DANIELLE R DOMMISSE, Employee
NEWER BEGINNINGS LLC, 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(1), and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The employee began working as a caregiver for the employer, a provider of home support and living skills, on December 9, 2010. The employer discharged her on October 19, 2011 (week 43).
A discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Wis. Stat. § 108.04(5). Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).
The issue before the commission is whether the employee's actions, which led to her discharge, constituted misconduct connected with her employment.
One of the employee's clients was Jeremy, a 32-year-old man with traumatic brain injury. Jeremy had the mental age of an eight-year-old. The employee and Jeremy were distant cousins. For most of her employment, the employee cared for Jeremy for four hours each Wednesday evening. While together, the employee and Jeremy frequented establishments such as McDonald's, Burger King, Big Apple Bagels, Starbucks, a local coffee shop, and a bowling alley.
The employer has a gifting policy. Under the policy, no employee may give anything of value to a client, and no employee may accept anything of value from a client. Employees and clients may not pay for items for each other. Any violation of the policy can be grounds for immediate termination based solely on the employer's decision as to the severity of the matter.
In September 2011, Jeremy's mother asked the employee to care for Jeremy two evenings per week, rather than one. The employee received permission from the employer to work with Jeremy an extra evening each week.
On October 19, 2011, the employer informed the employee in person that she was being released from her position. The employee had not previously been subject to discipline. She had received a raise in or about June 2011, after her first six months of work. The employee was upset by the news of her discharge and left the meeting with the employer before any discharge papers were given to her.
The employee initiated her claim for unemployment benefits on October 19, 2011. She reported that no reason was given to her by the employer for her discharge.
The employer informed the department that it discharged the employee for manipulating and stealing from a developmentally disabled client and for being mentally abusive to that client. The department determined that the employee was discharged for misconduct. The employee appealed.
A telephone hearing was scheduled for Thursday, January 26, 2012. Sadly, Jeremy died the Saturday before the hearing. The employer informed the ALJ of Jeremy's death but did not ask that the matter be postponed. The employer did not indicate that it had intended to call Jeremy as a witness. The employer's chief witness was identified as Jeremy's mother, who testified briefly. The business' co-owners and two of Jeremy's caregivers also testified on behalf of the employer.
The employer has the burden of establishing that an employee's discharge was for misconduct connected with the employment. An employer meets this burden by introducing competent and persuasive evidence at hearing of the employee's actions that led to discharge through witnesses who can offer firsthand testimony as to those actions. Here, the employer contended that the employee was discharged because she was mentally abusive to Jeremy and stole from him.(2) Theft is a violation of the criminal law, so, in the civil and administrative context, theft must be proven by clear, convincing and satisfactory evidence. Kuehn v. Kuehn, 11 Wis. 2d 15 (1960); Ziegler v. Hustisford Farmer's Mut. Ins. Co., 238 Wis. 238 (1941); Bohringer v. Grand Royale & Regency Resort, UI Dec. Hearing No. 05200559RH (LIRC Sept. 16, 2005). This is the so-called middle evidentiary burden, as opposed to a preponderance of the evidence, the usual civil and administrative evidentiary burden. Banks v. Value City Furniture, UI Dec. Hearing No. 07602749MW (LIRC Aug. 27. 2007).
The ALJ found that the employee had taken advantage of her relationship with Jeremy by being inappropriately familiar with him and by allowing him to make purchases for her at Starbucks. The ALJ based his findings on the statements of Jeremy's mother and caregivers, whom the ALJ acknowledged were not firsthand witnesses to the events for which the employee was ultimately discharged. Their written statements and testimony were based on information they had received from Jeremy, who told all three individuals he had bought the employee coffee. The individuals independently confirmed that information by speaking with staff at Starbucks.
The applicable department rule concerning evidence is contained in Wis. Admin. Code § DWD 140.16, which provides:
(1) Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The administrative law judge shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible, but irrelevant, immaterial and repetitious evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.
The ALJ found that Jeremy's statements to his mother and caregivers were not considered hearsay, pursuant to Wis. Stat. § 908.04(d). This is incorrect. First, the commission believes the ALJ intended to cite Wis. Stat. § 908.04(1)(d). Second, Wis. Stat. § 908.04(1)(d) does not provide that statements by individuals who are unable to testify at hearing because of death are not hearsay. Rather, the provision establishes that a person who is unavailable as a witness due to death is included within the definition of an unavailable declarant for purposes of applying the hearsay exceptions. Wisconsin Stat. § 908.045 lists the hearsay exceptions for statements made by a declarant who is unavailable to testify.
Jeremy's statements to his mother and caregivers are hearsay. The statements were made outside of the hearing in this matter, and they were offered in evidence to prove the truth of the matter asserted.
The ALJ found that the consistency of the client's statements to three different individuals he trusted was corroborative and reliable. This, the employer argues, is sufficient to support a finding that Jeremy's statements fall within the hearsay exception found in Wis. Stat. § 908.045(6).
The exception, known as the residual exception, provides that a statement made by an unavailable declarant is not excluded by the hearsay rule if the statement has "comparable circumstantial guarantees of trustworthiness" to statements falling with the other hearsay exceptions in Wis. Stat. § 908.045. The residual exception is invoked when there are sufficient circumstantial guarantees of trustworthiness to establish reliability and, therefore, admissibility. Stone v. Anderson, 2005 WI 54, 59-60, 280 Wis. 2d 104 (2005).
The commission is not persuaded that Jeremy's statements have the circumstantial guarantees of trustworthiness comparable to those covered by Wis. Stat. § 908.045(1)-(5m)(former testimony, statement of recent perception, statement under belief of impending death, statement against interest, statement of personal or family history of declarant, statement of personal or family history of person other than the declarant) to render them admissible. The employer did not provide any dates on which Jeremy reported purchasing food and drinks for the employee, nor did it provide any contemporaneous documentation shedding light on the circumstances under which such reports were made. Jeremy had the mental age of an eight-year-old and looked for approval and verbal praise from others. He had problems processing information and remembering things. The case notes provided by the employer show that Jeremy also reported on more than one occasion that his mother hired prostitutes for him. The truth of those reports is suspect. In addition, one of the caregivers who testified included in her case notes that Jeremy reported to her at different times that he was purchasing food and drinks for the employee. The employer either ignored those reports or chose not to discipline the employee based on those reports.
The employee admitted that Jeremy purchased coffee for her at Starbucks on two occasions, once early in her employment and once in the summer of 2011. She testified that she disclosed these incidents in her case notes and to her supervisor. The employee denied any other wrongdoing. The employer did not rebut the employee's testimony that she disclosed these violations of the employer's gifting policy. Because the employee was not disciplined following disclosure, it can be inferred that the employer decided that the violations were not sufficiently severe as to warrant immediate discharge or other disciplinary action.
The entirety of the evidence of the employee's wrongdoing, for which she was discharged, is hearsay. Exclusion of the hearsay evidence results in a failure of the employer to meet its burden of proof. The employer did not establish that the employee was mentally abusive to Jeremy or that she stole from him by frequently accepting gifts of food and drink. The employer could have established that Jeremy repeatedly purchased food and drinks for the employee through the firsthand testimony of an employee of Starbucks or another establishment the two of them frequented, but the employer did not do so.
The commission therefore finds that in week 43 of 2011 the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 43 of 2011, if otherwise qualified.
Dated and mailed May 23, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
NOTE: The commission did not confer with the administrative law judge before deciding to reverse the appeal tribunal decision in this case. Such conferral is necessary where the credibility of the witnesses is in issue. It should be apparent, from a reading of the decision, that the commission's reversal is on a matter of law, specifically the application of Wis. Stat.
ch. 908 to statements made by an unavailable declarant.
dommida . urr : 152 : 1
cc:
Attorney Christopher M. Kloth
Newer Beginnings (Sheboygan, Wisconsin)
Attorney Anna M. Pepelnjak
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