LOWER APPEALS DECISION
|DECISION DATE: July 12, 1993
|CLAIMANT: Betty M. Ingram
||APPEAL NO.: 9311017
|EMPLOYER: Union Memorial Hospital
||L. O. NO.: 1
Issue: Whether the claimant was discharged for gross misconduct
connected with the work within the meaning of the Code
of Maryland, Labor and Employment Article, Title 8, Section 1002.
- NOTICE OF RIGHT OF FURTHER APPEAL -
ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER
APPEAL AND SUCH APPEAL MAY BE FILED IN ANY OFFICE OF THE
DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT, OR
WITH THE BOARD OF APPEALS, ROOM 515, 1100 NORTH EUTAW
STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.
THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES ON July 27, 1993.
NOTICE: APPEALS FILED BY MAIL, INCLUDING SELF-METERED MAIL, ARE
CONSIDERED FILED ON THE DATE OF THE U.S. POSTAL SERVICE POSTMARK.
|For the Claimant:
|For the Employer:
Charles Brant, ESI;
Gregory Johnson, Manager
Jacqueline Mason, Telephone Operator Supervisor;
Judy Schroeder, Administration Supervisor
FINDINGS OF FACT
The claimant became employed as a telephone operator on April
22, 1991. At the time of her separation on April 20, 1993,
she was earning a salary of $6.95 per hour. The record
shows that the claimant was discharged for sleeping on
the job on April 18, 1993. The claimant was a telephone
operator and was responsible for receiving emergency and
other calls during her 11:00 to 7:00 shift. On the shift,
the claimant was the only operator available.
The employer received a call from someone who was trying to
reach the operator at around 5:00 a.m. The caller had
been trying to reach the operator for approximately fifteen
minutes. A administrative supervisor went to the claimant's
location, rang the door bell, banged on the door and called
security to gain entry into the office. Upon entering,
the claimant was seen lying on the floor on her right
side with a pillow under her head and a sweater around
her shoulder. The claimant was clearly asleep and the
administrative supervisor had difficulty awakening her.
The claimant had been unreachable for approximately one half hour.
The claimant had a history of back pain and had been taking
medication at least since 1992. She missed a lot of time
from work because of her back and did not want to jeopardize
her job with further absences. She had developed the ability
to tolerate the pain and still work. However, on this
evening, the pain became excruciating and she took medication
and stretched out on the floor in order to gain relief
from the pain. The claimant did not intend to go to sleep.
She has taken the medication, cyclobencaprin on previous
occasions without any drowsiness. However, on this evening,
she took advil, not knowing that it would increase the
already known side effect of drowsiness.
The employer's policy regarding sleeping on the job does not
necessarily require immediate discharge. The only evidence
of prior disciplinary action was that of a co-worker of
the claimant who was found sleeping and was given a five
day suspension. The employer distinguished the two incidents
by citing that the claimant intended to fall asleep. This
Hearing Examiner does not agree.
CONCLUSIONS OF LAW
The Maryland Code, Labor and Employment Article, Title 8,
Section 1002, provides for a disqualification from benefits
where an employee is discharged for actions which constitute
(1) a deliberate and willful disregard of standards which
the employer has a right to expect or (2) a series of
violations of employment rules which demonstrate a regular
and wanton disregard of the employee's obligations to
the employer. The preponderance of the credible evidence
in the instant case will support a conclusion that the
claimant's actions do not rise to the level of gross misconduct
within the meaning of the Statute.
The term "misconduct", as used in the Statute, means a transgression
of some established rule or policy of the employer, the
commission of a forbidden act, a dereliction from duty,
or a course of wrongful conduct committed by an employee
within the scope of his employment relationship, during
hours of employment or on the employer's premises within
the meaning of the Maryland Code, Labor and Employment
Article, Title 8, Section 1003. (See Rogers v. Radio Shack,
271 Md. 126, 314 A.2d 113).
The credible evidence in this case does not warrant a conclusion
that the claimant's actions amounted to a willful disregard
of the employer's standards. The claimant does not deny
that she fell asleep, however, she contends that she did
not intend to fall asleep but laid down on the floor only
to gain relief from the back pain. The claimant was a
credible witness and her explanation is believed.
Since the employer's policy does not require discharge for telephone
operators falling asleep, there is room for discretion.
A person sitting in a chair may not have intended to fall
asleep, but sensing drowsiness, could have gotten up,
moved around or exercised other means of warting sleepiness.
The claimant, was not seeking relief from drowsiness,
but back pain and chose to stretch out on the floor. She
could have exercised other options such as calling her
supervisor, which shows to allow the pain medication to
do its job. This Examiner believes the claimant when she
testified that she did not intend to fall asleep. Therefore,
it is concluded that the claimant's actions did not rise
to the level of gross misconduct. The determination of
the Claims Examiner will be reversed.
It is held that the claimant was discharged for misconduct
in connection with her work as provided by Maryland Unemployment
Insurance Law, Title 8, Section 1003. The circumstances
of this case warrant a mitigated penalty. Benefits are
denied for the week beginning April 18, 1993 and for the
nine weeks that follow.
The determination of the Claims Examiner is reversed.
Mary Welcome, Hearing Examiner
4 - 9311017
Date of Hearing: June 23, 1993
SPECIALIST ID: 01041
krb\CASSETTE IN FILE
Copies mailed on: July 12, 1993 TO:
Unemployment Insurance - Baltimore (MABS)