Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals
Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued
III. Aggravated Misconduct
The claimant repeatedly processed unauthorized transactions, converting approximately $52,000.00 of the employer's funds to her own personal account without explanation or justification and spent approximately $42,000.00 of those funds. The claimant's actions support a finding of aggravated misconduct. Fauntleroy v. American Assoc. for Adv. Scien., 00089-BR-98.
A claimant ordered a customer of the employer to make three checks payable to himself (the claimant) for the sale of employer's property. The claimant cashed and converted one of the checks to his own use. The Board found that such behavior is sufficient to sustain a discharge for aggravated misconduct. Smith v. Madison Warehouse Corp., 387-BR-01.
A claimant's mismanagement of employer funds lacked the requisite element of "actual malice" to rise to the level of aggravated misconduct. The "mismanagement of funds" was held to be a "breach of duty and a wanton disregard of the standard of behavior that the employer had a right to expect supporting a finding of "gross misconduct". Phillips v. Community Services of Maryland, Inc., 545-BR-01.
When a claimant sold a television off of the employer's truck contrary to all employer rules and regulations, the Board found the discharge to be for aggravated misconduct. The Board ruled that the value of the property is not the sole determining factor. Requisite "intent" existed when the claimant sold the property belonging to another. Edwards v. Thrift Stores of Washington, D.C. Inc., 01622-BR-96.
Where a claimant without provocation slapped a co-employee on both sides of his face and pushed co-employee into a trash can, the claimant's actions constitute aggravated misconduct. Yeager v. Trustee-Sheppard Pratt Hosp., 02782-BR-96.
The claimant, a licensed pharmacist, was discharged by the employer for the theft of a controlled dangerous substance which had been the property of the employer (a hospital). The Board determined that the act was done with malice and that the property loss was so serious that the penalties of misconduct or gross misconduct were insufficient. A penalty for a discharge for aggravated misconduct was invoked. Kochhar v. Holy Cross Hospital of Silver Spring, Inc., 00866-BR-97.
A claimant who was discharged for striking a supervisory co-worker in the face was discharged for aggravated misconduct. The Board determined that the act of the claimant was done with malice. In reaching its conclusion, the Board attached no merit to claimant's assertions that he was not the aggressor in the situation and was provoked. Morgan v. Washington Overhead Door, Inc., 01191-BR-97.
The claimant’s discharge after the admitted theft of three deposit bags of many totaling $14,538.50 was determined to be for aggravated misconduct. The employer’s evidence included a signed admission by the claimant as well as testimony of the claimant’s branch manager who observed the claimant’s behavior on a surveillance camera. Giles-Murray v. AT Systems Atlantic, Inc., 2257-BH-2007.
IV. Connected with the Work
An employer must demonstrate not only that a claimant committed misconduct, but also that the misconduct was "connected with the work." In determining whether an employee's actions are connected with the work, the following circumstances should be considered:
1) Whether there was a breach of duty to the employer;
2) Whether the act occurred during the hours of employment;
3) Whether the act occurred on the employer's premises;
4) Whether the act occurred while the employee was engaged in his work; and
5) Whether the employee took advantage of the employment relation in order to commit the act.
Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958).
The Court in LeCates, supra, stated that "...the legislature did not intend to limit misconduct 'connected with' the employee's work to misconduct which occurred during the hours of employment and on the employer's premises. If it had, the language used would have undoubtedly expressed that intent. Since no such limitation was indicated, it is obvious the provisions of the statute were intended to deny unemployment compensation to a claimant who was discharged -- and hence unemployed -- because of misconduct regardless of when or where it occurred so long as such misconduct was in law connected with the employee's work."
The Court also stated that "the law writers generally agree that a breach of duty to the employer, although not in itself sufficient, is an essential element to make the act one connected with the work."
In order to meet the "connected with the work" requirement, the misconduct must be incident to the work or directly related to the employment status. The mere fact that the misconduct adversely affects the employer's interests is not enough. The term "work" is not restricted to actual services an employee is hired to perform, but it may properly comprehend other obligations, such as the duty to obey proper orders, or to refrain from absenteeism. There is a general duty of loyalty to one's employer. Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A.2d 738 (1959).
Generally, conviction of a crime committed outside of work hours, away from the employer's premises and not connected in any other way with the employment is not considered to be misconduct connected with the work. However, certain types of employment, such as employment as a police officer, have been found to give rise to a continuing duty to refrain from criminal acts. A criminal act committed by a police officer away from work is considered to be connected to the employment. Correctional officers, security personnel, fire fighters and certain other employees also have a continuing duty to refrain from criminal activity away from work, at least where the criminal activity is related to their job responsibilities.
Misconduct that occurred before employment or after discharge is not connected with the work.
A. Breach of Duty
1. Police Officers
The claimant police officer, while off duty and on leave, was involved in an accident on a shopping center parking lot and failed to leave identifying information on the damaged vehicle as required by Maryland law. The claimant made false statements in reporting this incident to her superiors. The claimant was tried and given probation before verdict on the charge. The claimant was discharged. A police officer has a continuing duty to her employer to refrain from committing statutory violations which show moral turpitude. The commission of such an act, even while off duty, is a deliberate and willful disregard of standards of behavior which the employer has a right to expect and constitutes gross misconduct. Johnson v. Baltimore City Police Department, 952-BH-83.
The claimant was a police cadet. She was required to take a physical that included a drug screening test. The claimant's urine test showed that she tested positive for cocaine. As a police cadet, the claimant has a continuing duty to the employer to refrain from violation of criminal laws. Her ingestion of cocaine, even if not done during work hours, constituted a serious violation of this duty. This was held to be gross misconduct. Handy v. Baltimore City Police Department, 1059-BH-90.
2. Correctional Officers and Security Personnel
The claimant correctional officer was charged with possession of narcotics and related paraphernalia. Although a correctional officer may not have as compelling a duty to refrain from criminal acts as a police officer, gross misconduct exists where the claimant's actions are deliberate and willful and are related by their very nature to the claimant's job duties. Skelton v. Maryland House of Correction, 111-BR-84.
3. Fire Fighters
An off duty fire fighter's conviction for theft was a breach of duty owed to his employer. Fire fighters have access to homes in the course of their duties. The claimant was discharged for gross misconduct. Willett v. Civil Service Commission, 8-BH-87.
4. Other Employees
The claimant file clerk was discharged because he was twice convicted of third-degree sexual offenses involving illegal activity with minor children. The incidents leading to the convictions did not occur during working hours, on the employer's premises, or while the claimant was engaged in work. The claimant was able to continue to work with the suspended sentence, and the discharge was not for absenteeism. While the claimant's actions were misconduct, they were not connected with the employment, therefore, no disqualification could be imposed. Hubatka v. Department of Health and Human Services, 1-BH-83.
The claimant was employed as an employee relations counselor with duties including counseling of employees with drug and alcohol problems. Therefore, the claimant's use and smuggling of marijuana, although occurring off duty and off the employer's premises, constituted gross misconduct connected with the work. Gaumnitz v. Social Security Administration, 937-BH-85.
The claimant worked in a clerical position inside the jail and had daily contact with inmates. The claimant was arrested for possession of heroin while off duty and received "probation before judgment" for the criminal charge. The claimant was discharged for gross misconduct. Although the claimant held a clerical position, her daily contact with inmates was sufficient to hold her to a duty to refrain from using illegal drugs. Bailey v. Jail Board, 716-BR-89.
While negative comments about one's job conditions are generally not considered misconduct, in this case, the claimant's comments were a direct violation of his duty to his employer and the residents he was there to counsel. He knew or should have known that his remarks would severely undermine the morale of the residents. The claimant was discharged for gross misconduct. Fetty v. Changing Point, Inc., 918-BR-89.
The claimant was employed as a customer support worker for the city of Hagerstown. The claimant requested a day off on April 4, 2014 several weeks in advance to accompany her son of on a school field trip. The claimant’s leave request was denied because on April 1, 2014, the city would begin shutting off power for nonpaying electric customers. The employer expected a heavy volume of calls from the cut-off notices. When the claimant was informed that her leave was denied, she posted a message on her own time and her own computer Facebook page stating that she was “stuck going to work because … the scum of Hagerstown can’t pay their electric bills.” One of her Facebook friends saw the posting and informed the employer. The claimant was discharged. The claimant made a disparaging remark about a segment of the city’s population. The claimant was in a customer support position and knew that her actions were reflective of the city’s ability to provide services to its citizens. The claimant was expected to provide superior customer service and to be professional under stressful circumstances. Describing people who do not pay their electric bills as “scum” was disparaging and harmed the city government’s reputation and the citizens’ expectation of delivery of public services. This was a deliberate and willful disregard of standards the employer had a right to expect amounting to gross misconduct. Taccino v. City of Hagerstown, 3323-BH-14.
B. Off Duty Activity
At a company picnic in a public place, the claimant became involved in a fight with another patron of the establishment over that patron's use of inappropriate language in the presence of the claimant's children. The claimant was discharged for violating the employer's rule prohibiting fighting "on company time and premises." The claimant was not in the course of his employment at the time of the incident; rather, he was in the course of a social activity with persons with whom he happened to work. Therefore, the claimant's act was not connected with the work and no disqualification was appropriate. Hart v. Vista Chemical Company, 391-BH-85.
After work hours, the claimant accompanied the employer's truck driver, knowing that this driver was drinking and even supplying the driver with drinks. When four accidents resulted, the claimant was discharged for encouraging the other employee to violate the rules and for trying to cover up the incident. The claimant was discharged for gross misconduct. Thomas v. Turnbull Enterprises, Inc., 26-BH-88.
The employer told the claimant that other workers had said that he was intoxicated and uncooperative on the job. The claimant began angrily approaching coworkers, asking who had reported him to the employer. This behavior culminated in a physical assault on a coworker, but this took place after hours and off the work premises. The assault was incident to the work. Misconduct need not take place during the hours of employment or on the work premises in order to be work-connected. Stinson v. Towson Inn Restaurant Corporation, 1602-BR-93.
The claimant’s admitted sexual acts, involving a minor some twenty years earlier, disclosed during the course of a background check to maintain a top secret security clearance at NSA, was the reason for a denial of said clearance and the claimant’s dismissal. In reversing a finding of no misconduct because the employer did not prove the claimant had committed a crime, the Board ruled that the employer was not required to prove that the claimant committed a crime from twenty years ago in the that the claimant volunteered the information regarding his sexual misconduct. Schaefer v. NSA-OGC, 898-BH-06.
The claimant was injured on the job. The employer did not require the claimant to take a drug test until two days had passed. The claimant tested positive for cocaine. The claimant attributed this test result to the fact that he had taken Percocet (which had been prescribed for his son) to deal with the pain from his injury. There was no evidence in the record of what the employer’s drug policy is, the results of the drug test, the testing methodology or whether the claimant could have had a split sample retested. There was no evidence in the record to explain why the employer waited two full days before requiring the drug test. The Board found that if the claimant’s accident at work occurred as a result of him being under the influence of some illegal substance, it’s likely that such a substance would not be in his system 48 hours later. Taking the Percocet for pain was not work-connected. He employer failed to meet its burden of demonstrating misconduct or gross misconduct. Hudson v. Clark Builders Group LLC, 1069-BR-11.
On September 3, 2010, the employer learned that in December 2009, the claimant sent pornographic pictures to a coworker when both the claimant and coworker were not at work. The coworker had kept the pictures for nine months and did not complain about the pictures until the claimant requested a transfer to a different department because he did not want to work with the coworker. Previously, the claimant and coworker had a friendly relationship and hung out together. The Board found that the connection between these pictures and the work was tenuous at best. The coworker did not raise this as a problem when she worked directly with the claimant. The Board found that the claimant’s actions, while foolish, were not gross misconduct or misconduct. Martin v. Lowe’s Home Centers, Inc., 1160-BR-11.
The claimant was discharged for attempting to report to work under the influence of alcohol. On September 15, 2011, the claimant was commuting to work and was arrested en route for allegedly driving under the influence of alcohol. The claimant was not on company time, was not on company property, was not performing a job-related duty and her commute was not incident to a company purpose. The claimant was not convicted of driving under the influence of alcohol at the time of her separation from employment. The Board found insufficient evidence that the claimant’s actions were connected with the work. The Board held there was no misconduct. Keys v. Bello Machre, Inc., 1755-BR-12. (Connected with the work required)
The claimant was off duty, not in uniform, and not wearing a name tag. After her shift, she was in line at the employer’s store. Another customer cut in line ahead of the claimant. The claimant took exception to this and an argument ensued. The claimant did not start the verbal altercation and did not escalate it. When the other customer called her an inappropriate name, the claimant responded with an equally inappropriate comment. The claimant was discharged as a result of this incident. However, none of this had any relation to the employer, but for the fact that it occurred on the employer’s premises. This type of situation could have happened in any retail establishment at any time. The Board simply cannot find that the claimant’s discharge was for reasons connected with her work as contemplated by the Maryland Unemployment Insurance Law. The Board held there was no misconduct or gross misconduct. Thomas v. Wal-Mart Associates, Inc., 4893-BR-12.
C. Criminal Activities and Convictions
The claimant school bus driver was arrested while off duty and charged with possession of drug paraphernalia and a controlled dangerous substance. The employer presented documentary evidence in the form of an affidavit by a police officer attesting to the claimant's possession of a controlled dangerous substance. The claimant was not present at the hearing, but the affidavit was sufficient evidence upon which to conclude that the claimant did in fact commit the act in question. Although the claimant committed the act off duty, as a school bus driver, she had a duty to refrain from using or possessing controlled dangerous substances even while off duty. The claimant was discharged for gross misconduct. Carroll v. Montgomery County Public Schools, 201-BH-88.
The claimant was suspended due to the employer's doubts about his job suitability because the claimant listed a prior handgun violation conviction on his application. There was no misconduct connected with the work. Sayyed v. Guide, 604-BR-89.
The claimant was discharged due to a loss of insurance bonding resulting from a charge of robbery. The claimant had not been convicted at the time of the discharge. There was no misconduct connected with the work. Fitzgerald v. Marten's Motors, Inc., 904-BH-89.
The claimant was discharged when he had been charged with the crime of possessing a controlled dangerous substance. He was not convicted. At the time the claimant was suspended, the employer had no information or evidence that the claimant had committed any misconduct which was connected to the work other than the criminal accusation. The Board concluded that the claimant's actions did not constitute misconduct connected with the work. Ervin v. Anne Arundel County Public Schools, 02238-BR-97.
The claimant, a child care leader for a local government, was charged, arrested and subsequently convicted of child sexual abuse. The employer, pursuant to Maryland Regulation (COMAR) could not maintain the claimant’s employment pending trial and discharged the claimant. The Board ruled that the discharge was for gross misconduct in light of the facts of the case and the regulations that governed the employer and its employees. McCleod v. Howard County Government, 2162-BH-06.
The claimant had been arrested at work for criminal charges not connected with the work. The criminal charges were Nolle Prosequi by the Court. The employer had discharged the claimant from employment during his incarceration. The Board ruled that the discharge was without misconduct since the claimant had been detained through no fault of his own and that the detention was beyond the claimant’s control. Mansaray v. Wal-Mart Associates, Inc., 2608-BR-06.
D. Conduct Prior to Employment
Misconduct which took place prior to the employment is not connected with the work. Jacobs v. New Covenant Church of God, 1524-BR-92.
The claimant was discharged because the insurance company would no longer cover him, due to conditions that the employer knew at the time of hire, was well aware of all along and had tolerated for quite some time. This is not misconduct within the meaning of Section 8-1003. Weidman v. Village Import Cars, 223-BR-91.
The claimant applied for a position as a parking control agent. On her application, she indicated that she did have a criminal conviction. The claimant was hired but the employer reserved the right to have the claimant's background checked. Based on the background check, the employer refused to commission her as a parking control agent. The employer was then required to discharge the claimant, which it did. The claimant had worked there for four months. There is no evidence that the claimant falsified her application, nor is there any evidence that she did any actions that would amount to misconduct after she became employed. Allen v. Department of Transit and Traffic, 722-BR-91.
The claimant took a pre-employment physical on April 5th, began work on April 6th and was discharged on June 14th because the lab test results from the physical showed the presence of a controlled dangerous substance in her body on April 5th. The claimant had, in fact, used painkiller pills prescribed for her father. The misconduct was not connected with the work, since there was no evidence that the claimant was intoxicated by the use of drugs, or that the drugs were in the claimant's system on any day of employment. Thompson v. East Coast Ice Cream Company, 1535-BR-93.
The claimant applied for a position with the employer on July 25, 2011. She did not begin work for the employer. She was discharged on July 27, 2011 during a required orientation meeting because she failed the pre-employment drug screening test. Her test was positive for marijuana. Even though the claimant was erroneously told to attend the orientation, attendance at that meeting constitutes employment. The Board, citing the case of Thompson v. East Coast Ice Cream Company, 1535-BR-93, found that failing a pre-employment drug screening test does not constitute misconduct connected with the work. Edwards v. Greater Baltimore Medical Center, 1141-BR-13.
E. Conduct After Discharge
The conduct of an employee after discharge is not relevant to the reason for discharge and cannot support a penalty under Section 8-1002 or 8-1003. Ammons v. B and G Vending Company, Inc., 816-BR-88.
V. Burden of Proof
An employer who alleges that a claimant is ineligible for unemployment compensation by reason of simple, gross or aggravated misconduct has the burden of proof on this issue by a preponderance of the evidence. The "preponderance of the evidence" standard applies even where the alleged misconduct consists of a criminal act on the part of the employee. The employer's burden of proof includes the production of evidence as to the employer's expectations of the employee and that these expectations were communicated to the employee. In this respect, evidence of work rules and their violations which resulted in oral and/or written warnings is particularly relevant.
An employer's burden of proof includes establishing that the alleged misconduct was in fact the reason for the employee's discharge. This burden is not satisfied by showing incidents of misconduct during the course of employment if the employee was not discharged because of these incidents.
If the employer establishes that the claimant knew about the particular work rules in question, or was adequately warned about the claimant's violation(s), then the claimant must produce evidence which refutes the implication of such knowledge or warnings. Evidence of this nature may include that, in practice, the work rules were ignored by the employer.
A. In General - On the Employer
The claimant mistakenly punched a coworker's time card with his own although the coworker had left for the day. There was no prohibition against punching another's time card. The claimant was discharged with no warnings. The burden is on the employer in a gross misconduct case to show that the claimant's actions were deliberate and willful. In this case, the evidence is insufficient to show that the claimant's action was more than a mistake. Therefore, no disqualification is imposed. Hartman v. Polystyrene Products Company, Inc., 164-BH-83.
While it is true that in a case of alleged gross misconduct, the burden of going forward is generally on the employer, the employer's failure to appear at a hearing on the claimant's appeal of a gross misconduct determination does not mandate a reversal against the employer. The hearing examiner is charged to conduct a full inquiry into the facts of the particular case (COMAR 09.32.06.02E), and a finding of gross misconduct may be made where the claimant admits the allegations against her (excessive lateness in face of warnings). Ward v. Maryland Permalite, Inc., 30-BR-85.
The burden of proof need not be met beyond a reasonable doubt. Even where the claimant is found by a criminal court to be not guilty of the act for which he was discharged, the employer may prove misconduct by a preponderance of the evidence. Weimer v. Department of Transportation, 869-BH-87.
The claimant correctional officer was discharged because three female inmates alleged that the claimant had sexual relations with each of them. The three inmates did not testify at the hearing. The employer's witnesses had no personal knowledge about the alleged misconduct. The claimant denied having sexual relationships with these inmates. There was insufficient evidence to sustain a finding of misconduct or gross misconduct. Scruggs v. Division of Correction, 347-BH-89.
The claimant heard her supervisor say that he didn't like her and felt that she was overpaid. The claimant spoke to the owner about this remark, but the owner stated that the claimant was doing fine and would not be fired. Subsequently, however, the claimant was fired. The employer did not appear at the hearing. The employer has the burden of proving misconduct or gross misconduct, but failed to meet this burden. A claimant does not have to prove why the employer actually fired her. Ivey v. Catterton Printing Company, 441-BH-89.
The employer was not present at the hearing. The claimant denied each allegation made by the employer to the claims examiner. The employer's allegations were not supported by any other evidence, and the claimant's testimony did not lack credibility. There was no misconduct. Lipman v. Graphics Factory, Inc., 697-BR-90.
The claimant, who was a shift supervisor, was fired for allegedly allowing her employees to falsify time sheets and was also charged with doing this herself. However, not a single specific example of this alleged misconduct was observed or testified to by either of the employer's witnesses, and no documents were introduced relating to any specific incident of misconduct. The employer provided nothing but conclusory statements that the claimant had engaged in a certain type of misconduct. The employer failed to produce sufficient evidence to meet its burden of proof. Cook v. National Aquarium in Baltimore, 1034-BR-91.
In the case of a discharge, the employer bears the burden of demonstrating, based on a preponderance of credible evidence that the claimant’s actions rise to the level of misconduct or gross misconduct. While hearsay is admissible in an administrative hearing, it is not given the same weight as sworn, live, first-hand testimony. Wilson v. Lender’s Alliance LLC, 1469-BR-06.
The claimant and employer gave very different statements concerning the claimant’s separation from employment to an agency claims examiner as set forth in an agency Fact-Finding Report. The report containing these statements, although hearsay, was properly entered into evidence by a hearing examiner during an appeal hearing. While hearsay evidence is admissible to administrative hearings it is not given the same weight as live testimony given under oath. The employer failed to attend the appeal hearing. The claimant’s live, sworn testimony was unrefuted and found to be credible by the Board. The employer’s unsworn statement to the claims examiner cannot successfully refute the claimant’s sworn testimony given at the hearing. Upchurch v. Lindstrom Corporation, 2230-BR-06.
Absent an explanation, agency records admitted to evidence cannot outweigh credible first-hand testimony. In this case, Agency Exhibit #1 consisted of a claim specialist’s determination and documents forwarded to the claims examiner by the employer. A hearing examiner may take official notice of Agency documents and admit them into the record and consider them when formulating his finding of facts. However, due process requires that any party may cite a reasoned objection as to their admission. The hearing examiner must rule on the objection on the record. Although the hearing examiner admitted the claims specialist’s determination into the record, he did not explain in his decision why the claims specialist’s documents warranted any weight in light of the claimant’s testimony and evidence. Caccavo v. Hyatt Corp., 902-BH-07.
Since, the hearing examiner’s credibility determination was not demeanor-based, the Board does not owe the hearing examiner “special deference” as to his findings in this regard. The situation leading to the discharge boils down to a “he said/she said”. The Board finds the claimant’s testimony more credible. The supervisor changed his story several times. The claimant consistently denied cursing at her supervisor, throwing a chair and being absent from her duties. The claimant provided witness statements that were consistent with her account. The employer did not object to the admission of these. The Board held that the employer did not meet its burden of proving misconduct or gross misconduct. Sullivan v. Cosmic Concepts Ltd., 5793-BR-11.
The employer did not establish conclusively that the claimant had used the Internet during work hours to access information about another employee. The employer accused the claimant of this, and of spreading gossip about this employee, but could provide no specifics of the time of day the claimant was supposed to have been using the Internet. Similarly, no one observed the claimant send IV medication improperly via “tube” and the claimant credibly denied this action. The employer did not prove that the claimant received the content of its policies, only that she attended orientation. The evidence, taken as a whole, does not support a finding that the claimant was discharged for misconduct or gross misconduct connected with the work. Morfe v. St. Joseph Medical Center, Inc., 1555-BR-11.
The claimant confronted a coworker regarding alleged false reports the coworker was making regarding the claimant’s job performance. When a third coworker joined the discussion, their voices became raised. The first coworker issued a complaint against the claimant. As a result of the complaint, the claimant was discharged. The only first-hand testimony offered by the employer’s witness was her impression of a videotape recording of the incident. There was no testimony that the video contained an audio recording and the employer did not submit the video into evidence. The employer’s witness’ testimony was based on hearsay statements provided to her by others. There was no examination by the hearing examiner that the hearsay was reliable. The Board found the claimant’s first-hand testimony credible. The Board held that the employer failed to meet its burden of proving misconduct or gross misconduct. Walton v. Holy Cross Hospital of Silver Spring, Inc., 2297-BR-11.
The Board found insufficient evidence to support a finding that the claimant was discharged for misconduct or gross misconduct because the employer’s assertions were based substantially on hearsay evidence. The employer relied on statement by witnesses not present at the hearing. The claimant’s assertion was persuasive that he mistakenly rang up a $40.00 sale as $.40. This was an isolated incident of ordinary negligence and did not result in a loss to the employer. With respect to the claimant ringing up excessive ‘”no sale” transactions, the employer’s testimony was too vague for the Board to give it any weight. The employer’s assertions about the claimant’s attendance were based on hearsay evidence. No time cards or records were submitted. The employer’s testimony was also inconsistent. The Board held there was no misconduct. Carroll v. Stags Head LLC, 2053-BR-11.
The only evidence of the claimant’s “insubordination” is from statements from individuals who were not present at the appeal hearing. The Board gave these statements less weight than the claimant’s first-hand knowledge of the incidents. Prior to her discharge, the claimant was not given the opportunity to explain her side of the story. When the claimant did not immediately respond to a request by the head nurse, who was not her supervisor, it was because it was impossible to immediately respond because the claimant was evaluating other patients. The claimant explained this to the head nurse and later completed the requested task. The Board held there was no misconduct. Indilisano v. Charlestown Community, Inc., 1903-BR-11.
The claimant was discharged because he failed to submit to alcohol testing. The employer’s entire testimony is based on hearsay evidence. None of the witnesses who allegedly smelled alcohol on the claimant’s breath testified at the appeal hearing. None of the witnesses who requested the claimant to sit and wait to be transported for a blood test testified. The only testimony was from managers who “assumed” that the claimant was told by the claimant’s production supervisor that the claimant would be transferred for a blood test. The claimant credibly testified that he was not drinking, he was not asked to wait and take a blood test and he was told to go home. The Board found that the employer did not meet its burden of proving misconduct or gross misconduct. Pinder v. Solo Cup Operating Corporation, 1914-BR-11.
The employer’s case was based on hearsay evidence. The employer had three anonymous customer complaints about the claimant’s alleged poor attitude and rudeness to customers. None of the customers were present at the hearing. Their statements were not given under oath or affidavit. The claimant’s first-hand testimony does not support a finding that the claimant’s actions rose to the level of misconduct. The claimant’s interactions with customer were appropriate. The Board held there was no misconduct. Williams v. Communications Electronics, Inc., 516-BR-11.
The claimant was discharged for alleged verbal abuse, bullying and harassment of a coworker. The employer’s entire case was based on hearsay. None of the individuals who witnessed the alleged harassment were present at the hearing. The only evidence the employer presented was documentary evidence of alleged misbehavior on Facebook, which could not be authenticated. The Board weighed the evidence of both parties and found it to be in equipoise. Therefore, the employer did not meet its burden of proving by a preponderance of the evidence that the claimant’s actions rose to the level of misconduct. Imes v. Washington County Board of Education, 1726-BR-11.
The employer discharged the claimant, a driver, for taking a box of DVD movies from the client’s store. The employer viewed a video allegedly showing this. The video was not placed in evidence. Neither witness, who saw the video, actually saw the claimant take anything. A third party, who made the complaint to the employer, also was not present. The employer did not establish that the claimant wrongfully took any property belonging to the employer or its client. Hunt v. Source Interlink Retail Services LLC, 3947-BR-11.
An informant told police that the claimant was dealing drugs from the employer’s premises. The claimant was arrested for this. The employer subsequently discharged the claimant. The claimant was not found to be in possession of any drugs on his person, in his vehicle or in his work environment. The claimant was not observed buying or selling drugs. The evidence did not demonstrate that the claimant did or failed to do anything that could be construed to be misconduct. Mere suspicion, even accompanied by a lawful arrest, is insufficient to support a finding of misconduct or gross misconduct. Thomas v. Interstate Brands Corporation, 4862-BR-11.
The claimant was discharged because of poor work performance. The Board found that the evidence did not support a finding of simple or gross misconduct. The employer’s evidence was entirely hearsay. The employer’s witness had no direct knowledge of any of the events for which the claimant was terminated. The employer testified about various photographs, but his only knowledge of those came from someone else. The photographs apparently show errors, mistakes or problems but do not, in any way, show that these were attributable to the claimant. The employer provided no corroborating evidence for its hearsay-based conclusions. Competent evidence is generally that which is observed firsthand, or that which is provided by a disinterested third party. Credible evidence is that which is believable and truthful. Here, although the employer witness was likely completely truthful and believable, he did not observe the things about which he testified and, therefore, was not competent. Pindell v. National Fire Protection LLC, 682-BR-12.
The claimant removed a box from the basement and placed it on his cart. The employer received a report that a box containing a new vacuum was missing from the basement. The employer viewed a video and determined that the claimant removed the box in question. The claimant was discharged for theft. The employer’s evidence was hearsay. The employer did not offer the video into evidence. The employer’s witness testified about what was on the video, but that testimony was unsupported hearsay. The employer did not establish that the new vacuum was in the box that the claimant placed on his court or that it was ever in the claimant’s control or possession. The evidence only established that the claimant removed a box from the basement, which was part of his job. Rogers v. Johns Hopkins Bayview Medical Center, 831-BR-12.
Eight weeks after the claimant began his employment, the employer received the results of his background check. The background check was run using the claimant’s name, Social Security number and date of birth. The report showed that the claimant had been convicted of multiple felonies. It also showed that the claimant was incarcerated for ten years between 1997 and 2010. The claimant was discharged for falsifying his employment application. The claimant had been employed at various occupations between 1997 and 2010.The claimant had not been convicted of any felony during this, or any other period. Someone else had been using the claimant’s identity. The claimant has been pursuing relief from this, but could not have his name cleared within the 48 hours the employer gave him to have that accomplished. The employer’s evidence was almost entirely hearsay within hearsay. It was insufficient to establish that the claimant falsified anything on his application for employment. The claimant’s separation occurred under non-disqualifying conditions. Hunter v. Christmas Tree Shops, Inc., 1158-BR-12.
The claimant was discharged for “unprofessional and objectionable behavior.” The employer’s witnesses testified in broad generalities about the claimant’s actions. They offered very little in terms of specific words or deeds which led to these conclusory statements. For there to be a finding of disqualifying misconduct, the employer must present credible and competent evidence of what, specifically, was done or said, or what was omitted, by the claimant. One or more persons testifying that a claimant’s behavior was “unprofessional,” “rude” or “flippant” is not sufficient to show that the claimant’s behavior was disqualifying. These terms are conclusions and, more importantly, are vague and open to interpretation. The Board held that the employer’s evidence was insufficient to meet its burden of proof in establishing either gross misconduct or misconduct. Wasson v. Helix Health System, Inc., 2781-BR-12.
The claimant was discharged for sleeping on the job. The employer’s evidence was entirely hearsay. Much of the hearsay was based on speculation or conjecture. The conclusion was reached because coworkers of the claimant observed him sitting in his chair with his head tilted back and his eyes closed. No one attempted to verify that he was asleep and no one attempted to awaken him. The coworkers presumed he was sleeping and reported this as a fact. These coworkers were interviewed as part of the employer’s investigation, but none were present at the hearing for the claimant to have an opportunity to test their recollection or challenge their competency to report or the accuracy of the report. Hearsay is admissible in an administrative proceeding, but is rarely given the evidentiary weight of direct, first-hand testimony. The claimant credibly denied sleeping while on the job. The Board finds that there are likely several scenarios in which a person could have his eyes closed and his head tilted back and still not be sleeping. The hearsay evidence proved only that the claimant was discharged because the employer believed he was sleeping while at work. The evidence did not establish that this actually occurred. Squirrel v. Adams & Associates, Inc., 2949-BR-12.
The claimant was discharged for allegedly verbally threatening another employee. The employer presented conflicting witness statements and did not present any statement from the complaining employee. The district manager who appeared at the hearing had no personal knowledge of the incident. The Board held that the employer did not meet its burden of demonstrating that the claimant’s actions rose to the level of misconduct or gross misconduct. Mackey v. Autozoners LLC, 3640-BR-12.
On February 28, 2012, the claimant was 20 minutes late because he made a wrong turn on the way to work. He was unfamiliar with the route between the hotel where he was staying and the job site. The claimant was discharged that day for alleged repeated tardiness. The Board found that the employer did not establish the claimant had repeated tardiness. An earlier accident when the claimant was driving a construction vehicle on November 29, 2011 was also not the basis for the termination. There was no nexus in time established between the claimant’s discharge and the November accident. The discharge occurred because the employer mistakenly believed the claimant was excessively tardy reporting to work. The Board found the employer did not meet its burden of demonstrating that the claimant’s actions were gross misconduct or misconduct. Randall v. Utility Lines Construction Services, Inc., 4450-BR-12.
The claimant was discharged for failing to meet expectations and conducting personal business while at work. The employer’s witnesses testified from what they were told by persons who were not present at the hearing. The employer did not bring any documentation of time the claimant spent on her work computer performing personal tasks. The employer engaged in speculation and made conclusions based on that speculation. The only first-hand evidence offered by the employer was that the claimant was not accomplishing as much work as the position required. The employer did not meet its burden of demonstrating that the claimant was discharged for some reason which would constitute disqualifying misconduct. Smith v. Sonco Wholesale Fence, Inc., 5074-BR-12.
Based upon a rumor, the claimant was investigated and later discharged for stealing prescription pads from two physicians for whom she worked. The employer presented no competent evidence which demonstrated that the claimant had any connection to the loss or theft of any prescription pads. Employer’s evidence was fourth-hand hearsay. The Board held that the claimant was discharged for the convenience of the employer and not for any disqualifying reason. Lewis v. Atlantic General Hospital Corporation, 6048-BR-12.
The employer discharged the claimant after it discovered that the claimant had a felony charge which occurred after the claimant’s hire. The claimant had been arrested and charged with a drug offense. The employer was not present at the hearing. The claimant testified that she believed she was only required to report this if she was found guilty. She had not been found guilty at the time the employer discovered the charge and terminated her employment. Whether the claimant’s case had been placed on the stet docket, and whether she had documentary evidence to establish this, are not material to the resolution of this matter. The result of this hearing should have been based solely upon the evidence presented to the hearing examiner at the hearing. That evidence lacked any proof of the claimant’s violation of any known policy or proof of the existence or content of the employer’s policy. The claimant’s failure to report her arrest was not the sort of omission which would be considered contrary to the general work place rules, for which no specific proof would be required under the law. If the employer wanted to establish from that the claimant was discharged for a violation of one of its policies, the employer was obligated to appear at the hearing and present such a policy for inclusion in the record and consideration by the hearing examiner. Barksdale v. Capital Health Care Associates, Inc., 5926-BR-12.
The claimant was discharged for improper patient care and failure to complete proper documentation following a final warning. The employer’s evidence was completely hearsay. That is not to say that it was unreliable or lacked veracity. Much of that evidence was documentary in nature and fell within the business records exception to hearsay evidence. However, the witness could not testify beyond her interpretation of the information contained in those records. The Board does not doubt the veracity of the employer’s witness at the hearing. However the witness’s information was all second-hand and much of it appeared to be based on speculation and conjecture. Such evidence lacks the requisite reliability in order for the Board to afford it the evidentiary weight necessary to support factual findings. The Board held the claimant was discharged under non-disqualifying reasons. DiBlasio v. Peninsula Home Care LLC, 5298-BR-12.
The BWI transportation police observed the claimant and another employee discover a computer bag and attempt to place the bag into the employer’s vehicle. The police stopped them and arrested them. This was an undercover sting operation. The employer’s policy provided that employees are not to touch bags that are found. They are required to call the airport police who were to take custody of the bags. The Board found that the employer produced significant competent evidence in the form of a Statement of Probable Cause for the District Court. This document, while hearsay, contains the requisite indicia of reliability: proximity, lack of bias, contemporaneous writing for another purpose, declarant’s ability to perceive and report the event and corroboration by the claimant as to the bulk of the reported facts. It would most likely qualify as a business record, thus coming in as an exception to the hearsay rule. The remainder of the claimant’s testimony was too self-serving to have much evidentiary value in this matter. The claimant’s vague responses to questions concerning the removal of the identification tag from the bag was damaging to his general credibility. The employer provided sufficient evidence to meet its burden of proving gross misconduct. Mills vs. Alliance, Inc., 5496-BR-12.
The employer believed that the claimant had threatened a coworker on two occasions. The employer also had received several complaints about the claimant and about the claimant’s driving. The employer made some conclusions and then discharged the claimant. However the employer failed to bring forth competent evidence of some act or omission by the claimant which would support a disqualification from benefits. The employer’s evidence was virtually all uncorroborated hearsay and speculation. Lavis v. Hayden Mechanical Services, Inc., 3298-BR-12.
The claimant was discharged for using profanity toward her supervisor. The claimant denied using inappropriate language or profanity. The employer could have provided corroborating evidence, but chose not to do so. The employer witness testified that they reached out to the customer who witnessed much of the exchange, but that person declined to participate in the hearing. The employer witness did not offer any explanation for not requesting a subpoena for this important supporting witness. The Board draws a negative inference from this. The employer had the burden to prove the claimant’s discharge was for a disqualifying reason. The employer knew or should have known that a corroborating witness would be crucial toward meeting this burden. Consequently, the Board draws the inference that the witness would not have been fully supportive of the employer’s testimony. It was not the claimant’s responsibility to offer evidence that she did not do something. The employer did not meet its burden of proof. Marshall v. Jason Properties LLC, 3314-BR-13.
The claimant was discharged after her supervisor viewed video footage from a 24-hour camera in the facility which showed that the claimant, during that period, had not been properly attending to the residents in her care. The employer was unable to properly present the video as evidence at the hearing due to technical issues on the employer’s part. The video itself was hearsay, but the employer’s witness’s testimony as to what she observed on that video, and her conclusions therefrom, was first-hand testimony. The employer’s witness provided consistent testimony concerning the reasons for the claimant’s discharge, based upon the content of the video and upon other observations. This testimony was no different, functionally, from the testimony of a witness who had personally observed a series of events. The evidence established that the claimant spent more time not doing her duties than doing her duties. The claimant could have properly performed her duties, but chose not to do so. The claimant was neglectful to residents. The Board held the claimant was discharged for gross misconduct. Boyd v. Rose Hill Management, Inc. 3328-BR-13.
The claimant was discharged for two alleged violations of the employer’s attendance policy and time theft on April 20, 2012 and December 11, 2012. On April 20, 2012, the claimant was injured at work. He left the workplace and drove himself to the hospital where he was admitted for two days. On December 12, 2012, the claimant reported to work and requested that his supervisor, Mr. Cunningham, grant him permission to leave work to receive a flu shot. Mr. Cunningham told the claimant it was not a problem and the claimant could use paid time off. The claimant did not realize that he had no paid time off available. The claimant produced medical documentation of these events. The employer failed to produce Mr. Cunningham as a witness, as requested. The Board took a negative inference from the employer’s failure to produce requested witnesses. The employer’s case was substantially hearsay. The Board finds the employer’s evidence insufficient to overcome the claimant’s sworn first-hand testimony. The Board found no misconduct. Escobar v. Sonco Wholesale Fence, Inc., 5213-SE-13.
The claimant was discharged for alleged poor or rude service based on several unnamed customer complaints to the employer’s corporate office. The claimant’s store was often short-staffed. The claimant worked to the best of her ability and was not intentionally rude to customers. She was not made aware of the complaints until several days or up to a week after the alleged events. She remembered telling a customer it would take 15 minutes to cook a new batch of chicken. This statement was not rude, it was stating a fact. The employer’s witness’s statements were uncorroborated hearsay. The customers who lodged the complaints were not present at the hearing. There were no written complaints in the record. The Board held that the claimant was discharged for no misconduct. Ritter v. Two Farms, Inc., 1120-BR-13.
The claimant was discharged for allegedly repeatedly reporting to work late and for work performance issues. The employer’s case was substantially hearsay. The employer’s witnesses testified regarding statements given to them by others who did not appear at the hearing. The employer produced neither written statements from the complaining clients regarding the claimant’s work performance nor did it produce time records regarding the claimant’s attendance. The employer complained that it did not have the claimant’s write-up documents which were in the claimant’s possession, but did not request a subpoena for these records. The claimant testified from first-hand knowledge regarding her attendance and about the difficulties with the last client. That client treated the claimant and her crew in a rude and unacceptable manner, but the claimant performed her work to the best of her ability as scheduled. The Board found there was no misconduct. Chicks v. Rebrab Group, Inc., 4963-BR-13.
The employer placed the claimant on a thirty-day probation period on March 21, 2013. One day later, the claimant was involved in an auto accident which was not her fault. Nine days later, the claimant was involved in another accident for which the employer was held liable. The claimant was discharged within a few days of this, never completing her probation and never having an opportunity to demonstrate any improvement in her focus or her willingness to assist with other duties. The claimant’s involvement in the final auto accident was not established to have been an incident of sufficient severity to constitute misconduct or gross misconduct. There was no evidence that the claimant did or failed to do anything else, between the date of her probation agreement and the date of discharge which would rise to the level of disqualifying misconduct. The employer’s decision to discharge was within its right, but does not, absent evidence of misconduct, support a finding that the claimant should be penalized or disqualified from benefits. King v. AA & Smack LLC, 4115-BR-13.
The claimant was discharged because, on three occasions over the period of one year, she was allegedly neglectful of her duties. The employer witness testifying at the hearing did not observe, nor was she aware personally, of these incidents. The only evidence presented was through three incident reports with narrative from other nurses who were not present at the hearing. The claimant, providing first-hand testimony regarding each of the incidents, gave credible testimony that was in conflict with the hearsay evidence from the employer witness. The employer failed to point to any specific policy that the claimant violated regarding any of the three incidents. The claimant was an excellent nurse who followed all the normal practices as directed by her unit for the nearly eleven years that she worked for the employer. The claimant was discharged, but not for any misconduct. Harrison v. Anne Arundel Medical Center, Inc., 1854-BR-13.
The claimant was discharged for failure to follow company policy. The employer’s witness testified with virtually no specificity as to the dates of any of the occurrences he alleged were the reasons for the claimant’s termination. The witness had little or no personal knowledge of events. Most of the employer’s witness’s testimony was vague and speculative. The claimant provided a credible explanation for much of what the employer alleged were improper actions. The Board cannot find that the employer’s evidence supports a finding of misconduct. Furman v. Orograin Bakeries Sales, Inc., 480-BR-13.
The claimant was discharged for looking through cabinets and drawers of the workers at the customer’s site at which the claimant was performing work. The employer’s evidence was hearsay. However, it was reliable hearsay. The written statements were from coworkers and the foreman. The written statements were corroborative of the foreman’s observations. The employer did not, admittedly, present the best evidence in support of its assertions. The employer would have been better served to have had, at least, the foreman testify as to his actual observations. However, the employer did present sufficient cumulative evidence to demonstrate that the claimant was acting outside the scope of his duties when he was observed, by several individuals, looking through cabinets and drawers contrary to the employer’s work place rules. It was not demonstrated that these individuals lacked the opportunity to actually and adequately observe what they reported or that there was any reason for any of them to have falsely reported what they observed. Such hearsay evidence can, and here does, support a finding that the claimant violated the employer’s rules and did so purposefully. The claimant was discharged for gross misconduct. Walsh v. W. L. Gary Company, Inc., 865-BR-13.
The claimant was discharged for theft of county property and funds. He sold manhole covers belonging to the employer to a scrap metal dealer for his own personal gain. The Board found that the hearsay evidence provided by the employer was reliable. The scrap metal dealer was not a party to this proceeding and had no interest in the outcome. His records were business records, maintained for a purpose other than the unemployment hearing. The scrap metal dealer had no reason to have used or included inaccurate information in the reports. The police detective’s detailed report was obtained for a purpose unrelated to the claimant’s unemployment claim. The detective had no interest in the outcome of the claimant’s hearing. The detective had to be able to substantiate the content of his report in the event of a court proceeding. His report was inherently reliable. Documentary evidence prepared by an uninterested and uninvolved third party is inherently reliable and lacks bias. The greater weight of the evidence established that the claimant took property which he knew belonged to his employer and sold the property for his own personal gain. This theft is gross misconduct. Floyd v. Anne Arundel County Government, 919-BR-13.
The claimant was discharged after a subordinate crew chief reported to the general manager that the claimant had given the crew member the combination to the restaurant safe prior to taking a break to relax outside the store. The employer witness at the hearing was not present during the alleged events and has no first-hand knowledge regarding the incident. The employer offered out-of-court statements made by the coworker witness who was allegedly provided the safe combination by the claimant. The statements were hearsay. The employer’s best evidence would have been to present the first-hand witness and have her subject to cross examination. The Board gives more weight to the claimant’s first-hand testimony. The claimant denied giving out the combination. The Board held there was no misconduct or gross misconduct. Payne v. Davco Restaurants, Inc., 933-BR-13.
The claimant was discharged because the employer believed she made inappropriate remarks about her supervisor in the work environment outside of her capacity as a union shop steward. They believed the claimant referred to her supervisor as a racist. The discharge occurred after the employer conducted an investigation. The employer’s evidence was based on hearsay within hearsay within hearsay. The employer witness was too far removed from the actual source of the information to be competent to offer credible testimony. The investigation was conducted by a person not present at the hearing. The investigator obtained information from persons not present at the hearing. The testifying witness did not divulge the methodology used, the questions asked or the process by which the results were compiled. The claimant’s testimony was consistent and credible. The claimant was, in her capacity as a union representative, working with a coworker concerning that coworker’s belief that a supervisor was acting in an improper, racially motivated, discriminatory manner toward employees. What the claimant did was functionally no different than what the investigators did in trying to arrive at the underlying facts of the allegation. The claimant had no opportunity to change her behavior or explain her actions prior to her discharge. The Board held that the employer failed to meet its burden to prove that discharge was for gross misconduct or misconduct. Wimbush v. KFHP Mid-Atlantic States, Inc., 1471-BR-14.
The employer did not appear at the hearing to present testimony. There was no actual evidence of the reason or reasons the employer decided to discharge the claimant. The claimant speculated what some of the reasons may have been, but he did not know. The claimant admitted to having borrowed money from persons who were both personal friends and vendors. The claimant denied any actual conflict of interest in these transactions. There was no evidence that this was, in fact, the reason for the claimant’s discharge or that there was any actual or apparent conflict. The evidence before the hearing examiner is insufficient to support a finding that the claimant was discharged for any degree of misconduct. Peck v. Americana Apartments LLC, 1854-BR-14.
The claimant, a delivery driver, was charged with the rape of a minor while on his business route during work hours. In July 2012, the police advised the employer of this and came to the employer’s business to question the claimant. The employer did not discharge the claimant that time. On December 11, 2012, the claimant was arrested at his place of work. The employer was told by police that the claimant’s DNA was a perfect match to the DNA found at the crime scene. When the employer was informed of the arrest and the fact that the DNA was a perfect match, the employer discharged the claimant. The burden of proof need not be met beyond a reasonable doubt. The employer may prove, by a preponderance of the evidence, that the claimant committed misconduct. The employer established by a preponderance of the evidence that the claimant was guilty of gross misconduct when the police informed the employer of the DNA match with the purported victim of rape. The crime of moral turpitude was committed with a minor during the hours of employment and on the employer’s property. The claimant was discharged for gross misconduct. Grant v. Fab-Tech, Inc., 911-BR-14.
The employer discharged the claimant because it believed the claimant had stolen soda, a battery, and a set of ear buds. The employer, however, did not prove that, by a preponderance of competent evidence, this actually happened. To purchase a beverage for consumption, the claimant needed a manager to ring up the sale. The manager was busy and did not ring up the sale. At the end of the claimant’s shift, he reminded the manager he had not paid for the soda he had drunk earlier, but the manager told him not to worry about it. The claimant had, at the manager’s direction, taken a battery from inventory for the manager’s personal use. The claimant did not keep or possess the battery. One of the claimant’s other duties was to test returned merchandise, including ear buds, to make sure they were saleable. He returned them to inventory after testing. The Board cannot find that any degree of misconduct was the basis for the claimant’s discharge. Thomas v. Big Lots Stores, Inc., 819-BR-14.
The claimant, a customer service representative, received a call from a broker. She worked to the best of her ability to manage the call and find an answer to question she was asked. The broker was very upset about how long the process took and filed a formal complaint against the claimant. The claimant and her supervisor had previous issues over the claimant’s cell phone use and her use of employer property to print school materials. The supervisor warned her about each behavior and the claimant stopped the behaviors after the warning. The claimant’s actions with respect to the broker call do not rise to the level of misconduct. The warnings about the cell phone use and the use of the employer’s property for school purposes occurred months earlier and the claimant did not subsequently violate the employer’s instructions after the warning. The Board finds an insufficient nexus between the claimant’s discharge and these corrected actions. The discharge was directly attributable to the broker call incident. Therefore, a finding of misconduct is not supported. Olagbaju v. KFHP Mid-Atlantic States, Inc., 710-BR-14.
On February 18, 2013, the employer gave the claimant a written counseling statement due to some concerns with the claimant’s work performance. On August 27, 2013, the employer discovered some new problems and some invoices that the claimant had not completed. The operations manager issued a verbal warning to the claimant and assisted her in resolving the identified issues. On September 20, 2013, the employer concluded that the claimant was not handling invoices and other accounting duties in a proper and timely manner. The employer presented the claimant with a counseling statement on September 23, 2013. The employer had no intention of discharging the claimant at that time. On September 24, 2013, the employer believed the claimant was being consistently tardy reporting to work. Based on prior counseling and this conclusion, the employer discharged the claimant. No prior warning had been given to the claimant concerning attendance. The claimant believed her attendance was within the employer’s acceptable standards. The employer came to an erroneous conclusion concerning the claimant’s start time and used that as the reason for her discharge. The claimant had no opportunity to improve following the final warning because she was discharged the next day. The inability of the claimant to perform all her work to the employer’s satisfaction was not caused by any willful or intentional act and was not the result of carelessness or negligence. The Board held there was no misconduct. Kleeberg v. Forward Transit LLC, 690-BR-14.
The employer prohibits its workers from accepting any gratuities from customers or clients. The claimant was aware of this policy. The employer believed that the claimant accepted a tip after assisting a client to unload a truck on September 21, 2013. The employer viewed surveillance records and saw the client slide “something” across the truck bed toward the claimant, which the claimant picked up. The employer concluded the claimant had accepted a tip and discharged him. The claimant requested an opportunity to view the surveillance record, but the employer refused this. The Board held that the employer failed to meet its burden of proving that the discharge was for misconduct or gross misconduct. There was insufficient evidence that the claimant had received a warning 18 months earlier for accepting tips. The employer did not know what he saw slid to the claimant on the surveillance. He presumed it was a gratuity and acted on that presumption. The claimant credibly testified that the client had given him a business card. Dewhart v. Loading Dock, Inc., 598-BR-14.
The claimant was a case manager at an assisted living facility. She was discharged for violating the employer’s policy prohibiting employees from helping residents with their personal finances. According to the employer’s policy, employees were not allowed to handle money, credit or debit cards that belong to a resident unless accompanied by the resident. The claimant received a copy of the handbook, but the employer did not offer the policy into evidence. One of the residents could not handle his own financial affairs due to his physical impairment. The employer refused to assist him. The resident asked the claimant to keep his debit card in order to make small purchases for him and to withdraw funds to pay his rent to the employer. The employer was aware that the claimant had been doing this for several months and accepted cash from the claimant for the resident’s rent. The employer presented no evidence that the claimant breached any fiduciary duty to the resident or that the claimant was acting in a manner contrary to the resident’s interests. Absent the actual policy, the Board cannot find that the claimant violated it. The employer did not explain why it waited several months to discharge the claimant when it knew about her handling of the resident’s finances. The Board held there was no misconduct or gross misconduct. George v. Alif Manejwala LLC, 254-BR-14.
The claimant was employed as a certified nursing assistant. She worked two weekends on an assignment for a person with whom the claimant did not feel comfortable. The claimant suspected that this person was using drugs in the home where the claimant came to provide care. She contacted the owner to tell him of her concerns and to request a different assignment. The claimant did not want to return to this residence as she was fearful for her safety and her license. The claimant called several times and the owner ultimately told her to stop calling and go file for unemployment. The claimant concluded she was discharged. The employer’s words to the claimant manifested the employer’s intention to discharge her. The claimant did not have the requisite intent to quit this employment. The employer became exasperated with the claimant’s repeated requests and acted to discharge her. The employer’s witnesses had no first-hand information. There was no evidence of any wrongdoing by the claimant which would support a finding of any level of misconduct. The employer did not meet its burden of proof. Fowler v. Jerry’s Caring Hands, Inc., 1089-BR-14.
The claimant worked from home answering calls from customers of the employer. The claimant was not avoiding calls, but was having problems with his Internet connection. The claimant did what the employer instructed him to do under the circumstances and contacted the employer’s technical support department. The employer determined that he was not properly performing his job duties and discharged him. There was no evidence that the claimant was careless or negligent. There was no evidence that he acted with any disregard for the employer’s expectations or interests. There was no evidence that the claimant’s lack of responsiveness to customer calls was the result of anything but problems with his Internet connection. These circumstances do not constitute misconduct or gross misconduct. Madison v. Fedex Techconnect, Inc., 3230-BR-14.
B. When the Burden Shifts to the Employee
Where the employer has shown that the claimant did not perform a number of simple tasks, and that the staff and resources were available to do the work, the burden shifts to the claimant to explain why he was unable to perform them. Failing such proof, a finding of misconduct is supported. However, the claimant's discharge was not for gross misconduct where there is no proof that the claimant's actions were deliberate or wanton. Finn v. Sheraton Washington Hotel, 89-BR-85.
Money ($900.00) over which the claimant had sole control disappeared, and the claimant did not report to work or contact the employer for several days. The claimant did not report the shortage and had been warned for shortages in the past. The employer met its burden of proving deliberate, gross misconduct by proving that money over which the claimant had sole control disappeared, and the claimant himself disappeared without explanation. The burden then shifted to the claimant to provide any reasonable explanation for these events, but he failed to do so. Stout v. Laurel Race Course, 1030-BH-85.
A violation of an employer's absenteeism policy is not misconduct per se where that policy does not distinguish between absences which occurred due to legitimate medical reasons and absences for which there was no reasonable excuse. However, where an employee has been absent for a day of scheduled work, the burden of proof shifts to the employee to explain the reason for the absence. Leonard v. St. Agnes Hospital, 62-BR-86.
The claimant demonstrated a pattern of tardiness and absenteeism. This pattern continued after verbal and written warnings. In November 2012, after being absent the day before, the claimant was late to work and provided a medical return-to-work certificate which was of questionable authenticity because of areas of apparent white out. The claimant was then discharged. In a letter to the claimant, the Board requested original documentation for the claimant’s absences due to illness. As of the date of the Board’s decision, the Board had not received any further communication from the claimant. The credible evidence established as the claimant’s actions showed a deliberate and willful disregard of standards the employer had the right to expect constituting gross misconduct. Francois v. Challenger Transportation, Inc., 2043-BR-13.
C. Employer's Failure to Follow Technicalities of Its Own Discharge Procedures
The claimant allowed an unauthorized passenger in the employer's van, against company policy. The claimant was discharged summarily, without being granted a meeting as provided in the employer's disciplinary procedures. The claimant argued that since the employer did not follow its own procedural rules in discharging the claimant, gross misconduct cannot be found. Whether the employer followed the technicalities of its own discharge procedures is irrelevant to a finding of misconduct in any case in which the employer proves that the claimant did, in fact, commit misconduct. This is true unless (1) the employer's failure to follow the discharge procedures reflects on the credibility of the employer's evidence concerning the actual happening of the act or event of misconduct, or (2) the employer's failure to follow the procedures shows that the employer has an ulterior motive for discharging the claimant. Daniels v. Primary Alcoholism Treatment Program, 301-BH-85.
The agreement between the claimant's union and the employer does not preclude the Board from a finding of gross misconduct when the claimant isn't technically in violation of the agreement, but, where the claimant's actions clearly rise to the level of gross misconduct. Toy v. Montgomery County Government, 3205-BR-95.
VI. Failure to Perform
An employee's deliberate refusal to obey the employer's direct and reasonable orders is insubordination and may constitute misconduct or gross misconduct. The reasonableness of the order depends upon the circumstances. If the employer demonstrates that an order was reasonable, then the employee must establish that he was justified in not complying.
In the case of Department of Economic and Employment Development v. Hager, 96 Md. App. 362, 625 A.2d 342 (1993), the Maryland Court of Special Appeals held that an employee's discharge for refusal to accept a transfer to another shift was for gross misconduct. The Court stated that when the claimant accepted the job offer, he agreed to work all shifts. The employer told the claimant that the transfer was likely to be temporary and that the reassignment could be shared with another employee.
If an employee is unable to perform due to incompetence or the employer's failure to provide adequate equipment or materials, there is no misconduct. If an employee is discharged because the employee is physically or mentally unable to perform the job, the discharge is not for misconduct. With respect to a pregnant employee, 26 U.S.C., Section 3304(a)(12), which mandates that no person shall be denied compensation under state law solely on the basis of pregnancy, only prohibits the state from singling out pregnancy for unfavorable treatment. See, Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511, 107 S.Ct. 821 (1987).
Negligence in the performance of one's duties can constitute misconduct or gross misconduct depending upon the degree of negligence and the nature of the job. However, an innocent mistake or a mistake not due to negligence is not misconduct.Violations of reasonable work rules have been held to be willful and intentional misconduct. In Painter v. Department of Employment and Training, 68 Md. App. 356, 511 A.2d 585 (1986), the claimant, who went on a medical leave due to her inability to work, failed to notify her employer, for nearly three months, of her release to return to work. The Court found a deliberate attempt by the claimant to mislead the employer and held that this was gross misconduct. However, an employee's failure to follow unreasonable, unethical or ambiguous rules or procedures is not misconduct.
A. Failure to Perform Job Duties
1. Inadequate Job Performance - In General
A mere showing of substandard performance is not sufficient to prove gross misconduct or misconduct. Todd v. Harkless Construction, Inc., 714-BR-89.
The claimant's lack of sales success, despite attempting to generate sales, is not, in itself, misconduct. The fact that the claimant discussed his dissatisfaction with other regional managers is also not, in itself, misconduct. The claimant was discharged, but not for any misconduct or gross misconduct. Krevere v. MAD Intelligent Systems, Inc., 890-BR-89.
The claimant was the executive director of a charitable organization. She was discharged due to her failure to complete necessary financial reports, failure to pay to the IRS the payroll taxes withheld, failure to pay unemployment insurance taxes and failure to inform the employer of these facts. The claimant was discharged for gross misconduct. Alexander v. Helping Hand, Inc., 950-BH-89.
The claimant was employed as a part-time office manager for a small law firm. She was discharged because the employer was unhappy with the claimant's work product. However, the claimant was working to the best of her ability and many of her problems were caused by a poorly equipped and disorganized office. The employer failed to show that the claimant committed any degree of misconduct. Knight v. Vincent Butler, Esq., 585-BR-91.
The claimant did not comply with the clear and unambiguous instructions of his supervisor to remove caulk from a bath tub. The employer’s primary reason for discharging the claimant was for this single insubordinate event. The Board finds mitigating that the claimant had an otherwise clean working record. Although the Board finds that the claimant’s action was wrongful, the Board finds insufficient evidence that the claimant acted in gross disregard to his employer’s interests. Therefore a finding of simple, but not gross misconduct is supported. Under the facts of this case, only the minimum ten-week penalty is measured and appropriate. Shockley v. Esham Family Limited Partnership, 4947-BR-13.
The claimant performed services in covered employment with this employer as a franchise-holding shuttle driver. The claimant executed a “Unit Franchise Agreement” with the employer under which he had non-exclusive right to operate a shuttle in a contractually-defined territory. The claimant was contractually responsible to make certain weekly payments to the employer. The claimant was required to obtain all of his fares from the employer through its fare booking system. The claimant accepted all fares that were assigned or offered to him during the course of his employment. Notwithstanding, the acceptance of all possible fares, the claimant was unable to generate enough revenue to pay his financial obligations to the employer. As a result, the claimant was in default of the agreement and was discharged. The Board found insufficient evidence that the claimant was negligent in his job duties. The claimant’s shuttle route’s financial condition was not within the claimant’s control because the available fares derived from the employer. The Board finds the claimant’s financial obligations to the employer are collateral to the claimant’s course of performance of the work in which he was engaged on behalf of the employer. Therefore, the Board concludes that a finding of misconduct cannot be supported. Satterwhite v. Super Shuttle International, Inc., 4477-BH-13.
The claimant was able to properly and timely perform her duties, but did not on several occasions. The employer placed the claimant on a six-week probationary period. During that time, she performed her work to the employer’s satisfaction. At the end of the probation, the claimant’s performance reverted to being unsatisfactory. Clearly, the claimant was not working to the best of her ability at all times. The employer offered information to show that the claimant was spending an excessive amount of time on non-work-related Internet activities. This was not offered to support a reason for discharge, but to show how the claimant was using her time. The employer was not required to specify all of the reasons for the discharge in the letter of termination. The Board finds that the claimant was derelict in her duty to the employer. The Board concludes the claimant was discharged for misconduct and imposed a 15-week penalty. Darby v. Therapeutic Solutions, Inc., 1203-BR-14.
2. Refusal to Perform; Insubordination
a. Refusal to Obey a Direct Order or Instruction
(1) Gross Misconduct Found
The claimant refused to train an employee after being instructed to do so by her manager. The claimant gave no reason for her refusal. The claimant was discharged for gross misconduct. Romesberg v. Shaffer Ford, Inc., 48-SE-90.
The claimant was discharged for refusing to obey an order to accompany another driver on a road test. The claimant offered no coherent reason for refusing a reasonable order which was related to his ordinary job duties. The claimant was discharged for gross misconduct. Solomon v. Cantwell Cleary Company, Inc., 1027-BR-91.
The claimant refused to help out and take some extra stops on his route when one of the other drivers was ill. Covering for sick drivers was standard procedure and necessary in the employer's business. Others had covered for the claimant in the same way when he was ill. The extra stops did not make the claimant's work load excessive, even for that one day. The claimant was discharged for gross misconduct. Robertson v. Saval Foods Corporation, 1050-BR-92.
The claimant continued to use the employer’s cell phone for personal use, in deliberate disregard for the employer’s stated requirements. He continued to work unauthorized overtime and did not advise a supervisor, in disregard of the employer’s expressed expectations. He refused to leave the premises when asked to do so. All of these were acts of willful insubordination. His termination was for gross misconduct. Trite v. Washington County Board Commission, 2085-BR-11.
The employer held a meeting with the claimant to inform her of a mandatory transfer. The claimant was being transferred because she had two warnings about her inability to get along with a coworker, in violation of the employer’s policies and expectations. The claimant did not return to work after this and was discharged for her actions. The employer was not imposing unreasonable discipline and was not being arbitrary in its decision to transfer the claimant. The claimant’s refusal was unreasonable and constituted gross misconduct. Brown v. Mayor’s Office City of Baltimore, 5483-BR-11.
The claimant had received a verbal warning for complaining in the presence of a customer. He also received counseling for insubordination when he refused to participate in the employer’s quiz about how to make a sale. The claimant refused because he was a veteran salesman. The final incident occurred when the claimant was insubordinate to his supervisor when he left work without filling out his time card, despite being asked to do so. The Board held the discharge was for gross misconduct. Cloud v. Gregg Appliances, Inc., 4320-BR-11.
The claimant was not discharged for her absences or her inability to work due to illness. She was discharged for her willful refusal to contact the employer when requested. Even if, as the claimant stated, she did not receive the employer’s first e-mail until late in the evening, she should have contacted the employer the following morning. The employer was making repeated requests to speak with the claimant and try to keep her employed. When the claimant continued to ignore the employer’s requests for contact, she was discharged. The Board held the claimant was discharged for insubordination which constituted gross misconduct. Jacobs v. Fairway Services, Ltd., 1535-BR-11.
Despite clear admonition, the claimant continued to passively resist and actively oppose the implementation of a required process. The claimant expressed his disagreement on multiple occasions and continued to do so after he was specifically told that the matter was no longer open for discussion. He also failed to assure that the mediators under his supervision used the required assessment tool. The claimant’s refusal to follow the employer’s reasonable directives was willfully insubordinate and constituted gross misconduct. Spangler v. Montgomery County Government, 985-BR-11.
The claimant willfully and deliberately refused to perform the job duties to which he was assigned. The claimant had performed this type of work in the past and it was well within his regular scope of work. The employer had a good business reason for requesting the claimant to perform other duties on the day in question and the claimant had no good reason for his refusal. His failure to perform the requested duties had an adverse impact on the employer. The employer met its burden of demonstrating that the claimant’s actions rose to the level of gross misconduct. White v. J.W. Treuth & Sons, Inc., 190-BR-11.
The claimant had a history of insubordinate behavior having been twice placed on final warnings for this. Subsequently, the claimant refused to sign a formal notice of correction because she asserted it was not true. The claimant was counseled that her signature was required to show that she had received the document. The claimant, however, refused. Consequently, the claimant was discharged for insubordination. The Board held that the claimant’s discharge was for gross misconduct. Halsey v. Holy Cross Hospital of Silver Spring, Inc., 2388-BR-12.
The claimant was employed as an emergency medical technician for the Ocean City Fire Department. The employer had worked with the claimant to improve the quality of his work. The claimant was unable to pass the practical portion of the Advanced Cardiac Life Support course. The employer offered the claimant an opportunity to remain employed if he agreed to certain terms. The claimant’s status would be changed from intermediate to basic life support provider. The claimant did not keep one of the terms of the agreement that he surrender his CRT-1 license. The claimant never informed the employer that he did not keep this part of the agreement. Only an audit showed that he was still certified as a CRT-1. The claimant put the public and his employer at risk by not keeping the terms of his employment agreement. The Board held that the claimant was discharged for gross misconduct. Lattanzi v. City of Ocean City, 3087-BR-12.
As a result of a complaint of sexual harassment against the claimant, the employer required him to complete mandatory training on sexual harassment and professional boundaries. He was required to attend ten sessions within a six-month period. The claimant attended two sessions and dropped out of the program. He proffered that he was unable to complete the course because he was providing home health care to his fiancée for about twelve weeks. However, the claimant made no effort to complete the mandated course or contact the employer to advise that he had difficulties in completing the program or needed an extension. The claimant’s conduct demonstrated a willful and wanton disregard of the claimant’s obligations to his employer and a gross indifference to the employer’s interests, constituting gross misconduct. Raab v. Board of Education Baltimore County, 4331-BR-12.
The claimant rejected out of hand the employer’s request to undergo training to improve her typing skills, a part of her job requirement. This refusal was unreasonable without determining whether the employer was willing to give the claimant additional time to find out whether keyboard training was available, the cost of the training, and who would bear the cost of such training. The claimant’s unreasonable refusal constitutes gross misconduct in connection with the work. Hans v. Russell Insurance Group, 4986-BR-12.
The claimant was one of two kitchen supervisors. The claimant was supposed to work at least 45 hours per week. The claimant had previously expressed his desire to work only one Sunday per month because of his family and church activities. The employer attempted to accommodate this, but it was not a guarantee. The claimant was scheduled to work Sunday, September 15, 2013. He went to the employer and stated he could not work because of some church obligation. He did not specify what this obligation was. He did not report to work on September 15, 2013 and was discharged. The claimant’s church obligation on September 15, 2013 was an evening rehearsal for a christening which was to take place the following week. The Board does not find that the employer’s insistence that the claimant work that Sunday to be a violation of the claimant’s right to practice his religion. The claimant’s refusal to report to work on September 15, 2013 without a valid or compelling excuse was an act of deliberate and willful insubordination. As such, it constituted gross misconduct. Guerrero v. Cluster Spires Brewery Group, Inc., 594-BR-14.
(2) No Misconduct Found
The claimant was not told at the time of hire that Saturday work was required, and refused to work Saturdays only when the employer gave insufficient notice. There was no misconduct. Cook v. Family Floors, Inc., 681-BR-87.
The claimant had received training in some of the work she was expected to do, but not all the programs for which she had some responsibility. She needed additional help and guidance periodically to complete all her tasks. She was working to the best of her ability and did not refuse assignments or resist direction. There was no insubordination. The claimant was discharged for her inability to perform all her work in the time allotted. This was not misconduct. Kaminski v. Local Department Operations 330700, 978-BR-11.
The employer asked the claimant to stay beyond his normal quitting time to perform a non-emergency task. This request was made approximately 10 minutes before the claimant was due to leave the employer’s premises for the day. The claimant had made plans after his workday, stated this fact to the employer and declined to remain. The employer terminated the claimant that time. The claimant had not been disciplined in the past. He had stayed beyond his work hours at the employer’s request in the past and had also declined staying beyond his hours in the past without consequence. The Board held that the claimant was discharged, but not for gross misconduct or misconduct. Shoemake v. Sines Enterprises LLC, 4687-SE-12.
On February 19, 2013, the employer sent an e-mail addressed to “all users” stating that using personal web sites was detrimental to the employer. It stated that if management finds an employee accessing sites one more time, it will automatically result in termination. On April 1, 2013, the employer sent a memo to the claimant advising that her Internet usage was high for the preceding two weeks. The claimant admitted that she spent her idle time on various websites. The claimant ceased using the Internet when the employer cautioned her on April 1, 2013. She was discharged on April 5, 2013. The Board found that the claimant was disciplined for excessive Internet use in the final warning and she stopped. There was no breach of duty upon which a finding of misconduct may be made. Clements v. Eminent Services Corporation, 3569-BR-13.
b. Refusal to Do One's Job
The claimant's blatant and repeated refusal to do her job assignments, many of which had a direct effect on patients, was gross misconduct. Ishola v. AMI Doctors of Prince George's County, 487-BR-89.
The claimant consistently refused to operate the drug counter cash register when asked to do so. This duty was a requirement of the job which was told to the claimant at the time of hire. The employer counseled the claimant about this problem on several occasions. When the claimant again refused to do this, she was discharged. This was gross misconduct. Chioli v. Dart Drug/Fantle's Drugstores, 620-BR-89.
c. Refusal Due to Belief of Danger or Hazards
The claimant, a home health aide, was discharged for refusing to enter the home of and administer care to a patient suffering from AIDS. The claimant's refusal to do her job, despite additional counseling and training, and in view of the minimal risk to the claimant and the extensive precautions provided by the employer, was gross misconduct. Vines v. Saint Joseph Hospital, 1114-BH-88.
The claimant refused a direct order to go to a job site because he heard a rumor that there might be a picket line there and he feared it would be dangerous. He did not verify this rumor as true. The claimant was discharged for gross misconduct. The claimant had no reasonable excuse to refuse a direct order. Maggio v. American Automatic Sprinkler, 735-BR-89.
d. Refusal to Work Overtime
At the time of hire, the claimant was informed that mandatory overtime was required. The claimant, having received verbal and written warnings about his past refusal to work overtime, failed on another occasion either to work the mandatory overtime or to explain his failure to the employer. This was gross misconduct. Copeland v. Ryland Group, 415-BR-86.
The claimant refused the employer's order to return for a one hour shift at the end of the work day. She had been informed that she would be fired if she refused. The claimant had already worked a fragmented shift of more than nine and one-half hours when the employer asked her to work an extra hour. She had also already worked 48 hours that week. Under the circumstances, the employer's order was unreasonable and the claimant's failure to follow it does not constitute misconduct or gross misconduct. Byrd v. Jonathan Enterprises, Inc., 934-BR-89.
3. Inability to Perform
a. Inefficiency or Incompetence
The claimant was unable to perform her job to the satisfaction of the employer. The claimant tried to do her job to the best of her ability, but was not capable of doing the job. The claimant did not have any previous experience doing clerical office work. There was no evidence that the claimant was discharged for any misconduct on her part. Cumor v. Computers Communications Group, 902-BH-87.
The claimant made a judgment concerning the proper carbonation level in three separate incidents, all of which resulted in loss to the employer. The employer showed that the claimant did not use good judgment, but failed to prove that this was due to either the claimant's negligence or deliberate efforts to disregard the employer's interest. There was no misconduct. Greenwood v. Royal Crown Bottling Company, 793-BR-88.
The claimant was a teacher. His performance was not satisfactory and the employer placed him on a Plan of Assistance, which is used to improve classroom performance. Nothing changed and he was put on a second Plan of Assistance. Subsequently, he was terminated. The weight of the credible evidence shows that the claimant was unable to meet the standards of work due to a lack of competency. There was no evidence that the claimant was discharged for any misconduct. Reich v. Harford County Public Schools, 4852-BR-12.
b. Physical or Mental Inability to Work
A claimant's failure to work to the best of her ability, thereby causing a failure to meet her employer's production standards for which she was fired, constitutes simple misconduct under Section 8-1003 where the claimant had some medical problems towards the end of her employment. Martz v. Nikki, Inc., 294-BR-85.
The claimant was discharged for bizarre, loud and aggressive behavior which resulted from the side effects of legally prescribed drugs. The claimant provided medical documentation that the drugs could have been primarily responsible for the behavior leading directly to the discharge. There was no misconduct. Day v. Sinai Hospital of Baltimore, 540-BH-85.
a. Gross Misconduct
The claimant was competent medical laboratory technician who was trained in the use of the computer and the procedures of his job. The claimant made a number of errors which clearly could have resulted in serious injury to patients for whom the testing was performed. The errors were the result of negligence in entering data into the computer. The claimant was warned several times about his error rate, but the errors increased. When a claimant's work involves critical risks to the life and health of other persons, a higher degree of care is required. The claimant was discharged for gross misconduct. Roberts v. Maryland Medical Lab, Inc., 1215-BR-88.
After having some expensive mishaps with the employer's equipment, the claimant should have adjusted his behavior. The employer specifically warned the claimant to have someone watch him whenever he backed the truck. The claimant failed to do so and caused another incident of property damage. In the last incident, the claimant overturned the truck during what should have been a normal road maneuver. The claimant was discharged for gross misconduct. Jones v. Allstate Building Supply Company, Inc., 700-BR-89.
The claimant previously demonstrated the ability to properly perform her work. However, for unknown reasons, the claimant was neglecting simple responsibilities such as the timely mailing of correspondence ( i.e. lab results), and properly routing telephone messages to the doctor. The employer gave the claimant warnings. The claimant’s repeated behaviors were sufficiently careless to support a finding of gross misconduct. Chaney v. Greater Baltimore Medical Center, 2452-BR-11.
The claimant correctional officer left an unrestrained inmate unattended for 46 minutes. Because the life and health of others is at risk in a correctional facility, the claimant is held to a higher degree of care. The Board found the claimant’s actions were culpably negligent and were in gross disregard to his employer’s interests, constituting gross misconduct. Stone v. Wicomico County Maryland, 651-BR-11.
The claimant, a phlebotomist, received warnings regarding the absolute need for accuracy with registering patients and labeling specimens. The claimant was on a heightened duty to insure the accuracy of her work because it involved critical risks to the life and health of the employer’s patients. Her actions were not mere substandard performance or a failure to exercise good judgement. After another error where she registered a patient under the wrong name, she was discharged. The Board held the discharge was for gross misconduct. Smith v. Carroll Hospital Center, 223-BR-11.
The claimant failed to appear for work on July 15, 2011. The employer had no record that the claimant notified them of his absence. He had been approved for vacation the week of July 18, 2011. The claimant called the employer after returning from his scheduled time off and spoke to an employee who informed him he was not on the schedule because he was a no call/no show on July 15, 2011. The claimant did not contact the supervisor and had no further communication with the employer after that. The Board held that the claimant’s willful inaction demonstrated repeated carelessness toward his employer, its expectations and its interests. The claimant was discharged for gross misconduct. Brunson v. Pizza Hut of Maryland, Inc., 1507-BR-12.
The claimant was discharged because he did not properly respond to a carbon monoxide alarm at the hotel where he worked. The claimant was a licensed HVAC mechanic who should have known from his training to turn the boiler off and to ventilate the area upon the alarms sounding. The claimant was on a final disciplinary notice that any future incident would result in automatic termination. Subsequently, he made the decision to leave the carbon monoxide problem and attend to a roof leak, thus putting guests and employees at risk. he Board held this was gross misconduct. Dougherty v. 91st Street Joint Venture, 2252-BR-12.
The claimant was a registered nurse charged with the health, safety and well-being of patients under her care. The claimant had been trained in the proper procedure for both dispensing ordered medication and documenting patient information. The claimant held a position in which a higher degree of care was a reasonable expectation. The claimant, for her own reasons, chose to change the dosage of a medication which could have had serious and detrimental effects on the patient. Additionally, the claimant did not properly note important information in patients’ charts. The claimant was either repeatedly careless or grossly negligent in her actions. As such, her discharge was for gross misconduct under Maryland law. Hooke v. Helix Health System, Inc., 2353-BR-12.
The claimant was properly trained on the administration and documentation of medications. On two occasions in early 2012, the claimant documented that she had administered medication, but had not actually done so. Clearly the claimant acted in a manner contrary to the employer’s expectations and its best interests. The Board finds her discharge was for gross misconduct. Wirth v. Dove Point Residential Services, Inc., 4318-BR-12.
The employer is a bank. The claimant’s job was to assist loan customers. The employer relies upon the goodwill of its customers for its continued success. Rude and unprofessional behavior by its employees in their interaction with customers has a serious detrimental effect on the employer’s business. The employer clearly warned the claimant about its concerns with the way she handled certain calls from customers. The warning set forth the employer’s expectations and requirements and advised the claimant that failure to improve could result in her termination. The claimant did not improve and was subsequently discharged. The Board found that her failure to improve her performance for these recurring problems was indicative of gross negligence or repeated carelessness. That is sufficient to support a finding that her discharge was for gross misconduct. Wisz v. Wells Fargo Bank, 4751-BR-12.
The claimant failed to report to work for three consecutive shifts. The employer then took him off the schedule. After the last day he actually worked, the claimant contacted a coworker. The coworker said the claimant was not on the schedule for the following week. The claimant did not make any attempt to contact anyone in a position of authority to verify this or to ascertain why he was not scheduled as he ordinarily was. The claimant then did not report for work and repeated his behavior the following week. It was at that point that the employer removed him from future work schedules and terminated his employment. The Board held that the claimant’s failure to maintain his employment was an act of gross negligence. His failure report for work as scheduled for three consecutive shifts was an act of gross negligence. The Board concludes that the claimant’s conduct was gross misconduct. Abramson v. DTLR, Inc., 5939-BR-12.
The claimant was discharged for poor work performance. The claimant’s reports were critical to physicians and to their patients. The health and well-being of these patients was dependent upon proper and timely care which, in turn, was dependent upon the information provided to the doctor from the claimant. A misspelled name or incorrect date of birth may not seem critical, but could have caused a report to be attributed to a completely different patient. The claimant was provided multiple opportunities to properly perform her duties. She continued to make errors which were avoidable and which could have been critical. The Board finds it unlikely that faulty equipment could lead the claimant to report that a patient had a mechanical heart valve when the patient did not. The claimant’s poor work performance was caused by repeated carelessness or gross negligence sufficient to support a finding of gross misconduct. Day v. Carroll Health Group LLC, 3563-BR-13.
The claimant was hired with years of experience for the position. The claimant professed to have the experience and ability to perform the duties of the position. The employer discovered the claimant was not performing his work due to its satisfaction. The employer gave the claimant verbal warnings that his performance was not up to their standards. The evidence established that the claimant, despite warnings, did not improve his work performance. There was no evidence that the claimant was incapable of proper performance or that the employer’s expectations were unreasonable. The Board concludes that the greater weight of the evidence demonstrated that the claimant was not performing his work to acceptable levels due to either repeated carelessness or deliberate disregard for the employer’s expectations. The Board finds the claimant was discharged for gross misconduct. Brown v. Chuck’s Body & Fender, Inc., 3354-BR-13.
At the time of separation, the claimant was a lead teller. From May 2011 through September 6, 2012, the claimant received four warnings for violating the employer’s check hold policy. The employer proved specific facts through competent, credible testimony. The employer was not required to submit supporting documentary evidence where the testimony was sufficient. Unless a significant amount of time has passed, there is no requirement that there must be a final incident between the last warning and the claimant’s discharge. In this case, less than one month elapsed between the last incident and warning and the employer’s decision to discharge the claimant. An employer is certainly allowed to take some time to make such an important decision; to consult if necessary; and to consider options available to it. The employer reviewed the claimant’s performance history and came to the conclusion that the claimant was repeating the same errors despite warnings and was unlikely to improve. The Board finds that the claimant was discharged for repeated carelessness or gross negligence in performing the duties of her employment. The termination was for gross misconduct. Brown v. AFL-CIO Employees FCU, 1904-BR-13.
The employer proved that during the last six to nine months, the claimant made many careless mistakes or omissions that resulted in problems with customers' cases and delayed several settlements. However, the employer failed to prove that the claimant's neglect was accompanied by a gross indifference to the employer's interest or resulted from a regular and wanton disregard of her obligations. The claimant was discharged for misconduct. Dreher v. Provident Bank of Maryland, 1216-BR-88.
The claimant nurse was fired for an accumulation of job deficiencies. The claimant made none of these mistakes deliberately, and she was not grossly negligent, but she was not as careful in her job duties as she should have been. Although mere incompetence is not misconduct, there was a degree of negligence in the claimant's conduct which amounts to misconduct. Andreski v. Crofton Convalescent Center, 1431-BR-93.
The claimant was discharged for operating the employer’s truck in a negligent manner and causing damage to the truck. There was ample space for the claimant to back up his dump truck. The claimant chose to follow the directions of a “dozer” operator rather than adequately checking his own actions. He also failed to hear the warnings from the other truck driver. The claimant felt pressure to work at a faster pace and wanted to make the dozer operator happy. The claimant followed the dozer operator’s directions, although the claimant knew that he had no authority or directive to give directions. The claimant knew he had the full responsibility for the operation of the truck. The claimant received two previous warnings that were considered in his discharge, but neither involved the safe use of his truck. The Board held that the claimant was derelict in his duty to properly operate his truck and the discharge was for misconduct. Howard v. Pleasants Construction, Inc., 3387-BR-12.
A coworker approached the claimant about a computer error message received on a document. The claimant could not fix the problem. She was aware of a former coworker who might be able to help. The claimant called and then faxed to the former coworker the document, which contained confidential information about residents of the employer. When the employer learned of the claimant’s actions, she was discharged for this breach of confidentiality with respect to the HIPAA law. The claimant was aware that her actions were a potential violation of HIPAA. The Board held that the claimant’s actions were misconduct. Cole v. Hebrew Home of Greater Washington, 6040-BR-12.
The claimant, a human resource coordinator, was warned because of continued performance issues. Subsequently, the claimant incorrectly informed a new hire about work hours. Also, the claimant hastily and incompletely prepared a report for a meeting. After these two incidents, she was discharged. The Board finds that the two principle incidents which led to the claimant’s discharge do not constitute acts that were made in a deliberate or wanton manner. Therefore, a finding of gross misconduct is not supported. Notwithstanding, the claimant’s actions do constitute a course of wrongful conduct and a finding of misconduct is supported. The Board disqualified the claimant for 15 weeks. Jacobs v. The ARC of Washington County, Inc., 2288-BR-13.
On April 23, 2012, the claimant advised the employer that he had received a subpoena to appear as a witness for a trial in Chicago, Illinois and would return when the trial ended. On May 3, 2012, the employer advised the claimant that he would be terminated as a result of having been absent from work. The Board found that the claimant was absent for reasons beyond his control. The length of his absence was similarly beyond his control. The claimant, however, was negligent in keeping his employer informed of the delay in his anticipated return to work. That negligence was a breach of the claimant’s duty to the employer and constituted simple misconduct. The claimant was disqualified for 15 weeks. Hinton v. Brick Bodies Fitness Services, Inc., 1747-BR-13.
The claimant performed an oil and filter change for a customer. The customer discovered that the claimant did not actually change the filter. The customer informed the service manager. The service manager questioned the claimant. The claimant did not provide any explanation for this and was discharged. The Board found that the claimant was culpably negligent when he failed to change the oil filter on a customer’s car. Changing the oil filter was a primary job duty in the course of the claimant’s job. Notwithstanding the claimant’s mistake, the evidence supports a finding that the claimant neglected his duty on a single occasion. Therefore, the Board finds that only a ten-week penalty is warranted on the facts of this case. Emory v. Younger Toyota, Inc., 1771-BR-14.
c. Cash Shortages
The claimant's repeated cash shortages, which resulted from the careless manner in which he conducted the employer's business, constitute misconduct under Section 8-1003. However, without evidence of deliberate and willful acts, a finding of gross misconduct is not supported. Kanter v. Chillum Corporation, 1028-SE-83.
The claimant had sole control of the employer's money during her shift. There was a shortage of $232 during that shift and this was not attributable to mechanical or electronic error. The claimant did not appear at the hearing to present evidence of any mitigating circumstances. The claimant was discharged for gross misconduct. Floyd v. Parkway, Inc., 1108-BR-89.
The claimant tractor-trailer driver was involved in nine accidents in six years of employment. The last accident resulted from the claimant's failure, because he was in a hurry, to either set the air brakes or chock the wheels as required by procedure. The claimant's deliberate choice to shortcut the parking procedures showed a gross indifference to the financial risk imposed on the employer and the safety risk to the general public, and constitutes gross misconduct. Jefferson v. Overnite Transportation, 252-BH-83.
The claimant was discharged for striking a car in the rear. Not every minor slip that causes one to be considered negligent from the perspective of traffic laws is misconduct. Without a showing of deliberate or reckless actions, misconduct is not supported. Archie v. H.C. Gabler, Inc., 711-BR-83.
The claimant had four accidents with the company truck, two due to his negligence and two not due to any fault on his part. The claimant's discharge was for simple misconduct. Draughn v. Apex Warehouse, Inc., 880-BR-87.
Although the record supported a conclusion that the claimant made some mistakes in the performance of his job duties as a machinist, the employer failed to prove, by the number or type of mistakes, that the mistakes were due to the claimant's negligence. Therefore, no disqualification is appropriate. Keller v. Eastport International, 264-BH-85.
The claimant was discharged for mistakenly painting the wrong floor. An innocent mistake or incompetence does not constitute misconduct. Morales v. Bryan and Associates, Inc., 476-BR-85.
The claimant received three different decision day final warnings during her tenure, the last of which was on March 24, 2012. It was effective for one year and the claimant was put on notice that any issue of misconduct would lead to termination. In November 2012, the claimant mistakenly loaded an employee’s money card with $574.00 instead of unloading that same amount. The claimant gave out the money in that amount but the error resulted in an $1148.00 cash shortage. The claimant was discharged. This was the first cash handling incident that the claimant was disciplined for in her 14 years of employment. The claimant did not make the mistake deliberately, but she was not as careful in her job duties as she should have been. There was a degree of negligence in the claimant’s conduct which amounts to misconduct. Godlove v. Wal-Mart Associates, Inc., 5224-BR-13.
The claimant worked in medical records. She had been previously warned about errors in her work. When the errors continued, she was discharged. However, the claimant established mitigating circumstances for these errors. The claimant did not have adequate time upon receipt of all the information necessary, to perform her data entry work and to proofread that work prior to submission. The Board is satisfied that the claimant was attempting to perform her work to the best of her ability and that the claimant did not act with any disregard for the employer’s interests or its expectations. The Board held as there was no misconduct. Catala v. Corporate Health Resources, Inc.,1102-BR-13.
5. Alterations of Conditions of Employment
The claimant was discharged for refusing to sign a policy that would have substantially altered his employment benefits. There was no misconduct. Richardson v. Wallace Shipbuilding Company, Inc., 420-BR-89.
The employer tried to renegotiate the claimant's hours of work. When the claimant would not agree to a change, the employer terminated her. The claimant's refusal to change the hours of work she was promised is not misconduct or gross misconduct. Teal v. Mellon Bank, 69-BR-92.
B. Failure to Follow Rules and Procedures
1. In General
An employer's requirement that the claimant dress in a professional manner, which was made known to her at the time of hiring as a receptionist, was reasonable, and her discharge after she was warned but continued to wear T-shirts and tennis shoes, was for simple misconduct. Kidwell v. Mid-Atlantic Hambro, Inc., 119-BH-86.
The claimant presumed that the employer acquiesced to the claimant's administration of medication to a sick animal which the claimant knew or should have known that the employer did not normally approve. A violation of the normally authorized procedures requires an explicit authorization. The claimant's failure to get such authorization amounts to misconduct. Gray v. Valley Animal Hospital, Inc., 224-BR-90.
The claimant was required, pursuant to the contract between the employer and the union, to submit to a physical fitness for duty exam. The claimant refused. This was gross misconduct. Denorey v. Genstar Stone Products Company, 1198-BR-91.
Where a claimant refused to properly arrange for a continued absence by signing a leave of absence form and providing a doctor's statement, the claimant committed gross misconduct. Ullman v. Anne Arundel County Public Schools, 498-BR-93.
The claimant’s act of bringing a handgun onto the employer’s premises is a dereliction of duty. There does not need to be a specific rule prohibiting handguns in the workplace for the claimant’s act to constitute misconduct. The Board did not find mitigating the fact that the handgun was unloaded. Large v. Duffy Mechanical Corporation, 2531-BR-06.
The claimant failed a random drug screening and the employer allowed him to be placed on a Condition of Employment, a method used for monitoring after a positive drug screening. To remain employed, the claimant was required to agree to call the employer’s Occupational Health and Safety Office three times a week. He agreed, but on December 20, 2010, he forgot to call. As a result, he was discharged. The Board held this was misconduct. The evidence does not support that this was a deliberate act. This was an act of mere carelessness, sufficient to warrant a mitigated penalty. Stringfellow v. Johns Hopkins University, 5038-BR-11.
The claimant was injured and was prescribed prescription medication. She became addicted and was referred to the employer’s Employee Assistance Program (EAP). She went through a “de-tox” program and was released to work without restriction. The employer then required the claimant to attend a three to six month program which would cost the claimant $60.00 per week. The claimant could not afford to pay this since she was not working. The employer discharged her based upon its presumption that she was abandoning her position. The claimant never intended to leave her employment. She wanted to return, but the employer precluded that. There was no misconduct. Griner v. Johns Hopkins Bayview Medical Center, 3894-BR-11.
In the fall of 2010, the employer informed its employees that no one was authorized to take vacation leave during the Christmas sales season in December 2010. The claimant’s son, who is in military service, sent the claimant’s husband two plane tickets so that the claimant and her husband could visit him in Alabama from December 23 through December 26, 2010. On December 13, 2010, the claimant asked her supervisor if she could take those days off. He expressed disappointment, but did not approve or deny her request. The claimant expressed her desire to go with or without the employer’s permission. On December 20, 2010, the employer discharged the claimant because he believed she would be absent without approval from December 23 to December 26, 2010. The Board found that the claimant was discharged, but not for violating a work place rule. Discharging an employee for anticipating that she will violate a work place rule sometime in the near future is not misconduct. Jacobs v. Burkeys Television & Appliance Company, Inc., 660-BR-12.
The claimant was discharged for misuse of company time. The employer does not permit employees to use its telephones for personal use and does not permit employees to use their cell phones for unauthorized personal use during work hours. The claimant repeatedly used the employer’s telephone for personal calls, without permission or authorization. The claimant was seen using the employer’s telephone in the dark on one occasion. This supports a finding that the claimant’s actions were knowingly wrongful. In addition, the claimant repeatedly went off the employer’s premises, without permission or authorization, for personal reasons. The Board finds that the claimant’s actions were deliberate and with gross disregard to his employer’s interests. The Board held the claimant was discharged for gross misconduct. Reed v. Shared Opportunity Service, Inc., 1151-SE-12.
The claimant was discharged for violation of the employer’s policy prohibiting weapons in the workplace. The claimant had a stun gun in her purse. However, the claimant did not intentionally commit this transgression. She inadvertently placed the stun gun in her handbag as she was leaving for work after she found her son took it from his father. The claimant was the one who noticed that it was still in her handbag the next day and commented about this to a coworker. The claimant’s supervisor overheard the claimant and reported it to the human resource department. The Board finds that the claimant’s actions rise to the level of simple misconduct. She did not intentionally violate the employer’s policies. Burks v. Mercy Hospital, Inc., 2008-BR-12.
The claimant worked as a grooming assistant at a pet store. She was discharged for bathing her personal dog on company time. The claimant was unaware of any policy which prohibited this. She had seen other employees bathe their own animals, but did not realize that they were off the clock. The employer allowed its facility to be used for this sort of personal business, but expected it to be done on the employee’s personal time. The claimant only learned of this at the time she was discharged. She did not neglect her own duties or fail to provide service to the employer’s customers while bathing her own dogs. The claimant was not hiding her dogs. She brought them in openly and bathed them in the grooming area where they could be seen by anyone. The Board found that the claimant’s discharge was for reasons which do not constitute misconduct or gross misconduct. Kesterson v. Petco Animal Supplies Stores, Inc., 2019-BR-12.
The claimant was allowed to use the employer’s computer and Internet for personal business provided that the claimant was finished with her work. The claimant was discharged for violating this policy. The Board found that the policy was not clear. The claimant’s required duties were unclear. The claimant’s credible testimony established that she believed she was completing her duties and only accessing the non-work websites during down time. The employer had not previously warned the claimant about excessive Internet use. The Board held the claimant was discharged, but not for gross misconduct or misconduct. Garvin v. Home Sales Company, 5560-BR-12.
The claimant was discharged for behaviors which violated established policies. She was involved in a verbal altercation with another coworker and was placed on a twelve-week performance improvement plan. She was given a final written notice for disruptive and unprofessional behavior. Subsequently, the claimant was found to have continued her unprofessional behavior in two more incidents. After that she was discharged. The Board held that this was gross misconduct. Fanfan v Holy Cross Hospital of Silver Spring, Inc., 6100-BR-12.
The claimant, a driver, was driving a passenger and was tapped from behind by another vehicle. He was discharged for violating the employer’s policy by not reporting an accident. The claimant reasonably did not believe that he had been involved in reportable accident. He inspected his and the other vehicle and confirmed that there was no damage. He verified that neither his passenger nor the driver of the other vehicle had sustained any injury. Neither his passenger nor the other driver expressed any inclination to wait while this matter was reported. The claimant reasonably believed he was acting in a manner consistent with the employer’s policies. The Board does not find that this was an act of misconduct for which the claimant should be penalized. Epps v. Dream Management, Inc., 5970-BR-12.
The claimant became ill while he was at work. He was having chest and stomach pains. He knew he could not drive. He advised a coworker he was leaving and told him why. The claimant relied upon his coworker to advise the employer. The claimant saw his doctor the next day and obtained a note from the doctor that he needed to be off work for several days. The claimant immediately faxed that note to the employer and confirmed its receipt. The claimant should not be expected to search for a supervisor when he was ill. Absence due to illness is not misconduct. The lack of proper notification, consistent with the employer’s policy, due to illness is not misconduct. The claimant may have violated the employer’s policy or expectation that he obtain permission from the supervisor prior to leaving, but he did so for reasons which excuse that lapse and which do not rise to the level of any misconduct. Greene v. YRC, Inc., 3366-BR-13.
The claimant was discharged for violating the employer’s cell phone policy, which prohibits the use of cell phones while on duty. The Board found that the evidence did not establish that the claimant used her cell phone other than to receive calls from the employer. The claimant did have her cell phone out, and it would receive messages or notifications, but the claimant was not actively using it. The evidence does not demonstrate that the claimant actually violated the employer’s policy concerning the use of cell phones. The Board found the employer did not meet its burden of proving misconduct or gross misconduct. Hutchins v. Little Angels Learning Center, Inc., 946-BR-13.
The claimant violated his employer’s policy when he continued to use his cell phone several times during the day for personal use, even after being warned to “get off his cell phone and do some work.” The claimant violated his employer’s policy when he continued to conduct personal business on company time. In addition, although the claimant did not directly lie to his employer about his cell phone use, he was deceitful to his employer when he implied he was responding to work e-mails. The claimant’s behavior demonstrated a dereliction of duty to his employer. The Board found that gross misconduct is not supported in this case. However, intentional behavior is not necessary to support a finding of misconduct. The Board held the claimant was discharged for misconduct. Phillips v. Card’s Computers, Inc., 1024-BR-13.
The claimant was observed by the general manager playing solitaire on the company’s computer for over 15 minutes. The employer’s policy prohibits the use of the employer’s computers for personal use. The claimant had been employed for over eight years and had no prior disciplinary record. Since this is a first time offense and the employer presented no other warnings or disciplinary actions against the claimant, the Board finds that the claimant’s actions do not evince a gross disregard for the employer’s interest necessary to support a finding of gross misconduct. However, intentional behavior is not necessary to support a finding of misconduct. The Board finds sufficient evidence to support a finding of misconduct. Cano v. Widewaters Frederick Hotel Management Company LLC, 1083-BR-14.
The claimant was warned not to wear his facial jewelry while on duty. He was warned that his piercings were never to be visible while at work. Despite this, he continued to wear the jewelry thinking that if he kept it hidden in his nose, he would not be caught. The claimant miscalculated because he was observed with the jewelry visible contrary to the employer’s requirements. His nose piercings were visible when the owner came to the store. The employer’s contention that if the claimant intended to comply with the policy, he would simply have removed the jewelry is quite logical and persuasive. Persons with body and facial piercings are not a protected class and this does not constitute a status warranting legal protection. The employer also warned other employees when it observed visible piercing jewelry. The Board concludes that the claimant was discharged for misconduct and imposed a 15-week penalty. Trice v. The Gott Company, 3300-BR-14.
The claimant violated the employer’s weapons policy. He brought a bow and arrow to the employer’s property and permitted a coworker to discharge two arrows from it on company property. The fact that the claimant did not intend to use the bow and arrow to harm anyone does not absolve the claimant from fault. It does, however, demonstrate that the claimant’s rule violation was not with gross disregard to his employer’s interests; therefore, a finding of gross misconduct is not supported by the weight of the evidence. Notwithstanding, the claimant clearly violated a reasonable work place rule and was suspended pending discharge. The evidence supports a finding of simple misconduct. The Board finds that a 15-week penalty is warranted on the facts of this case. Armour v. HH Gregg Appliances, Inc., 3007-BR-14.
2. Importance of Policy Violations
The employer armored truck service required that employees count each bag of valuables as it was placed on the truck. The claimant and a coworker deliberately skipped this step and therefore did not immediately discover that a bag containing up to $12,000.00 in cash and/or checks had fallen off the truck. The claimant's deliberate violation of an important security procedure, where huge amounts of money were at stake and where the security violation greatly increased the risk of loss to the employer, constitutes gross misconduct. Dunavent v. Federal Armored Express, Inc., 949-BR-85.
The claimant mislabeled specimens and failed to follow proper procedures on two occasions. She was suspended after the first incident and discharged after the second. These incidents were serious, could have led to dangerous consequences for the patients involved and were traced directly back to the claimant. A higher degree of care is required of claimants whose work involves critical risks to the life and health of others. The claimant was discharged for gross misconduct. Winestock v. Dimensions Health Corporation, 681-BR-91.
The claimant, a collection technician for the American Red Cross, failed to properly complete quality control sheets at a blood drive. The Board, ruling the claimant’s discharge was for gross misconduct, stated that the claimant breached a heightened duty of care and, in doing so, had placed the lives a health of others at risk. Stukes v. American National Red Cross, 2546-BH-06.
The claimant’s duties included scheduling procedures for patients. The claimant was trained and retrained. She was warned and counseled, but continued to make errors when she did not follow the employer’s directives. A claimant’s actions which are repeatedly careless or negligent are sufficient to support a finding that the discharge occurred under disqualifying circumstances. The claimant’s careless actions were gross misconduct. Israel v. Holy Cross Hospital of Silver Spring, Inc., 3696-BR-11.
The employer warned the claimant more than once that she was spending too much time on personal phone calls and not enough time on business-related calls. The claimant persisted in spending time on personal calls and was discharged. This was a recurring breach of duty owed to the employer and continued contrary to warnings. The discharge was for gross misconduct. Vereshko v. Premier Window & Building, Inc., 5182-BR-10.
The claimant knowingly violated the employer’s requirements as to how rooms were to be cleaned. The claimant had been employee since 1999 and performed acceptably for years. However, in 2010, she developed a pattern of not cleaning properly. In spite of warnings and notice that she was putting her job in jeopardy, she continued to perform her work in an unsatisfactory manner and was discharged. The Board held this was gross misconduct. Murphy v. Fallston Nursing & Rehabilitation Center, Inc. 1204-BH-11.
The claimant did not correct her excessive personal telephone use after she was warned. She continued to make and receive personal calls on her cell phone and her work phone. The claimant continued to be away from her work area for non-business reasons. These repeated violations of the employer’s policies, expectations and requirements were indicative of a deliberate and willful disregard for the employer. As such, her discharge was for gross misconduct. Legge v. Fineco, Inc., 985-BR-12.
The employer did not need to have a written policy for every combination and permutation of possible wrongful conduct. Not permitting visitors or an employee’s children at work does not need to be a written policy. These acts are prohibited as a matter of common sense and constitute a course of wrongful conduct. The Board does not find credible the claimant’s assertion that she did not believe that taking bags of toilet paper was wrong. The claimant’s coworker did not have apparent or actual authority to grant the claimant permission to take items from the work place. The claimant’s assertion that she could report to and leave work at a time of her choosing is not credible. The Board held the discharge was for gross misconduct. Flores v. Washington County Board of Education, 4889-BR-10.
The claimant worked as a truck driver and was discharged for failing to provide medical documentation for four weeks of absence. The employer had a verbal policy of requiring a doctor’s note after three days of absence from the job. The employer contacted the claimant to let the claimant know that he needed to provide a doctor’s note as to when his illness started and when he would be able to return to work. The claimant did not respond. The claimant was derelict in his duty to provide his employer medical documentation for his illness. Even if the claimant misunderstood the specific documentation required, the claimant did not exert due diligence in keeping his employer informed of his medical status. The Board held that the claimant was discharged for misconduct. Leatherwood v. Philadelphia Truck Lines, Inc., 5186-BR-12.
The employer’s policy strictly prohibited use of personal cell phones while “on the clock” and the use of the employer’s computer for non-work related matters. The claimant was aware of the policy and had previously been warned for using his personal cell phone while “on the clock.” In spite of his previous warning, the claimant violated these policies again and was discharged. The Board finds that the claimant’s actions rose to the level of gross misconduct. Gray v. Amaryllis, Inc., 2347-BR-14.
On March 29, 2013, the employer gave the claimant a written warning for two incidents. There is a driver camera installed in the claimant’s truck that turns on when the driver brakes sharply. In the first instance, the driver cam was triggered when the claimant braked sharply. In the second incident, the driver cam was triggered when he braked sharply and it showed that the claimant was using his cell phone in violation of company policy. On August 8, 2013, the claimant was given a warning for triggering the driver cam while using his cell phone. The claimant was placed on probation for 30 days. On September 23, 2013 the claimant was driving and rear-ended a vehicle when it stopped suddenly in front of him. The claimant was on a cell phone at the time. He was then discharged for continued use of his cell phone. The Board found the employer’s two first-hand witnesses to be more credible than the claimant. Both of these witnesses carefully reviewed the video from the driver cam and described in detail that it shows the claimant using his cell phone in the cab while driving. The weight of the credible evidence established that the claimant continued to use his cell phone violation of company policy. His behavior was gross misconduct. Pfaff v. ARS Acquisition Holdings LLC, 829-BR-14.
The claimant was employed as a medical technologist. On May 19, 2014, the claimant reported the results of a specimen in the computer system, when in fact he had not tested the specimen. The claimant made a deliberate and willful decision to enter results in the employer’s computer system that he knew were incorrect. This single incident alone is sufficient to support a finding of gross misconduct. The work performed by the claimant was not subject to “short cutting,” regardless of how busy the claimant may have been. The Board has long held that where a claimant’s work involves critical risks of life and death, a higher degree of care is required. See Winestock v. Dimensions Health Corporation, 681-BR-91. The results entered into the employer’s computer system were used to make decisions as to the treatment of patients. The claimant knew this and had previously performed his duties correctly. As such, his actions cannot be found to be simple misconduct. Alipour v. Helix Health System, Inc., 3166-BR-14.
The employer’s policy requires its employees to report incidents of abuse of its individuals with disabilities by other employees. An employee who fails to report abuse is subject to disciplinary action including termination. On June 20, 2014, a supervisor was physically aggressive toward an individual with developmental disabilities. The supervisor pushed and grabbed the individual and subsequently picked up the individual by his sweatshirt and shook him. The incident took place less than 10 feet from the claimant. The claimant was standing on a ramp adjacent to the individual, looking down upon him and the supervisor. By not reporting the incident of clear abuse, the claimant’s actions constituted a knowing and deliberate disregard of the standards the employer had the right to expect. The Board held this was gross misconduct. The video evidence showed that neither the angle of the ramp nor the railing materially obscured the claimant’s view during this incident. Watkins v. Spectrum Support, Inc., 112-BR-15.
The claimant had been counseled on numerous occasions for using the company computer for personal reasons. She failed to abide by the employer’s instructions to limit her use of the computer to business reasons only. In addition, the claimant was caught sleeping on the couch after she clocked in to work. This evidence established repeated violations of the employer’s rules and showed a gross indifference to the interests of the employer. The claimant was discharged for gross misconduct. Sade v. Tara J. Creamer, DDS PA, 67-BR-15.
3. Illegal or Unethical Requirements
The claimant gas station attendant, was discharged for refusal to reimburse the employer for shortages incurred on the job since payment of the shortages would reduce her pay to below the minimum wage. The employer's requirement of reimbursement was illegal under the Fair Labor Standards Act and its regulations. Therefore, no penalty was imposed on the claimant for violating the employer's rule. Hatfield v. Tri-State Oil, 390-BR-82.
4. Unreasonable Requirements
The claimant was discharged because he insisted upon commuting rather than relocating upon being transferred by the employer. The employer's policy requiring relocation was unreasonable and the claimant's failure to adhere thereto does not constitute misconduct. Leon v. Southern States Cooperative, 885-BR-83.
Where the policy was ambiguous and the claimant reasonably believed she was following it, her discharge was not for misconduct. Walker v. Domino's Pizza of Maryland, Inc., 200-BH-87.
The claimant would punch out of work and continue working. The employer issued multiple warnings to the claimant not to do this. Despite the employer’s written warnings to the claimant not to work while off the clock, the claimant continued to do so. After a final written warning about this, the claimant again worked off the clock and was discharged. The claimant was often expected to interrupt her breaks in order to assist a co-worker in the store. The employer was aware of this situation, yet offered no possible solution to the claimant. The employer was simultaneously telling the claimant she could not work off the clock and then expecting her to do just that. A worker cannot be expected to be available at all times, to take required, regular breaks, and not work without being clocked in. The Board held there was no gross misconduct or misconduct. Eney v. Hallmark Retail, Inc. 619-BR-12.