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


LA TONYA R WINFREY, Employe

CHILDRENS HOSPITAL OF WIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607402MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about two years as a social worker for the employer, a pediatric care center. The employe's last day of work was September 23, 1999 (week 39), when she was discharged.

The issue which must be decided is whether the employe's actions, which led to her discharge, constitute misconduct connected with her employment.

The employer discharged the employe for failing to complete documentation on cases she was assigned.

On April 23, 1999, the employe received a performance check, her first disciplinary action. She did not complete documentation from a case she had been involved in. The documentation which was not complete consisted of interviews of children, health assessments, and family assessments. On August 6 the employe was warned regarding the failure to produce dictated reports of Forensic Interviews she conducted at the Child Protection Center, and some of the records were a number of months delinquent. The August 6 warnings indicates that in May of 1999 the employe assured her supervisor she was up to date. However, when conducting routine Quality Inspection he became aware that there were two records, one from March 31, 1999 and one from April 6, 1999 which contained no dictation. The warning advised the employe that if she failed to comply with organizational or department policies she could be suspended or terminated.

Around the end of May 1999, the employe's job duties changed slightly. While she continued to be involved in assessment of child abuse, she no longer did comprehensive cases. She no longer had to dictate forensic summary reports but instead did a much briefer, handwritten summary report.

On September 20, 1999 the employe's supervisor learned that two cases from May of 1998 were missing their summary reports. In one case children were coming to the Center because of subsequent allegations of abuse and the staff pulled their 1998 files for review. The staff found no summary report in the files. The report would have provided information to the employer's staff and the investigators who were trying to determine whether these children had been abused. The employe was suspended pending investigation. This lack of documentation could have had serious consequences for agencies that may have requested it. The agencies' decisions regarding the child's life could have been negatively impacted by the lack of documentation. This could have placed the employer under a huge amount of liability. The employer's reputation could have been damaged as a result of the employe's actions.

The supervisor, after review, determined that 66 of 180 cases worked on by the employe lacked necessary documentation. When the supervisor asked if she had any explanation she said she could not believe she had gotten so far behind.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employer argues that the employe's failure to bring her reports up to date, after warnings, amounted to misconduct. The commission agrees. The commission notes that the employe kept her paperwork up to date after the first discipline she received. However, when questioned by the employer in May of 1999, the employe indicated that she was up to date with her other reports. She was then disciplined in August for another old case which did not contain documentation, and indicated that she thought she had done those reports. In September of 1999 she told the employer that she did not realize that she was that far behind. She further indicated that she was aware of the importance of having the dictation done and in the file. She knew that her failure to do this could have serious consequences for the child. Her statement that she could not believe that she had gotten so far behind, suggests that she was aware that she was still behind. Thus, the employe was or should have been aware that she needed to get her documentation up to date. Her actions in failing to do so, when she was aware of the importance of this documentation to the children involved, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 39 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 30 through 52 of 1999, and weeks 1 through 8 of 2000, amounting to a total of $6,221.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 39 of 1999 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $6,221.00 (of which $891.00 is set forth in other decisions) to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 1, 2000
winfrla.urr : 145 : 1  MC 657

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The commission was most concerned with the ALJ's impression with regard to whether the employe was aware, based on the warnings, that the employer expected her to update all her files. In addition, the commission was concerned with the employe's statement to the employer that she was current when she was not. Regarding the latter concern, the ALJ felt that from the employe's perspective, she was keeping up with her new or current work after May, so that this was not really a misrepresentation on her part. The ALJ believed when she was able to keep up with her work after May, she did not realize that she might be discharged for failing to bring her old files up to date. The commission disagrees with his credibility assessment because the employe was specifically warned in August that her old files needed to be brought up to date. The employe testified she was aware of the importance of her job. She was aware that the older reports could be used by a variety of persons in making a determination with regard to the child's welfare, and thus, should have been aware of the need to bring those files up to date.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]