Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals
Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued
VII. Misbehavior or Poor Attitude on the Job
A discharge for rudeness or poor attitude on the job may result in a finding of gross misconduct, simple misconduct or no misconduct, depending on the circumstances. Generally, disruptive behavior and the use of profane or abusive language have been found to be at least misconduct. Sexual harassment of a coworker has been held to be gross misconduct when the claimant has been told or should have reasonably known that his conduct or speech was offensive.
Generally, sleeping on the job is considered, at the very least, misconduct, because the employee is not performing the duties for which he was hired. However, there are mitigating factors which may at times lead to a conclusion that the employee was not engaged in misconduct. Such factors include the employee taking medication or working long hours. Generally, the claimant will be held to have committed gross misconduct for sleeping on the job if the nature of his position required that the claimant be alert, if the employer has previously disciplined the claimant for similar conduct, or if the claimant deliberately placed himself in a position for the purpose of going to sleep.
A. Rudeness or Poor Attitude
1. Toward Employer's Clients or Customers
The claimant was discharged for showing up drunk at a customer's home, using bad language, and failing to perform, even after complaints and a warning. This was gross misconduct. Schisler v. E.C. Decker Service, Inc., 780-BH-87.
The claimant was a switchboard operator who supervised other operators. She was discharged due to three incidents of rudeness to customers on the telephone. The claimant admitted that she was the offending operator. The claimant had previously received warnings about this type of behavior. The claimant was discharged for gross misconduct. Butler v. Levenson and Klein, Inc., 494-BR-90.
The claimant had five written warnings about the impact of poor customer relations. The warnings described the conduct complained of, advised the claimant such behavior was unacceptable and that the next incident would result in a suspension. The claimant was subsequently suspended. After that, she failed to improve her conduct and was discharged. The Board held that the claimant’s discharge was for gross misconduct. Her failure to positively adjust her way of relating to customers demonstrates gross indifference to the employer’s interest. Hutcherson v. Food-A-Rama, Inc., 4121-BR-11.
With respect to the final incident, both the employer’s witnesses and the claimant testified that the claimant was rude to the customer (who was a difficult, demanding customer). The store policy was that “the customer is always right.” The employer’s witnesses also credibly testified that the claimant was suspended twice previously and was written up 11 times for other incidents of policy violations and failing to follow instructions. The claimant had one previous warning for being rude to customers. The claimant was discharged for the final incident of being rude and argumentative with a customer. The claimant did not dispute that she was previously reprimanded by the employer for failing to follow instructions, rudeness to customers and policy violations. The Board finds as a claimant’s actions rose to the level of gross misconduct. Taylor v. Food-A- Rama of Baltimore, Inc., 1050-BR-12.
The claimant was discharged, not for his prior warnings and not for his alleged poor customer service skills. The claimant was discharged because of a complaint the employer received from a customer. The employer did not appear at the hearing and did not offer any evidence that established that the claimant engaged in any inappropriate behavior with the customer in question. The employer did not demonstrate that the event for which the claimant was discharged actually occurred. The mere fact that the claimant acknowledged he needed to improve his customer service skills was insufficient to support a finding that he was discharged for any degree of misconduct, particularly where the discharge was alleged to have occurred due to a customer complaint and not a repeated deficiency in the claimant’s customer service skills. Stratton v. VH Hotel Management, Inc., 5243-BR-13.
2. Toward Supervisor
a. Gross Misconduct Found
The claimant repeatedly refused to accept the employer's directions and was insubordinate and offensive to the employer in evaluation sessions. The claimant was discharged for gross misconduct. Hagberg v. Liberty Homes, Inc., 135-BH-89.
b. Misconduct Found
The claimant was cooperative and courteous on most occasions. However, on one occasion, she walked out of a counseling session called by her supervisor, even though she had been told that the session was not finished. The claimant was discharged for misconduct. Schoo v. Davis, Garth, et al., 603-BR-90.
c. No Misconduct Found
The claimant was discharged because she asked her supervisor a question at a meeting. The question concerned the wages of entry level employees. It was a reasonable question and was not asked in an insubordinate manner. There was no misconduct. Rayfield v. Elite Communications, 123-BH-90.
3. Toward Coworkers
a. Gross Misconduct Found
The claimant was discharged for harassment of fellow employees and failure to do his job. This was held to be gross misconduct. Jackson v. Dankmeyer, Inc., 1158-BH-88.
b. Misconduct Found
The claimant was discharged for misconduct where there was a pattern of arguing with his coworkers, which continued in the face of warnings. However, without evidence of the nature of the arguments, who was at fault in initiating them, whether profanity was used, and whether they interfered with the work process, there can be no finding of gross misconduct. Green v. Harford Memorial Hospital, 320-BR-84.
The claimant was discharged for engaging in a shouting match with a security guard hired by the employer. The shouting disrupted the employer's business. The claimant lost her temper and engaged in inappropriate conduct, but did not start the argument. She was seriously provoked by the security guard who blatantly violated orders. This constitutes misconduct. Brooks v. Conston of Maryland, Inc., 377-BR-88.
c. No Misconduct Found
The claimant was discharged for placing a letter on a coworker's car and arguing with that coworker on the employer's lot. The claimant did place the letter on the car, but made an effort to do so in such a way so as not to disrupt the work. The coworker began the argument and persisted despite the claimant's requests that the matter be discussed after work. The claimant was discharged, but not for any misconduct. Ward v. National Car Rental System, Inc., 1194-BR-90.
The claimant was discharged in July, 1991 because the employer felt she had a bad attitude. Only three incidents of actual conduct were cited, one of which occurred in 1985 or 1986 and one of which occurred in 1989. These incidents were too remote in time to reasonably justify a discharge in 1991. In July, 1991, the claimant was discharged after she curtly responded to a coworker's question. The employer failed to show concrete instances in which the claimant's attitude affected her work performance. The one incident in July, 1991 was not misconduct. Beasley v. Genesis Health Ventures, 1477-BR-91.
The claimant was discharged following a verbal altercation with a coworker. The incident was initiated by the coworker, but the claimant became loud and argumentative. The evidence did not demonstrate that the claimant was unduly argumentative. The claimant may have reacted inappropriately to the coworker, but this was the first and only occurrence. The evidence did not demonstrate that the claimant knew or should have known that this argument was a breach of her duty or a serious violation of some work rule Misconduct cannot be found under these circumstances. Wilson v. Midway Industries LLC, 864-BR-13.
B. Disruptive Behavior
1. In General
The deliberate spreading of false rumors that certain classes of employees were to be laid off, done for the purpose of harming morale, by an employee in a fairly high position, constitutes gross misconduct. Noble v. The Bees Distributing Company, Inc., 672-BR-85.
The claimant's deliberately disruptive behavior, even where influenced by a borderline personality disorder, was gross misconduct. Richard v. DHMG Laboratories Administration, 422-BR-88.
2. Profane or Abusive Language
Where the claimant had been allowed to disagree openly with the employer, but this time used an obscenity in the course of the argument, the discharge was for simple misconduct, not gross misconduct. Shird v. F and H Contractors, Inc., 185-BH-88.
The claimant had been previously warned about having heated arguments with the supervisory staff. The employer later attempted to serve the claimant with a warning and suspension notice after she was observed removing an object from a patient's room. The claimant became abusive and loud. She used foul language, attempted to snatch some papers out of her supervisor's hand, left the office without permission and continued loud, abusive remarks, disturbing others who were in their offices. This was gross misconduct. Barnes v. St. Luke Lutheran Home, Inc., 235-BR-88.
The claimant had previously been warned about using inappropriate language in the work place. Subsequently, the claimant began a loud, accusatory argument with the owner, without any provocation, in a setting where other employees and a supervisory person could hear. The claimant was discharged for gross misconduct. Reed v. Saval Foods Corporation, 15-BR-91.
The claimant was warned several times about her language while working. She was admonished to stop using rude, unprofessional and foul language to, or around, coworkers and guests. The claimant was repeatedly heard making offensive and vulgar comments about the workplace, its management and coworkers. Customers also complained to the employer about the same issues. Despite the warnings, the claimant continued this behavior. When the claimant did not correct this behavior, she was discharged for gross misconduct. Moore v. Astypalea, Inc., 2283-BR-12.
The claimant was terminated for engaging in verbal altercations with coworkers which caused disruptions in the workplace. There were two incidents on one day and one on the following day, despite the presence of the human resource director and of a senior level manager called in to intervene and restore order. The claimant’s conduct, shouting, using profanity, disrespecting the senior level manager and engaging in a third altercation after the first two incidents, reflected a wanton and willful state of mind and demonstrated a gross indifference to the employer’s interests. Phillips v. First Service Networks, Inc., 3861-BR-12.
On March 22, 2012, the claimant was given a written warning that she was not acting in a professional manner when she engaged in inappropriate conversation with staff members in the workplace. On July 11, 2012, the claimant was given a written warning for creating an offensive working environment through her inappropriate sexual comments to staff members. The final incident occurred when the claimant disrupted a staff meeting through her outburst and inappropriate remarks. The credible evidence established that the claimant continued to be disruptive in the workplace after repeated warnings. The claimant’s behavior demonstrated a gross indifference to the employer’s interests and constituted gross misconduct. The employer provided sufficient detail on the events that led to the claimant’s written warnings. Ciancio v. Calvert County Commissioners, 883-BR-14.
Members of management met with the claimant to present her with a corrective warning. The claimant was under a corrective action plan and the employer felt the claimant was not meeting the requirements of the plan. The claimant became defensive and began to act in an insubordinate manner. She used profanity while addressing members of management. She constantly interrupted the managers while they attempted to go over the corrective action with her. At times, the claimant banged on the table repeatedly and raised her voice at these managers. She continued to make inappropriate comments throughout the meeting. She was later sent home in order to calm down. She was subsequently discharged based upon her behavior in the meeting. The claimant was insubordinate. She was discharged for gross misconduct. Bullock v. Adams & Associates, Inc., 615-BR-14.
The claimant had been previously warned for lateness and failure to meet the work production quota, but was not aware he was on a final warning. The final incident occurred when the claimant was involved in a verbal altercation with a cashier when he was making a purchase. While checking out, the claimant heard the cashier mumble words about him under her breath and he responded, “Well you don’t have to be a bitch.” The claimant was subsequently discharged for having too many infractions. The Board found that the claimant’s testimony and admissions of repeated lateness, production problems and foul language to a coworker was sufficient to make the employer’s case for misconduct. Because the employer was not present to present evidence on the severity of the claimant’s infractions, only a minimum ten-week penalty is warranted. McGaney v. Wal-Mart Associates, Inc., 421-BR-14
The director of dietary went into the employer’s kitchen and looked into the refrigerator. He found out- dated meat and asked the claimant to throw it out. The claimant responded by getting angry. He started yelling at the director, calling him a “fucker.” As a result of this incident, the claimant was discharged. The Board found that the weight of the evidence supports a finding that the claimant deliberately used profanity in a loud, disruptive tone when addressing the director of dietary. The Board did not find any mitigating circumstances for the claimant’s outburst and profanity. The Board finds the claimant’s actions evinced a gross disregard of the standards of behavior his employer had the right to expect. The fact that the outburst was a one-time occurrence is not mitigating in light of the disrespectful, profane language and tone the claimant used to the director of dietary. The Board held this was gross misconduct. Garland v. River View SNF LLC, 202-BR-14.
The claimant was the initial aggressor in a confrontation between him and the owner. The owner merely responded in kind before the claimant left the premises at 10:00 AM. The claimant did not “cool down” after leaving work, but instead sent the owner a profane text message. This secondary act was unprovoked and compounded the claimant’s initial inappropriate behavior. The Board finds the claimant’s actions constituted a willful and deliberate disregard of the standards of behavior his employer had the right to expect and evinced a gross indifference to the employer’s interests amounting to gross misconduct. Gardner v. George’s Welding Service, Inc., 118-BR-15.
The claimant manager's discharge was for simple misconduct where he allowed two employees to engage in a friendly whipped cream fight on the employer's premises, but after work hours. Punt v. Taco Bell Restaurant, 247-BR-85.
The claimant was discharged for engaging in horseplay and accidentally hurting others who were equally to blame. This was misconduct. Washington v. Direct Marketing Associates, 500-BH-88.
C. Sexual Harassment
The claimant was discharged for repeated and persistent sexual harassment of other employees. This was gross misconduct. Keegan v. Valspar Corporation, 527-BH-89.
The claimant was discharged for refusing to submit to the sexual advances of her supervisor. There was no misconduct. Bailey v. Tom Curro Lincoln Mercury, Inc., 821-BH-87.
Where the claimant was never given any indication that his attentions were not wanted, he did not engage in sexual harassment. There was no misconduct. Polston v. Johns Hopkins Hospital, 220-BH-89.
The claimant is entitled to be told that his conduct or speech is deemed offensive by his coworkers before he can be accused of sexual harassment, unless the conduct or speech is so blatant that any reasonable person would be offended. White v. Steven Windsor, Inc., 2079-BR-92.
The claimant was reprimanded two times for different incidents which he did not realize could have been construed as sexually harassing or unwanted. He made an attempt to learn what was and was not acceptable in the work place. He conformed his conduct to this standard until he told a female coworker that she was “gorgeous “ or “beautiful” and inquired about her ethnic background. There was no sexual overtone. The coworker was “embarrassed” but not offended. Here, the claimant violated the employer’s policy, but there was no showing that the claimant intended to violate the policy or that he even intended any sexual connotation in his comments. The claimant believed he was making a compliment to and about a coworker. The claimant’s words were probably ill-chosen, but were not sexual harassment in the generally accepted understanding of that concept. The employer has not demonstrated that the claimant was discharged for any disqualifying reason. Petrovich-Sanchez v. Threshold Services, Inc., 632-BR-12.
D. Sleeping on the Job
1. In General
The claimant was found asleep on the job three times. She was warned two times, and on the last occasion, was given a chance to go home early but declined and fell asleep again. This was gross misconduct. Bradley v. Liberty Medical Center, Inc., 706-BR-89.
The claimant deliberately backed his fork lift into a corner in an attempt to hide so he could sleep on the job. No mitigating facts were found which might explain the claimant's falling asleep on the job. This was gross misconduct. Taylor v. Fort Howard Cup Corporation, 1215-BR-91.
There is always a question about exactly how deliberate the act of falling asleep on the job is. In this case, the claimant's history of rule violations, plus his failure to take advantage of a second chance given him by the supervisor to stay awake that night amounted to gross misconduct when he was again found sleeping on the job that same night. Hawkins v. Charles County Commissioners, 1053-BR-93.
The claimant, a hospital telephone operator who handled, at times, emergency calls, intentionally laid down on the floor with a pillow and jacket and fell asleep. This was held to be gross misconduct. Ingram v. Union Memorial Hospital, 1680-BR-93.
The employer discharged the claimant prior to the effective date of her resignation. The discharge was, in part, for the prior performance issues in medication distribution for which the claimant had been warned and retrained. The more pressing cause of the termination, however, was for the claimant sleeping while on duty. This was a serious infraction which the employer chose to address immediately. The employer’s facility provided 24-hour service and assistance to vulnerable adults in residence. The claimant was fully aware of this requirement and of the seriousness of a caregiver sleeping while on the job. The Board concludes that the claimant’s lack of attentiveness to her duties and the employer’s clients was grossly negligent and constituted gross misconduct. Because the discharge was for disqualifying reasons, and not because of the claimant’s resignation, there exists no reason to give consideration to the reasons underlying the claimant’s resignation. The discharge acted to end the employment relationship independent of the claimant’s decision to resign. Lawrence v. Bay Community Support Services, Inc., 3579-BR-13.
The claimant was discharged for one incident of sleeping on the job. Evidence of a different infraction, concerning the reason the claimant had been removed from the approved substitute teacher list at another school, is immaterial here. The claimant was aware that the employer considered it to be a terminable offense for a teacher to be sleeping while on duty in a classroom. The claimant was observed by at least one student sleeping at his desk. The claimant had his head on the desk for a long enough period of time that the student was able to approach him and take his photograph. Logic requires the inference that the claimant was in this position for more than a mere moment. Logic also requires the inference that the claimant was unaware of his surroundings if a student was able to take this photograph without his knowledge. The only conclusion to be drawn from the evidence and reasonable inferences is that the claimant was asleep at his desk in a classroom while he was responsible for a high school class. The claimant’s actions were a dereliction of duty. The Board concludes the claimant was discharged for gross misconduct. Zhang v. Montgomery County Public Schools, 261-BR-14.
2. Mitigating Circumstances
A security guard falling asleep on the job is generally regarded as gross misconduct. However, mitigating factors do arise in exceptional circumstances. In this case, the claimant had recently worked an unusually high number of hours at the employer's request and his falling asleep was unintentional. While the responsibility for staying awake lies with the claimant, this particular failure lacks deliberateness, and therefore warrants a lesser finding of simple misconduct. Harris v. BPS Guard Services, Inc., 563-BR-92.
The claimant fell asleep while on duty. She was not trying to sleep to avoid her duties. She simply became drowsy and fell asleep while sitting in a chair. There was nothing intentional or deliberate in the claimant’s actions. The claimant’s diabetes can cause drowsiness when her blood sugar drops. The claimant worked for the employer for 22 years without incident. The Board found that this single isolated incident of falling asleep for 50 minutes does not rise to the level of misconduct. Rodgers v. Woodbourne Center, Inc., 694-BR-11.
The claimant was discharged for sleeping on the job. He felt ill when he reported to work. He attempted to perform his duties but became dizzy. He lay down for a few minutes, but unexpectedly fell asleep. This was contrary to the employer’s expectations and against its work place rules, but the claimant had no history of any similar infractions. The Board finds there were exigent circumstances. The claimant did not lie down and go to sleep. He lay down because he was dizzy. He accidentally fell asleep, not because he was being careless or disrespectful in his employment, but because he was ill. Further, this was not an egregious act, which of itself would warrant a benefit disqualification. Such an incident cannot be found to be the claimant’s fault and, because it was an isolated incident, it was not misconduct. Lord v. Hahn Brothers, Inc., 2648-BR-12.
The claimant was sleeping on the job. However, the evidence supports a finding that the claimant merely “nodded off.” There is insufficient evidence that the claimant intentionally went to sleep while on the job. He did not “hide and nest” out of sight so as to conceal the fact that he wanted a cat nap. He fell asleep while sitting down in plain view of others. The Board finds these circumstances mitigating. Gross misconduct is not supported. Simple misconduct is not supported because this was a single, isolated lapse in the performance of the claimant’s job duties. Williams v. Paul M. Jones Lumber Company, Inc., 215-BR-11.
On the claimant’s last day of work, she came to work feeling slightly ill. She notified her charge nurse that she was not feeling well, but had taken medication to alleviate her symptoms. She told the charge nurse that the medication may make her drowsy. At 3:00 AM, the claimant was found at a nurse’s desk with her head in her folded arms. She was discharged for sleeping on the job. The Board finds that this was a one-time isolated incident and that the employer failed to prove misconduct. The claimant was a nine-year employee. The employer failed to prove that the claimant had fallen asleep on previous occasions. Douglas v. SSC Bethesda Operating Company LLC, 2823-BR-13.
The claimant worked full-time as a CMT and a one-on-one caregiver for a disabled individual. The claimant was discharged for sleeping on the job. The claimant was at the end of what was a double shift. She intended to rest for a moment before completing her paperwork and leaving. Other staff members were already on duty. The claimant inadvertently fell asleep while resting. This was an isolated incident and in no way placed any person under the employer’s care in jeopardy. The Board concludes the claimant was discharged for reasons which are not disqualifying. Lowery v. Ray of Hope, Inc., 20-BR-15.
VIII. Illegal, Dishonest, Fraudulent or Unethical Conduct on the Job
Threats of physical violence against supervisory personnel or coworkers generally constitute simple or gross misconduct. In the case of Department of Economic & Empl. Dev. v. Owens, 75 Md. App. 472, 541 A.2d 1324 (1988), the threat of violence against a supervisor, though not made directly to the supervisor and not accompanied by any physical action, constituted gross misconduct and disqualified the employee from unemployment benefits.
Under the law prior to 1993, the striking of a coworker, unless done in reasonable self-defense, was gross misconduct. However, under the 1993 version of Section 8-1002.1, this type of behavior constituted aggravated misconduct if it was intentional conduct that resulted in a physical assault upon or bodily injury to another person in the work place. Under the amended Section 8-1002.1, effective October 1, 1995, a physical assault on a coworker could constitute aggravated misconduct if it was done with actual malice and a deliberate disregard for the property, safety or life of others and if it was so serious that the penalties of misconduct or gross misconduct are insufficient.
An employee's alteration of time cards is generally at least simple misconduct, unless the alteration was done mistakenly. The employer's bare assertion that there are cash shortages is insufficient to prove misconduct. However, gross misconduct will be found where cash over which the claimant has sole control disappears and the claimant provides no reasonable explanation.
Under the law prior to 1993, theft from the employer was always considered gross misconduct. Under the 1993 version of Section 8-1002.1, this type of behavior could constitute aggravated misconduct if it was intentional conduct by an employee in the work place that resulted in property loss or damage to the property of the employer, coworkers and other individuals. Under the amended Section 8-1002.1, effective October 1, 1995, theft from the employer could constitute aggravated misconduct if it was done with actual malice and deliberate disregard for the property of others and if it consists of property loss or damage so serious that the penalties of misconduct or gross misconduct are insufficient.
Falsification of an employment application is generally misconduct, but the degree of misconduct (simple or gross) depends upon the materiality of the information falsified. Misrepresentations deemed material include those concerning an employee's educational qualifications or his criminal record.
A. Assaults and Threats
a. In General
During a discussion about previous misconduct, the claimant made a statement to the effect that, "This was the kind of incident that made people go home to get their shotguns." The claimant clearly made the statement to produce fear in his supervisor's mind and it was, therefore, a threat. The claimant's action constitutes gross misconduct. Zimmerman v. Goucher College, 625-BR-84.
The claimant, who threatened to kill his supervisor, was under psychiatric treatment for severe emotional problems. Due to this, his behavior constitutes simple misconduct and not gross misconduct. Everett v. Department of Health and Human Services, 25-BH-87.
The claimant had animosity toward another employee. The employer held a meeting with the claimant and the other employee for the specific purpose of clearing up this matter. At the meeting, the claimant initiated threats of physical violence against the other employee. This constitutes gross misconduct. Miller v. Computer Sciences Corporation, 562-BR-87.
b. Use of Weapons
The claimant was discharged for possessing a knife at work and brandishing it while making threatening statements. This was gross misconduct. Smith v. Bethany House, Inc., 732-BR-89.
The employer had a clear rule prohibiting weapons on company property. The claimant brought a weapon concealed on his person onto company property in violation of the rule. Although he didn't brandish the gun, or threaten anyone with it, the claimant created the possibility of an extremely volatile situation by bringing the gun on the premises. The fact that the gun was unloaded is immaterial. The claimant made the employer's work environment unsafe, showing a gross indifference to the employer's interests. This constitutes gross misconduct. Parker v. Showell Poultry, Inc., 998-BR-91.
a. In General
The striking of a coworker, unless done in reasonable self-defense, clearly meets the definition of gross misconduct. The claimant in this case intentionally slapped a co-worker in the face, after the co-worker asked her to be quiet. Nelson v. Wyman Park Health System, Inc., 389-BH-84.
The claimant, an assistant manager, became involved in a dispute with her coworker. As a result of the dispute, she slapped her coworker on the arm. She was discharged because of this. This was an isolated incident. The claimant had no history of inappropriate behavior toward coworkers. The claimant had not been warned or disciplined for this type of action of in the past. The Board does not find this to be so egregious as to warrant a finding of gross misconduct. The Board concludes that this was simple misconduct for which the claimant should receive a 10-week penalty. Hinojosa v. North Central VA Restaurant, Inc., 4895-BR-12.
Although the claimant was initially struck by another employee, the claimant's attempt to continue to fight, despite orders to stop and efforts to physically restrain the claimant, constitutes gross misconduct. Goodall v. Holy Cross Hospital, 507-BR-84.
Serious verbal provocation by a coworker does not prevent physical assault by the claimant from being gross misconduct. Alston v. Phillips Harborplace, 707-BH-86.
The claimant went out the front door of the employer’s store and approached a man that had been standing in the area for some time. The man owed the claimant money from a bet that he lost. The men started talking which led to a verbal altercation between them. Instead of going back into the store and avoiding further escalation of the situation, the claimant took his hood off and prepared for further escalation of the situation. The verbal altercation turned into a physical altercation. The individual lunged at the claimant, threw him off balance and punches were thrown. While holding each other up, both parties fell into a customer’s car that was parked in the parcel pick-up area. The manager tried to break up the fight but was unsuccessful. The fight ended when the owner of a car told them to watch out for his car. The claimant was discharged for fighting on the job, which violated company policy. The Board held this was gross misconduct. Johnson v. Santoni’s Market, Inc., 3639-BR-12.
The claimant had been verbally taunted by her coworker. The claimant was told by her supervisors to remain in her work area. The claimant entered the work area of the coworker who had taunted her and pointed her finger in the coworker’s face, causing the coworker to strike the claimant. The claimant’s action escalated the conflict into a physical altercation. The claimant was aware of the employer’s policy against fighting at work. The Board held that the claimant was discharged for fighting with a coworker and that the employer met its burden of proving gross misconduct. Byrd v. Delmarby, Inc., 3812-BR-12.
An individual may use non-deadly force in self-defense anytime he reasonably believes that unlawful force is about to be used against him. This is true even where one is defending himself against an attack by his superiors on the job. Winchester v. Joseph J. Hock Company, 232-BH-83.
The claimant was discharged for repeatedly hitting his employer in self-defense in an assault which was initiated by the employer. The claimant's actions caused multiple injuries to the employer. Under the circumstances, the claimant overreacted and used more physical force than was reasonable or necessary to defend himself and his actions constitute misconduct. However, the employer was clearly the initial aggressor and therefore, the claimant's actions do not constitute gross misconduct. Sacco v. Jones Associates, 146-BH-84.
The claimant was verbally accosted by a coworker who was determined to provoke a fight with her. The coworker physically attacked the claimant who attempted to free herself, but did not hit the coworker. Reasonable acts of self-defense do not constitute gross misconduct, nor does one mild statement of retort made by the claimant. Forman v. Associated Catholic Charities, 935-BR-91.
Where the claimant was knocked to the floor and pushed against the wall several times, her striking out in self-defense was not misconduct, even where it violated a company rule. Castle v. W.D. Byron and Sons, Inc., 675-BR-93.
The claimant's supervisor confronted him in a verbally abusive manner and physically assaulted him. The claimant knocked away the supervisor's hand when he attempted to make physical contact with the claimant. The claimant did nothing more than any reasonable person would have done. The claimant's action of self-defense does not rise to the level of misconduct under Section 8-1003. Bourgeois v. General Motors Corporation, 3593-BR-94.
The claimant, a foreman, went to a job site where a subordinate worked. The claimant asked this employee to collect the tools and help load them into the employer’s van. The employee refused and began to chest bump against the claimant several times, blocking the claimant’s path to the van. The claimant picked up a piece of board and hit the employee on the leg. The employee retreated. The claimant left the site. Neither the claimant nor the employee was injured. The claimant did not initiate the confrontation and did not exacerbate the situation. He did what he believed was in the employer’s best interest in protecting the other employees. The claimant did not fight with the other employee, but stopped him from aggressive actions. There was no evidence that the claimant acted out of proportion to the event. The Board held that there was no evidence that the claimant’s discharge was for any disqualifying reason under the law. Murphy v. DC Fire Protection LLC, 2613-BR-12.
The claimant leaned over a short cubicle wall and attempted to take dispatch radios from a co-worker’s desk. That coworker slapped the claimant in the face as she attempted to get the radios from his desk. The claimant tried to hit the coworker back with her hand after he slapped her in the face. The claimant missed him. The claimant then detached the metal cover off the top of the cubicle wall and used it to hit the coworker. The claimant was terminated for fighting after a company investigation. The Board found that although the claimant was struck by a coworker, the claimant’s attempt to continue the fight by striking at the coworker with a piece of metal exceeds any reasonable argument for self-defense. Instead, the actions of the claimant were a deliberate and willful disregard of the standards the employer has a right to expect. They escalated the conflict, contrary to the employer’s interests and expectations. The discharge was for gross misconduct. Sander v. MV Contract Transportation, 4466-BR-13.
A female former coworker came into the store to talk to the claimant. The claimant attempted to walk away and ignore the woman. The two argued and the woman escalated the situation by throwing a pack of yogurt at the claimant. The claimant pushed the woman and she fell. Her garment was accidentally cut and she asked for the police to be called. The claimant was discharged solely as a result of this incident. The claimant could have avoided the situation if he had simply continued to walk away. He could have gone to a supervisor or someone in authority and asked that the woman be removed. When the claimant elected to confront the woman, and pushed her, he acted in breach of his duties to the employer. This was simple misconduct. The Board assessed a ten-week penalty. Wright v. Shop Rite of Glen Burnie LLC, 1758-BR-13.
The claimant and his coworker got into a public argument at work. The argument escalated to physical contact. The claimant was not the initial aggressor in the incident. However, the claimant knowingly and deliberately participated in the disruptive behavior and in the physical altercation with a coworker. The claimant and the coworker battered one another. The claimant took insufficient steps to avoid a confrontation with the coworker. The claimant actively and deliberately participated in the physical and verbal altercation. The claimant’s actions were not in self-defense. This behavior is wholly unacceptable in a medical facility. The Board finds that the claimant’s actions were a deliberate and willful disregard of the standards of behavior that his employer had the right to expect and evinced a gross disregard to his employer’s interests. Because the claimant willfully engaged in the confrontation, the coworker’s initial aggression is not mitigating. The Board found this was gross misconduct. Reyes v. Fort Washington Medical Center, Inc., 2789-BR-14.
3. Patient Abuse
The claimant's violation of a strict rule which prohibited employees from leaving a patient unattended in the bathtub constituted gross misconduct, particularly due to the potential danger to the patient. Brown v. Garrison Valley Center, Inc., 27-BH-85.
The claimant was a direct care aide at a long-term care facility for mentally retarded and disabled persons. A housekeeper for the employer observed the claimant beating a patient with a tennis racquet, kicking the patient on the head and chest and engaging in this conduct for a half-hour. This was gross misconduct. Jackson v. Rosewood Center, 314-BH-88.
The claimant was suspended from her job as a home health aide at a senior citizen retirement community due to her continuing pattern of abusive behavior toward patients. These acts included verbal abuse, aggressive treatment, leaving a patient in a wheelchair for long periods of time, failing to feed a patient, grabbing a walker away from a patient and threatening to shut the door on a patient. These actions constitute gross misconduct. Morten v. Lorien Home Health Care Agency, 556-BH-91.
The claimant, a bus driver and activity aide for nursing home patients, left the patients on the bus in the parking lot of a Wal-Mart for 35 to 45 minutes while she did some personal shopping at that store. It was a hot day in August. The claimant's conduct was gross misconduct. Dancy v. Carroll Lutheran Village, 293-BR-93.
B. Alteration of Time Cards
1. Gross Misconduct Found
The claimant was discharged for falsifying his time sheet in order to hide his lateness. This was gross misconduct. Wilton v. Department of Health, 685-BR-89.
The claimant knowingly altered his time cards on two occasions in an attempt to receive more wages than he had earned. After the first incident, he received a reprimand and a suspension. The claimant was discharged for gross misconduct. Gieryic v. Tri-State Motor Transit Company, 140-BR-90.
The claimant allowed several pay periods to be documented indicating that she had worked days in those pay periods which she in fact had not worked. The claimant received payment for these days. The claimant took no action to correct this situation. This was gross misconduct. Blackwell v. Maryland Training School, 581-BH-91.
Leaving the workplace without punching out on the time clock is a falsification of work records. Thomas v. Deaton Hospital and Medical Center, 1131-BR-93.
2. Misconduct Found
The claimant was discharged for falsifying his time sheet in order to hide his lateness. This was gross misconduct. Wilton v. Department of Health, 685-BR-89.
The claimant knowingly altered his time cards on two occasions in an attempt to receive more wages than he had earned. After the first incident, he received a reprimand and a suspension. The claimant was discharged for gross misconduct. Gieryic v. Tri-State Motor Transit Company, 140-BR-90.
Leaving the workplace without punching out on the time clock is a falsification of work records. Thomas v. Deaton Hospital and Medical Center, 1131-BR-93.
3. No Misconduct Found
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 employee's time card. The claimant was discharged, but was given no warnings. The evidence was insufficient to show that the claimant's action was more than a mistake and no disqualification was imposed. Hartman v. Polystyrene Products Company, Inc., 164-BH-83.
Employer policies alone do not determine whether a claimant is discharged for gross misconduct or misconduct. Policies will help define what the employer expects and requires. But it is the actions or omissions of a claimant which establish misconduct. Here the employer’s practice was that the claimant submitted his time sheet on Friday mornings. He was to estimate the work time for the last day and correct the time sheet later if he worked different hours. The claimant properly submitted the time sheet in the morning, indicating his intention, at that time, to work until mid-afternoon. Later that day, he decided to leave work early, believing that he could correct his time sheet later and properly report the hours he actually worked. He did not tell the employer that he was leaving early. In practice, the claimant moved from one job site to another throughout the work day. He probably should have told the employer he was leaving early, but his carelessness in this regard was not an act of willful misconduct. The Board held there was no misconduct. Kirkpatrick v. URS Corporation, 3695-BR-11.
C. Cash Shortages
1. In General
The claimant was discharged for four shortages in a cash drawer shared with other individuals where the claimant did not count and was never instructed to count the cash in the drawer. The evidence was insufficient to support a finding of misconduct. Fox v. Brother's Place, 171-BH-84.
The claimant bank teller deliberately and willfully tore the tape of two transactions out of her machine, strictly against company audit regulations. This action made untraceable a loss of money to her employer. The claimant had been previously warned on several occasions for various breaches of bank regulations. This was gross misconduct. Cooper v. Carrollton Bank of Baltimore, 338-BH-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 that the claimant disappeared at the same time. 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.
2. Agreement to Indemnify Employer
The Fair Labor Standards Act, and its regulations, provide that deductions for shortages cannot be made from the wages of gasoline service station workers if such deductions bring the employee's remuneration below the minimum wage. Hatfield v. Tri-State Oil, 390-BR-82.
1. From Employer
Although the claimant did not misappropriate for herself any money from the employer's petty cash fund, she did repeatedly forge the names of company officials on the authorization forms without their knowledge or approval in violation of company policy. Deliberate misuse of the employer's petty cash fund, even if done for reasons other than personal gain, is gross misconduct. Decker v. Maryland Cup Corporation, 347-BR-87.
The claimant paid herself out of the register, but this was a practice condoned by the employer. There was no misconduct. Reno v. Lorenzo's, Inc., 434-BR-88.
The claimant purchased merchandise for himself from the employer and discounted the price of the merchandise below the regular ten percent employee discount, even though it was not on sale at the time. He did not have his supervisor's approval to do this. The claimant was well aware of the company policy that strictly forbade such an action. The claimant was discharged for gross misconduct. Angel v. Service Merchandise Company, Inc., 57-BH-90.
The claimant admitted that he pled guilty to forging credit slips for customers and pocketing the cash which the customers gave him. The claimant's lawyer submitted an Alford plea, which is a guilty plea, entered upon voluntarily, with full knowledge of the crime alleged and of the possible consequences of pleading guilty to it. The judgment of guilty entered after such a plea can be used as evidence, in an unemployment insurance case, that the claimant actually did the act alleged. The claimant was discharged for gross misconduct. Hanlin v. Jake's Service Station, 1213-BR-90.
Selling confidential information from the employer's files is gross misconduct in itself, even if the claimant was unaware of the scheme by which this information was going to be used to perpetrate a massive fraud on credit card companies. Eaddy v. Hertz Corporation, 83-BH-92.
The claimant was discharged for stealing copper tubing and several brass water meters from the employer and selling them to a recycling facility. He was not authorized by the employer to remove or sell any of the items taken. The claimant was charged with theft and pled guilty to the charges in the Circuit Court for Cecil County, Maryland. The Board held that the discharge was for gross misconduct. Martin v. Town of Elkton, 5585-BH-11.
The employer’s policy prohibited cashiers from ever adding or removing any money from their cash registers for personal reasons. The claimant was aware of the policy. The claimant deliberately took six cents from the employer’s register drawer to make up the shortfall he needed to purchase a snack. It is inconsequential that the claimant thought this extra change was not really the employer’s money because other customers sometimes left their extra change. The change was in the register. All funds in the register are the property of the employer. There is no difference between the claimant’s action in taking six cents, six dollars or six hundred dollars. Any willful or intentional misappropriation by a claimant of funds belonging to an employer is tantamount to theft and is gross misconduct. Arnold v. Mars Super Markets, Inc., 4360-BR-12.
2. From Customers or Coworkers
The claimant, who deliberately overcharged customers and failed to turn in all the money collected, was discharged for gross misconduct. Boardman v. Creative Hairdressers, Inc., 241-BH-87.
The claimant failed to deliver a paycheck to a subordinate employee and instead converted it to her own use. The claimant offered no reasonable excuse for doing this. This was gross misconduct. Coward v. Federal Express Management, 21-BR-89.
On more than one occasion, the claimant received rent money from tenants in the housing project where she worked, but neither turned in the money to management nor credited the tenants as having paid. She issued tenants phony receipts. As a result, some tenants were scheduled for eviction. The claimant was discharged for gross misconduct. McNair v. Housing Authority of Baltimore, 1111-BH-89.
3. Misappropriation of Employer's Property
The claimant removed a piece of steel shelving from the employer's premises with his supervisor's permission and was later discharged for theft. The employer failed to meet its burden of proving that the claimant's actions constituted theft. Rather, the claimant's termination resulted from a misunderstanding and no disqualification was imposed. Bass v. Harbor Construction, Inc., 87-BH-83.
The claimant nursing home worker took unused cartons of milk from the trays used to feed patients. The unused cartons would normally be thrown away, but the taking home of such food was strictly against the employer's policy. The patients, in fact, had been complaining about not getting their milk. This was gross misconduct because the employer's intended disposition of the property did not make it abandoned property, and the employer's policy was designed to discourage the very type of activity in which the claimant was engaged. Pittman v. Meridian Nursing Center, 878-BR-86.
The claimant paid off a personal debt to a customer by misappropriating six of the employer's knives and exchanging them with the customer in order to cancel his personal debt. This deliberate misappropriation of the employer's property is gross misconduct. Banks v. Adams-Burch, Inc., 906-BH-87.
The claimant was discharged for unauthorized use of the employer's computer equipment and materials, unauthorized conduct of personal business while on duty, insubordination and misuse of administrative/judicial procedures. The claimant used the employer's equipment to generate more than 100 documents for the claimant's personal use. This was done despite a memorandum from the employer prohibiting this type of activity and a warning from the claimant's supervisor. The claimant was discharged for gross misconduct. Hanlon v. Department of Commerce, 759-BH-89.
The claimant worked as a project manager at a janitorial service company. The claimant instructed one of the employer's employees to report to a specific work site which was not affiliated with any of the employer's clients, and to perform work at this site with the employer's equipment, materials and supplies. The claimant also authorized payment to the individual performing such services from the employer's payroll department, knowing that the assignment of the individual to this particular project was for the sole and direct benefit of the claimant's own janitorial services company. The claimant was discharged for gross misconduct. Hart v. Eagle Maintenance Service, Inc., 677-SE-90.
The claimant was discharged for allegedly misusing the employer’s computer for personal reasons, arriving late for work and not effectively communicating progress on her required reports. The claimant was authorized at hire to have flexible hours. If she arrived 15 to 30 minutes late, she would stay later to make up the time. After the employer retracted the flex time, she never arrived late. The claimant always met her deadlines for when a project was due. The report always met the employer’s expectations. The employer did not have a policy regarding personal use of the computer during work hours. The claimant used it for personal business during her lunch hour. The Board held there was no gross misconduct or misconduct. Weiner v. Hedgecheck LLC, 1966-BR-11.
The claimant was terminated for theft. From April 1, 2013 to May 25, 2013, the claimant issued Players Cards (cards for free casino play) to his friends and family. The cards were created by the claimant using another employee’s computer log-in and using fictitious names and addresses devised by the claimant. The claimant gave cards of varying amounts for free play to friends and family. The unauthorized free play cards issued by the claimant totaled $13,835.00. The claimant admitted his activities to the employer when confronted but denied any monetary benefit from his acts. The Board held that the claimant was discharged for gross misconduct. Foote v. PPE Casino Resorts MD LLC, 5247-SE-13.
The claimant’s estranged husband attempted to fill fraudulent prescriptions written on pages from pads identified as belonging to the employer and which included DEA numbers from physicians at the employer’s facility. The claimant’s husband did not work for the employer and had not been a patient of the employer’s facility. There was no other connection between the employer and the fraudulent prescriptions except the claimant. The employer established that the claimant was the person responsible for the prescription pads from which the pages were obtained and used; she signed for them in the employer’s log records. The employer’s evidence demonstrated that the claimant had access to DEA numbers used by physicians at the employer’s facility. The Board of Pharmacy concluded that the claimant’s actions warranted criminal charges and a suspension of her pharmacy technician’s license. The employer concluded the claimant’s actions warranted her discharge. The Board held that the employer produced evidence sufficient to prove that the claimant was discharged for gross misconduct. Richard v. Carroll Hospital Center, 550-SE-14.
E. Destruction of Property
1. Employer's Property
The claimant's deliberate destruction of company property constitutes gross misconduct. Patterson v. Mack Trucks, 188-BH-84.
The claimant was terminated for destroying property of the employer's subcontractor during a labor dispute. This was a deliberate interference with a subcontractor doing business with the employer and was precisely designed to harm both the employer and the subcontractor. This was gross misconduct. Chabot v. Wolmendorf, Inc., 719-BR-83.
2. Customer's or Client's Property
The claimant removed several checks to closed account customers, valued at over one-half million dollars, from the bank and threw them away in an effort to rid himself of his backlog. This was gross misconduct. Roux v. Maryland National Bank, 301-BH-84.
3. Coworker's Property
The claimant, who deliberately damaged a coworker's car on the employer's premises, was discharged for gross misconduct. Chase v. General Motors Corporation, 138-BH-87.
F. Competition with Employer's Business
The employer knew when it hired the claimant that the man to whom she was engaged worked for a company with competitive interests. The claimant assured her employer that she would not share any information about her employer with her future husband. When she told a coworker of a job opportunity at the company where her husband worked, and the employer found out that the coworker applied for the job, the claimant was discharged. The claimant violated a duty to her employer to refrain from any actions or discussions that could be a conflict of interest between her husband's company and the employer. The claimant's actions constitute misconduct, but not gross misconduct, as there was no evidence that she intended to, or even caused, any harm to her employer. The claimant was not competing with her employer, was not being compensated by another employer, and was not using or revealing any information she had received in confidence as a result of her job. Franklin v. Printers II, Inc., 140-BH-86.
The claimant, who was general counsel and general manager for the employer, engaged in giving legal advice to a potentially competitive company being formed by a coworker. After the coworker resigned, the claimant misled the employer with regard to her knowledge of his activities. When specifically asked about the possibly competitive business, the claimant refused to answer, citing attorney-client privilege. The claimant violated a duty of loyalty to the employer by putting herself in a position whereby she could not even advise her employer of the potentially competitive activities of its ex-employee. This was gross misconduct. Ruscitella v. Theriault's, Inc., 396-BR-86.
The claimant breached his duty of loyalty to the employer by contacting a company for which the employer was an exclusive distributor in order to inquire about the claimant becoming a distributor himself. The prohibition against competing with one's employer is not limited to competition for the employer's customers. Competition for a valuable exclusive distributorship held by the employer is also a serious breach of the duty of loyalty owed by an employee to an employer. The claimant was discharged for gross misconduct. Law v. Sporting Angler, Inc., 372-BR-90.
The claimant was aware of the employer's requirement that the claimant needed the employer's prior approval in order for the claimant to do any side jobs similar to the type of work he did for the employer. In violation of this requirement, the claimant did numerous side jobs for the employer's customers. The acts of the claimant were in direct competition with the employer. The claimant was discharged for gross misconduct. Price v. Automatic Security Systems, Inc., 779-BH-90.
The claimant deliberately passed information about one of the employer's customers to a competitor. The claimant was discharged for gross misconduct. Jones v. Cellular One Custom Center, 1275-BR-90.
Prior to the claimant’s last day of work, the daycare director asked the claimant if she planned on opening her own day care business. The claimant replied “no.” The claimant’s answer was not truthful. The claimant in fact was developing a home daycare business. The business, however, was not operating. Subsequently, the employer learned the claimant had taken concrete steps to open her own business. The claimant did not solicit the employer’s clients. The salient issue in this case is whether the claimant had an affirmative duty to disclose to her employer her future business or employment plans. On the facts of this case, the Board finds no controlling legal authority requiring the claimant to do so. The reason the claimant did not disclose her future plans was out of the reasonable fear she might lose her present employment. The Board finds that the claimant’s “no” answer, albeit untruthful, but viewed in the totality of the circumstances, does not constitute a wrongful act, a course of wrongful conduct or a violation of employment rules. The claimant was discharged, but not for misconduct or gross misconduct. Stewart v. Rainbow Academy, Inc., 369-BR-12.
G. Misuse of Position
The claimant was employed as an addictions counselor in a mental health center and worked with clients who had drug problems. The claimant used his position of authority to demand money from clients of the mental health center. This amounts to gross misconduct. Kimble v. Glass Mental Health Center, 1206-BH-91.
The claimant put a note on the desk of a person who contracted with her employer, attempting to get her daughter a job. The claimant knew that the person was exceptionally susceptible to pressure from her employer. The claimant's deliberate misuse of her employment position in order to gain benefits for herself from a contractor is gross misconduct. Kinter v. Baltimore Gas and Electric Company, 1484-BH-92.
H. Falsification of Employment Application
The claimant's deliberately misleading statement to the employer concerning his experience and ability to perform the dangerous job of crane operator constitutes gross misconduct. Faudree v. C.M. Anderson's Crane Service, Inc., 819-BR-83.
The claimant bank teller responded in the negative to a question on the employment application which asked if she had ever been convicted of a crime. The claimant had appealed a previous District Court conviction to the Circuit Court, where it was placed on the stet docket and therefore, the claimant believed that the conviction did not stand. There is no disqualification under Section 8-1002 or 8-1003 since the claimant's belief was factually correct. Furthermore, a statement is not a "falsification" when the person making the statement honestly believes that he or she is telling the truth. Karim v. Union Trust Company, 136-BH-84.
On the claimant's job application, he answered "No" to a question asking whether he had ever been convicted of any offense against the law. Subsequently, the employer learned that the claimant had a prior conviction for receiving stolen goods. The claimant resigned in lieu of discharge. This was gross misconduct. A falsification of a criminal record is more serious than misrepresenting one's age and is always material. Johnson v. Minneapolis Postal Data Center, 83-BH-89.
The claimant was discharged because he allegedly falsified his job application by failing to volunteer detrimental information about his past life. However, the employer did not ask any questions about this. As long as the information which the claimant submits is truthful, he has no obligation to offer additional information not requested by the employer. The employer is in control of the information flow in this situation. If the employer does not ask a question, it cannot expect it to be answered. There is no misconduct in the claimant's failure to volunteer detrimental information about his past life. Darby v. Buckingham Correctional Institution, 607-BR-91.
While falsification of an employment application is misconduct, the degree of misconduct (simple or gross) depends on the materiality of the information falsified. Discharge by a prior employer for embezzlement is a highly material factor when applying to work in a bank, and the claimant should have disclosed this fact. Her failure to do so was gross misconduct. Hill v. First National Bank, 1958-BR-92.
Where the claimant made no specific false statement on her application or in her interview about her work experience, the fact that she displayed confidence at her interview that she could perform the job tasks comfortably, then later became nervous when faced with the actual tasks, is not proof of a false statement, and does not amount to misconduct. Hamby v. Seth H. Lourie, et al., 118-BR-93.
The claimant was not under any obligation to his new employer to reveal on his application unsubstantiated false allegations made against him at a previous job. Vassallo v. Loyola Federal Savings Bank, 1468-BR-93.
The claimant applied for a position as a housekeeping aid, a position which requires neither a high school diploma nor a G.E.D. At the time she applied, the claimant was awaiting scores from her G.E.D., but told the employer that she had her G.E.D. The employer hired the claimant. She did not pass the G.E.D., but did not inform the employer. She applied to the employer for another position that did require a high school diploma, and stated that she had one. The employer noticed the inconsistencies on her two applications and subsequently discharged her. The Board held the claimant’s intentional misrepresentation on the job application was material because it related to the minimum qualifications for the position. The claimant, knowing she did not pass the G.E.D., intentionally took no steps to correct her misrepresentation. The discharge was for gross misconduct. Jones v. Johns Hopkins Bayview Medical Center, 5098-BR-10.
The claimant was discharged in 2012 for being dishonest when he failed to reveal an Oklahoma conviction in his 1996 application for employment. The claimant did not believe he had been convicted because the Court in Oklahoma did not enter a judgment of guilty. Instead, the Court deferred his sentence. Additionally, the claimant explained this entire situation to the employer in 1998. Any possible omission of critical information from his application was cured by the 1998 discussion and following memorandum. The Board does not find that the claimant falsified his application initially. The Board further finds that the claimant answered the employer’s questions truthfully, as he believed that truth to be. The claimant was honest and forthcoming with his employer at the time he made his application for employment. The Board does not find any degree of misconduct in the reasons for the claimant’s discharge from this employment. Swift v. Center for Social Change, Inc., 2846-BR-12.
The claimant was discharged for lying on his application for employment. Specifically, he did not disclose as asked, that he had a conviction on a misdemeanor theft charge dating back to July 2, 2009. The employer considered the information that the claimant falsified on his application to be critical. The Board, however, cannot find this to be gross misconduct. The claimant’s action, in failing to disclose this, was a breach of his duty to the employer and, therefore, was misconduct for which he should receive a penalty. It was not sufficiently egregious to warrant a complete disqualification from benefits. The Board imposed a 15-week penalty. Turner v. Baltimore Ravens Limited Partners, 1288-BR-14.
The claimant was employed as a full-time transit coach driver. She was discharged for falsification of her Medical Examination Report, which was completed on April 4, 2012, as part of the claimant’s required initial employment paperwork. In response to a question asking whether or not the claimant had a nervous or psychiatric disorder, the claimant checked the box indicating she did not. In response to the request to list medications, the claimant left that part of the form blank. The claimant had been diagnosed in November 2011 with bipolar disorder, anxiety and depression. The claimant has been treated for these disorders with medication. The claimant’s position required her to operate vehicles owned by the employer on public streets. The claimant’s physical and mental health, as well as what medications the claimant was taking, were important and material to whether or not the claimant could safely perform the duties for which she was being hired. The claimant had an obligation to respond fully and honestly to the questions regarding her health and what medication she was taking. The claimant failed to produce evidence that she was advised that she did not have to disclose her medical disorders at the time of filling out the application. The Board held that the discharge was for gross misconduct. Medina v. Broadway Services, Inc., 958-BH-14.
I. Falsification of Other Work Records
The claimant had been previously warned about failing to complete his route and failing to properly record his contacts with the households he was supposed to be visiting. He had also been specifically warned not to make up "not at home" cards in advance of actually determining whether anyone was home. The claimant was discharged for making false entries on his computer, indicating that he had visited a number of houses but no one was home. This was gross misconduct. Younger v. Washington Suburban Sanitary Commission, 259-BH-91.
The claimant was a shift worker. He worked with a shift leader. The shift leader presumably had the authority to direct the claimant’s work. The shift leader instructed the claimant to sign voided transactions. He did, based upon his belief that he was expected to do so and that the shift leader would not so instruct him without good reason. The employer later learned that the customers whose sales were voided had in fact paid for and received their orders. Also, one other customer picked up an order that had not been entered. The evidence did not show that the claimant was in a position to question the shift leader’s directions or her authority. The claimant was discharged for not ringing sales and/or for falsifying voided sales. The evidence does not support a finding of misconduct by the claimant. Kershaw v. Chef Dallas Enterprises, Inc., 2364-BR-12.
The claimant was in a position of responsibility at a water treatment plant to take test readings to insure the water quality for the health and safety of the public. On July 7, 2013, the claimant reported for his shift from midnight to 7:00 AM. He was exhausted from being at the hospital with his wife the whole weekend. Around 4:00 AM, he asked a coworker to cover his duties for him. He went into the lunchroom and fell asleep from 4:00 AM to 6:00 AM. He was required to take test readings every four hours. While sleeping, he missed one of the required readings. However, he logged a reading based on the trend between the earlier reading and the later reading. As a result, the claimant was discharged. The Board found that the claimant knowingly misrepresented the false test reading because he “didn’t want to get fired.” The Board found that the sleeping and falsification evinced a gross disregard to the employer’s interests constituting gross misconduct. Morris v. City of Hagerstown, 4948-BR-13.
The claimant failed to follow company procedures when she signed time sheets and health care benefit forms on behalf of fellow employees. The claimant had the permission of the employees to sign the forms on their behalf. However, the claimant signed the other signatures without any notation that this was per procurationem or other evidence that the claimant signed the forms on their behalf. The claimant’s directive was to secure the employees’ signatures on the documents. The claimant signed the names to meet her employer’s deadline. Additionally, the claimant signed employees’ names on time sheets because they forgot to sign them. The Board held that the discharge was for gross misconduct. Monroe v. Pinkerton Government Services, Inc., 1733-BR-14.
J. Lying to Employer
The claimant was discharged for fabricating an on-the-job injury to collect workers' compensation benefits. This was gross misconduct. Shivery v. Slagle's Construction Company, Inc., 438-SE-88.
The claimant deliberately accused her supervisor of stealing her paycheck when she knew that this was not true and then reported this to the police. The claimant was discharged for gross misconduct. Wilson v. Department of Agriculture, 680-BR-90.
The claimant was on the employer's premises but absent from his actual duty post (the building he was supposed to be cleaning). He had time to clean the buildings, but did not do so. When questioned by his supervisor, the claimant lied, informing his supervisor that he had cleaned the buildings. Although the claimant had a valid excuse for not cleaning the buildings on that particular day, there was no excuse for not reporting the problem and lying to his supervisor. This was gross misconduct. Robinson v. Realty Investment Company, Inc., 853-BR-90.
The claimant called in sick when he was not sick. He also requested that the employer lie to the authorities at the detention center. The claimant was discharged for gross misconduct. Conaway v. Oxford Realty Services Corporation, 51-BR-91.
The claimant was granted jury leave, but the jury duty did not materialize. The claimant took the leave but did not tell the employer that there was no jury duty. The claimant should have either reported to work or changed his leave to a different type of leave. This deceitful conduct violated the employer's rules and amounts to gross misconduct. Since there was no property loss to the employer, the conduct does not amount to aggravated misconduct. Winston v. Glenelg Country School, Inc., 1803-BR-93.
After alcohol and drug rehabilitation at the employer's expense, the claimant signed the employer's substance abuse policy which stated that he was to remain sober. Subsequently, the claimant was arrested for possession of a controlled dangerous substance. His wife called the employer and requested his vacation time for a "family emergency" stating that he had to go to Florida immediately. If the employer had been told the real reason for the absence, the claimant would have been terminated. Using legitimate vacation time under false and misleading circumstances with little or no notice to the employer is a deliberate and willful disregard of standards of behavior that the employer has a right to expect and constitutes gross misconduct. Herche v. Rock-Tenn Company, 329-BR-94.
The claimant lay down on a mat after physically exerting herself with a patient. She was sleeping when she was found by her supervisor. She was only awakened when her name was called. When asked what happened, the claimant gave two differing accounts. The Board is of the opinion that the evidence supports a finding of simple misconduct, but not gross misconduct. This was an isolated incident, precipitated by somewhat mitigating circumstances. The claimant clearly did not intend to fall asleep. However, the claimant deliberately made a false statement to the employer when asked about the incident. The claimant knew or should have known that the employer expected her to be honest in her words and deeds. The claimant’s false statement was a violation of the employer’s work place rules and is sufficient to support a finding of misconduct. Scott v. Holy Cross Hospital of Silver Spring, Inc., 2331-BR-12.
In order to perform his work, the claimant needed to be able to drive a vehicle. Before hire, the employer checked with their insurance broker to run the claimant’s driver’s license number. The broker responded to the employer that “he is good to go.” The claimant failed to disclose to his employer at the time of hire that he had an alcohol restriction on his license. Subsequently, the employer was reviewing the company’s policies and noticed that the claimant was not on the insurance company’s list of drivers for the employer. Thereafter, the employer was notified that the claimant did not qualify as a driver on their commercial automobile policy due to the alcohol restriction which made him unacceptable. The claimant had also received a speeding ticket at this time. After he received a speeding ticket, the employer’s insurance agent told the employer there was nothing more he could do in trying to have the claimant insured. The claimant was discharged. The Board held this was gross misconduct. Widmayer v. Reliable Engineering Services, Inc., 2493-BR-12.
The claimant used an external flash drive in a secure government facility in violation of Federal guidelines. She pulled out a personal flash drive and put it into her work computer because she was updating her resume for submission internally as she was recently promoted to a new position. A warning popped up and she instantly realized she made a mistake and pulled out the flash drive. The claimant failed to inform a supervisor, as required. When the employer learned of the flash drive usage from an audit, the claimant was interviewed. She admitted making a mistake but indicated that the flash drive was in her car. However it was in her purse and she pulled it out during the interview. She said it was in her car because she was nervous. The employer discharged her. While the claimant’s action regarding the flash drive was a single incident of a violation of work place rules, the claimant compounded the seriousness of the episode when she knowingly and deliberately did not tell the truth regarding the location of the flash drive. The fact that the claimant was nervous is not mitigating. While the Board may have found that the flash drive incident constituted simple misconduct, the claimant’s dishonesty regarding the location of the flash drive cannot be overlooked. The Board finds that the evidence evinced the claimant’s total disregard for her employer’s interest rising to the level of gross misconduct. Richards-Tallie v. Lanmark Technology, 3181-BR-13.
The employer viewed a video tape recording that showed the claimant purchasing alcoholic beverages that had been consumed by two underage coworkers. He also questioned the underage coworkers who told him that the claimant was the individual who provided them with the alcoholic beverage. The claimant continued to deny that he did this. The Board found that the claimant illegally purchased alcoholic beverages for underage coworkers and then lied to the employer about the incident. Because the claimant’s actions were illegal and untruthful, the Board finds the claimant was discharged for gross misconduct. Butcher v. Greene Turtle West, Inc., 4119-SE-13.
The claimant was employed part-time as a customer service representative, earning $10.00 per hour. She was charged with handling money for the employer. The claimant was collecting unemployment insurance benefits while she was employed with this employer. The claimant asked the employer to pay her “under the table” so that she would not be required to report her income to the Agency. The employer refused to pay her “under the table.” After the claimant made this request, the employer never scheduled the claimant for another shift. Although the employer did not tell the claimant she was discharged, his actions of not scheduling her for any further shifts manifest an intention to discharge her. The employer could no longer place its trust in the claimant that she would properly handle the money she received. The Board finds that the claimant was discharged for gross misconduct based on the fact that she requested the employer to lie on her behalf to a government agency. Yousefi v. The Milhouse LLC, 1600-BR-13.
The claimant's possession of a handgun, on the employer's premises, was in violation of the employer's rules and contrary to state law, and therefore constitutes gross misconduct. Hill v. Baltimore Box Company, 2073-BR-83.
The claimant correctional officer was suspended pending charges for removal for aiding the escape of inmates by providing blades and hacksaws. This was gross misconduct. Martz v. Maryland State Department of Personnel, 324-BH-85.
The claimant was discharged for knowingly driving the employer's vehicle without a valid license. This was gross misconduct. Collins v. Kronheim Company, Inc., 992-BR-89.