Decision Number 1476-BH-92 - Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the claimant was discharged for gross misconduct or misconduct, connected with the work within the meaning of Section 8-1002 or 8-1003 of the Labor and Employment Article.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES September 26, 1992.

APPEARANCES

EVALUATION OF THE EVIDENCE

The Board of Appeals has considered all of the evidence presented, including the testimony offered at the hearings. The Board has also considered all of the documentary evidence introduced in this case, as well as the Department of Economic and Employment Development's documents in the appeal file. The Board found that the claimant's testimony was completely without credibility.

FINDINGS OF FACT

The claimant was employed for sixteen years for the Anne Arundel County Government as a heavy duty equipment operator. He was discharged on October 31, 1991.

The claimant had been considered a problem employee. In 1989, he used all of his excused unscheduled absences, then took an unapproved unscheduled absence on June 28. In a meeting to discuss this, he became disruptive. He was warned for this on June 30, 1989.

On July 10 of that year, the claimant was given an oral warning about his job performance and his abuse of leave. He was given another warning for the same offenses on July 25, 1989. The claimant was counseled both formally and informally at this time to take advantage of the employer's employee assistance program for those with personal problems, but the claimant insisted that he had no such problems.

On August 14, 1990, the claimant disobeyed a direct order of his supervisor. The claimant, having been refused permission by the supervisor to leave the work site, nevertheless left the work site and drove a distance away to a credit union. He was again warned.

On August 3, 1991, the claimant left the work site and drove to a nearby street in his backhoe. He left the backhoe running in the middle of the street while he went inside and visited with a friend of his. He was warned that this conduct was inappropriate.

On July 12, 1991, the claimant was arrested for possession of cocaine.

On October 18, 1991, the claimant drove his truck miles out of the way and away from his work site. He was supposed to be in Glen Burnie, but he left the area and drove to Brooklyn. This was an area near where he had previously parked the backhoe. This time, the claimant was driving a dump truck. Due to his own negligence, he got into an accident with the dump truck. On October 22, 1991, the claimant was suspended for the accident.

On October 29, 1991, the claimant entered a guilty plea to the charge of possession of cocaine.

On October 31, 1991, the claimant was discharged. On December 23, 1991, the claimant's guilty plea was changed to a judgment of Probation Before Judgment.

The employer's drug policy prohibits the possession or use of controlled dangerous substances while on the work site, during work hours, or on the employer's property. It also requires that an employee who is convicted of a drug violation which took place on the work site must report this to the employer. It also prohibits drug offenses off the work site if they result in convictions which are "unbecoming" an employee of the county.

CONCLUSIONS OF LAW

The drug charges cannot be considered as part of the unemployment insurance case against the claimant. A judgment of Probation Before Verdict cannot be used against the claimant in a subsequent civil proceeding. Tate v. Board of Education of Kent County, 485 A.2d 688 (1985). Myers v. State, 303 Md. 639 496 A.2d 312 (1985).

Since the drug charges cannot be considered, the Board does not have to reach the issue of whether a conviction for a drug offense occurring off the work site would violate the employer's policy. The Board notes that it does not appear that the claimant had any duty under the employer's policy to report his conviction to the employer.

Since the drug charges cannot be considered, a question arises as to why the claimant was discharged. The employer testified, and the Board believes, that the claimant was discharged for his entire record of conduct. When an employer discharges a claimant for a series of events, but where one or more of those events is not proven (or cannot be considered) in the unemployment insurance hearing, a question arises as to whether a penalty can be imposed on a claimant for a series of proven actions which are gross misconduct but which, might not, in and of themselves, have actually prompted the employer to terminate him.

The Board now rules that, where an employer discharges a claimant for a variety of actions alleged to constitute misconduct, but where some of these actions were not proven, or cannot be considered as misconduct, the remaining actions should be considered, and, if they amount to misconduct, the claimant should be found to be discharged for misconduct.

In this case, the proven events include a long period of substandard conduct in 1989, a deliberate flouting of a supervisor's direct order in August of 1990, the abandonment of his work site and the leaving of his backhoe running in a public street in April of 1991, and an abandoning of his work site coupled with a negligent operation of his employer's equipment at an unauthorized site on October 18, 1991.

The last incident in itself was a deliberate violation of standards the employer has a right to expect, showing a gross indifference to the employer's interest. This is gross misconduct within the meaning of Section 8-1002 of the Law. The same reasoning applies to the backhoe incident of April of 1991 and the incident of disobeying the superior's direct orders on August 14, 1990. The Board does not have to reach the issue of whether the claimant's total conduct amounts to a series of repeated violations of work rules, since the claimant's actions meet the test for deliberate actions in Section 8-1002(a)(l)(i).

DECISION

The claimant was discharged for gross misconduct connected with the work, within the meaning of Section 8-1002 of the Labor and Employment Article. He is disqualified from receiving benefits from the week beginning November 3, 1991 and until he becomes reemployed, earns at least ten times his weekly benefit amount ($2,230.00) and thereafter becomes unemployed through no fault of his own.

The decision of the Hearing Examiner is reversed.

Thomas W. Keech, Chairman
Donna P. Watts, Associate Member
Hazel A. Warnick, Associate Member

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DATE OF HEARING: July 28, 1992
COPIES MAILED TO:

CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - ANNAPOLIS

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for gross misconduct connected with the work within the meaning of MD Code, Labor and Employment Article, Title 8, Section 1002.

- NOTICE OF RIGHT TO FURTHER APPEAL -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER APPEAL AND SUCH APPEAL MAY BE FILED IN ANY OFFICE OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT, OR WITH THE APPEALS DIVISION, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES AT MIDNIGHT ON February 3, 1992.

APPEARANCES

FINDINGS OF FACT

The claimant was employed by Anne Arundel County Government for nineteen years.

He was a heavy duty equipment operator when he was discharged for allegedly misusing emergency leave, being out of his work area on two occasions, and being convicted for possession of drugs off duty.

I find that he did abuse emergency leave. Employees are allowed to call in twice; the claimant called in five times.

I find that the allegation as to his being out of his work area was made by his foreman or immediate supervisor, neither of whom appeared at the hearing to testify.

I further find that his conviction for the possession of drugs off duty is not connected with his employment.

CONCLUSIONS OF LAW

The Maryland Code, Labor and Employment Article, Title 8, Section 1002 (a)(l)(i), (ii) provides for a disqualification from benefits where an employee is discharged for actions which constitute (1) a deliberate and willful disregard of standards which the employer has a right to expect or (2) a series of violations of employment rules which demonstrate a regular and wanton disregard of the employee's obligations to the employer. The preponderance of the credible evidence in the instant case will support a conclusion that the claimant's actions do not rise to the level of gross misconduct within the meaning of the Statute.

In gross misconduct cases, the burden of proof is on the employer. The employer failed to carry the burden in this case. The claimant's foreman and immediate supervisor still work for the employer but neither appeared to offer direct testimony as to why the claimant was discharged.

DECISION

The determination of the Claims Examiner is reversed. The claimant was discharged, but not for gross misconduct or misconduct connected with the work, within the meaning of Maryland Code, Labor and Employment Article, Title 8, Sections 1002 or 1003. No disqualification is imposed based upon the claimant's separation from his employment with Anne Arundel County Government. The claimant may contact the Local Office concerning the other eligibility requirements of the Law.

Van D. Caldwell, Hearing Examiner

Date of hearing: 1/8/92
amp/Specialist ID: 08890
Copies mailed on January 17, 1992 to:

Claimant
Employer
Unemployment insurance - Annapolis (MABS)