CASSANDRA L JACKSON, Employee

MILWAUKEE HEALTH SERVICES INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an appeal tribunal decision in this matter dated January 27, 2012. The appeal tribunal decision found that in week 47 of 2011, the employee had been discharged for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The employee timely filed a petition for commission review of the appeal tribunal decision. After careful review of the petition and of the record submitted at the hearing held in this matter on January 27, 2012, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses at the hearing, the commission hereby reverses the appeal tribunal decision and makes the following:

The employee worked for approximately seven years as a medical assistant for the employer, a healthcare center. She had accumulated a number of attendance violations and on February 24, 2011, the employer suspended her for five days and placed her on a last chance agreement that required her attendance to improve. The agreement indicated that any violation within the next 90 days would result in discipline that could include termination. The employee's attendance record did show marked improvement for the subsequent four months, but it deteriorated during July through October 2011, during which time she accumulated over 30 instances of tardiness, and two days of absence. The reasons for the two absences were not addressed at the hearing held in this matter.

On October 24, 2011, the employer placed the employee on another 90-day last chance agreement, again noting that noncompliance could lead to termination. On November 9, 2011, the employee attempted to drop off her seven-year-old daughter at a childcare facility operated under the PACE program prior to reporting to work. Due to a bureaucratic error, she was told her eligibility for this childcare had expired, and the facility would not take her child that day. When this happened she thought about taking her daughter to the child's grandparents, who lived near the employer's facility, but she realized this would make her late to work. So instead, she went to work with her daughter thinking that she could call someone from there to come and pick up the child. She arrived and punched in at 4:54 p.m., six minutes prior to her 5:00 p.m. scheduled starting time. She told her supervisor, Tracy Kimball, what had happened, and Kimball agreed to allow her to drive her daughter to the grandparents and then return to work. The employee left immediately, forgetting to punch out, and after she dropped off her daughter she returned and worked the rest of her shift. She was away from work for approximately 30 minutes while dropping off her daughter.

Before the employee left to drop off her daughter, Kimball indicated to her that she would e-mail the employer's time scheduler to inform that individual that the employee's timecard would need to be adjusted. The employee mistakenly assumed that Kimball knew she had punched in when she arrived at work with her daughter, and expected the time scheduler to subsequently contact her to discuss how her timecard should be adjusted for the time she took to drop off her child. She made this assumption because the employer's time scheduler typically contacts the worker when the scheduler knows an adjustment must be made to the worker's timecard, rather than the worker first contacting the scheduler.

Members of the employer's management subsequently reviewed this incident and discharged the employee on November 16, 2011, prior to any contact between the scheduler and the employee. The discharge notice cited the employee's prior attendance record and what the employer considered to have been a violation of the last chance agreement on November 9, 2011. The employer's witness at the hearing, Jessica Zuercher, indicated that the discharge was based in substantial part on the employer's inference that the employee had intended to cheat the employer by failing to report the fact that she had clocked in when first arriving on November 9, 2011, but failed to clock out for the time she was bringing her daughter to the grandparents' residence.

The employee's tardiness record prior to November 9, 2011, was certainly poor. However, on October 24, 2011, the employer chose not to discharge her, but instead placed her on a second last chance agreement. The commission has consistently determined that after discipline has been imposed for accumulated violations, there must be a culpable, subsequent incident in order to justify a finding of a discharge for misconduct. Reginald B. Kellum v. Wisconsin Porcelain Co., UI Hearing No. 05005484MD (LIRC April 13, 2006); Brett E. Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Rosie L. Pierce v. The Kelch Corp, UI Hearing No. 00602402MW (LIRC May 31, 2000); VL Rash, Jr. v. Maynard Steel Casting Co., UI Hearing No. 00606694MW (LIRC December 5, 2000).

The only incident subsequent to October 24, 2011, was the incident of November 9, 2011, and that incident precipitated the employee's discharge. The employee cannot be faulted for her childcare facility's error that resulted in her dilemma of what to do with her daughter on such short notice. The employer faulted the employee for what it apparently believed was a dishonest attempt to ignore changes to her timecard that would reflect her time away from work. However, consistent with the employee's testimony, which was not rebutted by any competent, firsthand evidence in the record, the employee did not attempt to dishonestly report her work time. Accordingly, the employer failed to establish that the employee was discharged for misconduct connected with her employment.

The commission therefore finds that in week 47 of 2011, the employer discharged the employee but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment benefits beginning in week 47 of 2011, if otherwise qualified.

Dated and Mailed April 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In consultation with the commission, the administrative law judge indicated that he did not believe the employee's testimony that she expected the employer's time scheduler to contact her to adjust her timecard for her temporary absence on November 9, 2011. However, the employee was the only individual at the hearing held in this matter who had firsthand knowledge of what occurred on November 9, 2011. Tracy Kimball was fully aware of the fact that the employee left the employer's facility to take her daughter to stay with her grandparents. Accordingly, it is unlikely that the employee could have expected to misreport her time and not have Kimball respond. Kimball was not at the hearing to provide any evidence in the matter. Furthermore, after the employee testified that it was the employer's normal procedure to have the time scheduler contact the worker when the worker's time needed to be adjusted, Jessica Zuercher did not rebut that very specific testimony. Given the evidence presented, the employee's testimony was not contradicted by anything other than hearsay testimony and hearsay documents. Neither the administrative law judge nor the commission may make findings based solely upon hearsay evidence. See Wis. Admin. Code. § DWD 140.16(1); and Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 56, 278 Wis. 2d 111, 692 N.W.2d 572.

jacksca : 185 : 5

cc: Milwaukee Health Services (Milwaukee, WI)
Continental, Inc.

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uploaded 2012/09/12