Decision Number 1500-BH-82 - Voluntary Quit - Section 8-1001 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the Claimant was discharged for gross misconduct connected with the work within the meaning of Section 6(b) of the Law.

- 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 SUPERIOR COURT OF BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT November 14, 1982.

APPEARANCES

EVIDENCE CONSIDERED

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 into this case, as well as the Employment Security Administration's documents in the appeal file.

FINDINGS OF FACT

The Claimant was employed for several years for the Baltimore City Department of Social Services. The Claimant was employed as a worker at a day care center. Her duties at first included the driving of the school bus.

The Claimant had several periods during which her job performance deteriorated due to use of alcohol. The first of these periods occurred about April 30, 1980. This period continued until about the end of May 1980. At this time, the Claimant was warned concerning this behavior and was referred to the Employee Assistance Unit.

The Claimant was later suspended without pay for appearing to be drunk on June 16, 1980. Following this suspension, the Claimant's job performance improved. Another incident of this type occurred on March 19, 1981, and the Claimant was once again referred to the Employee Assistance Unit. The Claimant's job performance returned to the satisfactory level until the beginning of 1982. The Claimant was hospitalized for alcoholism treatment until January 25, 1982. On February 1 and 2, 1982, the Claimant was in such severe distress, apparently because of her domestic problems, that she was unable to function at work and was eventually sent in a taxi to the Tuerk House Rehabilitation Center for inpatient treatment.

Charges were brought against the Claimant that she was incompetent and that she suffered from a physical and mental incapacity which would keep her from performing her job. The Claimant was not actually discharged but was suspended pending proceedings leading to her discharge. The next proceeding regarding the discharge was a hearing which was scheduled for May 11, 1982. Pursuant to an agreement reached just before that hearing, the Claimant resigned from the Employer's service with a stipulation that she would not have to be considered for reinstatement by that department. The charges against the Claimant were dropped and the case was closed as a resignation. On May 3, 1982, the Claimant's request to voluntarily resign was accepted.

This resignation was retroactive to February 8, 1982.

CONCLUSIONS OF LAW

The Claimant was not discharged. The Claimant resigned rather than face charges which may have led to her discharge. In a similar case, the Board has ruled that a Claimant who voluntary resigns his job rather than face charges which may lead to discharge has voluntarily quit his employment without good cause within the meaning of Section 6(a) of the Maryland Unemployment Insurance Law. Kulis v. State of Maryland, 6-BH-81. The Board stated in that case that was not good cause nor were there valid circumstances within the meaning of Section 6(a) of the Law, in the case of such a resignation.

This case is virtually identical to that case. The Board reaffirms that a resignation in order to avoid facing charges which lead to a discharge is a voluntary suit, and that there are no valid circumstances associated with the voluntary suit. It should be noted that the Board is distinguishing between a situation in which a discharge had not yet occurred and a case in which a Claimant was actually discharged but did not exercise every possible appeal right. A person who was actually discharged, but who declined to pursue further appeal rights, is still discharged, and such a case could not be decided under Section 6(a) of the Law.

The Board notes also that there may be cases where some type of intentional harassment on the part of the Employer causes the Claimant to voluntary resign rather than to face repeated false or malicious charges. This type of case could result in a different ruling. This clearly is not the case here, where the Employer was obviously bending over backward in order to help the Claimant

DECISION

The Claimant voluntarily quit her job without good cause within the meaning of Section 6(a) of the Maryland Unemployment Insurance Law. She is disqualified from benefits from the week beginning February 14, 1982 until she becomes re-employed, earns ten times her weekly benefits amount ($1,400.00) and thereafter becomes unemployed through no fault of her own.

The decision of the Appeals Referee is reversed.

Thomas W. Keech, Chairman
Maurice E. Dill, Associate Member

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DATE OF HEARING: September 7, 1982

COPIES MAILED TO:

CLAIMANT
EMPLOYER
Loretta Stokes
Department of Personnel
Administrative Service Director

UNEMPLOYMENT INSURANCE - PIMLICO

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for gross misconduct connected with the work within the meaning of Section 6(b) of the Law.

- NOTICE OF RIGHT TO PETITION FOR REVIEW -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A REVIEW AND SUCH PETITION FOR REVIEW MAY BE FILED IN ANY EMPLOYMENT SECURITY OFFICE, 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 PETITION FOR REVIEW EXPIRES AT MIDNIGHT ON April 30, 1982.

APPEARANCES

FINDINGS OF FACT

The claimant worked for about five years for the State of Maryland. Her last day of work was February 1, 1982 and at that time she was an Office Clerk I. She had previously worked in a position as a teacher in a day care center. The claimant was suspended from work on February 8, 1982 by Mr. Spicer of the Personnel Department of the Department of Social Services. The claimant admits while at work she became intoxicated on February 1, 1982. In the middle of the day she drank one half a pint of vodka. This was the cause of her subsequent suspension from work on February 8, 1982. The claimant was treated for detoxification at Tuerke House of the University of Maryland from February 3, 1982 to February 8, 1982. She is currently awaiting a hearing on whether she is permanently removed from State service.

In 1979 the claimant received some warnings about her consuming alcohol while at work and in 1981 she recalls two particular warnings about this. She states that she has been taking alcohol to cope with various problems and this in turn has caused her further problems. The claimant knows that she should not consume alcoholic beverages while at work and further that it impairs her ability to do the work. The claimant acknowledges that she has had an alcoholic problem for some years. She also acknowledges that she received some warnings about her consuming alcohol either at work or before working hours and being incoherent at work in 1979.

CONCLUSIONS OF LAW

The evidence reveals that the claimant has had alcoholic induced behavior. While it is recognized in Maryland that alcoholism is an illness, it does not necessarily follow that the claimant can continue to engage in alcoholic induced behavior and not be considered as falling with the purview of Section 6(b) of the Maryland Unemployment Insurance Law. The claimant acknowledges receipt of warnings about her alcoholic induced behavior in 1979 and in 1981. She was finally terminated from employment because of her drinking during the lunch hour. Her consumption of one half a pint of vodka during lunch impaired her ability to work the rest of the day and clearly was a violation of employment rules which brought about her separation from employment. The totality of the claimant's conduct clearly falls within the definition of a deliberate and willful disregard of standards of behavior which the employer has a right to expect showing a gross indifference to the employer's best interest. This is only one of the tests for gross misconduct connected with the work as a basis for discharge from employment. The claimant meets this test and consequently must be disqualified under Section 6(b) of the Maryland Unemployment Insurance Law.

DECISION

The claimant's unemployment was caused by being separated from employment for gross misconduct connected with her work within the meaning of Section 6(b) of the Maryland Unemployment Insurance Law.

Benefits are denied for the week beginning February 7, 1982 and until such time as the claimant becomes reemployed, earns ten times her weekly benefit amount ($1400) and thereafter becomes unemployed through no fault of her own.

The determination of the Claims Examiner is affirmed.

Martin Whitman
APPEALS REFEREE

DATE OF HEARING: April 12, 1982

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(1029 -- Gray)

Copies mailed to:

Claimant
Employer
Unemployment Insurance - Pimlico

Reed, Roberts Asso., Inc.