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

DONNA S RING, Employe

COUNTY OF DANE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001142MD

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for the employer, a unit of county government, for approximately 26 years as a court aide.

One of the employe's job duties is to fill water pitchers in the courtrooms. For some time the employe and the employer have been embroiled in a conflict regarding this particular duty, the performance of which the employe contends has either caused her to suffer wrist pain or exacerbated previously existing wrist pain. The employe has received several reprimands and disciplinary suspensions related to matters involving the filling of the water pitchers as well as the performance of some other duties. The suspension most proximate in time to the facts at issue in this case extended from December 1, 1997 through December 6, 1997.

On December 8, 1997, the employe's first day back at work after her disciplinary suspension, she filed a request for a reasonable accommodation under the Americans with Disabilities Act regarding the filling of water pitchers. Upon receiving this request, the employer ordered the employe to continue to fill the water pitchers until she received its response. The employe filled some of the pitchers on December 9. That day she proposed to the employer that she be permitted to take off approximately 45 minutes of vacation time each morning so that she could avoid performing the task at issue while she awaited a response to her request for accommodation. The employer agreed to this arrangement, and for several days the employe took vacation time when she ordinarily would have been expected to fill water pitchers.

On December 15, 1997, the employe's request for reasonable accommodation was denied and she was informed that she was expected to resume filling water pitchers the next day. The employe immediately appealed the employer's denial of her request.

The employe was then absent from work on December 16 and 17, 1997, her next two scheduled work days, and presented the employer with a doctor's excuse indicating that her absences were due to work-related stress. However, the employer refused to accept the doctor's excuse, which it considered too vague. On December 18 another worker filled the majority of the water pitchers and the employe filled the remainder. That day the employe's supervisor asked her whether she had filled water pitchers, to which the employe responded that she did not wish to discuss the matter without union representation.

On December 22, 1997, the employe was issued a 15-day suspension to take effect from February 2 through February 28, 1998 (weeks 6 through 9 of 1998), based upon the events set forth above. The issue to be decided is whether that suspension was a disciplinary action for good cause connected with her employment.

Although the employe did not fill water pitchers after December 9, she had formally requested a reasonable accommodation and received the employer's permission to use vacation time in lieu of filling water pitchers while her request was being considered. After the employer denied her accommodation request, the employe was absent from work two days for legitimate reasons and with a doctor's approval. Although the employer originally refused to accept the employe's doctor's excuse, at the hearing it indicated that it had rescinded its decision to discipline her based upon those absences. Finally, the employe did fill water pitchers on December 18 and, while she refused to answer questions regarding the water pitchers without union representation, considering that the employe had been disciplined on numerous prior occasions regarding this matter, her request for representation was a reasonable one.

The commission, therefore, finds that in weeks 6 through 9 of 1998, the employe's work was suspended, but not as a disciplinary action for good cause connected with her work, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits in weeks 6 through 9 of 1998, provided she is otherwise qualified.

Dated and mailed: February 17, 1999
ring.sad : 164 : 1 MC 676 PC 714.12  PC 729

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that the administrative law judge erroneously based her decision upon hearsay evidence. However, the sole issue presented in this case is whether the employe's suspension in weeks 6 through 9 of 1998 was for good cause, and the factual findings to which the employer objects are not relevant to that issue. The commission has rewritten the appeal tribunal decision in order to delete those findings which it considers extraneous, leaving only those facts which are directly relevant to the issue at hand and which are supported by competent evidence in the record.

The employer also argues that it was denied a fair hearing because the appeal tribunal would not allow it to call Judith Coleman as a rebuttal witness at the continued hearing. The employer asserts that due process demands it be given an opportunity to address the employe's assertions at the continued hearing and that, if the commission is not prepared to reverse the appeal tribunal decision, this matter should be remanded for Ms. Coleman's testimony. The employer's argument fails. While the record does indicate that the employer was precluded from introducing additional witness testimony at the continued hearing, the record contains no indication that the employer's attorney raised any objection to the appeal tribunal's ruling in this regard or made any offer of proof regarding what Ms. Coleman would testify to if she had the opportunity. The employer's petition is similarly silent with respect to the content of Ms. Coleman's proposed testimony, and the commission sees no reason to believe that that testimony would have had any effect on the outcome of this case. Even if the commission were to conclude that the appeal tribunal erred in failing to permit Ms. Coleman to testify, in the absence of any showing by the employer that such error resulted in prejudice to it, no further hearing is warranted.

Finally, the employer argues that the employe's failure to fill water pitchers constituted good cause for the disciplinary suspension and, further, that the appeal tribunal ignored other evidence indicating that the employe's suspension was for good cause. Regarding the latter assertion, the employer maintains that the appeal tribunal failed to consider evidence regarding the employe's use of her cell phone, the employe's failure to do the "jail bail" run, and the employe's alleged violation of other work rules. Again, the employer's arguments relate to facts and circumstances which occurred before or after the events at issue in this matter and which have no bearing on the question of whether the employe's suspension in weeks 6 through 9 of 1998 was for good cause. Because, for the reasons set forth in the body of the decision, the commission believes the suspension was not for good cause, the appeal tribunal decision is affirmed.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a lengthy case but the bottom line is that the employe was suspended for problems with her work performance and attendance. The employer believed that the employe had been insubordinate as well as disobedient, failed to carry out assignments or instructions of supervisors, failed to provide accurate and complete information when asked by supervisors, was negligent in performing assigned duties and had unexcused or excessive absenteeism.

The majority limited itself to the issue of filling the water pitchers. Even if we limit the question to filling of water pitchers, there are problems with the employe submitting medical excuses to risk management as opposed to the supervisors.

The employe was uncooperative from the very beginning on the question of filling the water pitchers. The employer testified "The employe has never agreed that the water pitcher duty was part of her job." He continued, "When I took over as the employe's supervisor, she continued to complain about her duties. She said previous supervisors and administrators had decided that she did not have to do these duties. I continued to tell her that she was working for the clerk of courts now, and would be expected to do her job duties."

The employe testified "When I started with the clerk of courts office, I understood that filling water pitchers was to be part of my job, but there had been a long standing question about it. I don't think this question has been fully resolved. I would have to go into an 8-year history to explain the water pitcher issue. I was aware that I was expected to fill water pitchers. I have disputed having to fill water pitchers because, as part of an affirmative action settlement some years back, this duty was taken away and I was never to fill water pitchers again." The employe continued "All of the court aides filled water pitchers. Because of this settlement, I did not have to do this." She also testified "My affirmative action complaint was never resolved, but as part of the settlement to alleviate some of the problems, I no longer had to fill water pitchers."

The employe did not bring a copy of any settlement agreement that exempted her from filling water pitchers to the hearing on either day. In fact it appears even from her own testimony that there was not settlement. She knew she was required to fill pitchers under the clerk of courts assignment. She did every thing she could to avoid filling pitchers. She tries to avoid filling pitchers by medical excuses. Her first excuse restricted her to no lifting over 5 pounds. That excuse did not prevent her from filling pitchers so she got a much more restrictive excuse which did not allow her to use the arm above the waist for ten days. With that excuse she couldn't perform her job. Her last medical excuse dated October 31, 1997 excused her from filling pitchers for two weeks.

When her medical excuses expired she called in sick. She talks about a workers compensation claim but does not give the supervisor medical support for a claim. She asks for accommodation under ADA and the employer allowed her to use vacation time to cover filling pitchers while her ADA claim is decided. The employer sent her to an independent medical exam which found that she could fill the water pitchers. The employer did eventually allow the employe to be excused for two days based on a medical excuse for stress. After that the employe had no medical excuse.

The employe refused to answer a question about whether she had filled water pitchers without union representation. I believe the reason she refused is because she had only filled a small number of pitchers.

I am unable to tell for certain if the problems with her use of the cell phone, jail bail run and failure to escort defendants occurred at the time she was last suspended. Part of this is due to the fact that the employer rewrote the suspension when it allowed her to count the two days from stress to be excused.

I disagree with the administrative law judge as to whether the employer should have allowed Ms. Coleman at the second hearing. The second hearing was allowed for the employe to bring in her medical excuses. The employer had a right to bring rebuttal witnesses to the second hearing. Ms. Coleman would not have been entitled to testify if there had not been a second hearing. I would not have held the record open for her when she did not attend the first hearing.

I believe that the employer has proven a pattern of bad attitude which included insubordination and failure to provide information to the employer with regard to medical excuses in a timely fashion. The employe continued to say she should not have to perform the duty of filling pitchers because there was some kind of side deal but she was not able to show any deal existed. She did admit that she knew the job included the duty to fill pitchers but she did not want it to apply to her.

For these reasons, I would reverse the administrative law judge and find that the employe was suspended for good cause connected to her work.

Pamela I. Anderson, Commissioner

cc: ATTORNEY KRISTI GULLEN

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