KIMBERLY M GANDY, Employee
FRANCISCAN VILLA OF SOUTH, 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, except that it makes the following modifications:
1. In [the] first sentence of the third paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the word "if" and change the word "will" to "may."
2. In the third sentence of the third paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the word "periodically" the second time it appears in the sentence.
3. In the thirteenth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the third and fourth sentences, and in their place substitute the following:
The employee missed one day and left work early a few times in August 2012 because she had lost her car and depended on others for rides. With one exception, her attendance problems as a result of the loss of her car were confined to two weeks. The employee's attendance record, considered as a whole, does not demonstrate a substantial disregard of the employer's interests.
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 7 of 2013, if otherwise qualified.
Dated and Mailed August 6, 2013
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
That modification, however, does not change the outcome in this case. The frequency of absences is not in itself sufficient to show misconduct. Misconduct will not be found if an employee's absences are for valid reasons and promptly reported to the employer. Simmons v. Klemm Tank Lines, UI Hearing No. 02403991GB (LIRC June 30, 2003); Rosenogle v. Walker Stainless Equipment Co., Inc., UI Hearing No. 03008303BO (LIRC July 7, 2004). The commission considers whether the employee's attendance record as a whole demonstrates substantial disregard of the employer's interests. See, e.g., Rosenogle, supra ("While the evidence demonstrated that the employee's attendance record was unsatisfactory to the employer-and the commission believes he could have made a better effort to improve his attendance-the commission nonetheless concludes that the employee's attendance record as a whole did not rise to the level of misconduct as defined in the Boynton Cab case..."); Kumm v. Sjoberg Tool & Mfg Corp., UI Hearing No. 06606132MW (LIRC Feb. 28, 2007) ("While the employee did not generally have valid reasons for being tardy, the commission, when it considered the fact that all but one of the employee's absences were for valid reasons, and the fact that there were only four instances of tardiness considered in the employee's discharge, concluded that his attendance record as a whole did not amount to misconduct."); see, also, Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Ra[]buck v. Monterey, Inc., UI Hearing No. 98004372JV (LIRC Feb. 25, 1999). In all the above cases, there was no question that the employee exceeded the maximum number of absences allowed in the employer's attendance policy, and was aware that his or her job was in jeopardy. Those facts are also true in this case. Nevertheless, as the above cases suggest, if the reasons for absences are generally valid, and the overall record does not show a disregard for the employer's interests, the employee's attendance record will not likely be considered misconduct.
The employee's overall attendance record here does not demonstrate misconduct. The employee offered two reasons for her absences-seeing her ill daughter and having transportation problems. Her two days of absence attributable to her daughter's illness were not challenged by the employer, and on their face appear to be valid. See, Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375MW (LIRC Feb. 14, 2001) (employee caring for pregnant daughter who was ill-valid reason for absence). She called in these absences.
As for the transportation issue, the commission has considered an unexpected transportation problem, such as one's car becoming inoperable, as beyond the employee's control and a valid reason for an absence. Kumm v. Sjoberg Tool & Mfg Corp., UI Hearing No. 06606132MW (LIRC Feb. 28, 2007); Rincon v. Bank One Wisconsin, UI Hearing No. 01607055MW (LIRC March 12, 2002) ("Generally, the commission considers occasional transportation problems or unavoidable delays due to traffic or construction to constitute valid reasons for being tardy."). The commission has also recognized that at some point an absence for a transportation issue becomes avoidable. Rincon, supra. In this case, the employee had two episodes of transportation problems. The first one, in August 2012, started with the fact that she had lost her car, and had to depend on others to get rides to and from work. At that time she was working a shift from 2:30 p.m. to 11 p.m. After incurring points on August 3rd for leaving early, being absent altogether on August 11, and leaving early on August 15, she got permission from her supervisor to adjust her working hours slightly, from 2:15 p.m. to 10:45 p.m. It is not clear how this helped, but there is only one other transportation issue after that (August 28, 2012) until the final incident in February 2013. In all of these incidents the employee gave prompt notice of her absence. It is an open question whether the employee could have been more diligent about arranging transportation, but she did take some steps to address the problem with her supervisor, and largely resolved the problem by mid-August. A few instances of leaving work early with notice to the employer due to transportation problems in the course of six or seven months are not enough to be considered misconduct. See, Kumm v. Sjoberg Tool & Mfg Corp., UI Hearing No. 06606132MW (LIRC Feb. 28, 2007) (four tardies without valid reason not sufficient to amount to misconduct in a period of about one year); Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000) (three tardies without valid reason not sufficient to amount to misconduct in a six-month period of employment).
The employer's final attendance incident, leaving work 49 minutes early, was also caused by a transportation problem, but not the same problem as in August. This time the employee's car had broken down. Again, she was temporarily relying on others to get rides to and from work. On Saturday and Sunday, February 9 and 10, 2013, she was working the first shift, which started at 6 a.m. and ended mid-afternoon. She arranged to have someone pick her up at the end of her shift on February 9, but that person was not available on February 10. She relied on someone else February 10, who was not available at the end of her shift. On February 10th she asked the nurse who was supervising her if she could leave early. The nurse asked her if there was anything she did not get done, and she replied everything was done. The nurse then said "okay." As the employer argues in its petition for review, getting the nurse's permission to leave early was irrelevant to the operation of the attendance policy-a choice to leave early was a choice to incur an attendance point, regardless of the supervisor's permission. But the unemployment law considers more than the operation of the employer's policy. In determining whether an employee's absenteeism constitutes misconduct, courts have held that an employee's intent and attitude are the most important factors. P.P.G. Industries v. DILHR & Reynolds, No. 161-399 (Wis. Cir. Ct. Dane County Feb. 7, 1979). The fact that the employee sought her supervisor's permission before leaving early on February 10th, and did not leave without the supervisor's "okay," indicates that the employee did not have an attitude or intent to harm a substantial interest of the employer. In cases where the commission has found no misconduct in an employee's unsatisfactory attendance record, it regularly notes that the employee's final attendance violation appeared to be for a valid reason. See, Kumm, supra; Darga v. Eastbay, Inc., UI Hearing No. 02006296GB (LIRC March 26, 2003); Urick v. Met-Al, Inc., UI Hearing No. 99600055RC (LIRC April 20, 1999); Kellum v. Wisconsin Porcelain Co., Inc., UI Hearing No. 05005484MD (LIRC April 13, 2006). Here, the employee had a valid reason for leaving early on February 10, 2013 due to an isolated transportation problem, and was not engaged in a pattern that she could have avoided.
Finally, there is no evidence of any specific attendance violation by the employee from October 23, 2012 to February 10, 2013. Even if the employee's attendance record were considered poor up until her final warning, which she received on November 3, 2012, the record shows that she then went over three and one-half months before incurring another incident.(1) Under these circumstances, the employee has not committed misconduct for excessive attendance problems. See, Kellum v. Wisconsin Porcelain Co., Inc., UI Hearing No. 05005484MD (LIRC April 13, 2006) ("While the employee was late on numerous occasions for reason which were not valid, after being given the 'last chance' warning the employee went seven weeks without being tardy. The commission has held that such improvement is significant, and that recent good attendance can overcome an earlier, poor attendance record."); Brown v. Banc One Services Corp., UI Hearing No. 02608791MW (LIRC April 11, 2003); Voight v. Schreiber Foods, Inc., UI Hearing No. 99002877WR (LIRC Dec. 28, 1999).
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FRANCISCAN VILLA OF SOUTH MILWAUKEE
CENTURION INVESTIGATIONS INC
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