BOARD OF APPEALS
|DECISION NO: 1477-BR-91
DATE: Nov. 26, 1991
|CLAIMANT: Elizabeth Beasley
|| APPEAL NO.: 9115370
|EMPLOYER: Genesis Health Ventures
c/o R. E. Barrington, Inc.
|L.O. NO: 10
Issue: Whether the claimant filed a timely appeal or had good
cause for an appeal filed late, within the meaning of
Section 8-806; whether the claimant was discharged for
gross misconduct or misconduct, connected with her work,
within the meaning of Section 8-1002 or 8-1003 of the
Labor and Employment Article.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH
THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON
OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE
CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT
COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES December 26, 1991.
|For the Claimant:
|| For the Employer:
REVIEW ON THE RECORD
date for the claimant to appeal the Claims Examiner's
determination was August 30, 1991. The claimant filed
her appeal on the next following working day, September 3, 1991.
On appeal to the Board of Appeals, the claimant proffers that she
did visit the location of the local office on August 30,
1991 with the intention of filing an appeal, but that
she was deterred by a sign which stated that no claims
would be taken after 3:00 p.m.
In the interest of the speedy adjudication of this case, and considering
that the employer neither presented evidence nor cross-examined
the claimant on this particular issue, the Board will
accept the claimant's additional proffered evidence. The
law requires the Board to decide these cases on the merits
where possible. Since the claimant attempted to file her
claim in person during normal business hours on the last
date to file the appeal but was deterred and confused
by a sign which, to her, meant that she was not allowed
to come in and file an appeal, the Board concludes that
the claimant did have good cause within the meaning of
the law for filing her appeal one working day late.
the case, the Board will make a decision on the merits.
The claimant was a nurse's aide for the employer from
May 28, 1985 through July 23, 1991. She was considered
by her employer to have a bad attitude. Only three specific
incidents of actual conduct, however, were mentioned.
The first occurred in 1985 or 1986 and was far too remote
in time to be considered. The second occurred in 1989.
The Board also concludes that this is too remote in time
to reasonably justify a discharge that took place in 1991.
incident that resulted in the claimant's termination took
place in July of 1991. On that date, a co-worker commented
that the claimant did not seem very cheerful that morning.
The claimant responded that she did not wish to talk to
that co-worker. The co-worker attempted to find out why,
and the claimant curtly responded, telling the co-worker
to go about her business. Based on this incident, and
another incident of similar significance in 1989, the
claimant was discharged.
The claimant had often been criticized for speaking loudly at work.
No particular incidents of this, however, were shown at the hearing.
The Board concludes that the claimant's conduct does not rise to
the level of misconduct within the meaning of Section
8-1002 or 8-1003 of the Labor and Employment Article.
The Board has long ruled that, where an employee is discharged
for an attitude problem, the employer has the burden of
showing some concrete instances in which this attitude
affected the claimant's work performance. Such concrete
instances have not been shown in this case. What was shown
amounted to, at most, a passing incident of discourtesy
to a fellow employee. This incident does not reflect well
on the claimant's disposition, but it falls well short
of amounting to any type of misconduct within the meaning
of the law.
The claimant filed an untimely appeal, but for good cause
within the meaning of Section 8-806(e)(2) of the Labor
and Employment Article.
The claimant was discharged, but not for any misconduct or
gross misconduct within the meaning of Sections 8-1002
or 8-1003 of the Labor and Employment Article. No disqualification
is imposed based upon her reasons for separation from
Genesis Health Ventures. The claimant may contact her
local office concerning the other eligibility requirements
of the law.
The decision of the Hearing Examiner is reversed.
Thomas W. Keech, Chairman
Hazel A. Warnick, Associate Member
COPIES MAILED TO:
UNEMPLOYMENT INSURANCE - CAMBRIDGE