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

VICTORIA DE DIENES, Employee

GREGORY DANIELS DR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604203MW

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 issued a decision affirming the appeal tribunal decision. On October 11, 2000 the Circuit Court for Milwaukee County set aside the commission's decision for further proceedings.

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 employee worked about one year originally assisting the employer, a chiropractor, and as of February of 1999, as a licensed chiropractor. Her last day of work was May 19, 1999 (week 21), when she was discharged.

The employer listed a number of reasons for the employe's discharge. The employee failed to receive Medicare/Medicaid certification, which she agreed to obtain when she was hired. The employer's office manager testified that she failed to obtain such certification, which would have allowed her to treat Medicare patients. However, since the employee failed to bring in any new clients, the lack of certification did not actually have an adverse financial impact on the employer. Further, the employee's lack of certification was added as a reason for discharge by the employer after she was discharged, after the employer had gone through her contract, and after it sent the reasons for discharge to its attorney.

The employee had a negative attitude and complained in front of patients and other workers. The employee also engaged in personal conversations. On September 3, 1998, the employer issued a general memo to its workers, rather than a specific warning to the employee, which noted that personal conversations should be conducted away from patients (Exhibit 1).

Ms. Daniels heard some of the employee's comments about patients while other patients were present. She brought the matter to Dr. Daniels' attention. She could not recall the dates of the incidents. According to Ms. Daniels, patients complained that the employee complained about her fianc‚ and wedding, about her unhappiness with her work, and about having to do work she considered to be "beneath her."

The employee received a written warning dated September 14, 1998, for having personal conversations in the front office in view of, and hearing of, at least one patient as well as co-workers. The employee had a fight with her fianc‚ in the presence of patients. She was repeatedly asked to move the conversation elsewhere and ultimately did so. The written warning indicated that a second similar violation might be cause for immediate dismissal. The notice further indicated that three written warnings, for whatever reason, could cause immediate dismissal (Exhibit 2).

The employe received a written warning and suspension on January 18, 1999. One reason for the warning was that the employee reported to work on January 18 and complained of hand and joint pain, and indicated that she would not be able to perform a specific part of her job (myofascial release), and did not present a doctor's excuse or valid reason for nonperformance of the job. When offered the option to go home the employe indicated that she would attempt to continue working. Later, just before she was to begin her afternoon work hours, she contacted the office and indicated she was unable to work. The employe obtained a doctor's excuse dated January 19, 1999, which recommended that she limit her repetitive hand movement for one week (Exhibit 6). The employee left work on January 18, because her joints became progressively stiffer and more painful. She did not return to work on January 18 because Dr. Daniels had told her she could take the rest of the day off.

The January 18, 1999 warning also indicated that the employer had fielded patient complaints regarding the employee's negative attitude and poor job performance. It noted that co-workers had also complained that the employe had a constant negative attitude and was complaining. The warning also stated that the employe was observed making a negative comment about a patient while in the reception area. The warning indicated that the employe would have to control her negativity in order to continue in her employment (Exhibit 4).

Dr. Daniels testified that a patient came in for treatment from an automobile accident. The employe did not want to do therapy on that patient because there was not going to be payment. The doctor indicated that there would be payment three or four years down the road maybe. She was told that it was her job to treat all patients. She said, regarding the patient, "she's nothing but a thug. We're probably not going to get paid for her. She a druggie. She just takes drugs."

Dr. Daniels also testified that the employe told one of his patients, while Dr. Daniels was out of town, that she had degenerative joint disease. Dr. Daniels had been treating the patient for a suspected disk herniation. Dr. Daniels also testified that patients complained that the employee did not perform treatments that they were billed for. The employer did not establish the truth of such allegations by non-hearsay testimony and the employee credibly denied the allegations.

Dr. Daniels spoke to the employe about his disappointment over her failure to bring in patients. He denied telling her that he would be unable to continue to pay her unless she brought in patients. Dr. Daniels testified that he did not tell the employee that unless she started bringing in patients she would be discharged. He specifically denied that he made such comment on May 19.

Dr. Daniels testified that on March 19 he heard from "the girls" that the employee said he was trying to commit fraud because he completed an exam and an x-ray in a short period of time. He asked the employee whether she had made the comment. She did not respond. He then terminated her.

Melody Seib, a chiropractic assistant, testified on behalf of the employer. Ms. Seib testified that on May 19 the employee said that Dr. Daniels did not perform a full exam on a patient, and that was fraud. Ms. Seib believed the statement was inappropriate. Ms. Seib heard the employee complaining about her job, but could recall no specific incidents. Ms. Seib also testified that there were several conversations in the office about the employee's need to develop her own patient base. Ms. Seib heard from Dr. Daniels in May of 1999 that the employee needed to obtain patients or she would be terminated.

Chrissy Hawkins, a secretary for the employer, testified that the employee said that Dr. Daniels could not have done an exam in the amount of time, but would charge for it anyway. She said that would be fraud. Ms. Hawkins also testified that the employee complained about the amount of therapy that she had to do on patients. Ms. Hawkins testified that there were conversations in the office about the employee's need to bring in her own patients. Dr. Daniel's talked with the employee about this. Dr. Daniels told Ms. Hawkins that the employee had to get her own patients, and if she did not do so within a certain number of days, she would be disciplined. Ms. Hawkins did not recall what the discipline would be. Ms. Hawkins recalls that Dr. Daniels said this around mid-May, but not on the same day the employee was discharged.

The employee did not obtain Medicare/Medicaid certification because when she completed the form in October of 1998 it indicated that she had to send in a copy of her license. She looked over the form again in February and noted portions had to be completed by the doctor. He gave it to her and said he did not think it was the right application. The employee forgot about the matter. She had never been told that she would be discharged if she failed to get the certification.

The employee denied billing patients for work she failed to perform. She also denied misdiagnosing Dr. Daniels' patient as having degenerative joint disease. The employee also denied discussing patients' cases where people could overhear. She admitted complaining frequently because she was unhappy at the employer.

On May 19, 1999 Dr. Daniels told the employee that he was going to fire her in 30 days if she did not bring any patients into the office. He was not going to give her any walk-ins. Dr. Daniels told her to come in with one to two patients in 30 days, and if she did not, she would be discharged. She was unhappy because she did not feel she was given enough opportunities to obtain patients.

On May 19 at around 5:00 the employee heard Dr. Daniels in the exam room start an x-ray as soon as he got in there. She commented to Ms. Hawkins that there was no way that he could have done a full exam. Ms. Hawkins replied "Well, I don't care, whatever makes it go faster." The employee told Ms. Hawkins that if the doctor charged for something that he did not do, that was fraud. She then went to do therapy on a patient. When she came back out she was pulled into Dr. Daniels' office, and told to pack her things. At that time, he told her that he wanted her out of the office because she had accused him of fraud.

The employee admitted that on May 19 she did not actually know what Dr. Daniels had done with a patient, but in anger said he may have committed fraud. She was angry because she had been threatened with termination. The employee acknowledged complaining about her job. The employee believed that the therapy that she was doing was not giving her enough experience as a chiropractor. She indicated she might have said, out of anger, that doing therapy was "beneath me."

Finally, the employee denied referring to a patient as a thug. She maintained that the conversation did not even occur in front of Dr. Daniels, but in front of two other staff members. The comments were from everyone that generally the patient was "somewhat of a low life."

The issue to be decided is whether the employee was discharged for misconduct connected with her work.

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 employee's discharge was prompted by her comment that the employer was not being with the patient long enough to perform an exam. The comment was clearly inappropriate but standing alone does not rise to the level of misconduct connected with her work. However, the comment must be examined in light of the other allegations made by the employer.

First, the Medicare/Medicaid allegation, while the need to receive certification was raised with the employee; she was never told that her employment was in jeopardy because she was not receiving certification. Further, the written warning she received made no mention of the employer's dissatisfaction with her lack of certification. The employer's witness testified that it really did not become an issue because the employee had not brought in any patients anyhow. Finally, the employer admitted that it was something that was added to the written statement regarding the reason for the employee's discharge after it had been sent to the attorney.

The employer also alleged that the employee made inappropriate comments in front of clients/co-workers and displayed a negative attitude. To the extent the allegations were established by non-hearsay evidence, which was not to a great extent, the employer did not establish that they were made subsequent to the employee's last warning on January 18, 1999. The employer did not establish a number of the allegations, including the allegation that she was charging patients for procedures not performed (based on hearsay testimony) or that the employee misdiagnosed a patient (again based on hearsay).

The employer was also unhappy with the fact that the employee had left work for the afternoon after complaining about the wrist problem. However, the employee promptly reported to the employer that she was having problems with her wrists. The employee reported that her wrist grew worse as the day went on. Further, the employer was the one that suggested that she take the afternoon off.

In general, the commission accepts the employee's testimony as the more credible to the extent it differs from Dr. Daniels' testimony. In particular, the employee was clearly more credible regarding whether she was threatened with discharge for failing to bring in patients. Ms. Hawkins and Ms. Seib, both witnesses for the employer, testified that they heard the employer state that the employee had to start bringing in her own patients. Indeed, Ms. Seib testified that Dr. Daniels said she had to do so or would be terminated. Likewise, Ms. Hawkins testified that in mid-May he indicated that if she did not start bringing in patients she would be disciplined. This supports the employee's testimony, given the fact that the comments were apparently made at least sometime prior to the date of discharge, that on the date of discharge she was given the ultimatum to start bringing in patients or face discharge. Of course, this is contrary to the employer's testimony. The employer testified he had never threatened the employee with discharge for failing to bring in patients and did not make such comments on the morning of May 19, 1999.

The employer's complaints, taken either singly or collectively, present the picture of a less-than-model employee, an employee whose performance and attitude were not at the level acceptable to the employer. However, the commission finds that the employee's actions were not undertaken in any wilful or substantial disregard of the employer's interests or that any negligence was so gross as to demonstrate equal culpability. The commission therefore finds that in week 21 of 2000 the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2000, if she is otherwise qualified.

Dated and mailed January 4, 2001
dedievi.urr : 132 : 1   MC 610.06  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the incident on the last day was the straw that broke the camel's back and the employee was discharged for a bad attitude and bad conduct. There was no question that the employee did not obtain certification and her excuse was she forgot about. She fought with her boyfriend in front of patients. She did not want to do therapy on a patient who was not likely to pay for 3 or 4 years and who she believed was a low life.

I believe the majority and administrative law judge were influenced by the fact that the employer wanted her to bring in her own patients. When she did not, the employer at a minimum threatened her with discipline if she did not bring in one or two patients in the next 30 days. I do not believe that the employer's reasons for firing the employee were pretextual. I believe the reasons they gave were real and substantial. I did not sign the original decision because I did not agree with the result. The fact that many on the complaints by the employer did not cause the employer to fire her at an earlier time does not mean that those reasons can not be grouped together and used later along with the last straw.

For these reasons, I would dissent and find that the employee was discharged for misconduct connected with her employment.

_____________________________________
Pamela I. Anderson, Commissioner

cc: JOHN D UELMAN
FAIR EMPLOYMENT LEGAL SERVICES

ATTORNEY MATTHEW A KOCH
VON BRIESEN PURTELL & ROPER SC

[Summary of October 11, 2000  circuit court decision]

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