Decision Number 1680-BR-93 - 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, connected with the work, within the meaning of §8-1002 of the Labor and Employment Article.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN THE CIRCUIT COURT FOR BALTIMORE CITY OR ONE OF THE CIRCUIT COURTS IN A COUNT IN MARYLAND. THE COURT RULES ABOUT HOW TO APPEAL CAN BE FOUND IN MANY PUBLIC LIBRARIES, IN THE ANNOTATED CODE OF MARYLAND, MARYLAND RULES, VOLUME 2, B RULES.

THE PERIOD FOR FILING AN APPEAL EXPIRES November 5, 1993.

APPEARANCES

REVIEW ON THE RECORD

Upon review of the record in this case, the Board of Appeals reverses the decision of the Hearing Examiner. The Board rarely reverses the credibility determination of the Hearing Examiner, but will do so in this case. The Board does not find credible the claimant's allegation that she did not intend to go to sleep.

The claimant worked as a telephone operator for Union Memorial Hospital. Many of the calls that come in to the hospital are emergency calls. On the night in question, the claimant was the only operator on duty. The claimant did not answer the phone for over a half hour. Even when the supervisor knocked on her door, she did not awaken. When the supervisor found a security guard to unlock the door and entered the claimant's office, they found her stretched out on the floor, sound asleep, with a pillow under her head and a jacket over her body . Only when the security guard touched her, did she wake up.

This is not the case of a person simply giving in to an uncontrollable urge to fall asleep while working. The claimant intentionally laid down on floor, with a pillow and a jacket and went to sleep. This is a deliberate and willful disregard of standards that her employer had a right to expect and that showed a gross indifference to her employer's interests, one of the definitions of gross misconduct, under LE, §8-1002.

The claimant alleged that she was taking medication for her back that made her drowsy. Even accepting that as true, the Board finds that the claimant, if she felt she could not perform her job, had an obligation to notify the employer that she could not continue and to get a replacement. This is especially true here, in view of the nature of her job. Her explanation for why she did not do this is not credible.

DECISION

The claimant was discharged for gross misconduct, connected with the work, within the meaning of §8-1002 of the Labor and Employment Article. She is disqualified from receiving benefits from the week beginning April 18, 1993 and until she becomes reemployed, earns at least twenty times her weekly benefit amount ($3,240.00) and thereafter becomes unemployed through no fault of her own.

The decision of the Hearing Examiner is affirmed.

Hazel A. Warnick, Chairperson
Donna P. Watts, Associate Member

kmb

COPIES MAILED TO:
CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - BALTIMORE

LOWER APPEALS DECISION

DECISION

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

- NOTICE OF RIGHT OF 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 BOARD OF APPEALS, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES ON July 27, 1993.

NOTICE: APPEALS FILED BY MAIL, INCLUDING SELF-METERED MAIL, ARE CONSIDERED FILED ON THE DATE OF THE U.S. POSTAL SERVICE POSTMARK.

APPEARANCES

FINDINGS OF FACT

The claimant became employed as a telephone operator on April 22, 1991. At the time of her separation on April 20, 1993, she was earning a salary of $6.95 per hour. The record shows that the claimant was discharged for sleeping on the job on April 18, 1993. The claimant was a telephone operator and was responsible for receiving emergency and other calls during her 11:00 to 7:00 shift. On the shift, the claimant was the only operator available.

The employer received a call from someone who was trying to reach the operator at around 5:00 a.m. The caller had been trying to reach the operator for approximately fifteen minutes. A administrative supervisor went to the claimant's location, rang the door bell, banged on the door and called security to gain entry into the office. Upon entering, the claimant was seen lying on the floor on her right side with a pillow under her head and a sweater around her shoulder. The claimant was clearly asleep and the administrative supervisor had difficulty awakening her. The claimant had been unreachable for approximately one half hour.

The claimant had a history of back pain and had been taking medication at least since 1992. She missed a lot of time from work because of her back and did not want to jeopardize her job with further absences. She had developed the ability to tolerate the pain and still work. However, on this evening, the pain became excruciating and she took medication and stretched out on the floor in order to gain relief from the pain. The claimant did not intend to go to sleep. She has taken the medication, cyclobencaprin on previous occasions without any drowsiness. However, on this evening, she took advil, not knowing that it would increase the already known side effect of drowsiness.

The employer's policy regarding sleeping on the job does not necessarily require immediate discharge. The only evidence of prior disciplinary action was that of a co-worker of the claimant who was found sleeping and was given a five day suspension. The employer distinguished the two incidents by citing that the claimant intended to fall asleep. This Hearing Examiner does not agree.

CONCLUSIONS OF LAW

The Maryland Code, Labor and Employment Article, Title 8, Section 1002, 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.

The term "misconduct", as used in the Statute, means a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction from duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, during hours of employment or on the employer's premises within the meaning of the Maryland Code, Labor and Employment Article, Title 8, Section 1003. (See Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113).

The credible evidence in this case does not warrant a conclusion that the claimant's actions amounted to a willful disregard of the employer's standards. The claimant does not deny that she fell asleep, however, she contends that she did not intend to fall asleep but laid down on the floor only to gain relief from the back pain. The claimant was a credible witness and her explanation is believed.

Since the employer's policy does not require discharge for telephone operators falling asleep, there is room for discretion. A person sitting in a chair may not have intended to fall asleep, but sensing drowsiness, could have gotten up, moved around or exercised other means of warting sleepiness. The claimant, was not seeking relief from drowsiness, but back pain and chose to stretch out on the floor. She could have exercised other options such as calling her supervisor, which shows to allow the pain medication to do its job. This Examiner believes the claimant when she testified that she did not intend to fall asleep. Therefore, it is concluded that the claimant's actions did not rise to the level of gross misconduct. The determination of the Claims Examiner will be reversed.

DECISION

It is held that the claimant was discharged for misconduct in connection with her work as provided by Maryland Unemployment Insurance Law, Title 8, Section 1003. The circumstances of this case warrant a mitigated penalty. Benefits are denied for the week beginning April 18, 1993 and for the nine weeks that follow.

The determination of the Claims Examiner is reversed.

Mary Welcome, Hearing Examiner

4 - 9311017
Date of Hearing: June 23, 1993
SPECIALIST ID: 01041
krb\CASSETTE IN FILE
SEQ: 01

Copies mailed on: July 12, 1993 TO:
Claimant
Employer
Unemployment Insurance - Baltimore (MABS)