the job, the commission, in Jackson v. Snap On Tools Mfg Co., UI Dec. Hearing No. 99607424MW (LIRC Feb. 24, 2000), articulated as follows the distinction between sleeping which constitutes misconduct and that which does not, based upon the potential consequences of the worker's actions:

Rule violations which may justify discharge, do not always amount to misconduct. Sleeping on the job in cases in which one of the inherent responsibilities is to be alert and a failure to do so will create an immediate threat to the safety and welfare of person and property may amount to misconduct even when there is only a single instance of sleeping. If that degree of responsibility is not present, "(I)n order to find misconduct in cases of sleeping on the job the employer must demonstrate that the employe acted intentionally." (citation omitted)

The commission applied this principle, as relevant here, in Thomas v. San Camillo Inc., UI Dec. Hearing No. 01608885MW (LIRC May 15, 2002) (misconduct found where certified nursing assistant on Alzheimer's/Dementia unit in skilled nursing facility was observed for two minutes with her eyes closed, because her responsibilities required her to be alert at all times and her failure to do so created an immediate threat to the safety and welfare of the residents for whom she was responsible); Sanderson v. FSQ Inc., UI Dec. Hearing No. 03607578MW (LIRC Feb. 3, 2004)(misconduct found where certified nursing assistant "dozed off" while attending to a nursing home patient); Cannon v. Childtime Children's Centers, UI Dec. Hearing No. 04608505MW (LIRC Jan. 13, 2005)(misconduct where employee laid on floor with her eyes closed while responsible for a group of young children.

In addition, the circuit court affirmed a commission decision in accord in Washington v. LIRC and Meritus Education Resources Co., Case No. 97-CV-010214 (Wis. Cir. Ct. Milw. Co., May 15, 1998) (misconduct found for a single incident of sleeping where employee alone was responsible for a class of four- and five- year-old children).

In each of these cases, misconduct was found because a potential consequence of the employee's actions was the immediate endangerment of the safety of children or vulnerable adults.

In contrast, the commission, in regard to circumstances which do not implicate an immediate risk to the safety or welfare of others, has required that intent on the part of the employee to engage in sleeping be established. See, e.g., Ludenia v. Moodys, Inc, UI Dec. Hearing No 01200125NR (LIRC February 8, 2002); Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC December 20, 2000).

At first blush, the decision in Le Breck v. Home Instead Senior Care No. 149, UI Dec. Hearing No. 03402554GB (LIRC April 13, 2004), cited by the majority in its decision, appears to run counter to the principle articulated in Jackson, supra. However, in Le Breck, upon learning of the employee's first self-reported instance of sleeping, the employer did not discharge the employee, or apparently impart to her that she would be discharged for future sleeping incidents, but instead offered suggestions to help the employee stay awake. This tends to show that, for reasons that are not apparent from the record(4), the employer did not regard the circumstances surrounding the employee's sleeping as having presented a significant and immediate threat to the safety and welfare of its patients. In such a case, as Jackson stated, the intent of the employee would then be a relevant inquiry.

The facts in Ford, also relied upon by the majority in its decision, are distinguishable from those at issue here. In Ford, the third shift employee was not interacting directing with patients when she fell asleep, and was apparently not alone in overseeing the sleeping patients since she was awakened by a coworker. Again, the employer failed to establish that the employee's actions presented an immediate threat to the safety and welfare of the patients present in the facility, within the meaning of Jackson, supra. This is very different than the facts at issue here in which the employee was alone responsible for a group of particularly vulnerable patients, all of whom were susceptible to falling; was interacting directly with these patients at the time she fell asleep; and was asleep for at least five minutes.

Finally, the majority relies upon the actions of the assistant director of nursing in excusing the employee's actions, and in concluding that the employer did not regard the employee's actions as presenting an immediate threat to the safety and welfare of the "falls" patients for whom she alone was responsible at the time.

However, the actions of the assistant director of nursing, under the circumstances, were also negligent, and the negligence of one worker does not excuse the negligence of another but, instead, as here, compounds it.

Moreover, it is clear from the record, given the evidence as to the purpose of the employee's sleeping policy and its consistent enforcement of that policy, that the employer regarded sleeping on the job by those engaged in direct patient care as creating an immediate threat to the safety and welfare of these patients and, accordingly, sufficiently consequential to justify immediate discharge. As a result, it is not necessary or even instructive to examine the actions of the assistant director of nursing to determine the employer's attitude in this regard.

In my opinion, applying the principle articulated in Jackson, supra., to the facts of this case, I would reverse the decision of the administrative law judge and conclude that the employee engaged in misconduct.


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Footnotes:

(1)( Back ) While the majority understands the dissent's concern about the safety of vulnerable populations, a finding of misconduct per se in such cases would be diametrically opposed to the Wisconsin Supreme Court's holding in Parchia, supra, as set forth in McKibbin, supra.

(2)( Back ) The dissent notes that the employer in LeBreck did not regard the employee's sleeping as a significant and immediate threat to the safety of its patients. This is consistent with the employer's actions in the present case; a member of management knowingly left the sleeping employee with the residents and the employer was admittedly reluctant to discharge the employee for her conduct.

(3)( Back ) The dissent maintains that the behavior of the assistant director of nursing is irrelevant to the misconduct determination in this case because the employer clearly considered the employee's actions to be sufficiently egregious as to constitute an imminent threat to the safety and welfare of the residents. The majority respectfully disagrees with the dissent's characterization of the evidence. The juxtaposition of the employer's admitted difficulty in reaching a discharge decision along with a member of management leaving the sleeping employee with the residents does not support the dissent's argument. The commission is constrained by the record and there is no indication that the employer believed the assistant director of nursing to be negligent in her duties. In fact, the employer presented the assistant director of nursing as its primary witness. The dissent's argument requires one to infer facts not in the record and amounts to conjecture.

(4)( Back ) It is difficult to determine the specific circumstances in Le Breck because the decision does not indicate the length of time the employee was asleep, the activities in which the patient was engaged at the time, or the provisions of the employer's policies or the manner in which it had been enforced.