McCarty v. UNEMPLOYMENT APPEALS COM'N

• Decision Date: 09 July 2004
• Docket Number: No. 1D03-3116.,1D03-3116.
• Parties: Patricia A. McCARTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Augustine Trains, Inc., Appellees.
• Court: Florida District Court of Appeals

878 So.2d 432

Patricia A. McCARTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Augustine Trains, Inc., Appellees.

No. 1D03-3116.

District Court of Appeal of Florida, First District.

July 9, 2004.

Carol S. Miller, Esquire, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.

Geri Atkinson-Hazelton, General Counsel; John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.

BENTON, J.

Patricia McCarty appeals the order of the Unemployment Appeals Commission upholding the appeals referee's determination that she was ineligible to receive unemployment compensation benefits even though she was discharged from her position with St. Augustine Trains, Inc., as tour guide, salesperson, and driver of an articulated tram. We reverse.

A seven-year employee,¹ Ms. McCarty lost her job after she drove into a driveway that she had been told not to use, and — when upbraided — defended her choice as necessary to avoid an accident with another tram driver. James Wettach, the president of St. Augustine Trains, explained the reason² for the termination and the circumstances that gave rise to his decision:

I did not fire [her] for the driveway. As I told her I fired her for the noncooperation when I went down to talk about the driveway. If I was going to fire her I wouldn't have gone down to speak with her. I got no cooperation.... Other than that I think both of us pretty much agree on the facts and how it happened....

The "noncooperation" to which Mr. Wettach alluded consisted of Ms. McCarty's telling him "four times to speak to another driver with whom [Ms. McCarty] alleged she had `almost' had a head-on collision." Ms. McCarty "would not really admit that she should not have pulled in there. She firmly believed that she should have."

A majority of the Unemployment Appeals Commission concluded that Ms. McCarty was guilty of "misconduct" disqualifying her for unemployment compensation benefits under section 443.036(29), Florida Statutes (2002), but we share the views Chairman Alan Orantes Forst cogently expressed in dissent.³

"Misconduct" includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

Section 443.036(29), Florida Statutes (2002). "In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee." Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000).

Even if Ms. McCarty's deportment justified her discharge, "`[w]hether an employer has the right to terminate an employee's employment and whether a terminated employee meets the disqualification criteria set out in the unemployment compensation statute are separate issues. See Cooks v. Unemployment Appeals Comm'n, 670 So.2d 178, 180 (Fla. 4th DCA 1996); Livingston v. Tucker Constr. & Eng., Inc., 656 So.2d 499, 500 (Fla. 2d DCA 1995); Hummer v. Unemployment Appeals Comm'n, 573 So.2d 135, 137 (Fla. 5th DCA 1991).' Lusby v. Unemplmt. App. Comm'n, 697 So.2d 567, 568 (Fla. 1st DCA 1997). A single, isolated act of negligence does not constitute disqualifying misconduct. See, e.g., Cooks, 670 So.2d at 180

; Johnson v. Unemplmt. App. Comm'n, 513 So.2d 1098, 1099 (Fla. 3d DCA 1987). `While a violation of an employer's policy[ ] may constitute misconduct, `[r]epeated violations of explicit policies, after several warnings, are usually required.' Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001).' Cooksey-James v. Unemplmt. App. Comm'n, 869 So.2d 1209 (Fla. 2d DCA 2004)." Ash v. Unemplmt. App. Comm'n, 872 So.2d 400, 402 (Fla. 1st DCA 2004).

Ms. McCarty's discharge resulted from a single, isolated incident,⁴ and did not amount to disqualifying misconduct. See Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998)

(holding claimant's actions did not disqualify her from receiving unemployment compensation benefits, where she had been a good employee for three years, but failed to follow a new policy regarding garbage can liners, which led to a loud argument with her supervisor when he confronted her, and ended in claimant's discharge); see also Cullen v. Neighborly Senior Servs., Inc., 775 So.2d 392, 393-94 (Fla. 2d DCA 2000) (holding that an argument in a private office during which the claimant raised his voice and accused the supervisor of not being truthful was an isolated incident that did not preclude unemployment compensation benefits).

While an isolated incident can be disqualifying, if sufficiently egregious, the single-incident cases cited by the Commission involve unexcused, unequivocal, and deliberate disobedience. The present case is devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her employer's interests, even though a policy was violated. See Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000)

("[P]roof of the claimant's violation of the employer's known policy did not rise to the level of disqualifying misconduct connected with work. The employer cites ... cases in which a single act of misconduct was found as disqualifying. A common thread running through all of the cited cases is a finding, supported by competent substantial evidence, that the claimant acted in deliberate and intentional disobedience (in some instances, in flagrant disregard) of a supervisor's order."). While it was disputed whether safety really required Ms. McCarty to use the forbidden driveway, the evidence that Ms. McCarty "firmly believed that she should have" done it — in her employer's as well as her own interest — was clear and uncontroverted, and expressing these views to Mr. Wettach after the fact was not disqualifying misconduct.

Reversed and remanded.

LEWIS, J., concurs; ERVIN, J., dissents.

ERVIN, J., dissenting.

Although not clearly stated by the appeals referee, the finding that Patricia McCarty's "deviations from her route, without asking permission, evince an intentional and willful or wanton disregard of the employer's interests," is, in my judgment, a tacit finding of insubordination, on evidence showing that claimant on two separate occasions willfully and intentionally refused to follow her employer's express directions to operate her tram on a driveway in front of the employment headquarters other than on the center driveway. As such, I consider the finding supported by competent, substantial evidence.

After first being told by the dispatcher of the company's policy to avoid using the driveway in question because of the management's concern for the safety of its customers, Ms. McCarty was seen three days later again entering the center drive, and, when confronted by her employer asking why she had disregarded established policy, she became defensive and argumentative, resulting in her then being relieved from her duties. When she returned to work the following day, she met with her employer, James Wettach, and her attitude had not improved. Wettach described the meeting in the following terms: "[W]e met the next day[;] the conversation ... did not go much better and she would not really admit that she should not have pulled in there. She firmly believed that she should have. It's my final call she shouldn't have [,] so I dismissed her at that time at our meeting."

Obviously, the claimant's willful refusal to comply with the employer's policy cannot be viewed as "[a] single, isolated act of negligence." Ante at 435. Moreover, a single act of insubordination can establish misconduct. See Pascarelli v. Unemployment Apps....